As
filed with the Securities and Exchange Commission on December 17, 2024.
Registration
Statement No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SCORPIUS
HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
2834 |
|
26-2844103 |
(State
or other jurisdiction of
incorporation or organization) |
|
(Primary
Standard Industrial
Classification Code Number) |
|
(I.R.S.
Employer
Identification No.) |
627
Davis Drive, Suite 300
Morrisville,
North Carolina 27560
(919)
240-7133
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive office)
Jeffrey
Wolf
Chief
Executive Officer
627
Davis Drive, Suite 300
Morrisville,
North Carolina 27560
(919)
240-7133
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Leslie
Marlow, Esq.
Melissa
Palat Murawsky, Esq.
Blank
Rome LLP
1271
Avenue of the Americas
New
York, New York 10020
Telephone:
(212) 885-5000
Approximate
date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
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, 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, 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(d) 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: ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ☐ |
Accelerated
filer ☐ |
| Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
| |
Emerging
Growth Company ☐ |
If
an emerging growth company, indicate by checkmark if the registrant has not elected 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 that 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 Securities and Exchange 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 may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities
and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
| PRELIMINARY
PROSPECTUS |
SUBJECT
TO COMPLETION |
DATED
DECEMBER 17, 2024 |
Scorpius
Holdings, Inc.
47,396,667
Shares of Common Stock
This
prospectus relates to the resale from time to time of up to 47,396,667 shares of common stock, par value $0.0002 (“Common Stock”),
of Scorpius Holdings, Inc., a Delaware corporation (“we,” “us,” “our,” or the “Company”),
by 3i, LP and Sabby Volatility Warrant Master Fund Ltd. (collectively, the “Selling Stockholders”).
We
are registering the resale of (i) up to an aggregate of 34,007,778 shares of Common Stock (the “Conversion Shares”) issuable
upon the conversion of the two outstanding senior secured convertible notes (the “Notes”) that we issued on December 6, 2024
to the Selling Stockholders pursuant to that certain Securities Purchase Agreement, dated as of December 5, 2024 (the “Purchase
Agreement”), between us and the Selling Stockholders, as more fully described in this prospectus; and (ii) up to an aggregate of
13,388,889 shares of Common Stock (the “Warrant Shares”) issuable upon the exercise of the two outstanding warrants (the
“Warrants”) that we issued on December 6, 2024 to the Selling Stockholders pursuant to the Purchase Agreement. The Conversion
Shares and Warrant Shares include: (i) up to 31,538,334 shares of Common Stock issuable to 3i, LP (“3i”) upon conversion
of a Note in the principal amount of $12,416,667 and up to 12,416,667 shares of Common Stock issuable upon the exercise of a Warrant
held by 3i; and (ii) up to 2,469,444 shares of Common Stock issuable to Sabby Volatility Warrant Master Fund Ltd. (“Sabby”)
upon conversion of a Note in the principal amount of $972,222 and up to 972,222 shares of Common Stock issuable upon the exercise of
a Warrant held by Sabby. See “Description of the Private Placement” for a description of the transaction, including the terms
and conditions of the Purchase Agreement and “Selling Stockholders” for additional information regarding the Selling Stockholders.
The
prices at which the Selling Stockholders may resell the shares offered hereby will be determined by the prevailing market price for the
shares or in negotiated transactions. We are not selling any securities under this prospectus and will not receive any of the proceeds
from the sale of shares of Common Stock by the Selling Stockholders. We may, however, receive proceeds from the cash exercise of the
Warrants.
The
Selling Stockholders may sell the shares of Common Stock described in this prospectus in a number of different ways and at varying prices.
We provide more information about how the Selling Stockholders may sell their shares of Common Stock in the section titled “Plan of Distribution” on page 14 of this prospectus. The Selling Stockholders may be deemed “underwriters” within
the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended (the “Securities Act”).
We
will pay the expenses incurred in registering the securities covered by this prospectus, including legal and accounting fees. To the
extent the Selling Stockholders decide to sell their shares of Common Stock we will not control or determine the price at which the shares
are sold.
You
should read this prospectus, together with additional information described under the heading “Where You Can Find More Information”
carefully before you invest in any of our securities.
Our Common Stock is
listed on the NYSE American LLC under the symbol “SCPX.” The last reported sale price of our Common Stock on NYSE American
LLC on December 13, 2024 was $0.3001 per share. We urge prospective purchasers of our Common Stock to obtain current information about
the market prices of the Common Stock.
Investing
in the Common Stock involves a high degree of risk. Please consider carefully the risks described in this prospectus under “Risk Factors” beginning on page 6 of this prospectus and in our filings with the Securities and Exchange Commission.
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 , 2024
TABLE OF CONTENTS
The
registration statement containing this prospectus, including the exhibits to the registration statement, provides additional information
about us and the Common Stock offered under this prospectus. The registration statement, including the exhibits, can be read on our website
and the website of the Securities and Exchange Commission. See “Where You Can Find More Information.”
Information
contained in, and that can be accessed through our web site, www.scorpiusbiologics.com, shall not be deemed to be part of this
prospectus or incorporated herein by reference and should not be relied upon by any prospective investors for the purposes of determining
whether to purchase the Common Stock offered hereunder.
Unless
the context otherwise requires, the terms “we,” “us,” “our,” the “Company,” “Scorpius”
and “our business” refer to Scorpius Holdings, Inc. and “this offering” refers to the offering contemplated in
this prospectus.
i
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-1 that we filed with the U.S. Securities and Exchange Commission (the “SEC”).
Under this registration process, the Selling Stockholders may, from time to time, sell the securities offered by them described in this
prospectus. We will not receive any proceeds from the sale by the Selling Stockholders of the securities offered by them described in
this prospectus.
We
may also file a prospectus supplement or post-effective amendment to the registration statement of which this prospectus forms a part
that may contain material information relating to this offering. The prospectus supplement or post-effective amendment may also add,
update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and
the applicable prospectus supplement or post-effective amendment, you should rely on the prospectus supplement or post-effective amendment,
as applicable. Before purchasing any securities, you should carefully read this prospectus, any post-effective amendment, and any 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 anyone to provide you with any information or to make any representations other than
those contained, or incorporated by reference, in this prospectus, any post-effective amendment, or any applicable prospectus supplement
prepared by or on behalf of us or to which we have referred you. We and the Selling Stockholders take no 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. You should not assume that the information
contained in this prospectus or any applicable prospectus supplement is accurate on any date subsequent to the date set forth on the
front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the
document incorporated by reference, even though this prospectus or any applicable prospectus supplement is delivered, or securities are
sold, on a later date.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the section entitled
“Where You Can Find More Information.”
INDUSTRY
AND MARKET DATA
Unless
otherwise indicated, information in this prospectus concerning economic conditions, our industry, our markets and our competitive position
is based on a variety of sources, including information from third-party industry analysts and publications and our own estimates and
research. Some of the industry and market data contained in this prospectus are based on third-party industry publications. This information
involves a number of assumptions, estimates and limitations.
The
industry publications, surveys and forecasts and other public information generally indicate or suggest that their information has been
obtained from sources believed to be reliable. We believe this information is reliable as of the applicable date of its publication,
however, we have not independently verified the accuracy or completeness of the information included in or assumptions relied on in these
third-party publications. In addition, the market and industry data and forecasts that may be included in this prospectus, any post-effective
amendment or any prospectus supplement may involve estimates, assumptions and other risks and uncertainties and are subject to change
based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus or any
document incorporated herein by reference, any post-effective amendment and the applicable prospectus supplement. Accordingly, investors
should not place undue reliance on this information.
ii
PROSPECTUS
SUMMARY
The
following summary highlights information contained elsewhere in this prospectus or incorporated by reference herein and does not contain
all the information that may be important to purchasers of our securities. Prospective purchasers of our securities should carefully
read the entire prospectus and any applicable prospectus supplement, including the risks of investing in our securities discussed under
the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and under similar headings
in the other documents that are incorporated by reference into this prospectus. Prospective purchasers of our securities should also
carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to
the registration statement of which this prospectus is a part.
Our
Company
We
are a contract development and manufacturing organization (“CDMO”) that provides a comprehensive range of biologics manufacturing
services from process development to Current Good Manufacturing Practices (“cGMP”) clinical and commercial manufacturing
of biologics for the biotechnology and biopharmaceutical industries. Scorpius pairs cGMP biomanufacturing and quality control expertise
with cutting edge capabilities in immunoassays, molecular assays, and bioanalytical methods to support the production of cell- and gene-based
therapies as well as large molecule biologics. Our services include clinical and commercial drug substance manufacturing, release and
stability testing and variety of process development services, including upstream and downstream development and optimization, analytical
method development, cell line development, testing and characterization. Our San Antonio, TX facility commenced operations in October
2022.
Recent
Developments
December
2024 Private Placement
On
December 5, 2024, we entered into the Purchase Agreement with the Selling Stockholders, pursuant to which issued, in a private placement
offering (the “Private Placement Offering”), 9% senior secured convertible notes (the Notes) in the aggregate principal amount
of $13,388,889, and Warrants to purchase up to an aggregate of 13,388,889 shares of Common Stock to the Selling Stockholders for an aggregate
purchase price of $12,050,000, representing an original issue discount of ten percent (10%). The closing of the Private Placement Offering
was consummated on December 6, 2024. We received net proceeds from the Private Placement Offering of approximately $3.3 million, net
of the $8.5 million of the proceeds that we agreed to use to pay to the Selling Stockholders pursuant to the Purchase Agreement to repurchase
pre-funded warrants held by the Selling Stockholders and approximately $226,000 to redeem the November 2024 Note (as defined below),
including all principal and accrued interest. ThinkEquity LLC (“ThinkEquity”) acted as placement agent in the Private Placement
Offering. See, “Description of the Private Placement” for a description of the transaction, including the terms and conditions
of the Purchase Agreement and “Selling Stockholders” for additional information regarding the Selling Stockholders.
November
2024 Promissory Note
On
November 27, 2024, we issued a non-convertible promissory note (the “November 2024 Note”) in the principal amount of $225,000
to one of the Selling Stockholders. The November 2024 Note accrued interest at the rate of 5.0% per annum and matured on the earlier
of: (i) December 15, 2024; (ii) the consummation of a Corporate Event (as such term is defined in the November 2024 Note); or (iii) when,
upon or after the occurrence of an event of default under the November 2024 Note. The November 2024 Note provided that if at any time
the November 2024 Note is outstanding we consummated a subsequent Financing (as such term is defined in the November 2024 Note), the
holder had the right, it its sole discretion, to require that we redeem the entire outstanding balance of the November 2024 Note, together
with all accrued interest thereon, using up to 100% of the gross proceeds of such Financing. The holder required that we redeem the entire
outstanding balance of the November 2024 Note from the proceeds of the Private Placement Offering and upon consummation of the Private
Placement Offering, the November 2024 Note was redeemed in full.
August
2024 Public Offering
On
August 19, 2024, we consummated a public offering (the “August Offering”) of 2,428,000 shares of Common Stock and 11,947,000
pre-funded warrants to purchase up to 11,947,000 shares of Common Stock (the “August PFWs”), including 1,875,000 option pre-funded
warrants to purchase up to 1,875,000 shares of Common Stock (the “August Option PFWs”) for a purchase price of $1.00 per
share of Common Stock, a purchase price of $0.9998 per August PFW, and an exercise price of $0.0002 per August PFW and August Option
PFW, resulting in aggregate gross proceeds of approximately $14.4 million, before deducting underwriting discounts and other offering
expenses. Each August PFW and August Option PFW is exercisable for one share of Common Stock. ThinkEquity served as representative of
the several underwriters named in the Underwriting Agreement that we entered into on August 16, 2024 with ThinkEquity as representative
of the several underwriters named therein.
2024
Reverse Stock Split
On
July 17, 2024, we effected a 1-for-200 reverse stock split of our outstanding shares of Common Stock (the “2024 Reverse Stock Split”).
The 2024 Reverse Stock Split did not impact the number of authorized shares of Common Stock, which remained at 250,000,000 shares. Unless
otherwise noted, all historical share and per share information and historical financial information included in this prospectus have
been adjusted to reflect the 2024 Reverse Stock Split. Certain historical share and per share information and historical financial information
incorporated by reference in this prospectus have not been restated to reflect the 2024 Reverse Stock Split.
Corporate
Information
We
were incorporated under the laws of the State of Delaware on May 12, 2017. Our principal executive offices are located at 627 Davis Drive,
Suite 300, Morrisville, North Carolina 27560. Our telephone number is (610) 727-4597.
Our
website address is www.scorpiusbiologics.com. The information contained in, or accessible through, our website does not constitute
a part of this prospectus. You should not rely on any such information in making your decision whether to purchase our securities.
THE
OFFERING
This
prospectus relates to the resale or other disposition from time to time by the Selling Stockholders identified in this prospectus of
up to 47,396,667 shares of our Common Stock. None of the shares registered hereby are being offered for sale by us.
Securities
offered
by
the Selling Stockholders
|
|
This
prospectus covers the resale of a total of up to 47,396,667 shares of our Common Stock, consisting of: (i) up to 34,007,778 shares
of Common Stock issuable upon the conversion of the Notes; and (ii) up to 13,388,889 shares of Common Stock issuable upon exercise
of the Warrants. |
Common
Stock outstanding prior
to
this offering
|
|
4,868,268
shares of Common Stock |
| |
|
|
| Common
Stock to be outstanding after this offering, |
|
52,264,935
shares of Common Stock |
| |
|
|
| Terms
of the offering |
|
The
Selling Stockholders and any of their pledgees, assignees and successors-in-interest will determine when and how they sell the shares
offered in this prospectus and may, from time to time, sell any or all of their shares covered hereby on the NYSE American LLC (“NYSE
American”) or any other stock exchange, market or trading facility on which the shares are traded or in privately negotiated
transactions. These sales may be at fixed or negotiated prices. See “Plan of Distribution.” |
| |
|
|
| Use
of Proceeds |
|
The
Selling Stockholders will receive all of the proceeds from the sale of the shares offered for sale by them under this prospectus.
We will not receive proceeds from the sale of the shares by the Selling Stockholders. We may receive proceeds from cash exercises
of the Warrants; however, such Warrants are exercisable on a cashless basis under certain circumstances. Any proceeds we receive
are expected to be used for working capital and other general corporate purposes. See “Use of Proceeds.” |
| |
|
|
| Risk
Factors |
|
Investment
in our securities involves a high degree of risk and could result in a loss of your entire investment. See “Risk Factors”
beginning on page 6 and the similarly entitled sections in the documents incorporated by reference into this prospectus. |
| |
|
|
| NYSE
American LLC Symbol |
|
Our
Common Stock is listed on the NYSE American under the symbol “SCPX”. |
The number of shares of our Common Stock to be outstanding upon
completion of this offering is based on 4,868,268 shares of our Common Stock outstanding as of December 13, 2024, assumes that we issue
34,007,778 shares of Common Stock upon conversion of the Notes and 13,388,889 shares of Common Stock upon exercise of the Warrants, and
excludes:
| • | 30,738
shares of Common Stock issuable upon exercise of stock options outstanding, at a weighted-average
exercise price of $678.21 per share; |
| • | 1,500,000
shares of Common Stock issuable upon exercise of pre-funded warrants outstanding, at an exercise
price of $0.0002 per share; |
| • | 299,112
shares of Common Stock issuable upon exercise of common warrants outstanding, at an exercise
price of $24.00 per share; |
| • | 103,908
shares of Common Stock issuable upon conversion in full (including accrued interest thereon
calculated as of the date of maturity) of a convertible promissory note (the “Restated
Note”) in the principal amount of $2,250,000 held by Elusys Holdings, Inc. (“Elusys
Holdings”), a company controlled by Jeffrey Wolf, our Chief Executive Officer and Chairman
of the Board of Directors (the conversion of which is subject to both Elusys Holdings’
election and any required approval of NYSE American of such share issuance); and |
| • | 156,269
shares of our Common Stock that are available for future issuance under our stock incentive
plans or shares that will become available under our stock incentive plans. |
Unless
otherwise indicated, this prospectus reflects and assumes the following:
| ● |
|
the
issuance of 34,007,778 shares of Common Stock upon the assumed conversion of the Notes and the issuance of
13,388,889 shares of Common Stock upon the assumed exercise of the Warrants;
|
| ● |
|
no
exercise of any other outstanding options or warrants described above (other than the Warrants); and |
| ● |
|
no
conversion of the Restated Note. |
All
share and per share amounts of Common Stock presented in this prospectus have been retroactively adjusted to reflect the 2024
Reverse Stock Split.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements contained or incorporated by reference in this prospectus may contain “forward-looking statements” within the
meaning of the federal securities laws. Our forward-looking statements include, but are not limited to, statements about us and our industry,
as well as statements regarding our or our management team’s expectations, hopes, beliefs, intentions or strategies regarding the
future. Additionally, any statements that refer to projections, forecasts or other characterizations of future events or circumstances,
including any underlying assumptions, are forward-looking statements. We intend the forward-looking statements to be covered by the safe
harbor provisions of the federal securities laws. Words such as “may,” “should,” “could,” “would,”
“predicts,” “potential,” “continue,” “expects,” “anticipates,” “future,”
“intends,” “plans,” “believes,” “estimates,” and similar expressions, as well as statements
in future tense, may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking.
Forward-looking
statements should not be read as a guarantee of future performance or results and may not be accurate indications of when such performance
or results will be achieved. Forward-looking statements are based on information we have when those statements are made or management’s
good faith belief as of that time with respect to future events and are subject to significant risks and uncertainties that could cause
actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements.
These
statements relate to future events or our future financial performance and involve known and unknown risks, uncertainties and other
factors that could cause our actual results, levels of activity, performance or achievement to differ materially from those
expressed or implied by these forward-looking statements. We discuss in greater detail, and incorporate by reference into this
prospectus in their entirety, many of these risks and uncertainties under the heading “Risk Factors” contained in this
prospectus and in the documents incorporated by reference herein. Moreover, we operate in a rapidly changing and competitive
environment. New risk factors emerge from time to time, and it is not possible for management to predict all such risk
factors.
Further,
it is not possible to assess the effect of all risk factors on our businesses or the extent to which any factor, or combination of factors,
may cause actual results to differ materially from those contained in any forward-looking statements. Given these risks and uncertainties,
investors should not place undue reliance on forward-looking statements as a prediction of actual results. In addition, we disclaim any
obligation to correct or update any forward-looking statements to reflect events or circumstances that occur after the date of this prospectus.
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 our annual report on Form 10-K, quarterly reports on Form 10-Q, and current reports on Form 8-K, which have been filed
with the SEC and are 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. The risks described below and incorporated by reference are material risks currently known,
expected or reasonably foreseeable by us. However, the risks described below and 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.
Risks
Related to this Offering
It
is not possible to predict the actual number of shares we will issue upon conversion of the Notes.
The
Selling Stockholders have the option to determine whether the obligations outstanding under the Notes are paid in cash or shares of Common
Stock. Accordingly, the number of shares of Common Stock that will be issued upon conversion of the Notes cannot be determined at this
time.
Investors
who buy shares at different times will likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different levels of dilution
and different outcomes in their investment results. The Selling Stockholders may sell such shares at different times and at different
prices. Investors may experience a decline in the value of the shares they purchase from the Selling Stockholders in this offering as
a result of sales made by us in future transactions to the Selling Stockholders at prices lower than the prices they paid.
The
issuance of Common Stock to the Selling Stockholders may cause substantial dilution to our existing stockholders and the sale of such
shares acquired by the Selling Stockholders could cause the price of our Common Stock to decline.
We
are registering for resale by the Selling Stockholders up to 47,396,667 shares of Common Stock, consisting of up to 34,007,778 shares
of Common Stock issuable upon the conversion of the Notes and up to 13,388,889 shares of Common Stock issuable upon exercise of the Warrants.
The number of shares of our Common Stock ultimately offered for resale by the Selling Stockholders under this prospectus is dependent
upon the number of shares converted under the Notes, and the number of Warrant Shares issued. Depending on a variety of factors, including
market liquidity of our Common Stock, the issuance of shares to Selling Stockholders may cause the trading price of our Common Stock
to decline.
Our
management team may invest or spend the proceeds it receives from the cash exercise of the Warrants in ways with which you may not agree
or in ways which may not yield a significant return.
Our
management will have broad discretion over the use of proceeds it receives from the cash exercise of the Warrants. We intend to use the
net proceeds, if any, received from such exercises for working capital and general corporate purposes. Our management will have considerable
discretion in the application of the net proceeds, and you will not have the opportunity, as part of your investment decision, to assess
whether the proceeds are being used appropriately. The net proceeds may be used for corporate purposes that do not increase our operating
results or enhance the value of our Common Stock.
Our
need for future financing may result in the issuance of additional securities, which will cause investors to experience dilution.
Our
cash requirements may vary from those now planned. We will need to raise additional capital to fund our operations and we cannot be certain
that funding will be available to us on acceptable terms on a timely basis, or at all. We do not expect our current cash and cash equivalents
and short term investments, including the net proceeds of the Private Placement Offering, will support our operations beyond early January
2025, unless our revenue increases from past historical revenue. Our ability to raise additional capital is limited for so long as the
Notes remain outstanding because the Notes prohibit us and, as applicable, our
subsidiaries from incurring any new indebtedness, subject to limited exceptions set forth in the Notes. To meet our financing
needs, we are considering multiple alternatives, including, but not limited to, additional equity financings, which we expect will include
sales of Common Stock, equipment sale leasebacks, and/or funding from partnerships or collaborations; however, there are currently no
other commitments by any person for future financing. Our ability to raise capital through the sale of securities may be limited by our
inability to utilize a registration statement on Form S-3 to raise capital until June 2025 due to the late filing of our Annual Report
on Form 10-K for the year ending December 31, 2023, the late filing of our Quarterly Report on Form 10-Q for the quarter ending March
31, 2024, and various rules of the NYSE American that place limits on the number and dollar amount of securities that we may sell.
Our
securities may be offered to other investors at a price lower than the price per share offered to current stockholders, or upon terms
which may be deemed more favorable than those offered to current stockholders. In addition, the issuance of securities in any future
financing may dilute an investor’s equity ownership and have the effect of depressing the market price for our securities. Moreover,
we may issue derivative securities, including options and/or warrants, from time to time, to procure qualified personnel or for other
business reasons. The issuance of any such derivative securities, which is at the discretion of our board of directors, may further dilute
the equity ownership of our stockholders.
We
have additional securities available for issuance, which, if issued, could adversely affect the rights of the holders of our Common Stock.
Our
Certificate of Incorporation authorizes the issuance of 250,000,000 shares of our Common Stock and 10,000,000 shares of preferred stock.
In certain circumstances, the Common Stock, as well as the awards available for issuance under our incentive plans, can be issued by
our Board of Directors, without stockholder approval. Any future issuances of such stock would further dilute the percentage ownership
of us held by holders of preferred stock and Common Stock. Our Board of Directors is authorized to designate and issue from time to time,
only with stockholder approval, up to an aggregate of 10,000,000 shares of preferred stock, of which 8,212,500 have been designated.
The authority to designate preferred stock may be used to issue series of preferred stock, or rights to acquire preferred stock, that
could dilute the interest of, or impair the voting power of, holders of the Common Stock or could also be used as a method of determining,
delaying or preventing a change of control.
Future
sales of our Common Stock could cause the market price for our Common Stock to decline.
We
cannot predict the effect, if any, that market sales of shares of our Common Stock or the availability of shares of our Common Stock
for sale will have on the market price of our Common Stock prevailing from time to time. Sales of substantial amounts of shares of our
Common Stock in the public market, or the perception that those sales will occur, could cause the market price of our Common Stock to
decline or be depressed.
The
shares of Common Stock issued in connection with this offering will be freely tradable without restriction or further registration under
the Securities Act.
Because
we will not declare cash dividends on our Common Stock in the foreseeable future, stockholders must rely on appreciation of the value
of our Common Stock for any return on their investment.
We
have never declared or paid cash dividends on our Common Stock. We currently anticipate that we will retain future earnings for the development,
operation and expansion of our business and will not declare or pay any cash dividends in the foreseeable future. As a result, only appreciation
of the price of our Common Stock, if any, will provide a return to investors in this offering.
Our
failure to meet the continued listing requirements of the NYSE American could result in a de-listing of our Common Stock.
Our
shares of Common Stock are currently listed on the NYSE American. On June 14, 2024, we received notice from the NYSE Regulation that
it had suspended trading of our Common Stock on the NYSE American and determined to commence proceedings to delist our Common Stock from
the NYSE American as a result of its determination that we were no longer suitable for listing pursuant to Section 1003(f)(v) of the
NYSE American Company Guide due to the low selling price of our Common Stock. Our Common Stock began trading on the OTC Markets system
on June 17, 2024. On July 17, 2024, we effected the 2024 Reverse Stock Split at a ratio of 1-for-200, to increase the selling price of
our Common Stock in order to regain compliance with the requirements and policies of the NYSE American. On July 29, 2024, the NYSE American
notified us that it had withdrawn its delisting determination and the trading suspension of our Common Stock on the NYSE American was
lifted on August 2, 2024. The NYSE Regulation staff determined that our Common Stock was now trading above the threshold of low selling
price issues as further defined by Section 1003(f)(v) of the NYSE American Company Guide. However, there can be no assurance that our
increased stock price resulting from the 2024 Reverse Stock Split will remain at a price that will be sufficient in order to meet any
requirements and policies of the NYSE American or that our Common Stock will remain listed on the NYSE American.
In
addition, on April 17, 2024, we received an official notice of noncompliance from NYSE Regulation stating that we were not in compliance
with the NYSE American continued listing standards under the timely filing criteria included in Section 1007 of the NYSE American Company
Guide due to the failure to timely file our 2023 Annual Report on Form 10-K by the filing due date of April 16, 2024. On May 21, 2024,
we received an official notice of noncompliance from NYSE Regulation stating that we were not in compliance with NYSE American continued
listing standards under the timely filing criteria included in Section 1007 of the NYSE American Company Guide due to the failure to
timely file our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024 by the filing due date of May 16, 2024. Upon the filing
of the 2023 Annual Report on Form 10-K and the Quarterly Report on Form 10-Q we received a notice that we had cured such filing delinquencies.
Even
though the 2024 Reverse Stock Split increased the market price of our Common Stock, there can be no assurance that our increased stock
price will remain at a price that will be sufficient in order to meet any continued requirements and policies of the NYSE American or
that our Common Stock will remain listed on the NYSE American.
The
trading of our Common Stock resumed on the NYSE American on August 2, 2024 after we effected the 2024 Reverse Stock Split. There can
be no assurance that the increased stock price resulting from the 2024 Reverse Stock Split will be maintained in order to allow us to
continue to meet any requirements and policies of the NYSE American or that our Common Stock will remain listed on the NYSE American.
DESCRIPTION
OF THE PRIVATE PLACEMENT
On
December 5, 2024, we entered into the Purchase Agreement with the Selling Stockholders, pursuant to which we issued, in a private placement
offering (the “Offering”), 9% senior secured convertible Notes in the aggregate principal amount of $13,388,889, and the
Warrants to purchase up to an aggregate of 13,388,889 shares of Common Stock to the Selling Stockholders for an aggregate purchase price
of $12,050,000, representing an original issue discount of ten percent (10%).
The
closing was consummated on December 6, 2024 (the “Closing Date”). We received net proceeds from the Offering of approximately
$3.3 million, net of the $8.5 million of the Offering proceeds that we agreed to use to pay to the Selling Stockholders pursuant to the
Purchase Agreement to repurchase pre-funded warrants held by the Selling Stockholders (the “Pre-Funded Warrants”), which
amount was paid to the Selling Stockholders at the closing of the Offering and approximately $226,000 to redeem the November 2024 Note,
including all principal and accrued interest. In connection with the Offering, we agreed to reimburse the Selling Stockholders for all
costs and expenses incurred by them or their affiliates in connection with the transactions contemplated by the Purchase Agreement, up
to $50,000. ThinkEquity LLC acted as placement agent in the Offering. In connection with the closing of the Offering, we paid a placement
fee of $285,000 to ThinkEquity, equal to 8% of the net proceeds of the Offering paid to us, net of the amount used to repurchase the
Pre-Funded Warrants and the amount of the original issue discount.
On
the Closing Date, we, each of our domestic subsidiaries and the Selling Stockholders also entered into a Security Agreement (the “Security
Agreement”), pursuant to which we and each of our domestic subsidiaries granted security interests in the Collateral (as such term
is defined in the Security Agreement) to secure our obligations under the Notes and the Purchase Agreement. Each of our domestic subsidiaries
also executed and delivered a Subsidiary Guarantee on the Closing Date, pursuant to which they agreed to guarantee our obligations under
the Notes and act as surety for payment of the Notes.
The
Notes mature on the third anniversary of their date of issuance, unless prior thereto there is an event of default, and bear interest
at a rate of 9% per annum payable in cash on the first business day of each fiscal quarter beginning January 2, 2025. The Notes are convertible,
at the option of the holder, at any time, into such number of shares of Common Stock equal to the principal amount of the Note plus all
accrued and unpaid interest at a conversion price equal to $0.50 (the “Conversion Price”), subject to adjustment for any
stock splits, stock dividends, recapitalizations and similar events and subject to an Exchange Cap (as defined below) and other limitations.
The Notes contain customary events of default, including the failure of Jeffrey Wolf to remain as our Chief Executive Officer, unless
an individual reasonably acceptable to the Selling Stockholders has been appointed to replace Mr. Wolf within thirty (30) days of such
occurrence, unless the Selling Stockholders extend such deadline for an additional thirty (30) days at their sole discretion. If an event
of default occurs, until it is cured, the Selling Stockholders may increase the interest rate applicable to the Notes to fifteen percent
(15%) annum. If an event of default occurs, the Selling Stockholders may
require us to redeem (regardless of whether such event of default has been cured) all or any portion of the Notes. Subject to limited
exceptions set forth in the Notes, the Notes prohibit us and, as applicable, our subsidiaries from incurring any new indebtedness. The
Notes also provide that we shall, while the Notes remain outstanding, maintain a net monthly cash burn of not more than $1,800,000, calculated
on an average trailing-three-month basis, decreasing by increments of $500,000 every three-months.
The
Notes are redeemable by us at a redemption price equal to 110% of the sum of the principal amount to be redeemed plus accrued interest,
if any. While the Notes are outstanding, if we enter into a Subsequent Placement (as such term is defined in the Purchase Agreement),
each of the Selling Stockholders shall have the right, in their sole discretion, to require that we redeem all, or any portion, of the
amount due under their Note in an amount not in excess of the Selling Stockholders’ pro rata amount of 25% of the gross proceeds
of such Subsequent Placement.
The
Warrants expire five years from their date of issuance. The Warrants are exercisable, at the option of the holder, at any time, for up
to an aggregate of 13,388,889 shares of Common Stock at an exercise price equal to $0.50 (the “Exercise Price”), subject
to adjustment for any stock splits, stock dividends, recapitalizations, and similar events. The Warrants provide for cashless exercise
under certain circumstances.
The
Purchase Agreement prohibits us from entering into a Variable Rate Transaction (as such term is defined in the Purchase Agreement) for
a period of twelve months from the Closing Date, other than an equity line of credit with one of the Selling Stockholders.
Pursuant
to the Purchase Agreement, we agreed to file a registration statement within 30 days to register the resale of the Conversion Shares
and the Warrant Shares with the SEC and to use our commercially reasonable best efforts to have the registration statement declared effective
by the SEC within 75 calendar days of the Closing Date (or 135 days if the SEC elects to review such registration statement) and to keep
such registration statement effective for one year after its effectiveness.
All
of our officers and directors entered into Support Agreements, pursuant to which they each agreed to vote all shares of Common Stock
beneficially owned by them in favor of the transactions contemplated by the Purchase Agreement, including (a) the issuance of all of
the Conversion Shares and Warrant Shares in excess of 19.99% of the issued and outstanding Common Stock at the time we entered into the
Purchase Agreement (the “Stockholder Approval”), and (b) any subsequent issuance(s) of the Conversion Shares or Warrants
Shares in excess of 19.99% of the issued and outstanding Common Stock as a consequence of any corporate action, including the implementation
of a reverse stock split. Pursuant to the Purchase Agreement, we have agreed to hold a meeting for the purpose of obtaining Stockholder
Approval by March 31, 2025. If Stockholder Approval is not obtained by such date, we have agreed to hold a second meeting for the purpose
of obtaining Stockholder Approval by July 1, 2025. If Stockholder Approval is not obtained by such date, we have agreed to hold a meeting
every three months thereafter until Stockholder Approval is obtained.
The
Purchase Agreement contains customary representations, warranties, agreements and conditions to completing future sale transactions,
indemnification rights and obligations of the parties. Among other things, the Selling Stockholders represented to us that they are “accredited
investors” (as such term is defined in Rule 501(a) of Regulation D under the Securities Act, and we sold the securities in reliance
upon an exemption from registration contained in Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
The number of shares of Common Stock that may be issued
upon conversion of the Notes and exercise of the Warrants, and inclusive of any shares issuable under and in respect of the Purchase Agreement,
is subject to an exchange cap (the “Exchange Cap”) of 19.99% of the outstanding number of shares of Common Stock at the time
we entered into the Purchase Agreement, 865,820 shares, unless Stockholder Approval is obtained to exceed the Exchange Cap. If the Notes
were to fully convert into Conversion Shares at the Conversion Price, assuming no Exchange Cap, we would issue 26,777,778 Conversion Shares,
plus an additional 7,230,000 shares of Common Stock if interest and the Make-Whole Amount (as such term is defined in the Notes) is also
converted into shares of Common Stock. In addition, under the terms of the Notes and the Warrants, the Investors may not convert the Notes
or exercise the Warrants to the extent such conversion or exercise would cause such Investor, together with its affiliates and attribution
parties, to beneficially own a number of shares of Common Stock that would exceed 4.99%, of our then outstanding Common Stock following
such exercise.
USE
OF PROCEEDS
The
Selling Stockholders will receive all of the proceeds of the sale of shares of Common Stock offered from time to time pursuant to this
prospectus. Accordingly, we will not receive any proceeds from the sale of shares of Common Stock that may be sold from time to time
pursuant to this prospectus; however, we may receive proceeds from the cash exercise of the Warrants.
We
currently intend to use any proceeds we receive for working capital and other general corporate purposes. Accordingly, our management
will have broad discretion in the application of the net proceeds. We may use the proceeds for purposes that are not contemplated at
the time of this offering.
SELLING
STOCKHOLDERS
This
prospectus covers the possible resale from time to time by the Selling Stockholders identified in the table below, including their pledgees,
donees, transferees, assigns or other successors in interest, of up to an aggregate of 47,396,667 shares of Common Stock, which includes:
(i) up to 31,538,334 shares of Common Stock issuable to 3i upon conversion of a Note in the principal amount of $12,416,667 (the “3i
Note”) and up to 12,416,667 shares of Common Stock issuable upon the exercise of a Warrant held by 3i (the “3i Warrant”);
and (ii) up to 2,469,444 shares of Common Stock issuable to Sabby upon conversion of a Note in the principal amount of $972,222 (the
“Sabby Note”) and up to 972,222 shares of Common Stock issuable upon the exercise of a Warrant held by Sabby (the “Sabby
Warrant”). Other than the transactions described under the “Description of the Private Placement,” the Selling Stockholders
participation in our August 2024 underwritten public offering, 3i’s participation in our May 2024 underwritten public offering,
and the November 2024 Note, the Selling Stockholders have not had any material relationship with us within the past three years.
We
are filing the registration statement of which this prospectus forms a part pursuant to the provisions of the Purchase Agreement we entered
into with the Selling Stockholders, in which we agreed to provide certain registration rights with respect to resales by them of the
shares of our Common Stock that have been or may be issued to them under the Purchase Agreement.
The
column “Number of Shares of Common Stock Beneficially Owned Prior to Offering” lists the number of shares of our Common Stock
beneficially owned by the Selling Stockholders. The Selling Stockholders identified in the table below may from time to time offer and
sell under this prospectus any or all of the shares of Common Stock described under the column “Maximum Number of Shares of Common
Stock To be Sold in this Offering” in the table below. The table below has been prepared based upon information furnished to us
by the Selling Stockholders. The Selling Stockholders identified below may have sold, transferred or otherwise disposed of some or all
of its shares since the date on which the information in the following table is presented in transactions exempt from or not subject
to the registration requirements of the Securities Act. Information concerning the Selling Stockholders may change from time to time
and, if necessary, we will amend or supplement this prospectus accordingly and as required.
The
table below lists the Selling Stockholders and provides information regarding each Selling Stockholder’s beneficial ownership of
shares of our Common Stock. The second column lists the number of shares of Common Stock beneficially owned by each Selling Stockholder,
based on its beneficial ownership of securities purchased in the Offering as well as all prior public and private offerings of our securities,
as of the date indicated in the footnote for each Selling Stockholder, subject to limitations on beneficial ownership . The third column
lists the maximum number of shares of Common Stock being offered by this prospectus by the Selling Stockholders, without regard to any
limitations on exercises.
The
fourth and fifth columns assume the sale of all of the shares offered by the Selling Stockholders pursuant to this prospectus and reflects
all applicable beneficial ownership limitations of the securities.
Under
the terms of the Notes and the Warrants, the Selling Stockholders may not convert the Notes or exercise the Warrants to the extent such
conversion or exercise would cause such Selling Stockholder, together with its affiliates and attribution parties, to beneficially own
a number of shares of Common Stock that would exceed 4.99%, of our then outstanding Common Stock following such exercise, excluding for
purposes of such determination shares of Common Stock issuable upon exercise of such warrants which have not been exercised. The number
of shares in the third column does not reflect this limitation, but the number of shares in the second, fourth and fifth columns do reflect
this limitation. The Selling Stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
The
number of shares reflected are those beneficially owned, as determined under applicable rules of the SEC, and the information is not
necessarily indicative of beneficial ownership for any other purpose. Under applicable SEC rules, beneficial ownership includes any shares
of Common Stock as to which a person has sole or shared voting power or investment power and any shares of Common Stock which the person
has the right to acquire within 60 days after December 13, 2024 through the exercise of any option, warrant or right or through the
conversion of any convertible security. Unless otherwise indicated in the footnotes to the table below, we believe, based on information
furnished to us that the each Selling Stockholder named in this table has sole voting and investment power with respect to the shares
indicated as beneficially owned.
We
have assumed that all shares of Common Stock reflected in the table as being offered in the offering covered by this prospectus will
be sold from time to time in this offering. We cannot provide an estimate as to the number of shares of Common Stock that will be held
by the Selling Stockholders upon termination of the offering covered by this prospectus because the Selling Stockholders may offer some,
all or none of the shares of Common Stock being offered in the offering. Information about the Selling Stockholders may change over time.
Any changed information will be set forth in an amendment to the registration statement or supplement to this prospectus, to the extent
required by law.
The shares of Common
Stock set forth in the second column in the table below is based on 4,868,268 shares outstanding prior to this offering. The shares of
Common Stock set forth in the third and fifth columns in the table below, assumes that 52,264,935 shares of Common Stock are outstanding
as of December 13, 2024, which is based on 4,868,268 shares outstanding prior to this offering and assumes the issuance of 47,396,667
shares of Common Stock upon conversion and exercise of the Notes and Warrants, as applicable.
| Name of Selling Stockholder |
|
Number of
Shares
of Common
Stock
Beneficially
Owned
Prior to This
Offering |
|
|
Maximum
Number of
Shares
of Common
Stock
to be Sold
in this
Offering |
|
|
Number of
Shares
of Common
Stock
Beneficially
Owned After
Offering |
|
|
Percentage
of Shares
Beneficially
Owned after
Offering |
|
| 3i, LP (1) |
|
|
511,715 |
|
|
|
43,955,001 |
|
|
|
1,907,709 |
|
|
|
3.54 |
% |
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Sabby Volatility Warrant Master Fund Ltd. (2) |
|
|
459,653 |
|
|
|
3,441,666 |
|
|
|
459,653 |
|
|
|
* |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (1) |
The shares listed in the second column consist
of (i) 257,709 shares of Common Stock, and (ii) pre-funded warrants exercisable for up to 254,006 shares of Common Stock, subject
to a 9.99% beneficial ownership limitation provision, and does not include (i) pre-funded warrants exercisable for up to 1,245,994
shares of Common Stock, subject to a 9.99% beneficial ownership limitation provision; (ii) common stock purchase warrants exercisable
for up to 150,000 shares of Common Stock, subject to a 4.99% beneficial ownership limitation provision; and (ii) an aggregate of 43,955,001
shares of Common Stock issuable to 3i upon conversion of the 3i Note and exercise of the 3i Warrant, the conversion and exercise of which
are subject to a 4.99% beneficial ownership limitation. The shares listed in the third column consist of 31,538,334 shares of Common Stock
issuable to 3i upon conversion of the 3i Note and 12,416,667 shares of Common Stock issuable upon the exercise of the 3i Warrant, which
do not reflect the beneficial ownership limitations in the 3i Note and the 3i Warrant. The shares listed in the fourth column assume the
issuance of all 47,396,667 shares of Common Stock issuable to the Selling Stockholders upon exercise or conversion of the Notes and Warrants,
as applicable, all of which are assumed to have been sold in this Offering, and includes (i) 257,709 shares of Common Stock; (ii) pre-funded
warrants exercisable for up to 1,500,000 shares of Common Stock, subject to a 9.99% beneficial ownership limitation provision; and
(iii) common stock purchase warrants exercisable for up to 150,000 shares of Common Stock, subject to a 4.99% beneficial ownership
limitation provision.
3i Management LLC (“3i Management”)
is the general partner of 3i, and Maier Joshua Tarlow is the manager of 3i Management. As such, Mr. Tarlow exercises sole voting and investment
discretion over securities beneficially owned directly or indirectly by 3i and 3i Management. Mr. Tarlow disclaims beneficial ownership
of the securities beneficially owned directly by 3i and indirectly by 3i Management. The business address of each of the aforementioned
parties is 2 Wooster Street, 2nd Floor, New York, NY 10013. We have been advised that none of Mr. Tarlow, 3i Management or 3i is a member
of the Financial Industry Regulatory Authority (“FINRA”) or an independent broker-dealer, or an affiliate or associated person
of a FINRA member or independent broker-dealer. The securities beneficially owned by 3i in the table above are calculated as of December
13, 2024.
|
| (2) |
The shares listed in the second column consist
of 459,653 shares of Common Stock and do not include an aggregate of 3,441,666 shares of Common Stock issuable to Sabby upon conversion
of the Sabby Note and upon the exercise of the Sabby Warrant, the conversion and exercise of which are subject to a 4.99% beneficial ownership
limitation. The shares listed in the third column consist of 2,469,444 shares of Common Stock issuable to Sabby upon conversion of the
Sabby Note in the principal amount of $972,222 and 972,222 shares of Common Stock issuable upon the exercise of the Sabby Warrant, which
do not reflect the beneficial ownership limitations in the Sabby Note and Sabby Warrant. The shares listed in the fourth column assume
the issuance of all 47,396,667 shares of Common Stock issuable to the Selling Stockholders upon exercise or conversion of the Notes and
Warrants, as applicable, all of which are assumed to have been sold in this Offering, and includes shares of Common Stock.
Sabby Management, LLC (“Sabby Management”)
is the investment manager of Sabby and shares voting and investment power with respect to these shares in this capacity. As manager of
Sabby Management, Hal Mintz also shares voting and investment power on behalf of Sabby. Each of Sabby Management and Hal Mintz disclaims
beneficial ownership over the securities listed except to the extent of their pecuniary interest therein.
|
DESCRIPTION
OF CAPITAL STOCK
The
following briefly summarizes the material terms of our capital stock that are contained in our Certificate of Incorporation and Second
Amended and Restated Bylaws (the “Bylaws”). These summaries do not describe every aspect of these securities and documents
and are subject to all the provisions of our Certificate of Incorporation or Bylaws and are qualified in their entirety by reference
to these documents, which you should read (along with the applicable provisions of Delaware law) for complete information on our capital
stock. The Certificate of Incorporation and Bylaws are included as exhibits to our registration statement on Form S-1, of which this
prospectus forms a part. Since the terms of the Delaware General Corporation Law (the “DGCL”) are more detailed than the
general information provided below, you should read the actual provisions of the DGCL for complete information.
General
Our
authorized capital stock consists of 250,000,000 shares of Common Stock, par value $0.0002 per share, and 10,000,000 shares of preferred
stock, par value $0.0001 per share.
As of December 13, 2024, 4,868,268 shares of our Common Stock are issued
and outstanding, and no shares of our preferred stock are issued and outstanding
Common
Stock
Voting
The
holders of our Common Stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders,
including the election of directors, and do not have cumulative voting rights.
Dividends
Subject
to preferences that may be applicable to any then outstanding preferred stock, the holders of Common Stock are entitled to receive dividends,
if any, as may be declared from time to time by our board of directors out of legally available funds.
Liquidation
In
the event of our liquidation, dissolution or winding up, holders of our Common Stock will be entitled to share ratably in the net assets
legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction
of any liquidation preference granted to the holders of any then outstanding shares of preferred stock.
Rights
and Preferences
The
holders of our Common Stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions
applicable to our Common Stock. The rights, preferences and privileges of the holders of our Common Stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any series of our preferred stock that we may designate and issue in the
future.
Stockholder
Rights Plan
On
March 11, 2018, our board of directors declared a dividend of one common share purchase right (a “Right”) for each outstanding
share of our Common Stock, which was amended by Amendment No. 1 thereto on March 8, 2019 , by Amendment No. 2 thereto on March 10, 2020,
by Amendment No. 3 thereto on March 8, 2021, by Amendment No. 4 on March 11, 2022, by Amendment No. 5 thereto on March 11, 2023 , by
Amendment No. 6 thereto on December 11, 2023 and by Amendment No. 7 on March 11, 2024 to extend the expiration date of the stockholder’s
rights plan to March 11, 2025. The dividend was initially paid on March 23, 2018 (the “Record Date”) to the stockholders
of record at the close of business on that date. Each Right initially entitles the registered holder to purchase from us one share of
Common Stock at a price of $14.00 per share of Common Stock (the “Purchase Price”), subject to adjustment. The description
and terms of the Rights are set forth in a Rights Agreement, dated as of March 11, 2018, as amended by Amendment No. 1 thereto dated
March 8, 2019, Amendment No. 2 thereto dated March 10, 2020, Amendment No. 3 thereto dated March 8, 2021, Amendment No. 4 thereto dated
March 11, 2022, Amendment No. 5 thereto dated March 11, 2023, Amendment No. 6 thereto dated December 11, 2023 and Amendment No. 7 thereto
dated March 11, 2024 as the same may be further amended from time to time (the “Rights Agreement”), between the Company and
Continental Stock Transfer & Trust Company, as Rights Agent (the “Rights Agent”).
The
Rights are designed to assure that all of our stockholders receive fair and equal treatment in the event of a hostile takeover of the
Company, to guard against two-tier or partial tender offers, open market accumulations and other tactics designed to gain control of
the Company without paying all stockholders a fair price, and to enhance the board of director’s ability to negotiate with any
prospective acquiror. Until the earlier to occur of (i) 10 business days following a public announcement that a person or group of affiliated
or associated persons has become an Acquiring Person (as defined below) or (ii) 10 business days (or such later date as may be determined
by action of the board of directors prior to such time as any person or group of affiliated or associated persons becomes an Acquiring
Person) following the commencement of, or public announcement of an intention to make, a tender or exchange offer the consummation of
which would result in any person or group of affiliated or associated persons becoming an Acquiring Person (the earlier of such dates
being called the “Distribution Date”), the Rights will be evidenced, with respect to certificates representing Common Stock
(or book entry shares of Common Stock) outstanding as of the Record Date, by such certificates (or such book entry shares) together with
a copy of a summary of the Rights (the “Summary of Rights”). Except in certain situations, a person or group of affiliated
or associated persons becomes an “Acquiring Person” upon acquiring beneficial ownership of 20% or more of the outstanding
shares of Common Stock. Certain synthetic interests in securities created by derivative positions – whether or not such interests
are considered to be ownership of the underlying Common Stock or are reportable for purposes of Regulation 13D of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) – are treated as beneficial ownership of the number of shares of the Common
Stock equivalent to the economic exposure created by the derivative security, to the extent actual shares of Common Stock are directly
or indirectly beneficially owned by a counterparty to such derivative security. Amendment No. 6 exempted Mr. Wolf and his affiliated
entity from being an Acquiring Person under certain specified circumstances.
The
Rights Agreement provides that, until the Distribution Date (or earlier expiration of the Rights), the Rights will be transferred with
and only with the Common Stock. Until the Distribution Date (or earlier expiration of the Rights), new Common Stock certificates issued
after the Record Date upon transfer or new issuances of Common Stock will contain a notation incorporating the Rights Agreement by reference.
Until the Distribution Date (or earlier expiration of the Rights), the surrender for transfer of any certificates for shares of Common
Stock (or book entry shares of Common Stock) outstanding as of the Record Date, even without such notation or a copy of the Summary of
Rights, will also constitute the transfer of the Rights associated with the shares of Common Stock represented thereby. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”) will be mailed to holders
of record of the Common Stock as of the close of business on the Distribution Date and such separate Right Certificates alone will evidence
the Rights.
The
Rights are not exercisable until the Distribution Date. The Rights will expire at the close of business on March 11, 2025, unless the
Rights are earlier redeemed or exchanged by the Company as described below.
The
Purchase Price payable, and the number of shares of Common Stock (or cash, other assets, debt securities of the Company, or any combination
thereof equivalent in value thereto) issuable, upon exercise of the Rights is subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Common Stock, (ii) upon the grant
to holders of the Common Stock of certain rights or warrants to subscribe for or purchase Common Stock at a price, or securities convertible
into Common Stock with a conversion price, less than the then-current market price of the Common Stock or (iii) upon the distribution
to holders of the Common Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends or dividends payable
in Common Stock) or of subscription rights or warrants (other than those referred to above).
The
number of outstanding Rights is subject to adjustment in the event of a stock dividend on the Common Stock payable in shares of Common
Stock or subdivisions, consolidations or combinations of the Common Stock occurring, in any such case, prior to the Distribution Date.
In
the event that any person or group of affiliated or associated persons becomes an Acquiring Person, each holder of a Right, other than
Rights beneficially owned by the Acquiring Person (which will thereupon become void), will thereafter have the right to receive upon
exercise of a Right that number of shares of Common Stock (or cash, property debt securities of the Company, or any combination thereof)
having a market value of two times the exercise price of the Right.
In
the event that, after a person or group has become an Acquiring Person, the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold, proper provisions will be made so that each holder of
a Right (other than Rights beneficially owned by an Acquiring Person which will have become void) will thereafter have the right to receive
upon the exercise of a Right that number of shares of Common Stock of the person with whom the Company has engaged in the foregoing transaction
(or its parent) that at the time of such transaction have a market value of two times the exercise price of the Right.
At
any time after any person or group becomes an Acquiring Person and prior to the earlier of one of the events described in the previous
paragraph or the acquisition by such Acquiring Person of 50% or more of the outstanding shares of Common Stock, the board of directors
may exchange the Rights (other than Rights owned by such Acquiring Person which will have become void), in whole or in part, for shares
of Common Stock (or cash, other assets, debt securities of the Company, or any combination thereof with an aggregate value equal to such
shares) at an exchange ratio of one share of Common Stock (or cash, other assets, debt securities of the Company, or any combination
thereof equivalent in value thereto) per Right.
With
certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional shares of Common Stock will be issued, and in lieu thereof a cash payment will be made based
on then current market price of the Common Stock.
At
any time prior to the time an Acquiring Person becomes such, the Board may redeem the Rights in whole, but not in part, at a price of
$0.001 per Right (the “Redemption Price”) payable, at the option of the Company, in cash, shares of Common Stock or such
other form of consideration as the board of directors shall determine. The redemption of the Rights may be made effective at such time,
on such basis and with such conditions as the board of directors in its sole discretion may establish. Immediately upon any redemption
of the Rights, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption
Price.
For
so long as the Rights are then redeemable, the Company may, except with respect to the Redemption Price, amend the Rights Agreement in
any manner. After the Rights are no longer redeemable, the Company may, except with respect to the Redemption Price, amend the Rights
Agreement in any manner that does not adversely affect the interests of holders of the Rights.
Until
a Right is exercised or exchanged, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends. For more detailed information, please see the Rights Agreement.
Potential
Anti-Takeover Effects
Certain
provisions set forth in our Certificate of Incorporation and Bylaws, our Rights Agreement and in Delaware law, which are summarized below,
may be deemed to have an anti-takeover effect and may delay, deter or prevent a tender offer or takeover attempt that a stockholder might
consider to be in its best interests, including attempts that might result in a premium being paid over the market price for the shares
held by stockholders.
Proposals
of Business and Nominations
Our
Bylaws generally regulate proposals of business and nominations for election of directors by stockholders. In general, Section 2.14 requires
stockholders intending to submit proposals or nominations at a stockholders meeting to provide the Company with advance notice thereof,
including information regarding the stockholder proposing the business or nomination as well as information regarding the proposed business
or nominee. Section 2.14 provides a time period during which business or nominations must be provided to the Company that will create
a predictable window for the submission of such notices, eliminating the risk that the Company finds a meeting will be contested after
printing its proxy materials for an uncontested election and providing the Company with a reasonable opportunity to respond to nominations
and proposals by stockholders.
Board
Vacancies
Our
Bylaws generally provide that only the board of directors (and not the stockholders) may fill vacancies and newly created directorships.
Special
Meeting of Stockholders
Our
Bylaws generally provide that only the board of directors may call a special meeting of stockholders and that the board of directors
may postpone, reschedule or cancel any special meeting of stockholders that was previously scheduled by the board of directors.
Stockholder
Rights Plan
The
Rights issued pursuant to the Rights Agreement, if not redeemed or suspended, could work to dilute the stock ownership of a potential
hostile acquirer, likely preventing acquisitions that have not been approved by our Board of Directors.
While
the foregoing provisions of our Certificate of Incorporation, Bylaws, Rights Agreement plan and Delaware law may have an anti-takeover
effect, these provisions are intended to enhance the likelihood of continuity and stability in the composition of the Board of directors
and in the policies formulated by the board of directors and to discourage certain types of transactions that may involve an actual or
threatened change of control. In that regard, these provisions are designed to reduce our vulnerability to an unsolicited acquisition
proposal. The provisions also are intended to discourage certain tactics that may be used in proxy fights. However, such provisions could
have the effect of discouraging others from making tender offers for our shares and, as a consequence, they also may inhibit fluctuations
in the market price of our Common Stock that could result from actual or rumored takeover attempts. Such provisions also may have the
effect of preventing changes in our management.
Exclusive
Forum
The
exclusive forum provision contained in our Bylaws limits the forum to the Delaware Court of Chancery for certain actions against us.
Our
Bylaws provide that, unless we consent to the selection of an alternative forum, the Court of Chancery of the State of Delaware is the
exclusive forum for (i) any derivative action or proceeding brought on behalf of us, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any of our directors, officers, or other employees to us or our stockholders, (iii) any action arising pursuant
to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine,
except, in each case for claims arising under the Securities Act, the Exchange Act, or other federal securities laws for which there
is exclusive federal or concurrent federal and state jurisdiction.
We
believe limiting state law-based claims to Delaware will provide the most appropriate outcomes as the risk of another forum misapplying
Delaware law is avoided, Delaware courts have a well-developed body of case law and limiting the forum will preclude costly and duplicative
litigation and avoids the risk of inconsistent outcomes. Additionally, Delaware Chancery Courts can typically resolve disputes on an
accelerated schedule when compared to other forums. While we believe limiting the forum for state law-based claims is a benefit, stockholders
could be inconvenienced by not being able to bring certain actions in another forum they find favorable.
Delaware
Anti-Takeover Statute
We
are subject to Section 203 of the DGCL. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from
engaging in a “business combination” with any “interested stockholder” for three years following the date that
the person became an interested stockholder, unless the interested stockholder attained such status with the approval of our Board of
Directors or unless the business combination is approved in a prescribed manner. A “business combination” includes, among
other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our
assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding
voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.
Listing
of Common Stock
On
June 14, 2024, we received notice from the NYSE Regulation that it had suspended trading of our Common Stock on NYSE American and determined
to commence proceedings to delist our Common Stock from NYSE American as a result of its determination that we were no longer suitable
for listing pursuant to Section 1003(f)(v) of the NYSE American Company Guide due to the low selling price of our Common Stock. Our Common
Stock began to be quoted on the OTC Markets system on June 17, 2024. On July 17, 2024, we effected the 2024 Reverse Stock Split to increase
the selling price of our Common Stock in order to regain compliance with the requirements and policies of NYSE American. On July 29,
2024, NYSE American notified us that it had withdrawn its delisting determination and our Common Stock resumed trading on NYSE American
on Friday, August 2, 2024, under the symbol “SCPX.” However, there can be no assurance that the market price of our Common
Stock following the 2024 Reverse Stock Split will remain at a level that will be sufficient to meet any requirements and policies of
NYSE American or that our Common Stock will remain listed on NYSE American.
Transfer
Agent
The
transfer agent and registrar for our Common Stock is Continental Stock Transfer & Trust Company. They are located at 1 State Street,
30th floor, New York, New York 10004. Their telephone number is (212) 509-4000.
Limitations
on Liability and Indemnification of Officers and Directors
As
permitted by Delaware law, our Certificate of Incorporation includes provisions that eliminate the personal liability of our directors
and officers for monetary damages resulting from breaches of certain fiduciary duties as a director or officer, as applicable, except
to the extent such an exemption from liability thereof is not permitted under the DGCL. The effect of these provisions are to restrict
our rights and the rights of our stockholders in derivative suits to recover monetary damages against a director or officer for breach
of fiduciary duties as a director or officer, subject to certain exceptions in which case the director or officer would be personally
liable. An officer may not be exculpated for any action brought by or in the right of the corporation. A director may not be exculpated
for improper distributions to stockholders. Further, pursuant to Delaware law, a director or officer may not be exculpated for:
| |
● |
any
breach of his duty of loyalty to us or our stockholders; |
| |
● |
acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; and |
| |
● |
any
transaction from which the director or officer derived an improper personal benefit. |
These
limitations of liability will not apply to liabilities arising under the federal or state securities laws and do not affect the availability
of equitable remedies such as injunctive relief or rescission.
In
addition, our Bylaws provide that we will indemnify our directors and officers to the fullest extent permitted by law. Our Bylaws also
provide that we are obligated to advance expenses incurred by a present or former director or officer in advance of the final disposition
of any action or proceeding. We entered into separate indemnification agreements with our directors and executive officers that may,
in some cases, be broader than the specific indemnification provisions contained under Delaware law. These agreements, among other things,
require us to indemnify our directors and officers for expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such directors or officers or on his or her behalf in connection with any action or
proceeding arising out of their services as one of our directors or officers, or any of our subsidiaries or any other company or enterprise
to which the person provides services at our request provided that such person follows the procedures for determining entitlement to
indemnification and advancement of expenses set forth in the indemnification agreement. We believe that these bylaw provisions and indemnification
agreements are necessary to attract and retain qualified persons as directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us,
we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
PLAN
OF DISTRIBUTION
The
Selling Stockholders and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their
securities covered hereby on NYSE American or any other stock exchange, market or trading facility on which the securities are traded
or in private transactions. These sales may be at fixed or negotiated prices. The Selling Stockholders may use any one or more of the
following methods when selling securities:
| |
● |
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| |
● |
block
trades in which the broker-dealer will attempt to sell the securities 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; |
| |
● |
settlement
of short sales; |
| |
● |
in
transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated
price per security; |
| |
● |
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| |
● |
a
combination of any such methods of sale; or |
| |
● |
any
other method permitted pursuant to applicable law. |
The
Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration 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 securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction, a markup or
markdown in compliance with FINRA IM-2440.
In
connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed “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 securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. The Selling Stockholders have informed us that they do not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
We
are required to pay certain fees and expenses incurred by us incident to the registration of the securities. We have agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We
agreed to keep the registration statement of which this prospectus is a part effective for one year after its effectiveness.
Pursuant
to applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the
Common Stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders
and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
EXPERTS
The
consolidated financial statements of Scorpius Holdings, Inc. (the Company) as of December 31, 2023 and 2022 and for the years then ended,
incorporated by reference into this prospectus and in the registration statement have been so incorporated in reliance on the report
of BDO USA, P.C., an independent registered public accounting firm given on the authority of said firm as experts in accounting and auditing.
The report on the consolidated financial statements contains an explanatory paragraph regarding the Company’s ability to continue
as a going concern.
LEGAL
MATTERS
Blank
Rome LLP, New York, New York, is acting as counsel in connection with the registration of our securities under the Securities Act, and
as such, will pass upon the validity of the securities offered hereby.
As
of the date of this prospectus, an attorney of Blank Rome LLP beneficially owns Common Stock and securities exercisable to purchase shares
of our Common Stock that represent less than 1% of our outstanding shares of Common Stock.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the securities offered hereby.
This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration
statement or the exhibits and schedules filed with the registration statement. For further information about us and the securities offered
hereby, we refer you to the registration statement and the exhibits filed with the registration statement. Statements contained in this
prospectus regarding the contents of any contract or any other document that is filed as an exhibit to the registration statement are
not necessarily complete, and each such statement is qualified in all respects by reference to the full text of such contract or other
document filed as an exhibit to the registration statement. The SEC also maintains an internet website that contains reports, proxy statements
and other information about registrants, like us, that file electronically with the SEC. The address of that website is www.sec.gov.
We
are required to file periodic reports, proxy statements, and other information with the SEC pursuant to the Exchange Act. These reports,
proxy statements, and other information will be available on the website of the SEC referred to above.
We
also maintain a website at www.scorpiusbiologics.com, through which you may access these materials free of charge as soon as reasonably
practicable after they are electronically filed with, or furnished to, the SEC. Information contained on or accessed through our website
is not a part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information from other documents that we file with it, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is considered to
be part of this prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC
prior to the date of this prospectus.
We
incorporate by reference into this prospectus and the registration statement of which this prospectus is a part the information or documents
listed below that we have filed with the SEC (Commission File No. 001-35994):
| • | Our
Annual Report on Form 10-K for the fiscal December 31, 2023, filed with the SEC on April
26, 2024; |
| • | Our
Quarterly Reports on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on
May 28, 2024, for the quarter ended June 30, 2024, filed with the SEC on August 19,
2024, and for the quarter ended September 30, 2024, filed with the SEC on November 14,
2024; |
| • | Our
Current Reports on Form 8-K filed with the SEC on January 8, 2024 (other than information
furnished under Item 7.01 and exhibits related thereto), January 11, 2024, January 16, 2024
(other than information furnished under Item 7.01 and exhibits related thereto), January
22, 2024, January 26, 2024, January 30, 2024, February 6, 2024, March 11, 2024, March 13,
2024, April 22, 2024, April 30, 2024, May 2, 2024, May 16, 2024, May 22, 2024, May 24, 2024,
May 29, 2024, May 30, 2024, June 17, 2024, July 18, 2024, July 30, 2024, July 31, 2024, August 9,
2024, August 19, 2024, August 26, 2024, December 3, 2024, and December 6,
2024; |
| • | Our
definitive proxy statement on Schedule 14A, filed with the SEC on June 17, 2024; and |
| • | The
description of our Common Stock and our common stock purchase rights is set forth in our
registration statement on Form 8-A filed with the SEC on February 4, 2022, Form 8-A/A (Amendment
No. 1) filed on March 11, 2022, Form 8-A/A (Amendment No. 2) filed on March 13, 2023, and
Form 8-A/A (Amendment No. 3) filed on March 13, 2024 as updated by the description of our
Common Stock filed as Exhibit 4.14 to our Annual Report on Form 10-K for the year ended December
31, 2023 filed with the SEC on April 26, 2024, 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:
Scorpius
Holdings, Inc.
627 Davis Drive, Suite 300
Morrisville, North Carolina 27560
Telephone (610) 727-4597
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://scorpiusbiologics.com/investors/sec-filings.
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.
47,396,667
Shares of Common Stock
____________________________
PROSPECTUS
,
2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution
The
following table sets forth the expenses in connection with this registration statement. All of such expenses are estimates, other than
the filing fee payable to the Securities and Exchange Commission.
| Item | |
Amount | |
| SEC registration fee | |
$ | 647 | |
| Legal fees and expenses | |
| 35,000 | |
| Accounting fees and expenses | |
| 5,000 | |
| Miscellaneous fees and expenses | |
| 4,353 | |
| Total | |
$ | 45,000 | |
Item
14. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law (the “DGCL”) empowers a corporation to indemnify its directors and officers and
to purchase insurance with respect to liability arising out of their capacity or status as directors and officers, provided that the
person acted in good faith and in a manner the person reasonably believed to be in our best interests, and, with respect to any criminal
action, had no reasonable cause to believe the person’s actions were unlawful. The DGCL further provides that the indemnification
permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the
corporation’s bylaws, any agreement, a vote of stockholders or otherwise.
Section
102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director or officer of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director
or officer, except (i) for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for any transaction
from which the director or officer derived an improper personal benefit; (iv) a director for payments of unlawful dividends or unlawful
stock repurchases or redemptions; or (v) an officer in any action by or in the right of the corporation.
Our
Bylaws provide that we will indemnify our directors and officers to the fullest extent permitted by law. Our Bylaws also provide that
we are obligated to advance expenses incurred by a present or former director or officer in advance of the final disposition of any action
or proceeding. In addition, as permitted by Delaware law, our Certificate of Incorporation includes provisions that eliminate the personal
liability of our directors and officers for monetary damages resulting from breaches of certain fiduciary duties as a director or officer,
as applicable, except to the extent such an exemption from liability thereof is not permitted under the DGCL.
We
have entered into indemnification agreements with each of our directors and executive officers. These agreements will require us to indemnify
these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to
us and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.
The
Registrant has an insurance policy in place that covers its officers and directors with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
Item
15. Recent Sales of Unregistered Securities
The
Company has not issued unregistered securities to any person within the last three years other than:
| • | the
issuance to Elusys Holdings, Inc. on January 26, 2024 of a convertible promissory note in
the aggregate amount of $2,250,000 (the “Original Convertible Note”), the conversion
of which was subject to both Elusys’ election and obtaining stockholder approval of
the issuance of shares of our Common Stock upon such conversion. The Original Convertible
Note bore interest at a rate of 1% per annum, matured on the one-year anniversary of its
issuance and was convertible into shares of our Common Stock at the option of Elusys only
if stockholder approval of the issuance of such shares of Common Stock issuable upon conversion
of the Original Convertible Note was obtained prior to the maturity date, which approval
has been obtained. The conversion price of the Original Convertible Note was equal to 110%
of the volume weighted average price (VWAP) of Common Stock for the seven trading days prior
to December 11, 2023 which was $0.39109; |
| • | the
issuance to Elusys Holdings, Inc., on May 1, 2024, of a 1% non-convertible promissory note,
as amended, due July 31, 2024 in the principal amount of $750,000 (the “New Note”)
for $750,000; |
| • | the
issuance to Elusys Holdings, Inc., on May 1, 2024, of an amended and restated 1% convertible
promissory note in the principal amount of $2,250,000 with a maturity date of September 1,
2025 (the “Restated Note”) in exchange for the Original Convertible Note, the
conversion of which is subject to both Elusys’ election and obtaining stockholder approval
of the issuance of shares of our Common Stock upon such conversion, which approval has been
obtained. The conversion price, as amended, was $0.11, which was 110% of the public offering
price per share of the shares of Common Stock sold in our May 2024 public offering, which
conversion price was increased to $22.00 as a result of the 2024 Reverse Stock Split; |
| • | the
issuance to an institutional investor, on November 27, 2024, of the November 2024 Note in
the principal amount of Two Hundred Twenty-Five Thousand Dollars ($225,000), which accrues
interest at the rate of 5.0% per annum and matures on the earlier of: (i) December 15, 2024;
(ii) the consummation of a Corporate Event (as such term is defined in the November 2024
Note); or (iii) when, upon or after the occurrence of an event of default under the November
2024 Note; and |
| • | the
issuance to certain institutional investors, on December 6, 2024, of the Notes, convertible
into up to an aggregate of 34,007,778 shares of Common Stock, and the Warrants to purchase
up to an aggregate of 13,388,889 shares of Common Stock, for an aggregate purchase price
of $12,050,000. The Notes mature on the third anniversary of their date of issuance, unless
prior thereto there is an event of default, and bear interest at a rate of 9% per annum payable
in cash on the first business day of each fiscal quarter beginning January 2, 2025.
The Notes are convertible, at the option of the holder, at any time, into a number of shares
of Common Stock equal to the principal amount of the Note, plus all accrued and unpaid interest,
at a conversion price equal to $0.50, subject to adjustment for any stock splits, stock dividends,
recapitalizations and similar events and subject to an Exchange Cap (as defined in the Note)
and other limitations. |
The
Original Convertible Note, the New Note, the November 2024 Note, the Notes, the Warrants and the shares of Common Stock that may be issued
under the Notes and Warrants were offered and sold in transactions exempt from registration under Section 4(a)(2) of the Securities Act
and the Restated Note and the shares of Common Stock that may be issued under the Restated Note, respectively, were offered and sold
in transactions exempt from registration under the Securities Act in reliance on Section 3(a)(9) thereof.
The
recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only
and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the stock certificates
issued in these transactions. All recipients had adequate access, through their employment or other relationship with us or through other
access to information provided by us, to information about us. The sales of these securities were made without any general solicitation
or advertising.
Item
16. Exhibits and financial statement schedules.
(a)
Exhibits
The
exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which immediately precedes the
Signature Page and which Exhibit Index is hereby incorporated by reference.
(b)
Financial Statement Schedules
Schedules
not listed have been omitted because the information required to be set forth therein is not applicable, not material or is shown in
the financial statements or notes thereto.
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; |
| |
ii. |
to
reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 a prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act 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 this registration statement
or any material change to such information in this registration statement; provided, however, that subparagraphs (i), (ii) and (iii)
do not apply if the information required to be included in a post-effective amendment by those subparagraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement. |
| (2) |
That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. |
| (3) |
To
remove from registration, by means of a post-effective amendment, any of the securities being registered which remain unsold at the
termination of the offering. |
| (4) |
That,
for the purpose of determining liability under the Securities Act to any purchaser: |
| |
(i) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
| |
|
|
| |
(ii) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) |
For
purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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. |
| (6) |
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
SEC 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 a Registrant of expenses incurred or paid by
a director, officer or controlling person of a 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, that 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. |
EXHIBIT
INDEX
| Exhibit
No. |
|
Description |
| |
|
|
| 2.1 |
|
Merger
Agreement, dated December 20, 2021, by and among the Registrant, Heat Acquisition Sub 1, Inc. and Elusys Therapeutics, Inc. (incorporated
by reference to Exhibit 2.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on December 21, 2021
(File No. 001-35994)) |
| 2.2 |
|
Asset
and Equity Interests Purchase Agreement by and between the Registrant and Elusys Holdings Inc., dated as December 12, 2023 (incorporated
by reference to Exhibit 2.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on December 12, 2023
(File No. 001-35994)) |
| 3.1 |
|
Third
Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.5 to the Registration Statement on Form S-1
with the Securities and Exchange Commission on May 6, 2013 (File No. 333-188365)) |
| 3.2 |
|
Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation filed on May 29, 2013 (incorporated by reference
to Exhibit 3.6 to the Registration Statement on Form S-1 with the Securities and Exchange Commission on May 30, 2013 (File
No. 333-188365)) |
| 3.3 |
|
Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current
Report on Form 8-K filed with the Securities and Exchange Commission on July 17, 2017 (File No. 001-35994)) |
| 3.4 |
|
Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current
Report on Form 8-K filed with the Securities and Exchange Commission on January 19, 2018 (File No. 001-35994)) |
| 3.5 |
|
Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current
Report on Form 8-K filed with the Securities and Exchange Commission March 23, 2020 (File No. 001 -35994)) |
| 3.6 |
|
Amended
and Restated Bylaws, dated October 17, 2019 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with
the Securities and Exchange Commission on October 18, 2019 (File No. 001-35994)) |
| 3.7 |
|
Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current
Report on Form 8-K filed with the Securities and Exchange Commission on December 10, 2020 (File No. 001 -35994)) |
| 3.8 |
|
Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Current
Report on Form 8-K filed with the Securities and Exchange Commission on May 3, 2022 (File No. 001 -35994)) |
| 3.9 |
|
Second
Amended and Restated Bylaws, dated May 3, 2022 (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K filed
with the Securities and Exchange Commission on May 3,2022 (File No. 001 -35994)) |
| 3.10 |
|
Certificate
of Amendment to Certificate of Incorporation to the Third Amended and Restated Certificate of Incorporation, dated February 5, 2024
(incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on
February 6, 2024 (File No. 001-35994)) |
| 3.11 |
|
Certificate
of Amendment of the Company’s Third Amended and Restated Certificate of Incorporation, filed with the Secretary of State of
Delaware on July 17, 2024 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 18, 2024 (File No. 001-35994)) |
| 4.1# |
|
2009
Stock Incentive Plan (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-1 with the Securities
and Exchange Commission on May 6, 2013 (File No. 333-188365)) |
| 4.2# |
|
First
Amendment of the 2009 Stock Incentive Plan (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-1
with the Securities and Exchange Commission on May 6, 2013 (File No. 333-188365)) |
| 4.3# |
|
Second
Amendment of the 2009 Stock Incentive Plan (incorporated by reference to Exhibit 4.3 to the Registration Statement on Form S-1
with the Securities and Exchange Commission on May 6, 2013 (File No. 333-188365)) |
| 4.4# |
|
Third
Amendment of the 2009 Stock Incentive Plan (incorporated by reference to Exhibit 4.4to the Registration Statement on Form S-1
with the Securities and Exchange Commission on May 6, 2013 (File No. 333-188365)) |
| 4.5# |
|
Fourth
Amendment of the 2009 Stock Incentive Plan (incorporated by reference to Exhibit 4.5 to the Registration Statement on Form S-1
with the Securities and Exchange Commission on May 6, 2013 (File No. 333-188365)) |
| 4.6 |
|
Specimen
Common Stock Certificate of Heat Biologics, Inc. (incorporated by reference to Exhibit 4.8 to the Registration Statement on
Form S-1 with the Securities and Exchange Commission on May 6, 2013 (File No. 333-188365)) |
| 4.7# |
|
2014
Stock Incentive Plan (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-8 with the Securities
and Exchange Commission on June 13, 2014 (File No. 333-196763)) |
| 4.8# |
|
Amended
and Restated Heat Biologics, Inc. 2014 Stock Incentive Plan (incorporated by reference to Appendix A to the Definitive Proxy
Statement on Schedule 14A filed with the Securities and Exchange Commission on June 22, 2015)) |
| 4.9# |
|
2017
Stock Incentive Plan (incorporated by reference as Exhibit 4.1 to the Registration Statement on Form S-8 with the Securities
and Exchange Commission on July 11, 2017 (File No. 333-219238)) |
| 4.10 |
|
Rights
Agreement between Heat Biologics, Inc. and Continental Stock Transfer & Trust Company dated March 11, 2018 (incorporated
by reference to Exhibit 4.1 to the Current Report on Form 8-K with the Securities and Exchange Commission on March 12,
2018 (File No. 001-35994)) |
| 4.11# |
|
2018
Stock Incentive Plan ((incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-8 with the Securities
and Exchange Commission on October 4, 2018 (File No. 333-219238)) |
| 4.12 |
|
Amendment
No. 1 to Rights Plan (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K filed with the Securities
and Exchange Commission on March 12, 2019 (File No. 001-35994)) |
| 4.13 |
|
Amendment
No. 2 to the Rights Agreement dated as of March 10, 2020 to the Rights Agreement dated March 11, 2018, as amended by Amendment No.
1 thereto, dated as of March 8, 2019, by and between Heat Biologics, Inc. and Continental Stock Transfer & Trust Company, as
rights agent (incorporated by reference to Exhibit 4.3 to the Form 8-A/A filed with the Securities and Exchange Commission on March
13, 2020 (File No. 001-35994)) |
| 4.14 |
|
Amendment
No. 3 to the Rights Agreement dated as of March 8, 2021 to the Rights Agreement dated March 11, 2018, as amended by Amendment No.
1 thereto, dated as of March 8, 2019, and Amendment No. 2 thereto, dated as of March 10, 2020, by and between Heat Biologics, Inc.
and Continental Stock Transfer & Trust Company, as rights agent (incorporated by reference to Exhibit 4.1 to the Form 8-K filed
with the Securities and Exchange Commission on March 12, 2021 (File No. 001-35994)) |
| 4.15 |
|
Heat
Biologics, Inc. 2021 Subsidiaries Stock Incentive Plan (incorporated by reference as Exhibit B to the Heat Biologics, Inc. Definitive
Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on August 3, 2021 (File No. 001-35994)) |
| 4.16 |
|
Amendment
No. 4 to the Rights Agreement dated as of March 8, 2021 to the Rights Agreement dated March 11, 2018, as amended by Amendment No.
1 thereto, dated as of March 8, 2019, Amendment No. 2 thereto, dated as of March 10, 2020, and Amendment No. 3 thereto dated as of
March 8, 2021 by and between Heat Biologics, Inc. and Continental Stock Transfer & Trust Company, as rights agent (incorporated
by reference to Exhibit 4.5 to the Form 8-K filed with the Securities and Exchange Commission on March 11, 2022 (File No. 001-35994) |
| 4.17 |
|
Amendment
No. 5 to the Rights Agreement dated as of March 11, 2023 to the Rights Agreement dated March 11, 2018, as amended by Amendment No.
1 thereto, dated as of March 8, 2019, Amendment No. 2 thereto, dated March 10, 2020, Amendment No. 3 thereto, dated March 8, 2021,
and Amendment No. 4 thereto, dated March 11, 2022, by and between the Registrant and Continental Stock Transfer & Trust Company,
as rights agent (incorporated by reference to Exhibit 4.6 to the Form 8-K filed with the Securities and Exchange Commission on March
13, 2023 (File No. 001-35994)) |
| 4.18 |
|
Amendment
No. 6 to the Rights Agreement dated as of December 11, 2023 to the Rights Agreement dated March 11, 2018, as amended by Amendment
No. 1 thereto, dated as of March 8, 2019, Amendment No. 2 thereto, dated March 10, 2020, Amendment No. 3 thereto, dated March 8,
2021, Amendment No. 4 thereto, dated March 11, 2022, and Amendment No. 5 thereto, dated March 11, 2023, by and between the Registrant
and Continental Stock Transfer & Trust Company, as rights agent (incorporated by reference to Exhibit 4.7 to the Current Report
on Form 8-K filed with the Securities and Exchange Commission on December 12, 2023 (File No. 001-35994)) |
| 4.19 |
|
Amendment
No. 7 to Rights Agreement (incorporated by reference to Exhibit 4.8 to the Current Report on Form 8-K filed with the Securities and
Exchange Commission on March 13, 2024 (File No. 001-35994)) |
| 4.20 |
|
Convertible
Note in the principal amount of $2,250,000 issued to Elusys Holdings Inc. (incorporated by reference to Exhibit 4.1 to the
Current Report on Form 8-K filed with the Securities and Exchange Commission on January 30, 2024 (File No. 001-35994)) |
| 4.21 |
|
Note,
dated May 1, 2024, in the principal amount of $750,000 (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K
filed with the Securities and Exchange Commission on May 2, 2024 (File No. 001-35994)) |
| 4.22 |
|
Amended
and Restated Convertible Note, dated May 1, 2024 in the principal amount of $2,250,000 (incorporated by reference to Exhibit 4.2
to the Current Report on Form 8-K filed with the Securities and Exchange Commission on May 2, 2024 (File No. 001-35994)) |
| 4.23 |
|
Form
of Common Warrant incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the Securities and Exchange
Commission on May 16, 2024 (File No. 001-35994) |
| 4.24 |
|
Form
of Pre-Funded Warrant (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K filed with the Securities and Exchange
Commission on May 16, 2024 (File No. 001-35994) |
| 4.25 |
|
Amendment
dated July 16, 2024 to Note dated May 1, 2024 (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with
the Securities and Exchange Commission on July 18, 2024 (File No. 001-35994) |
| 4.26 |
|
Form
of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the Securities and Exchange
Commission on August 19, 2024 (File No. 001-35994)) |
| 4.27 |
|
Form
of Promissory Note (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the Securities and
Exchange Commission on December 3, 2024 (File No. 001-35994)) |
| 4.28 |
|
Form
of Senior Secured Convertible Note (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 6, 2024 (File No. 001-35994)) |
| 4.29 |
|
Form
of Warrant (incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K filed with the Securities and Exchange Commission
on December 6, 2024 (File No. 001-35994)) |
| 5.1* |
|
Opinion of Blank Rome LLP |
| 10.1# |
|
Form of
Incentive Stock Option Agreement under the 2014 Stock Incentive Plan, as amended (incorporated by reference to Exhibit 10.4 to the
Current Report on Form 8-K with the Securities and Exchange Commission on July 27, 2015 (File No. 001-35994)) |
| 10.2# |
|
Form of
Non-Statutory Stock Option Agreement under the 2014 Stock Incentive Plan, as amended (incorporated by reference to Exhibit 10.5 to
the Current Report on Form 8-K with the Securities and Exchange Commission on July 27, 2015 (File No. 001-35994)) |
| 10.3 |
|
Form of
Indemnification Agreement by and between Heat Biologics, Inc. and its directors and officers (incorporated by reference to Exhibit
10.2 to the Quarterly Report on Form 10-Q with the Securities and Exchange Commission on August 15, 2016 (File No. 001-35994)) |
| 10.4# |
|
Form of
Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K with the
Securities and Exchange Commission on January 4, 2017 (File No. 001-35994)) |
| 10.5# |
|
Form of
Incentive Stock Option Agreement under the 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.77 to the Heat Biologics, Inc.’s
Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 2, 2018 (File No. 001-35994)) |
| 10.6# |
|
Form of
Non-Statutory Stock Option Agreement under the 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.78 to the Heat
Biologics, Inc.’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 2, 2018
(File No. 001-35994)) |
| 10.7# |
|
Form of
Restricted Stock Unit Award Agreement under the 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.79 to the Heat
Biologics, Inc.’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 2, 2018
(File No. 001-35994)) |
| 10.8# |
|
Form of
Incentive Stock Option Agreement under the 2018 Stock Incentive Plan (incorporated by reference to Exhibit 4.2 to the Registration
Statement on Form S-8 with the Securities and Exchange Commission on October 4, 2018 (File No. 333-219238)) |
| 10.9# |
|
Form of
Non-Statutory Stock Option Agreement under the 2018 Stock Incentive Plan (incorporated by reference to Exhibit 4.3 to the Registration
Statement on Form S-8 with the Securities and Exchange Commission on October 4, 2018 (File No. 333-219238)) |
| 10.10# |
|
Form of
Notice of Award under the 2018 Stock Incentive Plan (incorporated by reference to Exhibit 4.4 to the Registration Statement on Form S-8
with the Securities and Exchange Commission on October 4, 2018 (File No. 333-219238)) |
| 10.11# |
|
Form of
Restricted Stock Agreement under the 2018 Stock Incentive Plan (incorporated by reference to Exhibit 4.5 to the Registration Statement
on Form S-8 with the Securities and Exchange Commission on October 4, 2018 (File No. 333-219238)) |
| 10.12# |
|
Heat
Biologics, Inc. Form of Restricted Stock Agreement (incorporated by reference to Exhibit 10.2 to the Current Report on
Form 8-K filed with the Securities and Exchange Commission on January 3, 2019 (File No. 001-35994)) |
| 10.13# |
|
Amendment
No. 1 to the Heat Biologics, Inc. 2018 Stock Incentive Plan (incorporated by reference to Appendix A to the Definitive Proxy Statement
on Schedule 14A filed with the Securities and Exchange Commission on June 4, 2019 (File No. 001-35994)) |
| 10.14# |
|
Form
of Restricted Stock Agreement (incorporated by reference to Exhibit 10.4 to the Heat Biologics, Inc. Current Report on Form 8-K filed
with the Securities and Exchange Commission on January 3, 2020 (File No. 001-35994)) |
| 10.15# |
|
Amendment
no. 2 to the Heat Biologics 2018 Stock Incentive Plan (incorporated by reference to Exhibit 4.3 to the Registration Statement on
Form S-8 filed with the Securities and Exchange Commission on March 12, 2020) |
| 10.16# |
|
Amendment
No. 3 to the Heat Biologics, Inc. 2018 Stock Incentive Plan (incorporated by reference to Appendix A to the Definitive Proxy Statement
on Schedule 14A filed with the Securities and Exchange Commission on July 27, 2020) |
| 10.17# |
|
Employment
Agreement between Heat Biologics, Inc. and Jeffrey Wolf, dated as of January 4, 2021 (incorporated by reference to Exhibit 10.3 to
the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 6, 2021 (File No. 001-35994)) |
| 10.18# |
|
Form
of Restricted Stock Agreement (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed with the Securities
and Exchange Commission on January 6, 2021 (File No. 001-35994)) |
| 10.19 |
|
Lease
between Durham Keystone Tech 7, LLC and Heat Biologics, Inc. dated June 21, 2021 (incorporated by reference to Exhibit 10.1 to the
Heat Biologics, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 23, 2021 (File
No. 001-35994)) |
| 10.20# |
|
Form
of Stock Option Agreement for the Heat Biologics 2021 Subsidiaries Stock Incentive Plan (incorporated by reference to Exhibit 10.2
to the Current Report on Form 8-K filed with the Securities and Exchange Commission on August 3, 2021 (File No. 001-35994)) |
| 10.21# |
|
Form
of Restricted Stock Purchase Agreement for the Heat Biologics 2021 Subsidiaries Stock Incentive Plan (incorporated by reference to
Exhibit 10.3 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on August 3, 2021 (File No. 001-35994)) |
| 10.22# |
|
Heat
Biologics, Inc. 2021 Employee Stock Purchase Plan (incorporated by reference to Exhibit A to the Definitive Proxy Statement on Schedule
A filed with the Securities and Exchange Commission on August 3, 2021 (File No. 001-35994)) |
| 10.23 |
|
Lease
between Merchants Ice II, LLC and Heat Biologics, Inc. dated June October 5, 2021 (incorporated by reference to Exhibit 10.1 to the
Heat Biologics, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 7, 2021 (File
No. 001-35994)) |
| 10.24# |
|
Form
of Amended and Restated Restricted Stock Agreement (incorporated by reference to Exhibit 10.1 to the Heat Biologics, Inc.’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on December 15, 2021(File No.001-35994)) |
| 10.25# |
|
Employment
Agreement effective as of January 1, 2022 by and between Heat Biologics, Inc. and William Ostrander (incorporated by reference to
Exhibit 10.2 to the Heat Biologics, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on
December 15, 2021(File No.001-35994)) |
| 10.26 |
|
Ordering
Agreement between Lonza Sales AG and Elusys Therapeutics, Inc. (incorporated by reference to Exhibit 10.62 to the Heat Biologics,
Inc.’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 31, 2023(File No.001-35994)) |
| 10.27 |
|
Ordering
Agreement between Lonza Sales AG and Elusys Therapeutics, Inc. (incorporated by reference to Exhibit 10.63 to the Heat Biologics,
Inc.’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 31, 2023(File No.001-35994)) |
| 10.28# |
|
Form
of New Incentive Stock Option Agreement under the 2018 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current
Report on Form 8 K with the Securities and Exchange Commission on January 3, 2022 (File No. 001-35994)) |
| 10.29# |
|
Form
of New Non-Statutory Stock Option Agreement under the 2018 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 to the
Current Report on Form 8 K with the Securities and Exchange Commission on January 3, 2022 (File No. 001-35994)) |
| 10.30# |
|
Amendment
No. 4 to the Heat Biologics, Inc. 2018 Stock Incentive Plan (incorporated by reference to Appendix A to the Definitive Proxy Statement
on Schedule 14A filed with the Securities and Exchange Commission on July 28, 2022) |
| 10.31# |
|
Amendment
No. 4 to the Scorpius Holdings, Inc. 2021 Subsidiaries Stock Incentive Plan (incorporated by reference to Appendix A to the Definitive
Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on July 28, 2022) |
| 10.32# |
|
Amendment
No. 1 to Employment Agreement between Scorpius Holdings, Inc. and Jeffrey Wolf, effective as of December 7, 2022 (incorporated by
reference to Exhibit 10.2 to the Heat Biologics, Inc. Current Report on Form 8-K filed with the Securities and Exchange Commission
on December 9, 2022 (File No. 001-35994)) |
| 10.33# |
|
Amendment
No. 1 to Employment Agreement between Scorpius Holdings, Inc. and William Ostrander, effective as of December 7, 2022 (incorporated
by reference to Exhibit 10.1 to the Heat Biologics, Inc. Current Report on Form 8-K filed with the Securities and Exchange Commission
on December 9, 2022 (File No. 001-35994)) |
| 10.34 |
|
Lease
between TPB Merchants Ice LLC and Scorpion Biologics, Inc. dated December 31, 2022 (incorporated by reference to Exhibit 10.1 to
the Heat Biologics, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2023
(File No. 001-35994)) |
| 10.35# |
|
Amendment
No. 2 to William Ostrander Employment Agreement with the Registrant, dated as of December 11, 2023 (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on December 12, 2023 (File No. 001-35994)) |
| 10.36 |
|
Form
of Shared Services Agreement between the Registrant and Elusys Holdings Inc. (incorporated by reference to Exhibit 10.2 to the Current
Report on Form 8-K filed with the Securities and Exchange Commission on December 12, 2023 (File No. 001-35994)) |
| 10.37 |
|
Patent
Rights Sale and Assignment Agreement between NightHawk Biosciences, Inc. and Kopfkino IP, LLC (incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on January 30, 2024 (File No. 001-35994)) |
| 10.38 |
|
Note
Purchase Agreement, dated May 1, 2024 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the
Securities and Exchange Commission on May 2, 2024 (File No. 001-35994)) |
| 10.39# |
|
Amendment
No. 5 to Nighthawk Biosciences, Inc. 2018 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Current Report on
Form 8-K filed with the Securities and Exchange Commission on July 18, 2024 (File No. 001-35994)) |
| 10.40 |
|
Note
Cancellation and Amendment to Asset and Equity Interests Purchase Agreement by and between the Registrant and Elusys Holdings Inc.,
dated as July 30, 2024 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the Securities and
Exchange Commission on July 31, 2024 (File No. 001-35994)) |
| 10.42# |
|
Amendment
No. 2 to Jeffrey Wolf Employment Agreement with the Company dated as of August 23, 2024 (incorporated by reference to Exhibit 10.1
to the Current Report on Form 8-K filed with the Securities and Exchange Commission on August 26, 2024 (File No. 001-35994)) |
| 10.43# |
|
Amendment
No. 3 to William Ostrander Employment Agreement with the Company dated as of August 23, 2024 (incorporated by reference to Exhibit
10.2 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on August 26, 2024 (File No. 001-35994)) |
| 10.44 |
|
Securities
Purchase Agreement, dated December 6, 2024 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K
filed with the Securities and Exchange Commission on December 6, 2024 (File No. 001-35994)) |
| 10.45 |
|
Security
Agreement, dated December 6, 2024 (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed with
the Securities and Exchange Commission on December 6, 2024 (File No. 001-35994)) |
| 10.46 |
|
Subsidiary
Guarantee, dated December 6, 2024 (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed with
the Securities and Exchange Commission on December 6, 2024 (File No. 001-35994)) |
| 10.47 |
|
Form
of Support Agreement, dated December 6, 2024 (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K
filed with the Securities and Exchange Commission on December 6, 2024 (File No. 001-35994)) |
| 21.1 |
|
List
of Subsidiaries (incorporated by reference to Exhibit 21.1 to the Annual Report on Form 10-K filed with the Securities and Exchange
Commission on April 26, 2024 (File No. 001-35994)) |
| 23.1* |
|
Consent of Independent Registered Public Accounting Firm (BDO USA, P.C.) |
| 23.2* |
|
Consent of Blank Rome LLP (contained in Exhibit 5.1) |
| 24.1* |
|
Power of Attorney (reference is made to the signature page hereto) |
| 107* |
|
Filing fee table |
| # |
Management
contract or compensatory plan or arrangement |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-1 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Morrisville, State of North Carolina, on December 17, 2024.
| |
SCORPIUS
HOLDINGS, INC. |
| |
|
|
| |
By: |
/s/
Jeffrey Wolf |
| |
Title: |
Jeffrey Wolf |
| |
Name: |
Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Jeffrey Wolf and/or William
Ostrander, as his true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him and
in his 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 might
or could do in person, hereby approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his substitutes
may lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-1 has been signed by the following
persons in the capacities and on the dates indicated.
| Person |
|
Capacity |
|
Date |
| |
|
|
|
|
| /s/
Jeffrey Wolf |
|
Chief Executive Officer,
President and Chairman of the Board |
|
December
17, 2024 |
| Jeffrey Wolf |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/
William L. Ostrander |
|
Chief Financial Officer |
|
December
17, 2024 |
| William L. Ostrander |
|
(Principal Financial and
Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
John Monahan, Ph.D. |
|
Director |
|
December
17, 2024 |
| John Monahan, Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/ John
K.A. Prendergast, Ph.D. |
|
Director |
|
December
17, 2024 |
| John K.A. Prendergast,
Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Edward
B. Smith, III |
|
Director |
|
December
17, 2024 |
| Edward B. Smith, III |
|
|
|
|
| |
|
|
|
|
Exhibit 5.1
1271 Avenue of the Americas | New York, NY
10020
blankrome.com
December 17, 2024
The Board of Directors
Scorpius Holdings, Inc.
627 Davis Drive, Suite 300
Morrisville, North Carolina 27560
| Re: |
Registration
Statement on Form S-1 |
Ladies and Gentlemen:
We have acted as counsel
to Scorpius Holdings, Inc., a Delaware corporation (the “Company”), in connection with the preparation of the Company’s
registration statement on Form S-1 (“Registration Statement”), as filed with the U.S. Securities and Exchange Commission
(the “Commission”) relating to the registration for resale, under the Securities Act of 1933, as amended, and the
rules and regulations thereunder (the “Securities Act”), by the entities named in the Registration Statement (the
“Selling Stockholders”) of up to an aggregate of 47,396,667 shares (the “Shares”) of the Company’s
common stock, par value $0.0002 per share (the “Common Stock”), consisting of: (i) up to 34,007,778 shares of Common
Stock (the “Conversion Shares”) issuable upon the conversion of the senior secured convertible notes (the “Notes”)
that we issued on December 6, 2024 to the Selling Stockholders pursuant to that certain Securities Purchase Agreement, dated as of December
5, 2024 (the “Purchase Agreement”), between us and the Selling Stockholders named therein; and (ii) up to 13,388,889
shares of Common Stock (the “Warrant Shares”) issuable upon the exercise of the warrants (the “Warrants”)
that we issued on December 6, 2024 to the Selling Stockholders pursuant to the Purchase Agreement.
This opinion is being
furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinion
set forth herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration
Statement; (ii) the Purchase Agreement; (iii) the Notes; (iv) the Warrants; (v) resolutions adopted by the Board of Directors of the
Company (the “Board”); (vi) the third amended and restated certificate of incorporation of the Company, as amended
(the “Certificate of Incorporation”); (vii) the second amended and restated bylaws of the Company (the “Bylaws”);
and (viii) such other corporate records, agreements, certificates, including, but not limited to, certificates or comparable documents
of public officials and of officers and representatives of the Company, statutes and other instruments and documents as we considered
relevant and necessary as a basis for the opinions hereinafter expressed.
In rendering this opinion,
we have assumed, without inquiry, (i) the authenticity of all documents submitted to us as originals; (ii) the conformity to the original
documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals
of such copies; (iii) the legal capacity of all natural persons and the genuineness of all signatures on the Registration Statement and
all documents submitted to us; and (iv) that the books and records of the Company are maintained in accordance with proper corporate
procedures. We have also assumed that the Company will, at the time of any issuance of the Shares have a sufficient number of authorized
but unissued shares of Common Stock pursuant to its Certificate of Incorporation to so issue the relevant number of Shares and such Shares
will be issued for not less than the par value of the Common Stock.
Based upon the foregoing, it is our opinion
that:
| 1. | The
Conversion Shares have been duly and validly authorized for issuance and, when issued by
the Company and delivered by the Company upon the valid conversion of the Notes, in accordance
with and in the manner described in the Registration Statement, the Purchase Agreement and
the Notes, the Conversion Shares will be validly issued, fully paid and non-assessable. |
| 2. | The
Warrant Shares have been duly and validly authorized for issuance and, when issued by the
Company and delivered by the Company upon the valid exercise of the Warrants and against
receipt of the exercise price therefor, in accordance with and in the manner described in
the Registration Statement, the Purchase Agreement and the Warrants will be validly issued,
fully paid and non-assessable. |
We are opining solely
on all applicable statutory provisions of Delaware corporate law, including the rules and regulations underlying those provisions, all
applicable provisions of the Delaware Constitution and all applicable judicial and regulatory determinations. This opinion is limited
to the laws of the State of Delaware as in effect on the date hereof and we express no opinion with respect to the laws of any other
jurisdiction.
We hereby consent to
the reference to our firm under the caption “Legal Matters” in the prospectus included in the Registration Statement and
to the filing of this opinion as Exhibit 5.1 to the Company’s Registration Statement relating to the resale of the Shares. In giving
our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
| |
Very truly
yours, |
| |
|
| |
/s/
BLANK ROME LLP |
| |
BLANK ROME LLP |
Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated
April 26, 2024, relating to the consolidated financial statements of Scorpius Holdings, Inc. (the Company), appearing in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2023. Our report contains an explanatory paragraph regarding the Company’s
ability to continue as a going concern.
We
also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/
BDO USA, P.C.
Raleigh,
North Carolina
December
17, 2024
Exhibit 107
Calculation
of Filing Fee Tables
Form
S-1
(Form
Type)
Scorpius
Holdings, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table1 – Newly
Registered Securities
| | |
Security
Type | |
Security
Class Title | |
Fee
Calculation
Rule | |
|
Amount
Registered(1) | | |
Proposed
Maximum
Offering
Price Per
Share(2) | | |
Maximum
Aggregate
Offering
Price | | |
Fee Rate | | |
Amount
of
Registration
Fee | |
| Fees
to Be Paid | |
Equity | |
Common Stock,
par value $0.0002 per share | |
Rule 457(c) | (2) |
|
| 47,396,667 | | |
$ | 0.1675 | | |
$ | 7,938,941.72 | | |
$ | 0.00015310 | | |
$ | 1,215.45 | |
| | |
| |
| |
| |
|
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Total Offering Amounts | |
| |
| |
|
| | | |
| | | |
$ | 7,938,941.72 | | |
| | | |
$ | 1,215.45 | |
| | |
Total Fees Previously
Paid | |
| |
| |
|
| | | |
| | | |
| | | |
| | | |
| — | |
| | |
Total
Fee Offsets | |
| |
| |
|
| | | |
| | | |
| — | | |
| — | | |
| — | |
| | |
Net
Fee Due | |
| |
| |
|
| | | |
| | | |
| | | |
| | | |
$ | 1,215.45 | |
| (1) |
All
of the shares of common stock offered hereby are for the account of the Selling Stockholders named herein. Pursuant to Rule 416 of
the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional
shares of common stock which become issuable by reason of any share dividend, share split, recapitalization or any other similar
transaction without receipt of consideration which results in an increase in the number of shares of common stock outstanding. |
| (2) |
Calculated
pursuant to Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee. The price for these shares
is based upon the average of the high and low sale prices of the Registrant’s common stock, par value $0.0002 per share, reported
on NYSE American LLC on December 13, 2024. |
Scorpius (AMEX:SCPX)
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