As
filed with the U.S. Securities and Exchange Commission on February 5, 2025
Registration
No. 333-283798
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No.1 to
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
NEURAXIS,
INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
|
|
45-5079684 |
(State
or other jurisdiction of
incorporation
or organization) |
|
|
|
(I.R.S.
Employer
Identification
Number) |
11611
N. Meridian Street, Suite 330
Carmel,
IN 46032
Telephone:
(812) 689-0791
(Address,
including zip code and telephone number, including area code, of registrant’s principal executive offices)
Brian
Carrico
Chief
Executive Officer
Neuraxis,
Inc.
11611
N. Meridian Street, Suite 330
Carmel,
IN 46032
Telephone:
(812) 689-0791
(Name,
address, including zip code and telephone number, including area code, of agent for service)
Copies
of all communications, including communications sent to agent for service, should be sent to:
Joseph M. Lucosky, Esq.
Steven A. Lipstein, Esq.
Lucosky Brookman LLP
101 Wood Avenue South, 5th Floor
Woodbridge, NJ 08830
(732) 395-4496
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering: ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
Large
accelerated filer |
|
☐ |
|
Accelerated
filer |
|
☐ |
|
|
|
|
Non-accelerated
filer |
|
☒ |
|
Smaller
reporting company |
|
☒ |
|
|
|
|
|
|
|
|
Emerging
growth company |
|
☐ |
The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this preliminary prospectus is not complete and may be changed. These securities included in this Registration Statement,
of which this prospectus, are subject to an effective Registration Statement. This preliminary prospectus is not an offer to sell these
securities and we are not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED FEBRUARY 5, 2025
PRELIMINARY
PROSPECTUS
![](https://www.sec.gov/Archives/edgar/data/1933567/000149315225005024/forms-3_001.jpg)
NEURAXIS,
INC.
$25,000,000
of
Common
Stock
Preferred
Stock
Warrants
Rights
Units
Offered
by the Company
9,076,978
Shares of Common Stock
Offered
by the Selling Stockholders
We may offer and sell up to $25 million in the aggregate
of the securities identified above from time to time in one or more offerings. The selling stockholders identified herein (the “Selling
Stockholders”) may offer and sell up to an aggregate of 9,076,978 shares of common stock, including (i) 1,786,117 shares
of common stock consisting of (1) 786,552 shares of common stock issued to certain shareholders before the Company’s initial public
offering (the “Pre-IPO Shareholders”), (2) 59,055 shares of common stock issued to certain investors in connection with their
purchases of the Series B Preferred Stock, and (3) 940,510 shares of common stock issued to certain shareholders after the Company’s
initial public offering (the “Post-IPO Shareholders”), which are unrelated to the issuance of Series B Preferred Stock, (ii)
2,139,883 shares of common stock issuable upon exercise of warrants issued to certain investors (the “Warrant Shares”), (iii)
4,280,939 shares of common stock issuable upon conversion of 4,280,939 shares of Series B Preferred Stock, and (iv) 870,039
shares of common stock issuable as dividends when declared by the Company with respect to Series B Preferred Stock (“Series B Preferred
Stock Dividend Shares”), pursuant to section 3 of the certificate of designation of preferences, rights and limitations of Series
B Preferred Stock. The 9,076,978 shares of common stock offered by the Selling Stockholders are defined herein as the “Selling
Stockholder Shares.”
Each
time we or the selling stockholders offer(s) and sell(s) securities, we or such selling stockholders will provide a supplement to this
prospectus that contains specific information about the offering and, if applicable, the selling stockholders, as well as the amounts,
prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus with respect
to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our
securities.
We
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers, or agents are
involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission, or discount arrangement
between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement.
See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution”
for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing
the method and terms of the offering of such securities.
In
addition, the Selling Stockholders may sell the common stock at market prices prevailing at the times of sale, prices related to the
prevailing market prices or negotiated prices. The Selling Stockholders may offer our common stock to or through underwriters, dealers
or other agents, directly to investors or through any other manner permitted by law, on a continued or delayed basis. We will bear all
costs, expenses and fees in connection with the registration of the securities offered by this prospectus, and the Selling Stockholders
will bear all incremental selling expenses, including commissions and discounts, brokerage fees and other similar selling expenses they
incur in sale of the securities. See “Plan of Distribution”.
We
will not receive any proceeds from the sale of any securities by the Selling Stockholders. The registration of the securities covered
by this prospectus does not necessarily mean that any of these securities will be offered or sold by us or the Selling Stockholders.
The timing and amount of any sale of the Selling Stockholder Shares is within the Selling Stockholders’ sole discretion, subject
to certain restrictions. To the extent that such Selling Stockholders sell any securities, such holder may be required to provide you
with this prospectus identifying and containing specific information about the Selling Stockholders and the terms of the securities being
offered.
The
Selling Stockholders and intermediaries through whom the securities are sold may be deemed “underwriters” within the meaning
of the Securities Act of 1933, as amended (the “Securities Act”), with respect to the securities offered hereby, and any
profits realized or commissions received may be deemed underwriting compensation.
The aggregate market
value of our outstanding common stock held by non-affiliates is $19,702,173.12 based on 7,176,393 shares of common stock
issued and outstanding, of which, 881,769 shares are held by affiliates, and a per share price of $3.13 based on the
closing sale price of our common stock on January 27, 2024 (the
highest closing sale price within the sixty days prior to the date of this filing). Pursuant to General Instruction I.B.6 of Form S-3,
in no event will we sell our common stock in a public primary offering with a value exceeding more than one-third of our public float
in any 12-month period so long as our public float remains below $75,000,000. We have not offered any securities pursuant to General
Instruction I.B.6. of Form S-3 during the prior 12 calendar month period that ends on and includes the date of this prospectus.
Our common stock is listed on the NYSE American under
the symbol “NRXS”. On February 4, 2025, the closing price of our common stock on the NYSE American was
$2.60 per share.
We
are an “emerging growth company” under applicable Securities and Exchange Commission rules and are subject to reduced public
company reporting requirements.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page 2 of this prospectus.
You should carefully consider these risk factors, as well as the information contained in this prospectus, before purchasing any of the
securities offered by this prospectus.
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.
Prospectus
dated [●], 2025.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a “shelf”
registration process. By using a shelf registration statement, we may sell securities from time to time and in one or more offerings
up to a total dollar amount of $25,000,000, and the Selling Stockholders may, from time to time, sell up to 9,076,978 shares of
common stock as described in this prospectus.
Each
time that we or the Selling Stockholders offer(s) and sell(s) securities, we or the Selling Stockholders will provide a prospectus supplement
to this prospectus that contains specific information about the securities being offered and sold and the specific terms of that offering.
The prospectus supplement may also add, update, or change information contained in this prospectus with respect to that offering. If
there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the
prospectus supplement. Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus
supplement, together with the additional information described under the headings “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference.”
Neither
we nor the Selling Stockholders have authorized any other person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it. We will not make an offer to sell these securities in any jurisdiction
where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and the applicable prospectus
supplement to this prospectus is accurate as of the date on its respective cover, and that any information incorporated by reference
is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition,
results of operations and prospects may have changed since those dates.
You
should rely only on the information contained in this prospectus. Neither we nor the Selling Stockholders have not authorized anyone
to provide any information or to make any representations other than those contained in this prospectus we have prepared. Neither we
nor the Selling Stockholders take any responsibility for and can provide no assurance as to the reliability of, any other information
that others may give you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. The information contained in this prospectus is current only as of its date.
As
used in this prospectus, the terms “we,” “us,”, “the Company”, “our,” and “Neuraxis”
refer to Neuraxis, Inc., a corporation organized under the laws of Delaware, including our subsidiaries, unless the context indicates
a different meaning.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains “forward-looking statements”. Forward-looking statements discuss matters that are not historical facts.
Because they discuss future events or conditions, forward-looking statements may include words such as “anticipate,” “believe,”
“estimate,” “intend,” “could,” “should,” “would,” “may,” “seek,”
“plan,” “might,” “will,” “expect,” “anticipate,” “predict,” “project,”
“forecast,” “potential,” and “continue” or the negatives thereof or similar expressions. Forward-looking
statements speak only as of the date they are made, are based on various underlying assumptions and current expectations about the future
and are not guarantees of future performance. Such statements involve known and unknown risks, uncertainties and other factors that may
cause our actual results, level of activity, performance or achievement to be materially different from the results of operations or
plans expressed or implied by such forward-looking statements. You are cautioned to not place undue reliance on these forward-looking
statements, which speak only as of their dates.
We
cannot predict all the risks and uncertainties that may impact our business, financial condition, or results of operations. Accordingly,
the forward-looking statements in this prospectus should not be regarded as representations that the results or conditions described
in such statements will occur or that our objectives and plans will be achieved. These forward-looking statements are found at various
places throughout this prospectus and include information concerning possible or projected future results of our operations, including
statements about potential acquisition or merger targets, strategies or plans; business strategies; prospects; future cash flows; financing
plans; plans and objectives of management; any other statements regarding future cash needs, future operations, business plans and future
financial results; and any other statements that are not historical facts. We qualify all of the
forward-looking statements in this prospectus by this cautionary note.
These
forward-looking statements represent our intentions, plans, expectations, assumptions and beliefs about future events and are subject
to a variety of factors and risks, including, but not limited to, those set forth under “Risk Factors” starting page
2 of this prospectus.
Many
of those risk factors are outside of our control and could cause actual results to differ materially from the results expressed or implied
by those forward-looking statements. Considering these risks, uncertainties and assumptions, the events described in the forward-looking
statements might not occur or might occur to a different extent or at a different time than we have described. All subsequent written
and oral forward-looking statements concerning other matters addressed in this prospectus and attributable to us or any person acting
on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this prospectus.
Except
to the extent required by law, we undertake no obligation to update or revise any forward-looking statements, whether as a result of
new information, future events, a change in events, conditions, circumstances or assumptions underlying such statements, or otherwise.
THE
COMPANY
Overview
Neuraxis,
Inc. (“we”, “us”, the “Company” or “Neuraxis”) is a medical technology company focused
on developing neuromodulation therapies to address chronic and debilitating conditions in children and adults. We are dedicated to advancing
science with our proprietary IB-Stim therapy, based on our Percutaneous Electrical Nerve Field Stimulation (PENFS) technology, which
was developed internally by the Company. We believe that superior science and evidence-based research, are necessary for adoption by
the medical and scientific community. With one FDA indication (functional abdominal pain associated with IBS in adolescents 11-18 years
old) on the market, additional clinical trials of PENFS in multiple pediatric conditions are underway focused on unmet healthcare needs
in children, see “-Our Pipeline” for more information.
Our
first product, IB-Stim, is a PENFS system intended to be used in patients 11-18 years of age with functional abdominal pain associated
with IBS. IB-Stim is a US FDA Class II medical device that has received one regulatory clearance: IB-Stim (DEN180057, 2019), under the
regulation name of “non-implanted nerve stimulator for functional abdominal pain relief.”
Corporate
Information
We
incorporated in Indiana on April 17, 2012, under the name Innovative Health Solutions, Inc. On March 11, 2022, we amended our Articles
of Incorporation to change our name to Neuraxis, Inc. On June 23, 2022, we changed our state of incorporation from Indiana to Delaware.
Our
principal executive offices are located at 11611 N Meridian St, Suite 330, Carmel, IN 46032, and our telephone number is (812) 689-0791.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should consider carefully the risks described below, together with all of the other
information included or incorporated by reference in this prospectus, including the risks and uncertainties discussed under “Risk
Factors” in the Annual Report on Form 10-K for the period ended December 31, 2023 and the Quarterly Report on Form 10-Q for the
three and nine months ended September 30, 2024, each of which has been filed with the SEC and is incorporated by reference in
this prospectus, as well as any updates thereto contained in subsequent filings with the SEC or any free writing prospectus, before deciding
whether to purchase our Securities in this offering. All of these risk factors are incorporated herein in their entirety. However, the
risks incorporated by reference are not the only ones that we face. Additional risks not presently known to us or that we currently deem
immaterial may also affect our business, operating results, prospects or financial condition. If any of these risks actually materialize,
our business, prospects, financial condition, and results of operations 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.
USE
OF PROCEEDS
We
intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
We
will not receive any proceeds from the sale of common stock by the Selling Stockholders. All proceeds from the sale of the Selling Stockholder
Shares will be paid directly to the Selling Stockholders.
PRINCIPAL
STOCKHOLDERS
The following table sets forth certain information,
as of February 3, 2025, with respect to the holdings of: (i) each person who is the beneficial owner of more than
5% of our common stock, (ii) each of our directors, (iii) each executive officer, and (iv) all of our executive officers and directors
as a group.
Beneficial ownership of the common stock is determined
in accordance with the rules of the SEC and includes any shares of our common stock over which a person exercises sole or shared voting
or investment power, or of which a person has a right to acquire ownership at any time within 60 days of February 3, 2025. Applicable
percentage ownership in the following table is based on 7,176,393 shares of common stock issued and outstanding as of February 3, 2025, plus, for each individual, any securities that person has the right to acquire within 60 days of February 3, 2025 through exercise of warrants, stock options or otherwise.
To
the best of our knowledge, each of the persons named in the table has sole voting and investment power with respect to the shares of
our common stock beneficially owned by such person, except to the extent such power may be shared with a spouse. To our knowledge, none
of the shares listed below are held under a voting trust or similar agreement. To our knowledge, there is no arrangement, including any
pledge by any person of securities of the Company, the operation of which may at a subsequent date result in a change in control of the
Company.
Name of Owner |
|
Shares of Common Stock
Owned Beneficially |
|
|
Percent of Class Before the Offering |
|
|
Percent of Class After the Offering (1) |
|
|
|
|
|
|
|
|
|
|
|
5% Holders |
|
|
|
|
|
|
|
|
|
|
|
|
Masimo Corporation (2) |
|
|
531,548 |
|
|
|
7.4 |
% |
|
|
4.3 |
% |
Brian P. Hannasch (3) |
|
|
695,753 |
|
|
|
9.7 |
% |
|
|
5.6 |
% |
PBF Venture Group LLC (4) |
|
|
695,219 |
|
|
|
9.3 |
% |
|
|
5.6 |
% |
Executive Officers and Directors (5) |
|
|
|
|
|
|
|
|
|
|
|
|
Brian Carrico (6) |
|
|
84,118 |
|
|
|
1.2 |
% |
|
|
* |
|
Timothy Henrichs |
|
|
- |
|
|
|
* |
|
|
|
* |
|
Adrian Miranda (7) |
|
|
67,441 |
|
|
|
* |
|
|
|
* |
|
Thomas Carrico (8) |
|
|
66,247 |
|
|
|
* |
|
|
|
* |
|
Christopher Robin Brown |
|
|
792,837 |
|
|
|
11.0 |
% |
|
|
6.4 |
% |
Bradley Mitch Watkins |
|
|
24,737 |
|
|
|
* |
|
|
|
* |
|
Beth Keyser |
|
|
24,737 |
|
|
|
* |
|
|
|
* |
|
Kristin Ferge |
|
|
14,340 |
|
|
|
* |
|
|
|
* |
|
Gilad Aharon (9) |
|
|
124,073 |
|
|
|
1.7 |
% |
|
|
1.0 |
% |
Officers and directors as a group (9 persons) |
|
|
1,159,259 |
|
|
|
14.4 |
% |
|
|
8.4 |
% |
*
Less than 1%.
|
(1)
|
Assumes (i) all 4,280,939 shares of Series B Preferred Stock that are
outstanding as of February 3, 2025 will be converted into the 4,280,939 shares of Common Stock underlying such
shares of Series B Preferred Stock and (ii) all 870,039 shares of common stock underlying the Series B Preferred Stock Dividend
Shares will be declared by the Company that are being registered pursuant to the registration statement of which this prospectus
forms a part. |
|
|
|
|
(2) |
The business address for Masimo Corporation is 52
Discovery, Irvine, California 92618.
|
|
(3) |
Shares of common stock beneficially owned includes 12,852 warrants. |
|
|
|
|
(4) |
Shares of common stock beneficially owned includes 306,379 Warrant
Shares. The business address for PBF Venture Group LLC is 5501 Woodrow Avenue, Austin, Texas
78756. |
|
|
|
|
(5) |
The business address for each executive officer and
director is 11611 N. Meridian Street, Suite 330 Carmel, IN. 46032.
|
|
(6) |
Shares of common stock beneficially owned includes 64,000 options to purchase shares of common stock. |
|
|
|
|
(7) |
Shares of common stock beneficially owned includes 67,441 options to purchase shares of common stock. |
|
|
|
|
(8) |
Shares of common stock beneficially owned includes 61,247 options to purchase shares of common stock. |
|
|
|
|
(9) |
Shares of common stock beneficially owned includes 124,073 shares
of common stock issuable upon conversion of Series B Preferred Stock. |
DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock is not complete and may not contain all the information you should consider before investing
in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our Certificate of Incorporation,
as amended, and Bylaws, which have been publicly filed with the SEC. See “Where You Can Find More Information” and
“Incorporation by Reference.”
The Company is authorized to issue 105,000,000 shares
of capital stock, par value $0.0001 per share, of which 100,000,000 are shares of common stock and 5,000,000 are shares of preferred
stock. As of February 3, 2025, there were 7,176,393 shares of common stock issued and outstanding.
Description
of Common Stock
The
holders of common stock are entitled to one vote per share on each matter submitted to a vote at any meeting of stockholders. Shares
of common stock do not carry cumulative voting rights and, therefore, a majority of the shares of outstanding common stock will be able
to elect the entire board of directors and, if they do so, minority stockholders would not be able to elect any persons to the board
of directors. Our bylaws provide that a majority of our issued and outstanding shares constitutes a quorum for stockholders’ meetings,
except respecting certain matters for which a greater percentage quorum is required by statute or the bylaws.
Our
common stockholders have no pre-emptive rights to acquire additional shares of common stock or other securities. The common stock is
not subject to redemption and carries no subscription or conversion rights. In the event of our liquidation, the shares of common stock
are entitled to share equally in corporate assets after satisfaction of all liabilities and after the payment of liquidation preferences,
if any, on any outstanding shares of preferred stock.
Holders
of common stock are entitled to receive such dividends as the board of directors may, from time to time, declare out of funds legally
available for the payment of dividends. We seek growth and expansion of our business through the reinvestment of profits, if any, and
do not anticipate that we will pay dividends in the foreseeable future.
Dividend
Rights
Subject
to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of our common stock are entitled
to receive dividends out of funds legally available if our Board, in its discretion, determines to declare and pay dividends and then
only at the times and in the amounts that our Board may determine.
Voting
Rights
Holders
of our common stock are entitled to one vote for each share held on all matters properly submitted to a vote of stockholders on which
holders of common stock are entitled to vote. We have not provided for cumulative voting for the election of directors in our Certificate
of Incorporation.
No
Pre-emptive or Similar Rights
Our
common stock is not entitled to pre-emptive rights, and is not subject to conversion, redemption or sinking fund provisions.
Right
to Receive Liquidation Distributions
If
we become subject to a liquidation, dissolution or winding-up, the assets legally available for distribution to our stockholders would
be distributable ratably among the holders of our common stock and any participating preferred stock outstanding at that time, subject
to prior satisfaction of all outstanding debt and liabilities and the preferential rights of and the payment of liquidation preferences,
if any, on any outstanding shares of preferred stock.
The
common stock is listed on the NYSE American under the trading symbol “NRXS.”
Vstock
Transfer LLC is the Company’s transfer agent with respect to our common stock. The principal business address of the transfer agent
is 18 Lafayette Place, Woodmere, NY 11598. Phone: 212-828-8436.
Certain
Anti-Takeover Provisions of Delaware Law, Our Certificate of Incorporation and Our Bylaws
Section
203 of the Delaware General Corporation Law (“DGCL”) provides that if a person acquires 15% or more of the voting stock of
a Delaware corporation, such person becomes an “interested stockholder” and may not engage in certain “Business Combinations”
with such corporation for a period of three years from the time such person acquired 15% or more of such corporation’s voting stock,
unless: (1) the board of directors of such corporation approves the acquisition of stock or the merger transaction before the time that
the person becomes an interested stockholder, (2) the interested stockholder owns at least 85% of the outstanding voting stock of such
corporation at the time the merger transaction commences (excluding voting stock owned by directors who are also officers and certain
employee stock plans), or (3) the merger transaction is approved by the board of directors and at a meeting of stockholders, not by written
consent, by the affirmative vote of 2/3 of the outstanding voting stock which is not owned by the interested stockholder. A Delaware
corporation may elect in its certificate of incorporation or Bylaws not to be governed by this particular Delaware law.
Our
certificate of incorporation, our bylaws and the DGCL contain provisions that could have the effect of rendering more difficult, delaying,
or preventing an acquisition deemed undesirable by our board of directors. These provisions could also make it difficult for stockholders
to take certain actions, including electing directors who are not nominated by the members of our board of directors or taking other
corporate actions, including effecting changes in our management. For instance, our certificate of incorporation does not provide for
cumulative voting in the election of directors. Our board of directors are empowered to elect a director to fill a vacancy created by
the expansion of the board of directors or the resignation, death, or removal of a director in certain circumstances; and our advance
notice provisions in our bylaws require that stockholders must comply with certain procedures in order to nominate candidates to our
board of directors or to propose matters to be acted upon at a stockholders’ meeting.
Our
authorized but unissued common stock will be available for future issuances without stockholder approval and could be utilized for a
variety of corporate purposes, including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence
of authorized but unissued and unreserved common stock could render more difficult or discourage an attempt to obtain control of us by
means of a proxy contest, tender offer, merger or otherwise.
DESCRIPTION
OF PREFERRED STOCK
Our
Certificate of Incorporation, as amended, empowers our board of directors, without action by our shareholders, to issue up to 5,000,000
shares of preferred stock. The Company has designated a total of 5,000,000 shares of preferred stock in the form of Series B Preferred
Stock (the “Series B Preferred Stock”).
Series
B Preferred Stock
The
Series B Preferred Stock is convertible at any time into shares of Common Stock without any further consideration. The number of shares
of preferred stock to be designated as Series B Preferred Stock will be 5,000,000. The stated value of the Series B Preferred
Stock will be $2.38 per share. Each holder of the Series B Preferred Stock shall be entitled to receive dividends payable on the stated
value of the Series B Preferred Stock at a rate of 8.5% per annum, either in cash or in shares of Common Stock. The right to receive
dividends of the Series B Preferred Stock will automatically expire on December 31, 2026, and the liquidation rights of the Series
B Preferred Stock will automatically expire on June 30, 2025. The number of shares of the Common Stock that a holder of Series
B Preferred Stock is entitled to receive shall not exceed the maximum percentage chosen by the holder, which is initially set at between
4.99% and 19.99% of the number of outstanding shares of the Common Stock at the time of the conversion of the Series B Preferred Stock
shares until the Stockholder Approval is obtained. Following the issuance of the Series B Preferred Stock, it will rank senior to the
Common Stock with respect to payments upon the liquidation, dissolution and winding up of the Company.
We
will fix the rights, preferences, privileges, and restrictions of the preferred stock of each series in the certificate of designation
relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part or will incorporate
by reference from a current report on Form 8-K that we file with the SEC, the form of any certificate of designation that describes the
terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. This description
will include any or all of the following, as required:
|
● |
the
title and stated value; |
|
|
|
|
● |
the
number of shares we are offering; |
|
|
|
|
● |
the
liquidation preference per share; |
|
|
|
|
● |
the
purchase price; |
|
|
|
|
● |
the
dividend rate, period, and payment date and method of calculation for dividends; |
|
|
|
|
● |
whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
|
|
|
|
● |
any
contractual limitations on our ability to declare, set aside, or pay any dividends; |
|
|
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|
● |
the
procedures for any auction and remarketing, if any; |
|
|
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|
● |
the
provisions for a sinking fund, if any; |
|
|
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|
● |
the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase
rights; |
|
|
|
|
● |
any
listing of the preferred stock on any securities exchange or market; |
|
|
|
|
● |
whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated,
and the conversion period; |
|
|
|
|
● |
voting
rights, if any, of the preferred stock; |
|
|
|
|
● |
preemptive
rights, if any; |
|
|
|
|
● |
restrictions
on transfer, sale or other assignment, if any; |
|
|
|
|
● |
whether
interests in the preferred stock will be represented by depositary shares; |
|
|
|
|
● |
a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock; |
|
|
|
|
● |
the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve , or wind up our
affairs; |
|
|
|
|
● |
any
limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock
as to dividend rights and rights if we liquidate, dissolve, or wind up our affairs; and |
|
|
|
|
● |
any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock. |
If
we issue shares of preferred stock under this prospectus, after receipt of payment therefor, the shares will be fully paid and non-assessable.
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting
power or other rights of the holders of our common stock. Preferred stock could be issued quickly with terms designed to delay or prevent
a change in control of our Company or make removal of management more difficult. Additionally, the issuance of preferred stock could
have the effect of decreasing the market price of our common stock.
DESCRIPTION
OF WARRANTS
We
may offer to sell warrants from time to time. If we do so, we will describe the specific terms of the warrants in a prospectus supplement.
In particular, we may issue warrants for the purchase of common stock or preferred stock in one or more series. We may also issue warrants
independently or together with other securities and the warrants may be attached to or separate from those securities.
We
will evidence each series of warrants by warrant certificates that we will issue under a separate agreement. We will enter into the warrant
agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating
to a particular series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
|
●
|
the
offering price and aggregate number of warrants offered; |
|
|
|
|
● |
the
currency for which the warrants may be purchased; |
|
|
|
|
● |
if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
|
|
|
|
● |
if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
|
|
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|
●
|
in
the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
|
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|
●
|
the
effect of any merger, consolidation, sale, or other disposition of our business on the warrant agreement and the warrants; |
|
|
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|
●
|
the
terms of any rights to redeem or call the warrants; |
|
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|
● |
any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
|
|
|
|
● |
the
dates on which the right to exercise the warrants will commence and expire; |
|
|
|
|
●
|
the
manner in which the warrant agreement and warrants may be modified; |
|
|
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|
●
|
certain
United States federal income tax consequences of holding or exercising the warrants; |
|
|
|
|
●
|
the
terms of the securities issuable upon exercise of the warrants; and |
|
|
|
|
●
|
any
other specific material terms, preferences, rights, or limitations of or restrictions on the warrants. |
Holders
may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with other requested
information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus
supplement. We will set forth in the applicable prospectus supplement the information that the holder of the warrant will be required
to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the office of the warrant agent or
any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise.
If a holder exercises fewer than all of the warrants represented by the warrant certificate, then we will issue a new warrant certificate
for the remaining amount of warrants.
Holders
will not have any of the rights of the holders of the securities purchasable upon the exercise of warrants until you exercise them. Accordingly,
holders will not be entitled to, among other things, vote or receive dividend payments or similar distributions on the securities you
can purchase upon exercise of the warrants.
The
information provided above is only a summary of the terms under which we may offer warrants for sale. Accordingly, investors must carefully
review the applicable warrant agreement for more information about the specific terms and conditions of these warrants before investing
in us. In addition, please carefully review the information provided in the applicable prospectus supplement, which contains additional
information that is important for you to consider in evaluating an investment in our securities.
DESCRIPTION
OF RIGHTS
We
may issue rights to our stockholders to purchase shares of our Common Stock or preferred stock described in this prospectus. We may offer
rights separately or together with one or more additional rights, preferred stock, common stock, warrants, or any combination of those
securities in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued under a separate
rights agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent for any rights we offer
will be set forth in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the certificates
relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with
any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and provisions
of the rights to which any prospectus supplement may relate. The particular terms of the rights to which any prospectus supplement may
relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable
prospectus supplement. To the extent that any particular terms of the rights, rights agreement, or rights certificates described in a
prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded
by that prospectus supplement. We encourage you to read the applicable rights agreement and rights certificate for additional information
before you decide whether to purchase any of our rights.
The
prospectus supplement relating to any rights that we offer will include specific terms relating to the offering, including, among other
matters:
|
● |
the
date of determining the stockholders entitled to the rights distribution; |
|
|
|
|
●
|
the
aggregate number of shares of common stock, preferred stock, or other securities purchasable upon exercise of the rights; |
|
|
|
|
●
|
the
exercise price; |
|
|
|
|
● |
the
aggregate number of rights issued; |
|
|
|
|
● |
whether
the rights are transferrable and the date, if any, on and after which the rights may be separately transferred; |
|
|
|
|
● |
the
date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire; |
|
|
|
|
●
|
the
method by which holders of rights will be entitled to exercise; |
|
|
|
|
● |
the
conditions to the completion of the offering; |
|
|
|
|
● |
the
withdrawal, termination, and cancellation rights; |
|
|
|
|
●
|
whether
there are any backstop or standby purchaser or purchasers and the terms of their commitment; |
|
|
|
|
● |
whether
stockholders are entitled to oversubscription rights; |
|
|
|
|
●
|
any
U.S. federal income tax considerations; and |
|
|
|
|
● |
any
other terms of the rights, including terms, procedures, and limitations relating to the distribution, exchange, and exercise of the rights. |
If
less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons
other than stockholders, to or through agents, underwriters, or dealers or through a combination of such methods, including pursuant
to standby arrangements, as described in the applicable prospectus supplement. In connection with any rights offering, we may enter into
a standby underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other
persons would purchase any offered securities remaining unsubscribed for after such rights offering.
DESCRIPTION
OF UNITS
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We
may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements
with a unit agent. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular
series of units.
The
following description, together with the additional information included in any applicable prospectus supplement, summarizes the general
features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus
that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that
contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an
exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we
file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without
limitation, the following, as applicable:
|
● |
the
title of the series of units; |
|
|
|
|
● |
identification
and description of the separate constituent securities comprising the units; |
|
|
|
|
● |
the
price or prices at which the units will be issued; |
|
|
|
|
●
|
the
date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
|
|
|
|
● |
a
discussion of certain United States federal income tax considerations applicable to the units; and |
|
|
|
|
●
|
any
other terms of the units and their constituent securities. |
SELLING
STOCKHOLDERS
The Selling Stockholders are offering an aggregate
of 9,076,978 shares of common stock, including:
(i) 1,786,117 shares of common stock consisting of
(1) 786,552 shares of common stock issued to Pre-IPO Shareholders, (2) 59,055 shares of common stock issued to certain investors in connection
with their purchases of the Series B Preferred Stock, and (3) 940,510 shares of common stock issued to Post-IPO Shareholders, which are
unrelated to the issuance of Series B Preferred Stock, (ii) 2,139,883 Warrant Shares, (iii) 4,280,939 shares of common
stock issuable upon conversion of 4,280,939 shares of Series B Preferred Stock, and (iv) 870,039 shares of common stock issuable
as dividends when declared by the Company with respect to Series B Preferred Stock (“Series B Preferred Stock Dividend Shares”),
pursuant to section 3 of the certificate of designation of preferences, rights and limitations of Series B Preferred Stock.
The
Selling Stockholders may sell some, all or none of their Selling Stockholder Shares. Unless otherwise indicated in the footnotes below,
the Selling Stockholders have not had any material relationship with us or any of our affiliates within the past three years other than
as a security holder. To the best of our knowledge, the named parties in the table that follows are the beneficial owners and have the
sole voting and investment power over all shares or rights to the Selling Stockholder Shares reported. None of the Selling Stockholders
is a spouse or minor child of another Selling Stockholder.
We
have prepared the following table based on written representations and information furnished to us by or on behalf of the Selling Stockholders.
Unless otherwise indicated in the footnotes below, we believe that: (i) the Selling Stockholders are not a broker-dealer or affiliate
of a broker-dealer, and (ii) the Selling Stockholders have not had direct or indirect agreements or understandings with any person to
distribute their Selling Stockholder Shares. To the extent the Selling Stockholders identified below are, or are affiliated with, a broker-dealer,
it could be deemed, to be an “underwriter” within the meaning of the Securities Act. Information about the Selling Stockholders
may change over time.
The following table presents information regarding
the Selling Stockholders and the Selling Stockholder Shares that they may offer and sell from time to time under this prospectus. The
table is prepared based on information supplied to us by the Selling Stockholders, and reflects their respective holdings as of February 3, 2025, unless otherwise noted in the footnotes to the table. Beneficial ownership is determined in accordance with
the rules of the SEC, and thus represents voting or investment power with respect to our securities. Under such rules, beneficial ownership
includes any shares over which the individual has sole or shared voting power or investment power as well as any shares that the individual
has the right to acquire within 60 days after the date of this table, to our knowledge and subject to applicable community property rules,
the persons and entities named in the table have sole voting and sole investment power with respect to all equity interests beneficially
owned. The percentage of shares beneficially owned before and after this offering is based on shares of our common stock issued and outstanding
on February 3, 2025.
Selling Stockholder |
|
Shares Beneficially Owned
Before this Offering |
|
|
Percentage of Outstanding
Shares Beneficially Owned Before this Offering |
|
|
Shares to be Sold in
this Offering |
|
|
Shares Beneficially Owned
After this Offering |
|
|
Percentage of Outstanding
Shares Beneficially Owned After this Offering (1) |
|
Flagstaff International, LLC (2) |
|
|
529,005 |
|
|
|
7.1 |
% |
|
|
529,005 |
|
|
|
0 |
|
|
|
- |
|
Ross Carmel (3) |
|
|
53,759 |
|
|
|
* |
|
|
|
53,759 |
|
|
|
0 |
|
|
|
- |
|
GMGP, LLC (4) |
|
|
191,744 |
|
|
|
2.7 |
% |
|
|
191,744 |
|
|
|
0 |
|
|
|
- |
|
Davina Lockhart (5) |
|
|
53,690 |
|
|
|
* |
|
|
|
53,690 |
|
|
|
0 |
|
|
|
- |
|
Bruce Conway (6) |
|
|
111,862 |
|
|
|
1.6 |
% |
|
|
111,862 |
|
|
|
0 |
|
|
|
- |
|
Gankiewicz Living Trust (7) |
|
|
50,771 |
|
|
|
* |
|
|
|
50,771 |
|
|
|
0 |
|
|
|
- |
|
Robert Swackhamer (8) |
|
|
4,003 |
|
|
|
* |
|
|
|
4,003 |
|
|
|
0 |
|
|
|
- |
|
William Nichols (9) |
|
|
8,993 |
|
|
|
* |
|
|
|
8,993 |
|
|
|
0 |
|
|
|
- |
|
HAK Nevada Trust (10) |
|
|
127,039 |
|
|
|
1.8 |
% |
|
|
127,039 |
|
|
|
0 |
|
|
|
- |
|
Alyson Carlin (11) |
|
|
80,066 |
|
|
|
1.1 |
% |
|
|
80,066 |
|
|
|
0 |
|
|
|
- |
|
WVP Emerging Manager Onshore Fund LLC - Optimized Equity Series (12) |
|
|
89,975 |
|
|
|
1.3 |
% |
|
|
89,975 |
|
|
|
0 |
|
|
|
- |
|
WVP Emerging Manager Onshore Fund LLC - AIGH Series (13) |
|
|
311,581 |
|
|
|
4.3 |
% |
|
|
311,581 |
|
|
|
0 |
|
|
|
- |
|
AIGH Investment Partners, LP (14) |
|
|
1,165,265 |
|
|
|
14.3 |
% |
|
|
1,165,265 |
|
|
|
0 |
|
|
|
- |
|
Peter Baek |
|
|
20,000 |
|
|
|
* |
|
|
|
20,000 |
|
|
|
0 |
|
|
|
- |
|
Matt Carrico |
|
|
10,000 |
|
|
|
* |
|
|
|
10,000 |
|
|
|
0 |
|
|
|
- |
|
Deborah Cipriano (15) |
|
|
12,491 |
|
|
|
* |
|
|
|
12,491 |
|
|
|
0 |
|
|
|
- |
|
Dan Clarence |
|
|
25,832 |
|
|
|
* |
|
|
|
25,832 |
|
|
|
0 |
|
|
|
- |
|
EMMIS CAPITAL II, LLC (16) |
|
|
72,752 |
|
|
|
* |
|
|
|
72,752 |
|
|
|
0 |
|
|
|
- |
|
Exchange Listing, LLC (17) |
|
|
390,304 |
|
|
|
5.5 |
% |
|
|
390,304 |
|
|
|
0 |
|
|
|
- |
|
Genesis Investments, LLC (18) |
|
|
22,202 |
|
|
|
* |
|
|
|
11,604 |
|
|
|
10,598 |
|
|
|
* |
|
Brian P. Hannasch |
|
|
695,753 |
(19) |
|
|
9.9 |
% |
|
|
562,420 |
|
|
|
133,333 |
|
|
|
1.9 |
% |
Samuel Hutchinson |
|
|
4,000 |
|
|
|
* |
|
|
|
4,000 |
|
|
|
0 |
|
|
|
- |
|
Irrevocable Trust For Savanna C. Stapp |
|
|
50,356 |
|
|
|
* |
|
|
|
50,356 |
|
|
|
0 |
|
|
|
- |
|
Irrevocable Trust For Mark T. Volz |
|
|
100,712 |
|
|
|
1.4 |
% |
|
|
100,712 |
|
|
|
0 |
|
|
|
- |
|
Irrevocable Trust For Abby E. (Brown) Baier |
|
|
50,356 |
|
|
|
* |
|
|
|
50,356 |
|
|
|
0 |
|
|
|
- |
|
Irrevocable Trust For Jessica L. (Brown) Snodgrass |
|
|
50,356 |
|
|
|
* |
|
|
|
50,356 |
|
|
|
0 |
|
|
|
- |
|
Jeffery K. Parsigian LLC (20) |
|
|
5,802 |
|
|
|
* |
|
|
|
5,802 |
|
|
|
0 |
|
|
|
- |
|
Jill & Robert Lynch |
|
|
23,720 |
(21) |
|
|
* |
|
|
|
7,982 |
|
|
|
15,738 |
|
|
|
* |
|
Lincoln 2000 LLC |
|
|
125,000 |
|
|
|
1.8 |
% |
|
|
125,000 |
|
|
|
0 |
|
|
|
- |
|
Lucosky Brookman LLP (22) |
|
|
50,000 |
|
|
|
* |
|
|
|
50,000 |
|
|
|
0 |
|
|
|
- |
|
LV IHS SPV I, LLC (23) |
|
|
26,268 |
|
|
|
* |
|
|
|
26,268 |
|
|
|
0 |
|
|
|
- |
|
Thomas Lynch |
|
|
23,601 |
(24) |
|
|
* |
|
|
|
6,962 |
|
|
|
16,639 |
|
|
|
* |
|
Sanjay Hiru Malkani |
|
|
68,072 |
(25) |
|
|
1.0 |
% |
|
|
23,208 |
|
|
|
44,864 |
|
|
|
* |
|
Muse Investments, LLC (26) |
|
|
5,802 |
|
|
|
* |
|
|
|
5,802 |
|
|
|
0 |
|
|
|
- |
|
Rogan O’Donnell |
|
|
5,712 |
|
|
|
* |
|
|
|
5,712 |
|
|
|
0 |
|
|
|
- |
|
Art Roberts |
|
|
4,000 |
|
|
|
* |
|
|
|
4,000 |
|
|
|
0 |
|
|
|
- |
|
Mary Fyffe Ross |
|
|
2,277 |
|
|
|
* |
|
|
|
2,277 |
|
|
|
0 |
|
|
|
- |
|
John Seale |
|
|
20,000 |
|
|
|
* |
|
|
|
20,000 |
|
|
|
0 |
|
|
|
- |
|
Sierra Enterprises LLC (27) |
|
|
192,723 |
|
|
|
2.8 |
% |
|
|
192,723 |
|
|
|
0 |
|
|
|
- |
|
Mark Volz |
|
|
4,000 |
|
|
|
* |
|
|
|
4,000 |
|
|
|
0 |
|
|
|
- |
|
Holt Legacy Trust (28) |
|
|
1,518 |
|
|
|
* |
|
|
|
1,518 |
|
|
|
0 |
|
|
|
- |
|
Andres Lugo |
|
|
30,944 |
|
|
|
* |
|
|
|
30,944 |
|
|
|
0 |
|
|
|
- |
|
Paul Lynch |
|
|
15,734 |
(29) |
|
|
* |
|
|
|
4,642 |
|
|
|
11,092 |
|
|
|
* |
|
Robert Lynch |
|
|
11,604 |
|
|
|
* |
|
|
|
11,604 |
|
|
|
0 |
|
|
|
- |
|
Dave McDowell |
|
|
61,538 |
(30) |
|
|
* |
|
|
|
23,208 |
|
|
|
38,330 |
|
|
|
* |
|
Thomas Tyrone McDaniel and Kathleen A Kerezman |
|
|
86,406 |
(31) |
|
|
1.2 |
% |
|
|
30,944 |
|
|
|
55,462 |
|
|
|
* |
|
Valor Media Group (32) |
|
|
10,145 |
|
|
|
* |
|
|
|
10,145 |
|
|
|
0 |
|
|
|
- |
|
Investor Company ITF Rosalind Master Fund L.P.(33) |
|
|
2,233,759 |
(34) |
|
|
9.9 |
% |
|
|
2,233,759 |
|
|
|
0 |
|
|
|
- |
|
Gilad Aharon |
|
|
124,073 |
(35) |
|
|
1.7 |
% |
|
|
124,073 |
|
|
|
0 |
|
|
|
- |
|
Steven Salamon |
|
|
124,073 |
(36) |
|
|
1.7 |
% |
|
|
124,073 |
|
|
|
0 |
|
|
|
- |
|
Douglas and Sharon Crawford |
|
|
4,989 |
(37) |
|
|
* |
|
|
|
4,989 |
|
|
|
0 |
|
|
|
- |
|
Lori Matthews |
|
|
24,951 |
(38) |
|
|
* |
|
|
|
24,951 |
|
|
|
0 |
|
|
|
- |
|
Daryl Kruper |
|
|
13,667 |
(39) |
|
|
* |
|
|
|
13,667 |
|
|
|
0 |
|
|
|
- |
|
Brad Kruper |
|
|
13,667 |
(40) |
|
|
* |
|
|
|
13,667 |
|
|
|
0 |
|
|
|
- |
|
J Geddes Parson |
|
|
10,933 |
(41) |
|
|
* |
|
|
|
10,933 |
|
|
|
0 |
|
|
|
- |
|
Carol Taurosa |
|
|
4,721 |
(42) |
|
|
* |
|
|
|
4,721 |
|
|
|
0 |
|
|
|
- |
|
Bigger Capital Fund, LP |
|
|
66,138 |
(43) |
|
|
* |
|
|
|
66,138 |
|
|
|
0 |
|
|
|
- |
|
District 2 Capital Fund, LP |
|
|
132,276 |
(44) |
|
|
1.9 |
% |
|
|
132,276 |
|
|
|
0 |
|
|
|
- |
|
Masimo Corporation |
|
|
821,327 |
(45) |
|
|
10.5 |
% |
|
|
289,779 |
|
|
|
531,548 |
|
|
|
7.6 |
% |
Dr John E Bishop |
|
|
10,214 |
(46) |
|
|
* |
|
|
|
10,214 |
|
|
|
0 |
|
|
|
- |
|
Stephan Kuppenheimer |
|
|
20,427 |
(47) |
|
|
* |
|
|
|
20,427 |
|
|
|
0 |
|
|
|
- |
|
Daniel Proscia |
|
|
20,427 |
(48) |
|
|
* |
|
|
|
20,427 |
|
|
|
0 |
|
|
|
- |
|
Stacy L Giunta Revocable Trust |
|
|
10,214 |
(49) |
|
|
* |
|
|
|
10,214 |
|
|
|
0 |
|
|
|
- |
|
108 Sussex LLC |
|
|
275,746 |
(50) |
|
|
3.8 |
% |
|
|
275,746 |
|
|
|
0 |
|
|
|
- |
|
Raymond & Catherine Marzulli |
|
|
20,427 |
(51) |
|
|
* |
|
|
|
20,427 |
|
|
|
0 |
|
|
|
- |
|
ProActive Capital Partners LP |
|
|
20,427 |
(52) |
|
|
* |
|
|
|
20,427 |
|
|
|
0 |
|
|
|
- |
|
PBF Venture Group LLC |
|
|
695,219 |
(53) |
|
|
9.3 |
% |
|
|
306,379 |
|
|
|
388,840 |
|
|
|
5.4 |
% |
Dr Vincent Lanteri |
|
|
5,107 |
(54) |
|
|
* |
|
|
|
5,107 |
|
|
|
0 |
|
|
|
- |
|
Stuart Gitlow MD |
|
|
3,064 |
(55) |
|
|
* |
|
|
|
3,064 |
|
|
|
0 |
|
|
|
- |
|
Oak Tree Development Group LLC |
|
|
5,107 |
(56) |
|
|
* |
|
|
|
5,107 |
|
|
|
0 |
|
|
|
- |
|
Gregory P Hayden |
|
|
5,107 |
(57) |
|
|
* |
|
|
|
5,107 |
|
|
|
0 |
|
|
|
- |
|
Charles Kirkland |
|
|
20,427 |
(58) |
|
|
* |
|
|
|
20,427 |
|
|
|
0 |
|
|
|
- |
|
Dr. Craig Womeldorph |
|
|
5,107 |
(59) |
|
|
* |
|
|
|
5,107 |
|
|
|
0 |
|
|
|
- |
|
Joel Hendrickson |
|
|
7,150 |
(60) |
|
|
* |
|
|
|
7,150 |
|
|
|
0 |
|
|
|
- |
|
Ira Bershatsky |
|
|
2,043 |
(61) |
|
|
* |
|
|
|
2,043 |
|
|
|
0 |
|
|
|
- |
|
Cavalry Investment Fund LP |
|
|
66,994 |
(62) |
|
|
1.0 |
% |
|
|
66,994 |
|
|
|
0 |
|
|
|
- |
|
Evergreen Capital Management LLC |
|
|
90,250 |
(63) |
|
|
1.3 |
% |
|
|
90,250 |
|
|
|
0 |
|
|
|
- |
|
Christopher Carlin |
|
|
173,255 |
(64) |
|
|
2.4 |
% |
|
|
173,255 |
|
|
|
0 |
|
|
|
- |
|
Jonathan Gazdak |
|
|
120,000 |
(65) |
|
|
1.6 |
% |
|
|
120,000 |
|
|
|
0 |
|
|
|
- |
|
Matthew Rista |
|
|
37,552 |
(66) |
|
|
|
* |
|
|
37,552 |
|
|
|
0 |
|
|
|
|
|
Rocco Guidicipietro |
|
|
36,000 |
(67) |
|
|
|
* |
|
|
36,000 |
|
|
|
0 |
|
|
|
- |
|
Joseph Amato |
|
|
36,000 |
(68) |
|
|
|
* |
|
|
36,000 |
|
|
|
0 |
|
|
|
- |
|
John Slipek |
|
|
1,850 |
(69) |
|
|
|
* |
|
|
1,850 |
|
|
|
0 |
|
|
|
- |
|
Andrew Murino |
|
|
481 |
(70) |
|
|
|
* |
|
|
481 |
|
|
|
0 |
|
|
|
- |
|
Nicholas Filippo |
|
|
1,260 |
(71) |
|
|
|
* |
|
|
1,260 |
|
|
|
0 |
|
|
|
- |
|
Christopher Laffey |
|
|
1,260 |
(72) |
|
|
|
* |
|
|
1,260 |
|
|
|
0 |
|
|
|
- |
|
Total |
|
|
10,323,422 |
|
|
|
- |
|
|
|
9,076,978 |
|
|
|
1,246,444 |
|
|
|
- |
|
*
Less than 1%.
(1) Assumes all shares offered by the Selling Stockholders
are sold and that the Selling Stockholders buy or sell no additional shares of common stock prior to the completion of this offering.
The registration of these shares does not necessarily mean that the Selling Stockholders will sell all or any portion of the shares covered
by this prospectus.
(2) Includes (i) 12,608 shares of common stock,
(ii) 102,126 Warrant Shares, (iii) 336,132 shares of common stock issuable upon conversion of Series B Preferred Stock,
and (iv) 78,139 shares of common stock issuable as Series B Preferred Stock Dividend Shares when declared by the Company. Ricardo
Salas, Manager of Flagstaff International LLC, has discretionary authority to vote and dispose of the shares held by Flagstaff International
LLC and may be deemed to be the beneficial owner of these shares. The address of Flagstaff International LLC is 6300 Sagewood Drive #H268,
Park City, UT 84098.
(3) Includes (i) 1,910 shares of common stock, (ii)
42,016 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 9,833 shares of common stock issuable
as Series B Preferred Stock Dividend Shares when declared by the Company.
(4) Includes (i) 6,638 shares of common stock, (ii)
150,000 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 35,106 shares of common stock issuable
as Series B Preferred Stock Dividend Shares when declared by the Company. Curtis Bernhardt and June Masaki, Managers of GMGP, LLC, has
discretionary authority to vote and dispose of the shares held by GMGP, LLC and may be deemed to be the beneficial owner of these shares.
The address of GMGP, LLC is PO BOX 646, GLENHAVEN CA 95443.
(5) Includes (i) 1,841 shares of common stock,
(ii) 42,016 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 9,833 shares of common stock issuable
as Series B Preferred Stock Dividend Shares when declared by the Company.
(6) Includes (i) 2,729 shares of common stock,
(ii) 20,427 Warrant Shares, (iii) 72,282 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iv) 16,424
shares of common stock issuable as Series B Preferred Stock Dividend Shares when declared by the Company.
(7) Includes (i) 383 shares of common stock, (ii)
42,016 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 8,372 shares of common stock issuable as
Series B Preferred Stock Dividend Shares when declared by the Company.
(8) Includes (i) 115 shares of common stock, (ii)
3,151 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 737 shares of common stock issuable as Series
B Preferred Stock Dividend Shares when declared by the Company.
(9) Includes (i) 115 shares of common stock, (ii)
7,352 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 1,526 shares of common stock issuable as
Series B Preferred Stock Dividend Shares when declared by the Company.
(10) Includes (i) 3,635 shares of common stock,
and (ii) 100,000 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 23,404 shares of common stock
issuable as Series B Preferred Stock Dividend Shares when declared by the Company. Jesse Novalis, Trustee of HAK Nevada Trust, has discretionary
authority to vote and dispose of the shares held by HAK Nevada Trust and may be deemed to be the beneficial owner of these shares. The
address of HAK Nevada Trust is 3540 W. Sahara Avenue, Suite 479 Las Vegas, NV 89102.
(11) Includes (i) 2,291 shares of common stock,
(ii) 63,025 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 14,750 shares of common stock issuable
as Series B Preferred Stock Dividend Shares when declared by the Company.
(12) Includes (i) 1,552 shares of common stock,
and (ii) 72,364 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 16,059 shares of common stock
issuable as Series B Preferred Stock Dividend Shares when declared by the Company. The number of shares of Common Stock that Selling
Stockholder is entitled to receive upon conversion of the Series B Preferred Stock is subject to a beneficial ownership limitation of
9.99%. Mr. Orin Hirschman is the managing member of AIGH CM, who is a sub-advisor with respect to the securities held by WVP Emerging
Manager Onshore Fund, LLC - Optimized Equity Series. Mr. Hirschman has voting and investment control over the securities indirectly held
by AIGH CM and directly held by Mr. Hirschman and his family directly. The address for AIGH CM and Mr. Hirschman is 6006 Berkeley Avenue,
Baltimore, Maryland 21209.
(13) Includes (i) 5,369 shares of common stock,
(ii) 250,597 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 55,615 shares of common stock issuable
as Series B Preferred Stock Dividend Shares when declared by the Company. The number of shares of Common Stock that this Selling Stockholder
is entitled to receive upon conversion of the Series B Preferred Stock is subject to a beneficial ownership limitation of 9.99%. Mr.
Orin Hirschman is the managing member of AIGH Capital Management, LLC, a Maryland limited liability company (“AIGH CM”),
who is a sub-advisor with respect to the securities held by WVP Emerging Manager Onshore Fund, LLC - AIGH Series. Mr. Hirschman has voting
and investment control over the securities indirectly held by AIGH CM and directly held by Mr. Hirschman and his family directly. The
address for AIGH CM and Mr. Hirschman is 6006 Berkeley Avenue, Baltimore, Maryland 21209.
(14) Includes (i) 19,869 shares of common stock,
(ii) 937,544 shares of common stock issuable upon conversion of Series B Preferred Stock, and (iii) 207,852 shares of common stock issuable
as Series B Preferred Stock Dividend Shares when declared by the Company. The number of shares of Common Stock that this Selling Stockholder
is entitled to receive upon conversion of the Series B Preferred Stock is subject to a beneficial ownership limitation of 9.99%. Mr.
Orin Hirschman is the managing member of AIGH Capital Management, LLC, a Maryland limited liability company (“AIGH CM”),
who is an advisor with respect to the securities held by AIGH Investment Partners, L.P. (“AIGH LP”). Mr. Hirschman has voting
and investment control over the securities indirectly held by AIGH CM, directly held by AIGH LP and directly held by Mr. Hirschman and
his family. The address for AIGH CM, AIGH LP and Mr. Hirschman is 6006 Berkeley Avenue, Baltimore, Maryland 21209.
(15) Includes (i) 2,277 shares of common stock
and (ii) 10,214 Warrant Shares.
(16) Includes (i) 6,614 shares of common stock
and (ii) 66,138 Warrant Shares. Peter Goldstein, Managing Member of EMMIS CAPITAL II, LLC, has discretionary authority to vote and dispose
of the shares held by EMMIS CAPITAL II, LLC and may be deemed to be the beneficial owner of these shares. The address of EMMIS CAPITAL
II, LLC is 151 N. Nob Hill Road, Suite 321, Fort Lauderdale, FL 33324.
(17) Includes (i) 252,646 shares of common stock
and (ii) 137,658 Warrant Shares. Peter Goldstein, Chief Executive Officer and Founder of Exchange Listing, LLC, has discretionary authority
to vote and dispose of the shares held by Exchange Listing, LLC and may be deemed to be the beneficial owner of these shares. The address
of Exchange Listing, LLC is 515 E Las Olas Blvd, Suite 120 Fort Lauderdale, FL 33301.
(18) Includes (i) 11,604 shares of common stock
being registered hereby, and (ii) 10,598 unrestricted shares of common stock that are not being registered by the registration statement
of which this prospectus forms a part. Jeff Sanwan, Manager of Genesis Investments, LLC, has discretionary authority to vote and dispose
of the shares held by Genesis Investments, LLC and may be deemed to be the beneficial owner of these shares. The address of Genesis Investments,
LLC is 2700 W. 80th Avenue, Anchorage, AK 99502.
(19) Includes (i) 549,568 shares of common stock,
(ii) 12,852 Warrant Shares, and (iii) 133,333 unrestricted shares of common stock that are not being registered by the registration statement
of which this prospectus forms a part.
(20) Jeffrey Parsigian, Manager of Jeffery K.
Parsigian LLC, has discretionary authority to vote and dispose of the shares held by Jeffery K. Parsigian LLC and may be deemed to be
the beneficial owner of these shares. The address of Jeffery K. Parsigian LLC is c/o Neuraxis Inc., 123 Maxwell Avenue, Royal Oak, MI
48067.
(21) Includes (i) 7,982 shares of common stock
being registered hereby, and (ii) 15,738 unrestricted shares of common stock that are not being registered by the registration statement
of which this prospectus forms a part.
(22) Joseph Lucosky, the managing partner, has
discretionary authority to vote and dispose of the shares held by Lucosky Brookman LLP and may be deemed to be the beneficial owner of
these shares. The address of Lucosky Brookman LLP is 101 Wood Avenue South, 5th Floor Woodbridge, NJ 08830.
(23) Alex Holt, Manager of LV IHS SPV I, LLC,
has discretionary authority to vote and dispose of the shares held by LV IHS SPV I, LLC and may be deemed to be the beneficial owner
of these shares. The address of LV IHS SPV I, LLC is 1030 Bay Road, Apartment 304E, Vero Beach, FL 32963.
(24) Includes (i) 6,962 shares of common stock
being registered hereby, and (ii) 16,639 unrestricted shares of common stock that are not being registered by the registration statement
of which this prospectus forms a part.
(25) Includes (i) 23,208 shares of common stock
being registered hereby, and (ii) 44,864 unrestricted shares of common stock that are not being registered by the registration statement
of which this prospectus forms a part.
(26) Steve Petruska, Manager of Muse Investments,
LLC, has discretionary authority to vote and dispose of the shares held by Muse Investments, LLC and may be deemed to be the beneficial
owner of these shares. The address of Muse Investments, LLC is c/o Neuraxis Inc., 10385 Lakeshore Drive E, Goodrich, MI 48438.
(27) Dan Clarence, Member of Sierra Enterprises
LLC, has discretionary authority to vote and dispose of the shares held by Sierra Enterprises LLC and may be deemed to be the beneficial
owner of these shares. The address of Sierra Enterprises LLC is 21245 Homes Circle, Venice, FL 34293.
(28) Alex Holt, Manager of Holt Legacy Trust,
has discretionary authority to vote and dispose of the shares held by Holt Legacy Trust and may be deemed to be the beneficial owner
of these shares. The address of Holt Legacy Trust is 304 Fulton Street Philadelphia, PA 19147.
(29) Includes (i) 4,642 shares of common stock
being registered hereby, and (ii) 11,092 unrestricted shares of common stock that are not being registered by the registration statement
of which this prospectus forms a part.
(30) Includes (i) 23,208 shares of common stock
being registered hereby, and (ii) 38,330 unrestricted shares of common stock that are not being registered by the registration statement
of which this prospectus forms a part.
(31) Includes (i) 30,944 shares of common stock
being registered hereby, and (ii) 55,462 unrestricted shares of common stock that are not being registered by the registration statement
of which this prospectus forms a part.
(32) Christian Tureaud, Manager of Valor Media
Group, has discretionary authority to vote and dispose of the shares held by Valor Media Group and may be deemed to be the beneficial
owner of these shares. The address of Valor Media Group is 9903 Santa Monica Blvd, #416 Beverly Hills, CA 90212.
(33) Steven Salamon, President and Gil Aharon,
Secretary of Rosalind Advisors, Inc., which is the investment advisor to Rosalind Master Fund L.P., have the voting and dispositive power
over the shares held by Investor Company ITF Rosalind Master Fund L.P. Investor Company ITF Rosalind Master Fund L.P.’s address
is c/o ROSALIND Advisors, Inc., 15 Wellesley Street West, Suite 326, Toronto, ON, Canada M4Y 0G7.
(34) Includes (i) 1,890,756 shares of common stock
issuable upon conversion of Series B Preferred Stock, and (ii) 343,003 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company. The number of shares of Common Stock that Selling Stockholder is entitled to receive upon conversion
of the Series B Preferred Stock is subject to a beneficial ownership limitation of 9.99%.
(35) Includes (i) 105,042 shares of common stock
issuable upon conversion of Series B Preferred Stock, and (ii) 19,031 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company.
(36) Includes (i) 105,042 shares of common stock
issuable upon conversion of Series B Preferred Stock, and (ii) 19,031 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company.
(37) Includes (i) 4,201 shares of common stock
issuable upon conversion of Series B Preferred Stock and (ii) 788 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company.
(38) Includes (i) 21,008 shares of common stock
issuable upon conversion of Series B Preferred Stock and (ii) 3,943 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company.
(39) Includes (i) 11,573 shares of common stock
issuable upon conversion of Series B Preferred Stock and (ii) 2,094 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company.
(40) Includes (i) 11,573 shares of common stock
issuable upon conversion of Series B Preferred Stock and (ii) 2,094 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company.
(41) Includes (i) 9,258 shares of common stock
issuable upon conversion of Series B Preferred Stock and (ii) 1,675 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company.
(42) Includes (i) 3,991 shares of common stock
issuable upon conversion of Series B Preferred Stock and (ii) 730 shares of common stock issuable as Series B Preferred Stock Dividend
Shares when declared by the Company.
(43) Includes 66,138 Warrant Shares. Michael Bigger,
Managing Member of Bigger Capital GP, LLC, General Partner of Bigger Capital Fund, LP, has discretionary authority to vote and dispose
of the shares held by Bigger Capital Fund, LP and may be deemed to be the beneficial owner of these shares. The address of Bigger Capital
Fund, LP is 11700 W Charleston Blvd 170-659, Las Vegas, NV 89135.
(44) Includes 132,276 Warrant Shares. Michael
Bigger, Managing Member of District 2 GP LLC, General Partner of District 2 Capital Fund, LP, has discretionary authority to vote and
dispose of the shares held by District 2 Capital Fund, LP and may be deemed to be the beneficial owner of these shares. The address of
District 2 Capital Fund, LP is 14 Wall Street, 2nd Floor, Huntington, NY 11743.
(45) Includes 289,779 Warrant Shares. The business
address for Masimo Corporation is 52 Discovery, Irvine, California 92618.
(46) Includes 10,214 Warrant Shares.
(47) Includes 20,427 Warrant Shares.
(48) Includes 20,427 Warrant Shares.
(49) Includes 10,214 Warrant Shares.
(50) Includes 275,746 Warrant Shares. Clark Reinhard,
owner of 108 Sussex LLC, has discretionary authority to vote and dispose of the shares held by 108 Sussex LLC and may be deemed to be
the beneficial owner of these shares. The address of 108 Sussex LLC is 304 South Euclid Ave, Westfield, NJ 07090.
(51) Includes 20,427 Warrant Shares.
(52) Includes 20,427 Warrant Shares. Jeffrey Ramson,
Manager of ProActive Capital Partners LP, has discretionary authority to vote and dispose of the shares held by ProActive Capital Partners
LP and may be deemed to be the beneficial owner of these shares. The address of ProActive Capital Partners LP is 150 East 58th Street,
16th Floor, New York, NY 10155.
(53) Includes 306,379 Warrant Shares. Jonathan
Paul Clemens, sole owner of PBF Venture Group LLC, has discretionary authority to vote and dispose of the shares held by PBF Venture
Group LLC and may be deemed to be the beneficial owner of these shares. The address of PBF Venture Group LLC is 5501 Woodrow Ave, Austin,
TX 78756.
(54) Includes 5,107 Warrant Shares.
(55) Includes 3,064 Warrant Shares.
(56) Includes 5,107 Warrant Shares. Gregory P
Hayden, Managing Member of Oak Tree Development Group LLC, has discretionary authority to vote and dispose of the shares held by Oak
Tree Development Group LLC and may be deemed to be the beneficial owner of these shares. The address of Oak Tree Development Group LLC
is 169 Western Highway Box G, West Nyack, NY 10994.
(57) Includes 5,107 Warrant Shares.
(58) Includes 20,427 Warrant Shares.
(59) Includes 5,107 Warrant Shares.
(60) Includes 7,150 Warrant Shares.
(61) Includes 2,043 Warrant Shares.
(62) Includes 66,994 Warrant Shares. Thomas Walsh,
Manager of Cavalry Investment Fund LP, has discretionary authority to vote and dispose of the shares held by Calvary Investment Fund
LP and may be deemed to be the beneficial owner of these shares. The address of Cavalry Investment Fund LP is 82 E Allendale Rd, Ste
5b, Saddle River, NJ 07458.
(63) Includes 90,250 Warrant Shares. Jeffrey Pazdro,
Portfolio Manager of Evergreen Capital Management LLC, has discretionary authority to vote and dispose of the shares held by Evergreen
Capital Management LLC and may be deemed to be the beneficial owner of these shares. The address of Evergreen Capital Management LLC
is 156 W Saddle River Rd, Saddle River, NJ 07458.
(64) Includes 173,255 Warrant Shares.
(65) Includes 120,000 Warrant Shares.
(66) Includes 37,552 Warrant Shares.
(67) Includes 36,000 Warrant Shares.
(68) Includes 36,000 Warrant Shares.
(69) Includes 1,850 Warrant Shares.
(70) Includes 481 Warrant Shares.
(71) Includes 1,260 Warrant Shares.
(72) Includes 1,260 Warrant Shares.
PLAN
OF DISTRIBUTION
We
are registering the securities, and in the case of the Selling Stockholders, shares of common stock covered by this prospectus on both
our behalf and that of the Selling Stockholders. All costs, expenses and fees connected with the registration of such securities will
be borne by us. Any brokerage commissions and similar expenses connected with selling such shares of common stock will be borne by both
the Company and the Selling Stockholders, respectively, according to the allocation of shares sold. We or the Selling Stockholders may
offer and sell such securities and shares of common stock from time to time in one or more transactions. As used in this prospectus,
the term “Selling Stockholders” includes pledgees, donees, transferees and other successors-in-interest who may acquire such
shares of common stock through a pledge, gift, partnership distribution or other non-sale related transfer from the Selling Stockholders.
The Selling Stockholders will act independently of the Company in making decisions with respect to the timing, manner and size of each
sale. These transactions include the following methods of sale:
|
● |
at
a fixed price or prices, which may be changed; |
|
|
|
|
● |
at
market prices prevailing at the time of sale; |
|
|
|
|
● |
at
prices related to such prevailing market prices; or |
|
|
|
|
● |
at
negotiated prices. |
Each
time that we or the Selling Stockholders sell securities covered by this prospectus, we or the Selling Stockholders will provide a prospectus
supplement or supplements that will describe the method of distribution and set forth the terms and conditions of the offering of such
securities, including the offering price of the securities and the proceeds to us, if applicable.
Offers
to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers
to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus
supplement.
If
a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If
an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed
with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter
will use to make resales of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities
for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter
may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions, or commissions
from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus
supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell
the securities at varying prices to be determined by the dealer.
Any
compensation paid to underwriters, dealers, or agents in connection with the offering of the securities, and any discounts, concessions,
or commissions allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters,
dealers, and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities
Act, and any discounts and commissions received by them, and any profit realized by them on resale of the securities may be deemed to
be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers, and agents against civil
liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof
and to reimburse those persons for certain expenses.
The
Selling Stockholders may sell all or a portion of the Selling Stockholder Shares beneficially owned by them and offered hereby from time
to time directly or through one or more broker-dealers or agents.
In
connection with sales of shares of common stock covered by this prospectus, the Selling Stockholders may enter into hedging transactions
with broker-dealers or other financial institutions, which may in turn engage in short sales of such shares of common stock in the course
of hedging in positions they assume. The Selling Stockholders may also sell the shares of common stock covered by this prospectus short
and the Selling Stockholders may deliver shares of common stock to close out short positions and to return borrowed shares of common
stock in connection with such short sales. The Selling Stockholders may also loan or pledge shares of common stock covered by this prospectus
to broker-dealers that in turn may sell such shares of common stock, to the extent permitted by applicable law. The Selling Stockholders
may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative
securities which require the delivery to such broker-dealer or other financial institution of shares of common stock covered by this
prospectus, which shares of common stock such broker-dealer or other financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The
Selling Stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock covered
by this prospectus owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties
may offer and sell such shares of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under
Rule 424(b)(3) or other applicable provision of the Securities Act, amending, if necessary, the list of Selling Stockholders to include
the pledgee, transferee or other successors in interest as Selling sSockholders under this prospectus. The Selling Stockholders may also
transfer and donate shares of common stock covered by this prospectus in other circumstances in which case the transferees, donees, pledgees
or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
A
Selling Stockholder that is an entity may elect to make an in-kind distribution of shares of common stock covered by this prospectus
to its members, general or limited partners or shareholders pursuant to the registration statement of which this prospectus is a part
by delivering a prospectus. To the extent that such members, general or limited partners or shareholders are not affiliates of ours,
such members, partners or shareholders would thereby receive freely tradable shares of common stock pursuant to the distribution through
a registration statement. Additionally, to the extent that entities, members, partners or shareholders are affiliates of ours received
shares in any such distribution, such affiliates will also be Selling Stockholders and will be entitled to sell such shares pursuant
to this prospectus.
Agents
who may become involved in the sale of securities covered by this prospectus may engage in transactions with, and perform other services
for, us in the ordinary course of their business for which they receive compensation.
In
effecting sales, the Selling Stockholders may engage broker-dealers or agents, who may in turn arrange for other broker-dealers to participate.
Broker-dealers or agents may receive commissions, discounts or concessions from the Selling Stockholders and/or from the purchasers of
shares of common stock covered by this prospectus for whom the broker-dealers may act as agents or to whom they sell as principal, or
both. The compensation to a particular broker-dealer may be in excess of customary commissions. To our knowledge, there is currently
no plan, arrangement or understanding between any Selling Stockholders and any broker-dealer or agent regarding the sale of any shares
of common stock by the Selling Stockholders.
The
Selling Stockholders, any broker-dealers or agents and any participating broker-dealers that act in connection with the sale of the shares
of common stock covered by this prospectus may be “underwriters” under the Securities Act with respect to those shares of
common stock and will be subject to the prospectus delivery requirements of the Securities Act. Any profit that the Selling Stockholders
realize, and any compensation that any broker-dealer or agent may receive in connection with any sale, including any profit realized
on resale of such shares of common stock acquired as principal, may constitute underwriting discounts and commissions. If the Selling
Stockholders are deemed to be underwriters, the Selling Stockholders may be subject to certain liabilities under statutes including,
but not limited to, Section 11, 12 and 17 of the Securities Act and Section 10(b) and Rule 10b-5 under the Exchange Act.
The
securities laws of some states may require the Selling Stockholders to sell the shares of Common Stock covered by this prospectus in
those states only through registered or licensed brokers or dealers. These laws may also require that we register or qualify such shares
of common stock for sale in those states unless an exemption from registration and qualification is available and the Selling Stockholders
and we comply with that exemption. In addition, the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales
of shares of common stock in the market and to the activities of the Selling Stockholders and their affiliates. Regulation M may restrict
the ability of any person engaged in the distribution of shares of common stock to engage in market-making activities with respect to
such shares of common stock. All of the foregoing may affect the marketability of the shares of common stock covered by this prospectus
and the ability of any person to engage in market-making activities with respect to such shares.
If
any Selling Stockholders notifies us that he has entered into any material arrangement with a broker-dealer for the sale of shares of
common stock covered by this prospectus through a block trade, special offering, exchange distribution, over-the-counter distribution
or secondary distribution, or a purchase by a broker or dealer, we will file any necessary supplement to this prospectus to disclose:
|
● |
the
number of shares of common stock involved in the arrangement; |
|
|
|
|
● |
the
terms of the arrangement, including the names of any underwriters, dealers or agents who purchase such shares of common stock, as required; |
|
|
|
|
● |
the
proposed selling price to the public; |
|
|
|
|
● |
any
discount, commission or other underwriting compensation; |
|
|
|
|
● |
the
place and time of delivery for the shares of common stock being sold; |
|
|
|
|
● |
any
discount, commission or concession allowed, reallowed or paid to any dealers; and |
|
|
|
|
●
|
any
other material terms of the distribution of the shares of common stock. |
In
addition, if the Selling Stockholders notifies us that a donee, pledgee, transferee or other successor-in-interest of the Selling Stockholders
intends to sell any shares of common stock covered by this prospectus, we will file an amendment to the registration statement of which
this prospectus forms a part of or a supplement to this prospectus, if required.
Any
common stock will be listed on the NYSE American, but any other securities may or may not be listed on a national securities exchange.
To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain,
or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the
sale by persons participating in the offering of more securities than were sold to them. In these circumstances, these persons would
cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if
any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the
open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed
if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to
stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act.
In
addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the
third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions.
If so, the third party may use securities pledged by us or 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 such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in
the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement.
Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection
with a concurrent offering of other securities.
We
do not make any representation or prediction as to the direction or magnitude of any effect that the transactions described above might
have on the price of the securities. In addition, we do not make any representation that underwriters will engage in such transactions
or that such transactions, once commenced, will not be discontinued without notice.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
To
comply with applicable state securities laws, the securities offered by this prospectus will be sold, if necessary, in such jurisdictions
only through registered or licensed brokers or dealers. In addition, securities may not be sold in some states unless they have been
registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available
and is complied with.
The
underwriters, dealers, and agents may engage in transactions with us, or perform services for us, in the ordinary course of business
for which they receive compensation.
LEGAL
MATTERS
The
validity of the common stock offered by us in this offering will be passed upon for us by Lucosky Brookman LLP, Woodbridge, New Jersey.
EXPERTS
The
financial statements as of December 31, 2023 and 2022, included in this registration statement have been so included in reliance upon
the report of Rosenberg Rich Baker Berman, P.A., an independent registered public accounting firm, given on the authority of said firm
as an expert in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all
the information set forth in the registration statement. Whenever a reference is made in this 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 for a copy of such contract, agreement
or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly
and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the internet
at the SEC’s website at http://www.sec.gov.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with the SEC. Incorporation by reference allows us to
disclose important information to you by referring you to those other documents. The information incorporated by reference is an important
part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We
filed a registration statement on Form S-3 under the Securities Act with the SEC with respect to the securities being offered pursuant
to this prospectus. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should
refer to the registration statement, including the exhibits and schedules attached to the registration statement and the information
incorporated by reference, for further information about us and the securities being offered pursuant to this prospectus. Statements
in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement
are not necessarily complete, and each statement is qualified in all respects by that reference. Copies of all or any part of the registration
statement, including the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at
the offices of the SEC listed below in “Where You Can Find More Information.” The documents we are incorporating by reference
into this prospectus are:
●
Our Annual Report on Form 10-K for the fiscal December 31, 2023 (the “Annual Report”) filed with the SEC on April 16, 2024;
●
Our Quarterly Report on Form 10-Q for the three months ended March 31, 2024 filed with the SEC on May 20, 2024;
●
Our Quarterly Report on Form 10-Q for the three and six months ended June 30, 2024 filed with the SEC on August 9, 2024;
●
Our Quarterly Report on Form
10-Q for the three and nine months ended September 30, 2024 filed with the SEC on November 12, 2024;
●
Our Current Reports on Form 8-K filed with the SEC on January 31, 2024, February 15, 2024, March 11, 2024, March 28, 2024, April 16, 2024, May 28, 2024, July 5, 2024, August 21, 2024, September 13, 2024, and October 18, 2024;
●
Our Definitive Proxy Statement on Schedule 14A filed with the SEC on July 1, 2024; and
●
The description of our Common Stock is set forth in our registration statement on Form 8-A filed with the SEC on filed on August 8, 2023,
including any amendments or reports filed for the purpose of updating such description.
We
also incorporate by reference any future filings (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 unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made (i) on or after the date of the initial filing of the
registration statement of which this prospectus forms a part and prior to effectiveness of such registration statement, and (ii) on or
after the date of this prospectus but prior to the termination of the offering (i.e., until the earlier of the date on which all of the
securities registered hereunder have been sold or the registration statement of which this prospectus forms a part has been withdrawn).
Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any such future
filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is
incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed document modify or replace
such earlier statements.
We
will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request,
a copy of any or all of the documents incorporated by reference into this prospectus but not delivered with the prospectus, including
exhibits that are specifically incorporated by reference into such documents. You should direct any requests for documents to:
NeurAxis,
Inc.
11611
N. Meridian Street, Suite 330
Carmel,
IN 46032
Telephone:
(812) 689-0791
Attention:
Corporate Secretary
You
may also access these documents, free of charge, on the SEC’s website at www.sec.gov or on our website at https://neuraxis.com/.
The information contained in, or that can be accessed through, our website is not incorporated by reference in, and is not part of, this
prospectus or any accompanying prospectus supplement.
In
accordance with Rule 412 of the Securities Act, any statement contained in a document incorporated by reference herein shall be deemed
modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such statement.
You
should rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have
not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference into
this prospectus. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such an
offer or solicitation.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following is an estimate of the expenses (all of which are to be paid by the Company) that we may incur in connection with the securities
being registered hereby.
SEC registration fee |
|
$ |
7,323 |
|
FINRA filing fee |
|
|
6,878 |
|
Printing expenses |
|
|
* |
|
Legal fees and expenses |
|
|
* |
|
Accounting fees and expenses |
|
|
* |
|
Transfer agent fees and expenses |
|
|
* |
|
Trustee fees and expenses |
|
|
* |
|
Warrant agent fees and expenses |
|
|
* |
|
Miscellaneous |
|
|
* |
|
Total |
|
$ |
14,201 |
|
*These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item
15. Indemnification of Directors and Officers.
Section
145(a) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party to or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), because he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted
in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section
145(b) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor
because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall
have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court
determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably
entitled to indemnity for such expenses that the Court of Chancery or other adjudicating court shall deem proper.
Section
145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power to indemnify the person against such liability under Section 145 of the DGCL.
Additionally,
our bylaws eliminates our directors’ liability to the fullest extent permitted under the DGCL. The DGCL provides that directors
of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability:
|
● |
for
any transaction from which the director derives an improper personal benefit; |
|
|
|
|
● |
for
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
|
|
|
|
● |
for
any unlawful payment of dividends or redemption of shares; or |
|
|
|
|
● |
for
any breach of a director’s duty of loyalty to the corporation or its stockholders. |
If
the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability
of the Company’s directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
We
are also expressly authorized to carry directors’ and officers’ insurance to protect our directors, officers, employees and
agents against liabilities for actions taken in their capacities as directors and officers.
Item
16. Exhibits and Financial Statement Schedules
Exhibit |
|
|
Number |
|
Exhibit
Description |
|
|
|
3.1 |
|
Certificate of Incorporation (incorporated by reference to exhibit 3.1 to Registration Statement on Form S-1, filed on January 10, 2023) |
|
|
|
3.2 |
|
Certificate
of Amendment to Certificate of Incorporation (incorporated by reference to exhibit 3.2 to Registration Statement on Form S-1, filed
on January 26, 2023) |
|
|
|
3.3 |
|
Certificate
of Amendment to Certificate of Incorporation, filed August 22, 2024 (incorporated by reference to exhibit 3.1 to the Quarterly
Report on Form 10-Q, filed on November 12, 2024) |
|
|
|
3.4 |
|
Certificate
of Designation of Preferences, Rights and Limitations of Series B Preferred Stock, filed August 22, 2024 (incorporated
by reference to exhibit 3.2 to the Quarterly Report on Form 10-Q, filed on November 12, 2024) |
|
|
|
3.5 |
|
Amendment No.1 to Certificate of Designation of Preferences, Rights and Limitations of Series B Preferred Stock, filed November 15, 2024 (incorporated by reference to exhibit 3.1 to the Current Report on Form 8-K, filed on November 21, 2024) |
|
|
|
3.6 |
|
Bylaws (incorporated by reference to exhibit 3.3 to Registration Statement on Form S-1, filed on January 10, 2023) |
|
|
|
4.1* |
|
Indenture |
|
|
|
5.1 |
|
Legal opinion of Lucosky Brookman LLP |
|
|
|
10.1 |
|
Securities purchase agreement, dated November 9, 2023, between the Company and Flagstaff International, LLC (incorporated by reference to exhibit 10.1 to current report on Form 8-K, furnished to the SEC on November 14, 2023) |
|
|
|
10.2 |
|
Registration rights agreement, dated November 9, 2023, between the Company and Flagstaff International, LLC (incorporated by reference to exhibit 10.2 to current report on Form 8-K, furnished to the SEC on November 14, 2023) |
|
|
|
10.3 |
|
Form of Securities Purchase Agreement (incorporated by reference to exhibit 10.1 to current report on Form 8-K, furnished to the SEC on February 15, 2024) |
|
|
|
10.4 |
|
Form of Convertible Promissory Note (incorporated by reference to exhibit 10.2 to current report on Form 8-K, furnished to the SEC on February 15, 2024) |
|
|
|
10.5 |
|
Form of Registration Rights Agreement (incorporated by reference to exhibit 10.3 to current report on Form 8-K, furnished to the SEC on February 15, 2024) |
|
|
|
10.6 |
|
First Amendment to Securities Purchase Agreement (incorporated by reference to exhibit 10.4 to current report on Form 8-K, furnished to the SEC on February 15, 2024) |
|
|
|
10.7 |
|
Third Amendment to Securities Purchase Agreement, dated March 22, 2024, between the Company and Flagstaff International, LLC (incorporated by reference to exhibit 10.1 to current report on Form 8-K, furnished to the SEC on March 28, 2024) |
|
|
|
10.8 |
|
Form of Convertible Promissory Note issued to Flagstaff International, LLC (incorporated by reference to exhibit 10.2 to current report on Form 8-K, furnished to the SEC on March 28, 2024) |
|
|
|
10.9 |
|
Form of Securities Purchase Agreement (incorporated by reference to exhibit 10.1 to current report on Form 8-K, furnished to the SEC on May 28, 2024) |
|
|
|
10.10 |
|
Form of Convertible Promissory Note (incorporated by reference to exhibit 10.2 to current report on Form 8-K, furnished to the SEC on May 28, 2024) |
|
|
|
10.11 |
|
Form of Registration Rights Agreement (incorporated by reference to exhibit 10.3 to current report on Form 8-K, furnished to the SEC on May 28, 2024) |
|
|
|
10.12 |
|
Form of Unrestricted Stock Award Agreement by and between Neuraxis, Inc. and Grantees dated on July 1, 2024 (incorporated by reference to exhibit 10.1 to current report on Form 8-K, furnished to the SEC on July 5, 2024) |
|
|
|
23.1 |
|
Consent of Rosenberg Rich Baker Berman, P.A. |
|
|
|
23.2 |
|
Consent of Lucosky Brookman LLP (included in Exhibit 5.1) |
|
|
|
24.1 |
|
Power of Attorney (included on the signature page hereto) |
|
|
|
107 |
|
Filing Fee Table |
*
Filed previously.
Item
17. Undertakings.
The
undersigned registrant hereby undertakes:
|
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
(i) |
to
include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
|
|
|
|
(ii) |
to
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
|
|
|
|
(iii) |
to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement. |
|
(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment will be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will
be deemed to be the initial bona fide offering thereof. |
|
|
|
|
(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
|
|
|
|
(4) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on Rule 430A, will be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document immediately prior to such date of first use. |
|
|
|
|
(5) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities: |
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
|
(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
|
(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
|
|
|
|
(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
|
|
|
|
(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The
undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule
424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was
declared effective.
(2)
For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement or amendment thereto to be signed on its behalf
by the undersigned, thereunto duly authorized on February 5, 2025.
|
Neuraxis,
Inc. |
|
|
|
|
By: |
/s/
Brian Carrico |
|
|
Brian
Carrico |
|
|
Chief
Executive Officer |
POWER
OF ATTORNEY
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
held on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Brian Carrico |
|
Chief
Executive Officer and Director |
|
February
5, 2025 |
Brian
Carrico |
|
(principal
executive officer) |
|
|
|
|
|
|
|
/s/
Timothy Henrichs |
|
Chief
Financing Officer |
|
February
5, 2025 |
Timothy
Henrichs |
|
(principal
financial officer and principal accounting officer) |
|
|
|
|
|
|
|
* |
|
Director |
|
February
5, 2025 |
Christopher
Robin Brown |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
February
5, 2025 |
Bradley
Mitch Watkins |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
February
5, 2025 |
Beth
Keyser |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
February
5, 2025 |
Kristin
Ferge |
|
|
|
|
*By |
/s/
Brian Carrico |
|
|
Brian Carrico
Chief Executive Officer and Director |
|
Exhibit
5.1
![](https://www.sec.gov/Archives/edgar/data/1933567/000149315225005024/ex5-1_001.jpg)
|
LUCOSKY
BROOKMAN LLP
101
Wood Avenue South
5th
Floor
Woodbridge,
NJ 08830
T
- (732) 395-4400
F-
(732) 395-4401 |
|
|
|
111
Broadway
Suite
807
New
York, NY 10006
T
- (212) 417-8160
F
- (212) 417-8161
www.
lucbro.com |
February
5, 2025
Neuraxis,
Inc.
11611
N. Meridian Street, Suite 330,
Carmel,
IN 46032
RE:
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
are acting as counsel for Neuraxis, Inc., a Delaware corporation (the “Company”), in connection with the Registration
Statement on Form S-3 (such Registration Statement, as amended from time to time, is herein referred to as the “Registration
Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”), on the date hereof, pertaining to (i) the offering from
time to time, pursuant to Rule 415 promulgated under the Securities Act, by the selling stockholder of up to 6,573,214 shares of common
stock, par value $0.0001 per share, of the Company (the “Common Stock), consisting of (1) 1,786,117 shares (the “Resale
Shares”) of Common Stock consisting of (a) 786,552 shares of common stock issued to certain shareholders before the Company’s
initial public offering, (b) 59,055 shares of common stock issued to certain investors in connection with their purchases of shares of
the Company’s Series B Preferred Stock (the “Series B Preferred Stock”), and (c) 940,510 shares of common stock
issued to certain shareholders after the Company’s initial public offering which are unrelated to the issuance of Series B Preferred
Stock, (2) 2,139,883 shares of common stock issuable upon exercise of warrants (“Resale Warrants”) issued to certain
investors (the “Resale Warrant Shares”), (3) 4,280,939 shares of common stock issuable upon conversion of 4,280,939
shares of Series B Preferred Stock (the “Resale Preferred Conversion Shares”), and (4) 870,039 shares of common stock
issuable as dividends when declared by the Company with respect to Series B Preferred Stock (“Series B Preferred Stock Dividend
Shares”), pursuant to section 3 of the certificate of designation of preferences, rights and limitations of Series B Preferred
Stock; and (ii) the proposed offer and sale pursuant to Rule 415 under the Securities Act from time to time, in one or more offerings,
of up to $25,000,000 in the aggregate of the following securities of the Company (together with the Resale Shares, the Resale Preferred
Conversion Shares, and the Series B Preferred Stock Dividend Shares, the “Securities”):
● |
Common
Stock, issuable directly or in exchange for or upon conversion of Warrants (as defined below), or Preferred Stock (as defined below); |
● |
preferred
stock, par value $0.0001 per share (the “Preferred Stock”), of the Company issuable directly; |
● |
warrants
of the Company (the “Warrants”) entitling the holders to purchase shares of Common Stock, shares of Preferred
Stock, or other securities of the Company; |
● |
rights
to purchase shares of Common Stock or Preferred Stock (the “Rights”); and |
● |
units
(the “Units”) comprised of any combination of other Securities offered in the Registration Statement. |
The
Common Stock is to be issued under the Certificate of Incorporation of the Company, as amended (the “Certificate of Incorporation”).
Each series of Preferred Stock is to be issued under the Certificate of Incorporation and a certificate of designation (a “Certificate
of Designation”) to be approved by the board of directors of the Company (the “Board of Directors”) or a
committee thereof and filed with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”).
The Warrants are to be issued under one or more warrant agreements in a form to be filed and incorporated into the Registration Statement,
with appropriate insertions (each, a “Warrant Agreement”), to be entered into by the Company, a warrant agent to be
named by the Company (the “Warrant Agent”), and the holders from time to time of the Warrants. The Units are to be
issued under one or more unit agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions
(each, a “Unit Agreement”), to be entered into by the Company and the unit agent named therein. The Rights are to
be issued under one or more rights agent agreements in a form to be filed and incorporated into the Registration Statement, with appropriate
insertions (each, a “Rights Agreement”), to be entered into by the Company and a bank, trust company, or other financial
institution to be identified therein as rights agents. The Certificate of Incorporation, each Certificate of Designation, each Warrant
Agreement, each Unit Agreement, and each Rights Agreement are referred to herein individually as a “Governing Document”
and collectively as the “Governing Documents.”
As
part of the corporate actions taken and to be taken in connection with issuance of any Securities to be issued and sold from time to
time under the Registration Statement, the Board of Directors, a committee thereof or certain authorized officers of the Company as authorized
by the Board of Directors will, before such Securities are issued under the Registration Statement, duly authorize the issuance and approve
the terms of such Securities (the “Corporate Proceedings”).
You
have provided us with a draft prospectus (the “Prospectus”) that is a part of the Registration Statement. The offering
of the Resale Shares, the Resale Warrant Shares, the Resale Preferred Conversion Shares, and the Series B Preferred Stock Dividend Shares
will be as set forth in the Prospectus. The Prospectus provides that it will be supplemented in the future by one or more supplements
thereto (each, a “Prospectus Supplement”) in connection with each offering of Securities. This opinion is being furnished
in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter
pertaining to the contents of the Registration Statement, the Prospectus, or any Prospectus Supplement, other than as expressly stated
herein with respect to the issue of the Securities. It is understood that the opinions set forth below are to be used only in connection
with the offer while the Registration Statement is in effect.
In
our capacity as your counsel in connection with such registration, we have reviewed and are familiar with such documents, certificates,
Corporate Proceedings and other materials, including an examination of originals or copies certified or otherwise identified to our satisfaction
of the Certificate of Incorporation and Bylaws of the Company, Governing Documents and the Registration Statement (collectively, the
“Constituent Documents”), and have reviewed such questions of law, as we have considered relevant or necessary as
a basis for this opinion.
In
our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us as copies. For purposes of this opinion, we have assumed
that proper proceedings in connection with the authorization and issuance or sale of the Securities will be timely and properly completed,
in accordance with all requirements of applicable federal laws and the General Corporation Law of the State of Delaware (the “DGCL”)
and, in the manner presently proposed. We have assumed and have not verified the accuracy of the factual matters of each document we
have reviewed.
As
to facts material to the opinions, statements and assumptions expressed herein, we have, with your consent, relied upon oral or written
statements and representations of officers and other representatives of the Company and others. We have specifically relied upon the
certification of an officer of the Company signed on even date herewith. In addition, we have obtained and relied upon such certificates
and assurances from public officials as we have deemed necessary.
With
respect to the Securities to be offered and sold by the Company, we have also assumed that (a) the Registration Statement shall have
become and remain effective under the Securities Act, a Prospectus Supplement shall have been prepared and filed with the Commission
describing the Securities, and such Securities shall have been issued and sold in accordance with the terms set forth in such Prospectus
Supplement; (b) such Securities, as issued and delivered, comply with any requirements and restrictions imposed by any court or governmental
or regulatory body applicable to the Company; (c) at the time of any offering or sale of any Securities, there shall be a sufficient
number of shares of Common Stock or Preferred Stock, authorized and unissued under the Certificate, and not otherwise reserved for issuance,
except in connection with the issuance of the Securities; (d) at the time of issuance or sale of the Securities, the Company shall validly
exist and shall be in good standing under the laws of the State of Delaware, and, in the case of Securities, the Company shall have the
necessary corporate power for such issuance; (e) any definitive purchase, underwriting or similar agreement with respect to any Securities,
if applicable, shall have been duly authorized, executed and delivered by the parties thereto and shall constitute legally valid and
binding obligations of the parties thereto, enforceable against each of them in accordance with their respective terms, at the time of
issuance of the applicable Securities; (f) certificates representing the Securities, if any, shall have been duly executed, countersigned,
registered and delivered, or if uncertificated, valid book-entry notations shall have been made in the share or other register of the
Company, in each case in accordance with the, and in the manner contemplated by the Registration Statement and/or the applicable Prospectus
Supplement, against payment therefor in an amount not less than the par value thereof, or such other consideration determined by the
Board of Directors, or an authorized committee thereof, as permitted under the DGCL, in accordance with the provisions of any applicable
definitive purchase agreement, underwriting agreement, or similar agreement approved by the Company; and (g) the Constituent Documents
shall be in full force and effect and shall not have been amended, restated, supplemented, or otherwise altered, and there shall be no
authorization of any such amendment, restatement, supplement or alteration, in each case since the date hereof.
Subject
to the foregoing and the other matters set forth herein, it is our opinion that as of the date hereof:
1.
With respect to any Common Stock, upon (a) the completion of all required Corporate Proceedings with respect to the issuance of such
Common Stock, (b) the due execution, registration of issuance and delivery of certificates representing such Common Stock against payment
of the purchase price therefor in accordance with the applicable purchase, underwriting or other agreement, and as contemplated by the
Registration Statement, and (c) receipt by the Company of the consideration therefor, such Common Stock will be duly and validly issued,
fully paid and nonassessable. The Common Stock covered in the opinion in this paragraph includes any shares of Common Stock that may
be issued upon exercise, conversion, or exchange pursuant to the terms of any other Securities.
2.
With respect to any Preferred Stock, upon (a) the completion of all required Corporate Proceedings with respect to the issuance and terms
of such Preferred Stock, (b) the due authorization, execution, acknowledgment, delivery and filing with, and recording by, the Delaware
Secretary of State of a Certificate of Designation in respect of such Preferred Stock, (c) the due execution, registration of issuance
and delivery of certificates representing such Preferred Stock against payment of the purchase price therefor in accordance with the
applicable purchase, underwriting or other agreement, and as contemplated by the Registration Statement, and (d) receipt by the Company
of the consideration therefor, such Preferred Stock will be duly and validly issued, fully paid and nonassessable. The Preferred Stock
covered in the opinion in this paragraph includes any shares of Preferred Stock that may be issued upon exercise, conversion or exchange
pursuant to the terms of any other Securities.
3.
With respect to any Warrants, upon (a) the completion of all required Corporate Proceedings relating to the terms and issuance of the
Warrants, (b) the due authorization, execution, and delivery of a Warrant Agreement, (c) the preparation and due execution and delivery
of the related Warrants against payment of the purchase price therefor in accordance with the applicable purchase, underwriting or other
agreement, and as contemplated by the Registration Statement, (d) the due authentication of the related Warrants by the Warrant Agent,
and (e) receipt by the Company of the consideration therefor, such Warrants will be valid and binding obligations of the Company. The
Warrants covered in the opinion in this paragraph includes any Warrants that may be issued upon exercise, conversion, or exchange pursuant
to the terms of any other Securities.
4.
With respect to any Rights, upon (a) the completion of all required Corporate Proceedings relating to the terms and issuance of the Rights,
(b) the due authorization, execution, and delivery of a Rights Agreement against payment of the purchase price therefor in accordance
with the applicable purchase, underwriting or other agreement, and as contemplated by the Registration Statement, (c) the shares of Common
Stock or Preferred Stock, as the case may be, underlying such Rights having been deposited with the applicable rights agent, and (d)
receipt by the Company of the consideration therefor, such Rights Agreement will be a valid and binding obligation of the Company and
the Rights will be valid and binding obligations of the Company. The Rights covered in the opinion in this paragraph includes any Rights
that may be issued upon exercise, conversion, or exchange pursuant to the terms of any other Securities.
5.
With respect to any Units, upon (a) the completion of all required Corporate Proceedings relating to the terms and issuance of the Units,
(b) the due authorization, execution, and delivery of a Unit Agreement against payment of the purchase price therefor in accordance with
the applicable purchase, underwriting or other agreement, and as contemplated by the Registration Statement, (c) the Securities underlying
such Units having been deposited with the applicable unit agent, and (d) receipt by the Company of the consideration therefor such Unit
Agreement will be a valid and binding obligation of the Company and the Units will be valid and binding obligations of the Company. The
Units covered in the opinion in this paragraph includes any Units that may be issued upon exercise, conversion, or exchange pursuant
to the terms of any other Securities.
6.
The Resale Shares are validly issued, fully paid, and non-assessable.
7.
When the Resale Warrant Shares are issued upon exercise of the Resale Warrants as set forth in the Registration Statement, they will
be validly issued, fully paid, and non-assessable.
8.
When the Resale Preferred Conversion Shares are issued upon conversion of the Series B Preferred Stock as set forth in the Registration
Statement, they will be validly issued, fully paid, and non-assessable.
9.
When the Series B Preferred Stock Dividend Shares are issued pursuant to the Company’s declaration of dividends on the Series B
Preferred Stock as set forth in the Registration Statement, they will be validly issued, fully paid, and non-assessable.
The
opinions set forth above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, or other similar laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors; (ii) the effect of general principles of equity, including without limitation, concepts of materiality, reasonableness,
good faith, and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement
is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court decisions of provision providing for the indemnification of,
or contribution to, a party with respect to liability where such indemnification or contribution is contrary to public policy. We express
no opinion concerning the enforceability of any waiver of rights or defenses with respect to stay, extension, or usury laws. Our opinion
expressed herein is also subject to the qualification that no term or provision hereof shall be included in: (a) the Certificate of Designation
relating to any series of the Preferred Stock, (b) the Warrant Agreement, (c) the Unit Agreement, (d) the Rights Agreement, or (e) any
other agreement or instrument pursuant to which any of the Securities are to be issued that would affect the validity of such opinion.
Our
opinion is limited to the federal laws of the United States and the DGCL. We express no opinion as to the effect of the law of any other
jurisdiction. Our opinion is rendered as of the date hereof, and we assume no obligation to advise you of changes in law or fact (or
the effect thereof on the opinions expressed herein) that hereafter may come to our attention.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the
caption “Legal Matters” in the Registration Statement. In so doing, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act and the rules and regulations of the Commission promulgated thereunder.
Very
Truly Yours, |
|
|
|
/s/
Lucosky Brookman LLP |
|
Lucosky
Brookman LLP |
|
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated April 16, 2024, with respect
to the financial statements of Neuraxis, Inc. as of December 31, 2023 and 2022, and for the years then ended which report is included
in the Annual Report on Form 10-K of Neuraxis, Inc. for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
Our audit report includes an explanatory paragraph relating to Neuraxis, Inc.’s ability to continue as a going concern.
We
also consent to the reference to our firm under the caption “Experts.”
/s/
Rosenberg Rich Baker Berman, P.A.
Somerset,
New Jersey
February
5, 2025
Exhibit
107
Calculation
of Filing Fee Table
Form
S-3
(Form
Type)
Neuraxis,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
Security Type | |
Security Class Title | |
Fee Calculation Rule | | |
Amount Registered (1)(2) | | |
Proposed Maximum Aggregate Offering Price Per Unit (1)(2) | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
| |
| |
| | |
| | |
| | |
| | |
| | |
| |
Equity | |
Common stock, $0.0001 par value per share | |
| 457 | (o) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Equity | |
Preferred stock, $0.0001 par value per share | |
| 457 | (o) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Debt | |
Debt securities | |
| 457 | (o) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Other | |
Warrants | |
| 457 | (o) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Other | |
Units | |
| 457 | (o) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Other | |
Rights | |
| 457 | (o) | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Unallocated (Universal) Shelf | |
| |
| 457 | (o) | |
| — | | |
| — | | |
$ | 25,000,000 | (3) | |
| 0.00015310 | | |
$ | 3,827.5 | |
Equity | |
Common stock, $0.0001 par value per share, to be offered by the Selling Stockholders | |
| 457 | (c) | |
| 9,076,978 | | |
$ | 2.515 | (4) | |
$ | 22,828,599.67 | | |
| 0.00015310 | | |
$ | 3495.06 | |
Total Offering Amounts | | |
| | | |
$ | 47,828,599.67 | | |
| 0.00015310 | | |
$ | 7,322.56 | |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| 6,509.45 | |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| — | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 813.11 | |
(1)
The proposed amount of the securities offered to be offered and registered by the registrant, maximum offering price per class of security
to be offered by the registrant and maximum aggregate offering price per class of security to be offered by the registrant will be determined
from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder.
(2)
This registration statement covers such indeterminate amount of shares of common stock and preferred stock, debt securities, warrants
and rights of Neuraxis, Inc., as having an aggregate offering price not to exceed $25,000,000, to be offered by the registrant. The securities
registered hereunder are to be issued from time to time at prices to be determined. The securities registered also include such indeterminate
number of shares of common stock and preferred stock and amount of debt securities as may be issued upon conversion of or exchange for
preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or rights or pursuant to the anti-dilution
provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as
may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
(3)
Pursuant to Instruction 2.A.iii.b. of Item 16(b) of Form S-3, this information is not specified as to each class of securities in the
above five rows (the “Shelf Securities”) to be registered. There is being registered hereby such indeterminate number of
the securities of each identified class of Shelf Securities as may from time to time be issued at indeterminate prices. Shelf Securities
registered hereby may be offered for U.S. dollars or the equivalent thereof in foreign currencies.
(4)
Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) under the Securities Act of
1933, as amended, based on the average of the high and low sales price of the Common Stock as reported on Nasdaq on February 3, 2025.
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