As
filed with the Securities and Exchange Commission on September 26, 2022
Registration
Statement No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
IMAC
HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
83-0784691 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
Number) |
1605
Westgate Circle
Brentwood,
Tennessee 37027
(844)
266-4622
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Jeffrey
S. Ervin
Chief
Executive Officer
IMAC
Holdings, Inc.
1605
Westgate Circle
Brentwood,
Tennessee 37027
(844)
266-4622
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all communications to:
Spencer
G. Feldman, Esq.
Olshan
Frome Wolosky LLP
1325
Avenue of the Americas, 15th Floor
New
York, New York 10019
Telephone:
(212) 451-2300
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, 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 definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☒ |
Smaller
reporting company
|
☒ |
| |
|
Emerging
growth company |
☒ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. The selling stockholders named in this prospectus may not sell these
securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and the selling stockholders named in this prospectus is not soliciting offers to buy these securities
in any jurisdiction where the offer or sale is not permitted.
Subject
to completion, dated September 26, 2022
PROSPECTUS
IMAC
Holdings, Inc.
10,328,948
Shares of Common Stock
This
prospectus relates to the offer and sale by the selling stockholders named in this prospectus, and any pledgee, donee, transferee or
other successor in interest, of up to 10,328,948 shares of common stock of IMAC Holdings, Inc. We are filing the registration statement
(of which this prospectus is a part) at this time to fulfill a contractual obligation to do so, which we undertook at the time of the
original issuance of the shares described in this prospectus. We will not receive any of the proceeds from the sale of the common stock
by the selling stockholders.
We
have agreed to pay all legal, accounting, registration and related fees and expenses in connection with the registration of these shares
and to indemnify the selling stockholders against all losses, claims, damages, liabilities, costs (including, without limitation, reasonable
attorneys’ fees) and expenses in connection with any untrue or alleged untrue statement of a material fact made by us in this prospectus
or any violation or alleged violation of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) or any state securities law, or any rule or regulation thereunder in connection
therewith. The selling stockholders will pay all underwriting discounts and selling commissions, if any, in connection with the sale
of its shares.
The
selling stockholders named in this prospectus, and any pledgee, donee, transferee or other successor-in-interest, may offer the shares
from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or
at privately negotiated prices.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “BACK.” On September 23, 2022, the closing
sale price of the common stock on The Nasdaq Capital Market was $0.44 per share. We urge you to obtain current market
quotations for our common stock.
INVESTING
IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE “RISK FACTORS” BEGINNING ON PAGE 4.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is __________, 2022
TABLE
OF CONTENTS
PROSPECTUS
SUMMARY
This
summary highlights important features of this offering and the information included or incorporated by reference in this prospectus.
This summary does not contain all of the information that you should consider before investing in our common stock. You should read the
entire prospectus carefully, especially the risks of investing in our common stock discussed under “Risk Factors.”
Unless
the context otherwise requires, references in this prospectus to “IMAC,” “we,” “us” and “our”
refer to IMAC Holdings, Inc., a Delaware corporation, and its subsidiaries.
IMAC
Holdings, Inc.
Company
Overview
We
are a provider and manager of value-based, conservative medical care combining life science advancements with traditional medical care
for movement-restricting diseases and conditions in our IMAC Regeneration Centers and BackSpace clinics. Our Innovative Medical Advancements
and Care (“IMAC”) Regeneration Centers combine medical and physical procedures to improve patient experiences and outcomes
and reduce healthcare costs as compared to other available treatment options. As of June 30, 2022, we own and manage 12 outpatient
clinics that provide regenerative, orthopedic and minimally invasive procedures and therapies. Our treatments are performed by licensed
medical practitioners through our regenerative rehabilitation protocols designed to improve the physical health, to advance the quality
of life and to lessen the pain of our patients. We do not prescribe opioids, but instead offer an alternative to conventional surgery
or joint replacement surgery by delivering minimally invasive medical treatments to help patients with sports injuries, back pain, knee
pain, joint pain, ligament and tendon damage, and other related soft tissue conditions. Our employees focus on providing exceptional
customer service to give our patients a memorable and caring experience. We believe that we have priced our treatments to be affordable
by 95% of the population and are well positioned in the expanding regenerative medical sector.
Our
licensed healthcare professionals provide each patient a custom treatment plan that integrates innovative regenerative medicine protocols
(representing 12% of our revenue) with traditional, minimally invasive (minimizing skin punctures) medical procedures (representing 55%
of our revenue) in combination with physical therapies (representing 28% of our revenue from physical therapy), chiropractic care (representing
3% of our revenue) and remaining 2% of our revenue from memberships. We do not use or offer opioid-based prescriptions as part of our
treatment options in order to help our patients avoid the dangers of opioid abuse and addiction. We have successfully treated patients
that were previously addicted to opioids because of joint or soft tissue related pain. Further, our procedures comply with all professional
athletic league drug restriction policies, including the MLB, NBA, NFL and NHL.
Dr.
Matthew Wallis, DC, our President, opened the first IMAC Regeneration Center in Paducah, Kentucky in August 2000, which remains the flagship
location of our current business. Dr. Jason Brame, DC joined Dr. Wallis in 2008. In 2015, Drs. Wallis and Brame hired Jeffrey S. Ervin
as our Chief Executive Officer to collectively create and implement their growth strategy. The result was the formal creation of IMAC
Holdings, Limited Liability Company to expand IMAC clinics outside of western Kentucky, with such facilities to remain owned or operated
under the group using the IMAC Regeneration Center name and services. In June 2018, we completed a corporate conversion in which IMAC
Holdings, LLC was converted to IMAC Holdings, Inc. to consolidate ownership of existing clinics and implement our growth strategy. In
February 2019, we completed an initial public offering and our shares commenced trading on The Nasdaq Capital Market.
Our
Services
We
are focused on providing natural, non-opioid solutions to pain as consumers increasingly demand conservative treatments for an aging
population. The demand for our services continues to grow fueled by consumer preferences for organic healthcare solutions over traditionally
invasive orthopedic practices. We believe that our regenerative rehabilitation treatments are provided to patients at a much lower price
than our primary competitors, including orthopedic surgeons, pain management clinics and hospital systems targeting invasive joint reconstruction.
Surgical joint replacements cost several times more than our therapies initially treating the same condition. The U.S. government has
recently adopted strict surgery pre-approval initiatives to reduce the cost for Centers for Medicare & Medicaid Services and limit
the proliferation of opioids since they accompany substantially all joint replacement surgeries.
Our
Growth and Expansion Strategy
We
operate 12 outpatient medical clinics in five states and ten BackSpace locations in three states as of June 30, 2022. We
have developed a comprehensive approach and well-defined model for new clinic openings ranging from site selection to staffing to acquisition
targets and performance metrics. Given the current market valuations, we favor growth through acquisitions of profitable physical medicine
centers with a decade or more of history in a current location. We believe these targets can be found with favorable long-term transaction
prices in contiguous or current markets to capitalize on operational and marketing efficiencies.
The
key elements of our strategy that we believe will continue to propel our growth and expansion are:
Open
New BackSpace Locations and Facilities. We are in the process of identifying new locations at which to lease and develop The
BackSpace retail chiropractic clinics. We anticipate adding locations in currently occupied states as well as other states through franchise
agreements.
Expand
Our Advertising and Marketing. We intend to increase our advertising and marketing efforts and reach throughout our primary service
areas in order to grow patient volume at our existing facilities and spur interest in newer locations. Our current marketing efforts
include a combination of local television, digital and event advertising. We have introduced employer marketing initiatives with help
from our celebrity endorsers. While we welcome patients that are referred to us by other healthcare providers, we believe that direct
marketing will generate more new patients for our outpatient clinics than relying solely on antiquated medical referral practices.
Offer
State-of-the-Art Orthopedic and Medical Treatments. Our regenerative rehabilitation techniques are used to prevent arthritis,
treat meniscus tears, defeat muscle deterioration and address other damaged tissue conditions. We will continue offering innovative therapies
and recently approved medical technologies, including alternative medicine treatments, and will adapt our treatment offerings as new
treatments are developed and come to market. By bringing together a diverse array of medical specialists, we are able to treat more health
conditions and attract a larger base of patients.
Expand
our Spinal Care and Wellness Clinic. We have in-depth experience treating patients with back and neck pain and recognize the
underserved population for such a widely-impacted symptom. We intend to expand our retail healthcare concept focused on treatments for
back and neck pain, soft-tissue recovery, muscle tension, and spinal wellness while providing chiropractic adjustments, stretching and
muscle stimulation, and percussion tool therapies. We anticipate a combination of clinics to be managed through management service agreements
or franchised.
Recent
Developments
Strategic
Alternatives. On July 26, 2022, we announced that our board of directors initiated an exploration of strategic alternatives,
whereby the board of directors will consider a wide range of options for our company including, among other things, a potential merger,
sale or other strategic transaction involving one or more of our business units or assets. We currently have no commitments or agreements
with respect to any such activities.
Selected
Risks Related to our Business
Our
business is subject to numerous risks, including risks that may prevent us from achieving our business objectives or may adversely affect
our business, financial condition, results of operations, cash flows and prospects that you should consider before making an investment
decision. Some of the more significant risks and uncertainties relating to an investment in our company are listed below. These risks
are more fully described in the “Risk Factors” section of this prospectus immediately following this prospectus summary,
as well as in the documents incorporated by reference herein:
| |
● |
We
operate in an intensely competitive market for healthcare solutions against a number of large, well-known hospital systems and outpatient
medical clinics. |
| |
● |
We
have a limited operating history and we cannot ensure the long-term successful operation of our business. |
| |
● |
We
had net losses of $5.0 million and $10.5 million for the six months ended June 30, 2022 and the year ended December 31, 2021, respectively.
There can be no assurance we will have net income in future periods. |
| |
● |
As
part of our growth strategy following this offering, we may develop and acquire other outpatient medical clinics; however, there
is no assurance that we will be able to identify appropriate acquisition targets, successfully acquire identified targets or successfully
develop and integrate the businesses to realize their full benefits. |
| |
● |
Our
business depends on the availability to us of Jeffrey S. Ervin, our Chief Executive Officer, who has unique knowledge regarding our
roll-out of IMAC Regeneration Centers, and Matthew C. Wallis, DC, our President, who has business contacts that would be extremely
difficult to replace, and our business would be materially and adversely affected if either of their services were to become unavailable
to us. |
| |
● |
There
can be no assurance that the strategic review process we began in July 2022 will result in any strategic alternative, and there can
be no assurance as to its outcome or timing. We have not set a timetable for completion of the review process. |
| |
● |
Upon
the registration of the 10,328,948 shares of common stock offered by the selling stockholders in this prospectus, such shares will
account for approximately 24.1% of the outstanding shares of common stock upon completion of this offering. The sale of such shares
by the selling stockholders will have an impact on the market price of our common stock. |
Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business operations. You should
be able to bear a complete loss of your investment.
Implications
of Being an Emerging Growth Company
As
a company with less than $1.07 billion in revenue during our most recently completed fiscal year, we qualify as an “emerging growth
company” as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). An emerging growth company
may take advantage of specified reduced reporting and other burdens that are otherwise applicable generally to public companies. These
provisions include:
| |
● |
A
requirement to have only two years of audited financial statements and only two years of related Management’s Discussion and
Analysis of Financial Condition and Results of Operations; |
| |
● |
An
exemption from the auditor attestation requirement on the effectiveness of our internal control over financial reporting under Section
404(b) of the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”); |
| |
● |
An
extended transition period for complying with new or revised accounting standards; |
| |
● |
Reduced
disclosure about our executive compensation arrangements; and |
| |
● |
No
non-binding advisory votes on executive compensation or golden parachute arrangements. |
We
may take advantage of these provisions from the JOBS Act until the end of the fiscal year in which the fifth anniversary of our initial
public offering, or such earlier time when we no longer qualify as an emerging growth company. We would cease to be an emerging growth
company on the earlier of (i) the last day of the fiscal year (a) in which we have more than $1.07 billion in annual revenue or (b) in
which we have more than $700 million in market value of our capital stock held by non-affiliates, or (ii) the date on which we issue
more than $1.0 billion of non-convertible debt over a three-year period. We may choose to take advantage of some but not all of these
reduced burdens under the JOBS Act. We have irrevocably taken advantage of other reduced reporting requirements in this prospectus, and
we may choose to do so in future filings. To the extent we do, the information that we provide stockholders may be different than you
might get from other public companies in which you hold equity interests.
Corporate
Information
Our
principal executive offices are located at 1605 Westgate Circle, Brentwood, Tennessee 37027 and our telephone number is (844) 266-IMAC
(4622). We maintain a corporate website at http://www.imacholdings.com. We make our periodic and current reports that are filed
with the U.S. Securities and Exchange Commission (“SEC”) available, free of charge, on our website as soon as reasonably
practicable after such material is electronically filed with, or furnished to, the SEC. Information contained on, or accessible through,
our website is not a part of, and is not incorporated by reference into, this prospectus.
RISK
FACTORS
Investing
in our common stock involves significant risks. Please see the risk factors under the heading “Risk Factors” in our most
recent Annual Report on Form 10-K, as amended, and revised or supplemented by our Quarterly Reports on Form 10-Q filed with the SEC since
the filing of our most recent Annual Report on Form 10-K, each of which are on file with the SEC and are incorporated by reference in
this prospectus. Before making an investment decision, you should carefully consider these risks as well as other information we include
or incorporate by reference in this prospectus. The risks and uncertainties we have described are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business operations.
SPECIAL
NOTE REGARDING FORWARD-LOOKING INFORMATION
This
prospectus includes and incorporates forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. All statements, other than statements of historical facts, included or incorporated in this prospectus regarding our strategy, future
operations, financial position, future revenues, projected costs, prospects, plans and objectives of management are forward-looking statements.
The words “anticipates,” “believes,” “estimates,” “expects,” “intends,” “may,”
“plans,” “projects,” “will,” “would” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain these identifying words. We cannot guarantee that we
actually will achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should not place undue
reliance on our forward-looking statements. There are a number of important factors that could cause our actual results to differ materially
from those indicated by these forward-looking statements. These important factors include the factors that we identify in the documents
we incorporate by reference in this prospectus, as well as other information we include or incorporate by reference in this prospectus.
See “Risk Factors.” You should read these factors and other cautionary statements made in this prospectus, and in the documents
we incorporate by reference as being applicable to all related forward-looking statements wherever they appear in the prospectus, and
in the documents incorporated by reference. We do not assume any obligation to update any forward-looking statements made by us, except
as required by U.S. federal securities laws.
USE
OF PROCEEDS
We
will not receive any proceeds from the sale of shares by the selling stockholders. The selling stockholders will pay all underwriting
discounts, selling commissions and expenses incurred by it for brokerage, accounting, tax or legal services or any other expenses incurred
by the selling stockholders in connection with the sale of the shares. We will bear all other costs, fees and expenses incurred in effecting
the registration of the shares covered by this prospectus, including, without limitation, all registration and filing fees, Nasdaq listing
fees and fees and expenses of our counsel and our accountants.
DESCRIPTION
OF TRANSACTION
Issuance
of IMAC Common Stock, Series 1 Warrants and Series 2 Warrants
On
August 12, 2022, we entered into a securities purchase agreement (the “Securities Purchase Agreement”) with the selling
stockholders pursuant to which we offered for sale to the selling stockholders an aggregate of 5,164,474 shares of its common
stock in a registered direct offering (the “Registered Direct Offering”). The shares of common stock were offered by us
pursuant to our shelf registration statement on Form S-3 (File No. 333-237455) originally filed with the SEC on March
27, 2020, and declared effective on April 3, 2020. Concurrently with the Registered Direct Offering and pursuant to the Securities Purchase
Agreement, we also commenced a private placement (the “Private Placement”) whereby we issued and sold Series
1 warrants to purchase up to 5,164,474 shares of our common stock (the “Series 1 Warrants”) and Series 2 warrants
to purchase up to 5,164,474 shares of our common stock (the “Series 2 Warrants,” collectively, with the Series 1 Warrants,
the “Warrants”).
Pursuant
to the Private Placement, the Series 1 Warrants will become exercisable on February 16, 2023 at an exercise price of $0.95 per share,
subject to adjustment. Each Series 2 Warrant will become exercisable on February 16, 2023 at an exercise price of $0.95 per share, subject
to adjustment. The Warrants and the shares of common stock issuable upon the exercise of such Warrants (the “Warrant Shares”)
were offered in the Private Placement in reliance upon an exemption from the registration requirements of the Securities Act as provided
in Section 4(a)(2) under the Securities Act and Rule 506 promulgated thereunder. The Warrants are not and will not be listed for trading
on any national securities exchange. The shares of common stock underlying the Warrants offered in the Private Placement have not been
registered under the Securities Act, and may not be offered or sold in the United States absent registration or an applicable exemption
from registration requirements.
Under
the Securities Purchase Agreement, we agreed to file this registration statement with the SEC and to use our commercially reasonable
efforts to cause such registration statement to become effective with respect to the resale of our common stock issuable upon exercise
of the Warrants.
The
foregoing summary of the Securities Purchase Agreement and the Warrants are qualified in their entirety by reference to the full text
of those documents that are included as exhibits to our current report on Form 8-K filed with the SEC on August 15, 2022.
SELLING
STOCKHOLDERS
This
prospectus relates to the resale from time to time of up to 10,328,948 shares of our common stock by the selling stockholders.
The
following table, based upon information currently known by us, sets forth as of September 23, 2022: (i) the number of shares held
of record or beneficially by the selling stockholder as of such date (as determined below) and (ii) the number of shares that may be
offered under this prospectus by the selling stockholders. Beneficial ownership includes shares of common stock plus any securities held
by the holder exercisable for or convertible into shares of common stock within 60 days after September 23, 2022, in accordance
with Rule 13d-3(d)(1) under the Exchange Act. The inclusion of any shares in this table does not constitute an admission of beneficial
ownership for the selling stockholders named below.
The
selling stockholders have not held any position or office, or has otherwise had a material relationship, with us or any of our subsidiaries
within the past three years other than as described in “Description of Transaction” above. To our knowledge, the selling
stockholders have sole voting and investment power with respect to its shares of common stock.
Percentage
of beneficial ownership in the table below is based on 42,792,708 shares of our common stock outstanding upon completion of this offering,
assuming full exercise of each Warrant. None of the selling stockholders is a broker-dealer regulated by the Financial Industry Regulatory
Authority, Inc. (“FINRA”), nor is any selling stockholder affiliated with such a broker-dealer. The selling stockholders
acquired their shares in the ordinary course of such selling stockholders’ business and, at the time of the acquisition of the
shares to be resold pursuant to this prospectus, the selling stockholders had no agreements or understandings, directly or indirectly,
with any person to distribute them.
Name
of Selling Stockholder | |
Common
Stock Beneficially Owned Prior to the Offering | | |
Common
Stock Offered Pursuant to this Prospectus | | |
Common
Stock Owned Upon Completion of this Offering(1) | | |
Percentage
of Common Stock Owned Upon Completion of this Offering | |
| Alpha Capital
Anstalt(2) | |
| 822,368 | | |
| 1,644,736 | | |
| 822,368 | | |
| 1.9 | % |
| Alpha Sherpa Capital Limited(3) | |
| 131,579 | | |
| 263,158 | | |
| 131,579 | | |
| * | |
| Anson Investments Master Fund
LP(4) | |
| 657,895 | | |
| 1,315,790 | | |
| 657,895 | | |
| 1.5 | % |
| Bigger Capital Fund, LP(5) | |
| 328,947 | | |
| 657,894 | | |
| 328,947 | | |
| * | |
| Brio Capital Master Fund Ltd.(6) | |
| 657,895 | | |
| 1,315,790 | | |
| 657,895 | | |
| 1.5 | % |
| CVI Investments, Inc.(7) | |
| 394,737 | | |
| 789,474 | | |
| 394,737 | | |
| * | |
| District 2 Capital Fund LP(8) | |
| 328,948 | | |
| 657,896 | | |
| 328,948 | | |
| * | |
| Intracoastal Capital LLC(9) | |
| 328,948 | | |
| 657,896 | | |
| 328,948 | | |
| * | |
| Lincoln Park Capital Fund,
LLC(10) | |
| 328,947 | | |
| 657,894 | | |
| 328,947 | | |
| * | |
| Orca Capital GMBH(11) | |
| 263,157 | | |
| 526,314 | | |
| 263,157 | | |
| * | |
| Walleye Opportunities Master
Fund Ltd.(12) | |
| 657,895 | | |
| 1,315,790 | | |
| 657,895 | | |
| 1.5 | % |
| Warberg WFX LP(13) | |
| 263,158 | | |
| 526,316 | | |
| 263,158 | | |
| * | |
| TOTAL | |
| 5,164,474 | | |
| 10,328,948 | | |
| 5,164,474 | | |
| - | |
| |
* |
Less
than 1% of outstanding shares of common stock. |
| |
|
|
| |
(1) |
Assumes
that the selling stockholders dispose of all of the shares of common stock covered by this prospectus and does not acquire beneficial
ownership of any additional shares of common stock. The registration of these shares of common stock does not necessarily mean that
the selling stockholder will sell all or any portion of the shares of common stock covered by this prospectus. |
| |
(2) |
Nicola
Feuerstein is a Director of Alpha Capital Anstalt, and in such capacity, holds voting and investment power with respect to the shares
directly owned by Alpha Capital Anstalt. The shares of common stock beneficially owned prior to the offering does not include Series
1 Warrants to purchase 822,368 shares of common stock, which are exercisable on February 16, 2023, or Series 2 Warrants to purchase
822,368 shares of common stock, which are exercisable on February 16, 2023. The address for Alpha Capital Anstalt is c/o LH Financial
Services Corp., 510 Madison Avenue, 14th Floor, New York, New York 10022. |
| |
|
|
| |
(3) |
Ludwig
Donnert is the Chief Executive Officer of Alpha Sherpa Capital Limited, and in such capacity, holds voting and investment power with
respect to the shares directly owned by Alpha Sherpa Capital Limited. The shares of common stock beneficially owned prior to the
offering does not include Series 1 Warrants to purchase 131,579 shares of common stock, which are exercisable on February 16, 2023,
or Series 2 Warrants to purchase 131,579 shares of common stock, which are exercisable on February 16, 2023. The address for Alpha
Sherpa Capital Limited is Unit 501, 5/F, The L Plaza, 367-375 Queen’s Road Central, Hong Kong. |
| |
|
|
| |
(4) |
Amin
Nathoo is a Director of Anson Advisors Inc., which is the General Partner of Anson Investments Master Fund LP, and in such capacity,
holds voting and investment power with respect to the shares directly owned by Anson Investments Master Fund LP. The shares of common
stock beneficially owned prior to the offering does not include Series 1 Warrants to purchase 657,895 shares of common stock, which
are exercisable on February 16, 2023, or Series 2 Warrants to purchase 657,895 shares of common stock, which are exercisable on February
16, 2023. The address for Anson Investments Master Fund LP is 155 University Avenue, Suite 207, Toronto, Ontario, Canada, M5H 387. |
| |
|
|
| |
(5) |
Michael
Bigger is the Managing Member of Bigger Capital Fund GP, LLC, which is the General Partner of Bigger Capital Fund, LP, and in such
capacity, holds voting and investment power with respect to the shares directly owned by Bigger Capital Fund, LP. The shares of common
stock beneficially owned prior to the offering does not include Series 1 Warrants to purchase 328,947 shares of common stock, which
are exercisable on February 16, 2023, or Series 2 Warrants to purchase 328,947 shares of common stock, which are exercisable on February
16, 2023. The address for Bigger Capital Fund, LP is 11700 West Charleston Blvd., #170-659, Las Vegas, Nevada 89135. |
| |
|
|
| |
(6) |
Shaye
Hirsch is a Director of Brio Capital Master Fund Ltd., and in such capacity, holds voting and investment power with respect to the
shares directly owned by Brio Capital Master Fund Ltd. The shares of common stock beneficially owned prior to the offering does not
include Series 1 Warrants to purchase 657,895 shares of common stock, which are exercisable on February 16, 2023, or Series 2 Warrants
to purchase 657,895 shares of common stock, which are exercisable on February 16, 2023. The address for Brio Capital Master Fund
Ltd. is c/o Brio Capital Management LLC, 100 Merrick Road, Suite 401W, Rockville Centre, New York 11570. |
| |
|
|
| |
(7) |
Martin
Kobinger is the President of Heights Capital Management, Inc., which is the investment manager of CVI Investments, Inc., and in such
capacity, holds voting and investment power with respect to the shares directly owned by CVI Investments, Inc. The shares of common
stock beneficially owned prior to the offering does not include Series 1 Warrants to purchase 394,737 shares of common stock, which
are exercisable on February 16, 2023, or Series 2 Warrants to purchase 394,737 shares of common stock, which are exercisable on February
16, 2023. The address for CVI Investments, Inc. is c/o Heights Capital Management, Inc., 101 California Street, Suite 3250, San Francisco,
California 94111. |
| |
|
|
| |
(8) |
Michael
Bigger is the Managing Member of District 2 GP LLC, which is the General Partner of District 2 Capital Fund LP, and in such capacity,
holds voting and investment power with respect to the shares directly owned by District 2 Capital Fund LP. The shares of common stock
beneficially owned prior to the offering does not include Series 1 Warrants to purchase 328,948 shares of common stock, which are
exercisable on February 16, 2023, or Series 2 Warrants to purchase 328,948 shares of common stock, which are exercisable on February
16, 2023. The address for District 2 Capital Fund LP is 14 Wall Street, 2nd Floor, Huntington, New York 11743. |
| |
(9) |
Mitchell
P. Kopin is the Manager of Intracoastal Capital LLC, and in such capacity, holds voting and investment power with respect to the
shares directly owned by Intracoastal Capital LLC. The shares of common stock beneficially owned prior to the offering does not include
Series 1 Warrants to purchase 328,948 shares of common stock, which are exercisable on February 16, 2023, or Series 2 Warrants to
purchase 328,948 shares of common stock, which are exercisable on February 16, 2023. The address for Intracoastal Capital LLC is
2211A Lakeside Drive, Bannockburn, Illinois 60015. |
| |
|
|
| |
(10) |
Joshua
Scheinfeld and Jonathan I. Cope are the Principals of Lincoln Park Capital, LLC, which is the Managing Member of Lincoln Park Capital
Fund, LLC, and in such capacities, share voting and investment power with respect to the shares directly owned by Lincoln Park Capital
Fund, LLC. The shares of common stock beneficially owned prior to the offering does not include Series 1 Warrants to purchase 328,947
shares of common stock, which are exercisable on February 16, 2023, or Series 2 Warrants to purchase 328,947 shares of common stock,
which are exercisable on February 16, 2023. The address for Lincoln Park Capital Fund, LLC is 440 N. Wells Street, Suite 410, Chicago,
Illinois 60654. |
| |
|
|
| |
(11) |
Thomas
Koenig is the Managing Director of Orca Capital GMBH, and in such capacity, holds voting and investment power with respect to the
shares directly owned by Orca Capital GMBH. The shares of common stock beneficially owned prior to the offering does not include
Series 1 Warrants to purchase 263,157 shares of common stock, which are exercisable on February 16, 2023, or Series 2 Warrants to
purchase 263,157 shares of common stock, which are exercisable on February 16, 2023. The address for Orca Capital GMBH is CIBC World
Markets, 199 Bay Street, CCW B2 Level, Toronto, Ontario, Canada, M5L 1G9. |
| |
|
|
| |
(12) |
William
England is the Chief Investment Officer of Walleye Capital, LLC, which is the Manager of Walleye Opportunities Master Fund
Ltd., and in such capacity, holds voting and investment power with respect to the shares directly owned by Walleye Opportunities
Master Fund Ltd. The shares of common stock beneficially owned prior to the offering does not include Series 1 Warrants to purchase
657,895 shares of common stock, which are exercisable on February 16, 2023, or Series 2 Warrants to purchase 657,895 shares of common
stock, which are exercisable on February 16, 2023. The address for Walleye Opportunities Master Fund Ltd. is 2800 Niagara Lane North,
Plymouth, Minnesota 55447. |
| |
|
|
| |
(13) |
Daniel
Warsh is the Manager of Warberg WFX LP, and in such capacity, holds voting and investment power with respect to the shares directly
owned by Warberg WFX LP. The shares of common stock beneficially owned prior to the offering does not include Series 1 Warrants to
purchase 263,158 shares of common stock, which are exercisable on February 16, 2023, or Series 2 Warrants to purchase 263,158 shares
of common stock, which are exercisable on February 16, 2023. The address for Warberg WFX LP is 716 Oak Street, Winnetka, Illinois
60093. |
PLAN
OF DISTRIBUTION
The
selling stockholders, and any pledgee, donee, transferee or other successor in interest, may, from time to time, sell any or all of its
shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These
sales may be at fixed or negotiated prices, and may be effected in transactions, which may involve crosses or block transactions, pursuant
to one or more of the following methods:
| |
● |
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| |
|
|
| |
● |
block
trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; |
| |
|
|
| |
● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
| |
|
|
| |
● |
an
exchange distribution in accordance with the rules of the applicable exchange; |
| |
|
|
| |
● |
privately
negotiated transactions; |
| |
|
|
| |
● |
short
sales; |
| |
|
|
| |
● |
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| |
|
|
| |
● |
broker-dealers
may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; |
| |
|
|
| |
● |
one
or more underwritten offerings on a firm commitment or best efforts basis; |
| |
|
|
| |
● |
a
combination of any such methods of sale; and |
| |
|
|
| |
● |
any
other method permitted pursuant to applicable law. |
The
selling stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in
amounts to be negotiated, which commissions or discounts may be less than or in excess of those customary in the types of transactions
involved. Any profits on the resale of shares of common stock by a broker-dealer acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. Discounts, concessions, commissions and similar selling expenses, if any, attributable
to the sale of shares will be borne by the selling stockholders. The selling stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares if liabilities are imposed on that person under the Securities
Act.
The
selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by
it and, if it defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of
common stock from time to time under this prospectus after we have filed a supplement to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act supplementing or amending the list of selling stockholders to include any pledgee, transferee
or other successor in interest as a selling stockholders under this prospectus.
The
selling stockholders may also transfer the shares of common stock in other circumstances, in which case any donee, transferee, pledgee
or other successor in interest will be the selling beneficial owner for purposes of this prospectus and may sell the shares of common
stock from time to time under this prospectus after we have filed a supplement to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of supplementing or amending the list of selling stockholders to include any donee, pledgee, transferee
or other successor in interest as a selling stockholders under this prospectus.
Under
the securities laws of some states, the shares of our common stock may be sold in such states only through registered or licensed brokers
or dealers. In addition, in some states the shares of our common stock may not be sold unless such shares have been registered or qualified
for sale in such state or an exemption from registration or qualification is available and is complied with.
The
selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act.
We
are required to pay all legal, accounting, registration, printing and related fees and expenses incident to the registration of the shares
of common stock being registered. We have agreed to indemnify the selling stockholders against all losses, claims, damages, liabilities,
costs (including, without limitation, reasonable attorneys’ fees) and expenses in connection with any untrue or alleged untrue
statement of a material fact made by us in this prospectus or any violation or alleged violation of the Securities Act, the Exchange
Act or any state securities law, or any rule or regulation thereunder in connection therewith.
The
selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters
or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting in connection
with a proposed sale of shares of common stock by the selling stockholders. If we are notified by the selling stockholders that any material
arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement
to this prospectus.
The
selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act,
which may limit the timing of purchases and sales of any of the shares of our common stock by the selling stockholders and any other
participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution
of the shares of our common stock to engage in market-making activities with respect to the shares of our common stock. All of the foregoing
may affect the marketability of the shares of our common stock and the ability of any person or entity to engage in market-making activities
with respect to the shares of our common stock.
There
can be no assurance that the selling stockholders will sell any or all of the shares of our common stock registered pursuant to the registration
statement, of which this prospectus forms a part.
LEGAL
MATTERS
Olshan
Frome Wolosky LLP has opined as to the legality of the shares of common stock being offered by this registration statement.
EXPERTS
Cherry
Bekaert LLP, our independent registered public accounting firm, has audited our financial statements included in our Annual Report on
Form 10-K for the year ended December 31, 2021, as set forth in their report, which is incorporated by reference in this prospectus and
elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Cherry Bekaert LLP’s
report, given on their authority as experts in accounting and auditing.
Daszkal
Bolton LLP, our former independent registered public accounting firm, has audited our financial statements included in our Annual Report
on Form 10-K for the year ended December 31, 2020, as set forth in their report, which is incorporated by reference in this prospectus
and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Daszkal Bolton LLP’s
report, given on their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a public company and file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings
are available, at no charge, to the public at the SEC’s website at http://www.sec.gov.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
following documents filed by us with the SEC are incorporated by reference in this prospectus:
| |
● |
our
Annual Report on Form 10-K for the year ended December 31, 2021, filed on April
14, 2022; |
| |
|
|
| |
● |
our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022, filed on May
12, 2022, and June 30, 2022, filed on August
15, 2022; |
| |
|
|
| |
● |
our
Current Reports on Form 8-K, filed on February
24, 2022, July
11, 2022, August
8, 2022 and August
15, 2022; |
| |
|
|
| |
● |
the
description of our common stock which is registered under Section 12 of the Exchange Act, in our registration statement on Form 8-A,
filed on February
4, 2019, including any amendment or reports filed for the purposes of updating this description. |
We
also incorporate by reference all documents we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than any
portions of filings that are furnished rather than filed pursuant to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the date
of this prospectus and before the completion of the offering of the shares of our common stock included in this prospectus. All documents
we file in the future pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to
the termination of the offering are also incorporated by reference and are an important part of this prospectus.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document
which also is or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information
that has been incorporated by reference in the prospectus but not delivered with the prospectus. You may request a copy of these filings,
excluding the exhibits to such filings which we have not specifically incorporated by reference in such filings, at no cost, by writing
to or calling us at:
IMAC
Holdings, Inc.
1605
Westgate Circle
Brentwood,
Tennessee 37027
(844)
266-4622
You
should rely only on the information contained in this prospectus, including information incorporated by reference as described above,
or any prospectus supplement that we have specifically referred you to. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other
than the date on the front of those documents or that any document incorporated by reference is accurate as of any date other than its
filing date. You should not consider this prospectus to be an offer or solicitation relating to the securities in any jurisdiction in
which such an offer or solicitation relating to the securities is not authorized. Furthermore, you should not consider this prospectus
to be an offer or solicitation relating to the securities if the person making the offer or solicitation is not qualified to do so, or
if it is unlawful for you to receive such an offer or solicitation.
PART
II
Information
Not Required In Prospectus
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the various expenses to be incurred in connection with the sale and distribution of the securities being registered
hereby, all of which will be borne by IMAC (except any underwriting discounts and commissions and expenses incurred by the selling stockholders
for brokerage, accounting, tax or legal services or any other expenses incurred by the selling stockholders in connection with the sale
of the shares). All amounts shown are estimates except the SEC registration fee.
| SEC registration fee | |
$ |
407.41 | |
| Legal fees and expenses | |
$ | 10,000.00 | |
| Accounting fees and expenses | |
$ | 15,000.00 | |
| Miscellaneous | |
$ | 5,000.00 | |
| Total
expenses | |
$ | 30,407.41 | |
Item
15. Indemnification of Directors and Officers
In
June 2018, we converted from a Kentucky limited liability company into a Delaware corporation and changed our name to IMAC Holdings,
Inc. In connection with this conversion, we adopted a certificate of incorporation and bylaws and are now governed by the Delaware General
Corporation Law, or the DGCL. Section 145(a) of the DGCL provides that a Delaware corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such 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 or enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such 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 cause to believe his or her conduct was unlawful.
Section
145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if he or she acted
under similar standards, except that no indemnification may be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was
brought shall determine that, despite the adjudication of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper.
Section
145 of the DGCL further provides that: (i) to the extent that a former or present director or officer of a corporation has been successful
in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him
or her in connection therewith; (ii) indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and (iii) the corporation may purchase and maintain insurance on behalf of any present or
former director, officer, employee or agent of the corporation or any person who at the request of the corporation was serving in such
capacity for another entity against any liability asserted against such person and incurred by him or her 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 him or her against such liabilities
under Section 145.
Article
VI of our certificate of incorporation authorizes us to provide for the indemnification of officers, directors and third parties acting
on our behalf to the fullest extent permissible under Delaware law.
We
have entered into indemnification agreements with our directors, executive officers and others, in addition to indemnification provided
for in our bylaws, and intend to enter into indemnification agreements with any new directors and executive officers in the future.
We
have purchased and intend to maintain insurance on behalf of any person who is or was a director or officer against any loss arising
from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
See
also the undertakings set forth in response to Item 17 herein.
Item
16. Exhibits.
| Exhibit
Number |
|
Description |
| 2.1 |
|
Agreement
and Plan of Merger, dated as of April 1, 2019, by and among IMAC Holdings Inc., IMAC Management of Illinois, LLC, ISDI Holdings Inc.,
and Jason Hui (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on April
25, 2019). |
| |
|
|
| 2.2 |
|
Amendment
to Agreement and Plan of Merger, dated as of April 19, 2019, by and among IMAC Holdings Inc., IMAC Management of Illinois, LLC, ISDI
Holdings Inc., ISDI Holdings II, Inc., and Jason Hui (incorporated by reference to Exhibit 2.2 to the Company’s Current Report
on Form 8-K filed with the SEC on April 25, 2019). |
| |
|
|
| 2.3 |
|
Unit
Purchase Agreement, dated as of March 1, 2018, by and among IMAC Holdings, Inc., IMAC of St. Louis, LLC and certain unitholders of
IMAC of St. Louis LLC (incorporated by reference to Exhibit 10.5 to the Company’s Registration Statement on Form S-1 filed
with the SEC on September 17, 2018). |
| |
|
|
| 2.4 |
|
Agreement
and Plan of Merger, dated as of June 29, 2018, by and among IMAC Management Services LLC and Clinic Management Associates of KY LLC
(incorporated by reference to Exhibit 10.16 to the Company’s Registration Statement on Form S-1/A filed with the SEC on December
3, 2018). |
| |
|
|
| 2.5 |
|
Unit
Purchase Agreement, dated as of July 31, 2018, by and among IMAC Holdings, Inc., Advantage Hand Therapy and Orthopedic Rehabilitation,
LLC, and Charles Renner (incorporated by reference to Exhibit 10.17 to the Company’s Registration Statement on Form S-1/A filed
with the SEC on December 3, 2018). |
| |
|
|
| 2.6 |
|
Addendum
to Agreement and Plan of Merger, dated as of August 31, 2018, by and among IMAC Management Services LLC and Clinic Management Associates
of KY LLC (incorporated by reference to Exhibit 10.18 to the Company’s Registration Statement on Form S-1/A filed with the
SEC on December 3, 2018). |
| |
|
|
| 2.7 |
|
Addendum
to Unit Purchase Agreement, dated as of August 31, 2018, by and among IMAC Holdings, Inc., IMAC of St. Louis, LLC and certain unitholders
of IMAC of St. Louis LLC (incorporated by reference to Exhibit 10.19 to the Company’s Registration Statement on Form S-1/A
filed with the SEC on December 3, 2018). |
| |
|
|
| 3.1 |
|
Certificate
of Incorporation of IMAC Holdings, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on
Form S-1 filed with the SEC on September 17, 2018). |
| |
|
|
| 3.2 |
|
Certificate
of Amendment to the Certificate of Incorporation of IMAC Holdings, Inc. (incorporated by reference to Exhibit 3.2 to the Company’s
Registration Statement on Form S-1/A filed with the SEC on December 10, 2018). |
| |
|
|
| 3.3 |
|
Certificate
of Correction of the Certificate of Incorporation of IMAC Holdings, Inc. filed with the Delaware Secretary of State on August 8,
2019 (incorporated by reference to Exhibit 3.4 to the Company’s Current Report on Form 8-K filed with the SEC on August 9,
2019). |
| 3.4 |
|
Certificate
of Amendment to the Certificate of Incorporation of IMAC Holdings, Inc. filed with the Delaware Secretary of State on July 7, 2022
(incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on July 11, 2022). |
| |
|
|
| 3.5 |
|
Bylaws
of IMAC Holdings, Inc. (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-1 filed
with the SEC on September 17, 2018). |
| |
|
|
| 4.1 |
|
Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 filed
with the SEC on September 17, 2018). |
| |
|
|
| 4.2 |
|
Form
of Common Stock Warrant certificate (incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form
S-1/A filed with the SEC on December 3, 2018). |
| |
|
|
| 4.3 |
|
Form
of Warrant Agency Agreement between IMAC Holdings, Inc. and Equity Stock Transfer, LLC (incorporated by reference to Exhibit 4.3
to the Company’s Registration Statement on Form S-1/A filed with the SEC on December 3, 2018). |
| |
|
|
| 4.4 |
|
Form
of Underwriters’ Unit Purchase Option (incorporated by reference to Exhibit 4.4 to the Company’s Registration Statement
on Form S-1/A filed with the SEC on February 8, 2019). |
| |
|
|
| 4.5 |
|
Description
of the Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 (incorporated by reference to Exhibit
4.5 to the Company’s Annual Report on Form 10-K filed with the SEC on March 26, 2020). |
| |
|
|
| 5.1* |
|
Opinion
of Olshan Frome Wolosky LLP. |
| |
|
|
| 23.1* |
|
Consent
of Cherry Bekaert LLP, Independent Registered Public Accountants. |
| |
|
|
| 23.2* |
|
Consent
of Daszkal Bolton LLP, Independent Registered Public Accountants. |
| |
|
|
| 23.3* |
|
Consent
of Olshan Frome Wolosky LLP (included in its opinion filed as Exhibit 5.1). |
| |
|
|
| 24.1 |
|
Power
of Attorney (included on signature page of the Registration Statement). |
| |
|
|
| 107* |
|
Calculation
of Filing Fee Table. |
Item
17. Undertakings
The
undersigned Registrant hereby undertakes:
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act.
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Filing
Fee Table” in the effective registration statement.
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
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.
That,
for the purpose of determining liability under the Securities Act to any purchaser:
(i)
If the Registrant is relying on Rule 430B:
(A)
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date; or
(ii)
If the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
That,
for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the
securities the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(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.
That,
for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
The
undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under
Section 305(b)(2) of the Trust Indenture Act.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item 15 above, 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 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Brentwood, state of Tennessee, on September 26, 2022.
| |
IMAC
HOLDINGS, INC. |
| |
|
|
| |
By: |
/s/
Jeffrey S. Ervin |
| |
Name: |
Jeffrey
S. Ervin |
| |
Title: |
Chief
Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jeffrey S. Ervin as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and resubstituting, for him or her and in his or her name,
place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments
(including post-effective amendments) to this registration statement together with all schedules and exhibits thereto and any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, together with all schedules and exhibits
thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate
in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment
or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and (iv) take any
and all actions which may be necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and
on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
|
/s/
Jeffrey S. Ervin |
|
Director
and Chief Executive Officer
|
|
September
26, 2022 |
| Jeffrey
S. Ervin |
|
(principal
executive officer) |
|
|
| |
|
|
|
|
| /s/
Sheri Gardzina |
|
Chief
Financial Officer |
|
September
26, 2022 |
| Sheri
Gardzina |
|
(principal
financial and accounting officer) |
|
|
| |
|
|
|
|
| /s/
Matthew C. Wallis |
|
Director
and President |
|
September
26, 2022 |
| Matthew
C. Wallis |
|
|
|
|
| |
|
|
|
|
| /s/
Maurice E. Evans |
|
Director |
|
September
26, 2022 |
| Maurice
E. Evans |
|
|
|
|
| |
|
|
|
|
| /s/
Michael D. Pruitt |
|
Director |
|
September
26, 2022 |
| Michael
D. Pruitt |
|
|
|
|
| |
|
|
|
|
| /s/
Cary W. Sucoff |
|
Director |
|
September
26, 2022 |
| Cary
W. Sucoff |
|
|
|
|
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