Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-239497
PROSPECTUS
SUPPLEMENT
(To
prospectus dated July 21, 2020)
VYANT
BIO, INC.
Up
to $14,500,000 of Common Stock
We
have entered into an Equity Distribution Agreement (the “Equity Distribution Agreement”) with Canaccord Genuity LLC (“Canaccord”)
relating to shares of our common stock offered by this prospectus supplement and the accompanying prospectus. In accordance with the
terms of the Equity Distribution Agreement, under this prospectus supplement we may offer and sell shares of our common stock having
an aggregate offering price of up to $14,500,000 from time to time through Canaccord, acting as sales agent.
Under
the Equity Distribution Agreement we may issue and sell shares of our common stock having an aggregate gross sales price of up to $20,000,000
from time to time through Canaccord acting as sales agent. However, due to the offering limitations applicable to us under General Instruction
I.B.6. of Form S-3 and our public float as of the date of this prospectus supplement, and in accordance with the terms of the Equity
Distribution Agreement, we are offering common shares having an aggregate gross sales price of up to $14.5 million pursuant to this prospectus
supplement and the accompanying prospectus. If our public float increases such that we may sell additional amounts under the Equity Distribution
Agreement and the registration statement of which this prospectus supplement and the accompanying prospectus are a part, we will file
another prospectus supplement prior to making additional sales.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “VYNT.” On April 7, 2022, the last reported sale price
of our common stock on The Nasdaq Capital Market was $1.29 per share.
Sales
of our common stock, if any, under this prospectus supplement may be made in sales deemed to be “at the market” equity offerings
as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), including sales made
directly on or through The Nasdaq Capital Market, the existing trading market for our common stock, sales made to or through a market
maker other than on an exchange or otherwise, in negotiated transactions at market prices prevailing at the time of sale or at prices
related to such prevailing market prices, and/or any other method permitted by law, including in privately negotiated transactions. While
there is no requirement that Canaccord sell any specific number or dollar amount of securities, it will act as sales agent on a best
efforts basis and use commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by
us, consistent with its normal trading and sales practices, on mutually agreed terms between Canaccord and us. There is no arrangement
for funds to be received in any escrow, trust or similar arrangement.
Canaccord
will be entitled to compensation at a fixed commission rate of 3.0% of the gross sales price per share sold. In connection with the sale
of our common stock on our behalf, Canaccord may be deemed to be an “underwriter” within the meaning of the Securities Act
and the compensation of Canaccord may be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification
and contribution to Canaccord with respect to certain liabilities, including liabilities under the Securities Act or the Exchange Act
of 1934, as amended (the “Exchange Act”).
As
of April 8, 2022, the aggregate market value of our outstanding common stock held by non-affiliates was $43,578,434 based on 29,412,438
shares of outstanding common stock, of which 27,067,350 shares are held by non-affiliates, and the last reported sale price of our common
stock of $1.61 per share on March 30, 2022. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities
in a primary offering with a value exceeding more than one-third of our public float in any 12-month period so long as our public float
remains below $75,000,000. We have sold no securities pursuant to General Instruction 1.B.6 of Form S-3 during the 12 calendar month
period that ends on and includes the date of this prospectus supplement (excluding this offering).
Investing
in our common stock involves risks. See “Risk Factors” beginning on page S-3.
Neither
the Securities and Exchange Commission (the “SEC”), nor any state securities commission, or any other regulatory body has
approved or disapproved of these securities or determined if this prospectus supplement is truthful or complete. Any representation to
the contrary is a criminal offense.
Canaccord
Genuity
The
date of this prospectus supplement is April 8, 2022
TABLE
OF CONTENTS
Prospectus
Supplement
Base
Prospectus
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
prospectus supplement and the accompanying prospectus form part of a registration statement on Form S-3 (File No. 333-239497) that we
filed with the SEC utilizing a “shelf” registration process. This document contains two parts. The first part consists of
this prospectus supplement, which provides you with specific information about this offering. The second part, the accompanying prospectus,
provides more general information, some of which may not apply to this offering. Generally, when we refer only to the “prospectus,”
we are referring to both parts combined together with all documents incorporated by reference.
In
this prospectus supplement, the terms “VYNT,” “Vyant Bio,” “we,” “us,” “our”
and the “Company” refer to Vyant Bio, Inc. unless otherwise stated or the context otherwise requires.
This
prospectus supplement, and the information incorporated herein by reference, may add, update or change information in the accompanying
prospectus and in any free writing prospectuses we may provide to you in connection with this offering. You should read both this prospectus
supplement and the accompanying prospectus together with additional information described under the headings “Where You Can Find
More Information” and “Incorporation of Certain Information by Reference.” If there is any inconsistency between the
information in this prospectus supplement and the accompanying prospectus, you should rely on the information in this prospectus supplement.
You
may rely only the information contained in or incorporated by reference in this prospectus supplement and the accompanying prospectus.
Neither we nor the sales agent has authorized anyone to provide information different from that contained in this prospectus supplement,
the accompanying prospectus and the documents incorporated by reference herein and therein. If anyone provides you with different or
inconsistent information, you should not rely on it. The information in this prospectus supplement, the accompanying prospectus and in
any free writing prospectuses we may provide to you in connection with this offering is accurate only as of their respective dates, regardless
of time of delivery. Our business, financial condition, results of operations and prospects may have changed since those dates.
We
are offering to sell, and seeking offers to buy, our securities only in jurisdictions where offers and sales are permitted. The distribution
of this prospectus supplement and the offering of the securities in certain jurisdictions may be restricted by law. Persons outside the
United States who come into possession of this prospectus supplement must inform themselves about, and observe any restrictions relating
to, the offering of the securities and the distribution of this prospectus supplement outside the United States. This prospectus supplement
does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered
by this prospectus supplement by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
All
references in this prospectus to our consolidated financial statements include, unless the context indicates otherwise, the related notes.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases,
for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or
covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such
representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus and the information incorporated by reference herein include trademarks, service marks and trade names owned by us or other
companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus are the property
of their respective owners.
The
industry and market data and other statistical information contained in this prospectus supplement, the accompanying prospectus and the
documents we incorporate by reference are based on management’s own estimates, independent publications, government publications,
reports by market research firms or other published independent sources, and, in each case, are believed by management to be reasonable
estimates. Although we believe these sources are reliable, we have not independently verified the information. None of the independent
industry publications used in this prospectus supplement, the accompanying prospectus or the documents we incorporate by reference were
prepared on our or our affiliates’ behalf and none of the sources cited by us consented to the inclusion of any data from its reports,
nor have we sought their consent.
FORWARD-LOOKING
STATEMENTS AND OTHER INFORMATION CONTAINED IN THIS PROSPECTUS SUPPLEMENT
Certain
information set forth in this prospectus supplement, set forth in the accompanying prospectus or incorporated by reference herein or
therein may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E
of the Exchange Act, that are intended to be covered by the “safe harbor” created by those sections. Forward-looking statements,
which are based on certain assumptions and describe our future plans, strategies and expectations, can generally be identified by the
use of forward-looking terms such as “believe,” “expect,” “may,” “will,” “should,”
“would,” “could,” “seek,” “intend,” “plan,” “goal,” “project,”
“estimate,” “anticipate,” “strategy”, “future”, “likely” or other comparable
terms and references to future periods. All statements other than statements of historical facts included in this prospectus supplement
and the documents incorporated by reference regarding our strategies, prospects, financial condition, operations, costs, plans and objectives
are forward-looking statements. Examples of forward-looking statements include, among others, statements we make regarding expectations
for revenues, cash flows and financial performance, the anticipated results of our development efforts and the timing for receipt of
required regulatory approvals and product launches.
Forward-looking
statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations
and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy
and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks
and changes in circumstances that are difficult to predict and many of which are outside of our control. Our actual results and financial
condition may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these
forward-looking statements. Important factors that could cause our actual results and financial condition to differ materially from those
indicated in the forward-looking statements include, among others, the following:
| |
● |
our
strategic plans; |
| |
● |
our
ability to discover and develop novel therapeutics; |
| |
● |
our
ability to license any therapeutics we develop to larger companies for Phase 2 and Phase 3 clinical trials; |
| |
● |
the
ability of our licensors to achieve milestones under future licensing agreements that will generate revenue for us; |
| |
● |
our
ability to secure strategic and clinical co-development partnerships with pharmaceutical and biotechnology companies; |
| |
● |
our
ability to make capital expenditures and finance operations; |
| |
● |
our
cash position; |
| |
● |
our
ability to effectively manage current and future collaboration partnerships, joint venture or acquisition initiatives undertaken
by the Company; |
| |
● |
our
ability to develop and build infrastructure and teams to manage our research and development, partnering and clinical development
activities; |
| |
● |
our
ability to continue to retain and hire key talent; |
| |
● |
our
ability to sell the vivoPharm business and effectively operate the business during the sales process; |
| |
● |
our
ability to deter cyberattacks on our business; |
| |
● |
our
ability to obtain compounds used for drug discovery and development could be affected as a result of the tensions between the Ukraine
and Russia.; and |
| |
● |
the
impact of COVID-19 on the economy, demand for our services and products and our operations, including measures taken by government
authorities to address the pandemic, which may precipate or exacerbate other risks and/or uncertainties. |
Any
forward-looking statement made by us in this prospectus supplement is based only on information currently available to us and speaks
only as of the date on which it is made. We undertake no obligation to publicly update any forward-looking statement, whether written
or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise. We anticipate
that subsequent events and developments will cause our views to change. You should read this prospectus supplement, the accompanying
prospectus and the documents referenced herein or therein and filed as exhibits to the registration statement, of which this prospectus
supplement is a part, completely and with the understanding that our actual future results may be materially different from what we expect.
Our forward-looking statements do not reflect the potential impact of any future acquisitions, merger, dispositions, joint ventures or
investments we may undertake. We qualify all of our forward-looking statements by these cautionary statements.
SUMMARY
This
summary highlights selected information contained elsewhere in or incorporated by reference in this prospectus supplement and the accompanying
prospectus. The summary may not contain all of the information that is important to you or that you should consider before making an
investment decision. You should carefully read this entire prospectus supplement and the accompanying prospectus, as well as the information
to which we refer you, before deciding whether to invest in our common stock. You should pay special attention to the “Risk Factors”
section of this prospectus supplement to determine whether an investment in our common stock is appropriate for you.
Overview
Vyant
Bio, Inc. (the “Company”, “Vyant Bio”, “VYNT” or “we”),
is an innovative biotechnology company reinventing drug discovery for complex neurodevelopmental and neurodegenerative disorders.
Our central nervous system (“CNS”) drug discovery platform combines human-derived organoid models of brain disease, scaled
biology, and machine learning. Our platform is designed to: 1) elucidate disease pathophysiology; 2) formulate key therapeutic hypotheses;
3) identify and validate drug targets, cellular assays, and biomarkers to guide candidate molecule selection; and 4) guide clinical trial
patient selection and trial design. Our current programs are focused on identifying repurposed and novel small molecule clinical candidates
for rare CNS genetic disorders including Rett Syndrome (“Rett”), CDKL5 Deficiency Disorders (“CDD”) and familial
Parkinson’s Disease (“PD”). The Company’s management believes that drug discovery needs to progressively shift
as the widely used preclinical models for predicting safe and effective drugs have under-performed, as evidenced by the time and cost
of bringing novel drugs to market. As a result, Vyant Bio is focused on combining sophisticated data science capabilities with highly
functional human cell derived disease models. We leverage our ability to identify validated targets and molecular-based biomarkers to
screen and test thousands of small molecule compounds in human diseased 3D brain organoids in order to create a unique approach to assimilating
biological data that supports decision making iteratively throughout the discovery phase of drug development to identify both novel and
repurposed drug candidates.
In
December 2021, the Company’s Board of Directors approved a plan to sell the vivoPharm Pty Ltd (“vivoPharm”)
business to allow the Company to focus on the development of neurological
developmental and degenerative disease therapeutics. We engaged an investment banker in December 2021 to sell the vivoPharm business
during 2022.
Corporate
Information
The
Company was incorporated in the State of Delaware on April 8, 1999. On March 30, 2021, the Company completed its Merger with StemoniX,
Inc., a Minnesota corporation, which is now a wholly-owned subsidiary of the Company.
The
Company’s principal executive offices are located 2370 State Route 70 West, Two Executive Campus, Suite 310, Cherry Hill, NJ 08002-4102.
The Company’s telephone number is (201) 479-1357 and the corporate website address is www.vyantbio.com. The Company included the
website address in this prospectus supplement only as an inactive textual reference and does not intend it to be an active link to the
Company website. The information on the website is not incorporated by reference in this prospectus supplement.
The
Company’s most recent annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all amendments
to those reports, as well as other documents the Company files with the U.S. Securities and Exchange Commission (“SEC”),
such as the Form S-4, are available free of charge through the Investors section of the Company website as soon as reasonably practicable
after such material is electronically filed with or furnished to the SEC. The public can obtain documents that the Company files with
the SEC at www.sec.gov.
| THE
OFFERING |
| |
| Common
stock offered by us |
|
Shares
of our common stock having an aggregate offering price of up to $14,500,000. |
| |
|
|
| Common
stock to be outstanding after the offering |
|
Up
to 10,740,741 shares, after giving effect to the assumed sale of $14,500,000 of shares of our common stock at an assumed price of
$1.35 per share, which was the closing price of our common stock on the Nasdaq Capital Market on April 1, 2022. The actual number
of shares issued will vary depending on the price at which shares may be sold from time to time during this offering. (1) |
| |
|
|
| Manner
of offering |
|
“At
the market offering,” as defined in Rule 415(a)(4) of the Securities Act, that may be made from time to time by Canaccord,
as sales agent. See “Plan of Distribution” on page S-6 of this prospectus supplement. |
| |
|
|
| Use
of proceeds |
|
We
intend to use the net proceeds from this offering for working capital and other general corporate purposes. See “Use of Proceeds”
for additional information. |
| |
|
|
| Risk
factors |
|
Investing
in our common stock involves significant risks. See the section entitled “Risk Factors” beginning on page S-3 and the
other information included or incorporated by reference in this prospectus supplement and the accompanying prospectus for a discussion
of factors you should carefully consider before deciding to invest in shares of our common stock. |
| |
|
|
| The
Nasdaq Capital Market symbol |
|
Our
common stock is currently listed on the Nasdaq Capital Market under the symbol “VYNT.” |
| (1) | The
number of shares of our common stock to be outstanding after this offering is based on 29,412,438
shares of common stock outstanding as of March 31, 2022 and excludes the following: |
| ● |
2,292,996
shares of common stock issuable upon the exercise of outstanding warrants at a weighted average exercise price of $7.04 per share; |
| |
|
| ● |
2,766,949
shares of common stock issuable upon the exercise
of outstanding stock options issued pursuant to our 2008 Stock Option Plan, 2011 Equity Incentive Plan and 2021 Equity Incentive
Plan (collectively, the “Incentive Plans”) at a weighted average exercise price of $3.05 per share; |
| |
|
| ● |
326,052
shares of common stock issuable upon the settlement of outstanding restricted stock units issued pursuant to our 2021 Equity Incentive
Plan; and |
| |
|
| ● |
2,253,381
shares of common stock reserved for future issuance under our 2021 Equity Incentive Plan. |
RISK
FACTORS
You
should carefully consider the following risk factors and the risk factors discussed under the heading “Risk Factors” included
in our most recent annual report on Form 10-K and other reports that we file with the SEC, which are incorporated by reference in this
prospectus supplement in their entirety, together with all of the other information contained in this prospectus supplement and the accompanying
prospectus or incorporated by reference in this prospectus supplement and the accompanying prospectus. The risks described in any document
incorporated by reference are not the only ones we have, but are considered to be the most material. Additional risks of which we are
not presently aware or that we currently believe are immaterial may also harm our business and results of operations. If any of these
risks actually occur, our business, financial condition and results of operations would likely suffer. In that case, the market price
of the common stock could decline, and you may lose part or all of your investment in our company.
Risks
Related to this Offering of Our Common Stock
Sales
of our common stock in this offering, or the perception that such sales may occur, could cause the market price of our common stock to
fall.
We
may issue and sell shares of our common stock for aggregate gross proceeds of up to $14,500,000 from time to time in connection with
this offering. The issuance and sale from time to time of these new shares of common stock, or our ability to issue these new shares
of common stock in this offering, could have the effect of depressing the market price of our common stock.
You
will suffer immediate and substantial dilution in the net tangible book value per share of the common stock that you purchase in this
offering.
The
shares sold in this offering, if any, will be sold from time to time at various prices; however, the
assumed public offering price of our common stock is substantially higher than the as-adjusted net tangible book value per share of our
common stock. Therefore, investors purchasing shares of our common stock in this offering will pay a price per share that substantially
exceeds the as-adjusted net tangible book value per share after this offering. Assuming that an aggregate of 10,740,741 shares of our
common stock are sold at an assumed public offering price of $1.35 per share, the last reported sale price of our common stock on the
Nasdaq Capital Market on April 1, 2022, for aggregate gross proceeds of $14,500,000, and after deducting commissions and estimated offering
expenses payable by us, new investors in this offering will experience immediate dilution of $0.49 per share, representing the difference
between the assumed public offering price and our as adjusted net tangible book value per share after giving effect to this offering.
See “Dilution” for a more detailed discussion of the dilution you would incur if you
purchase common stock in this offering.
You
may experience future dilution as a result of future equity offerings.
In
order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into
or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. The price per share
at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions
may be lower than the price per share paid by investors in this offering.
Our
management will have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
Our
management will have broad discretion in the application of the net proceeds from this offering and our stockholders will not have the
opportunity as part of their investment decisions to assess whether the net proceeds are being used appropriately. You may not agree
with our decisions, and our use of the proceeds may not yield any return on your investment. Because of the number and variability of
factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently
intended use. Our failure to apply the net proceeds of this offering effectively could compromise our ability to pursue our growth strategy
and we might not be able to yield a significant return, if any, in our investment of these net proceeds. You will not have the opportunity
to influence our decisions on how to use our net proceeds from this offering.
The
common stock offered hereby will be sold in “at-the-market” offerings, and 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 outcomes in
their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold,
and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share
sales made at prices lower than the prices they paid.
The
actual number of shares we will issue under the Equity Distribution Agreement, at any one time or in total, is uncertain.
Subject
to certain limitations in the Equity Distribution Agreement and compliance with applicable law, we have the discretion to deliver a sales
notice to Canaccord at any time throughout the term of the Equity Distribution Agreement. The number of shares that are sold by Canaccord
after we deliver a sales notice will fluctuate based on the market price of the common stock during the sales period and limits we set
with Canaccord . Because the price per share of each share sold will fluctuate based on the market price of our common stock during the
sales period, it is not possible at this stage to predict the number of shares, if any, that will ultimately be issued.
USE
OF PROCEEDS
We
may issue and sell shares of our common stock having aggregate sales proceeds of up to $14,500,000 from time to time. The amount of proceeds
from this offering will depend upon the number of shares of our common stock sold and the market price at which they are sold. There
can be no assurance that we will be able to sell any shares under or fully utilize the Equity Distribution Agreement with Canaccord as
a source of financing.
We
intend to use the net proceeds from this offering, if any, for working capital and other general corporate purposes. We have not yet
determined the amount of net proceeds to be used specifically for any particular purposes or the timing of these expenditures. Accordingly,
our management will have significant discretion and flexibility in applying the net proceeds from the sale of these securities, and investors
will be relying on our judgment regarding the application of the net proceeds from this offering.
Pending
our use of the net proceeds from this offering, we intend to maintain the net proceeds as cash deposits or cash management instruments,
such as U.S. government securities or money market mutual funds.
DIVIDEND
POLICY
We
have not declared or paid any cash dividends on our capital stock. We currently intend to retain any future earnings for use in the operation
of our business and do not anticipate paying any dividends on our common stock in the foreseeable future. Any future determination to
declare dividends will be made at the discretion of our board of directors and will depend on our financial condition, operating results,
capital requirements, general business conditions and other factors that our board of directors may deem relevant.
DILUTION
If
you purchase shares of common stock in this offering, you will experience dilution to the extent of the difference between the public
offering price per share in this offering and our as adjusted net tangible book value per share after this offering.
Net
tangible book value per share represents total tangible assets less total liabilities, divided by the number of shares of common stock
outstanding. Our historical net tangible book value as of December 31, 2021 was $20.3 million or $0.70 per share of common stock.
After
giving effect to the sale of our common stock in the aggregate amount of $14,500,000 at an assumed public offering price of $1.35 per
share, the last reported sale price of our common stock on the Nasdaq Capital Market on April 1, 2022, and after deducting commissions
and estimated offering expenses payable by us, our as adjusted net tangible book value as December 31, 2021 would have been $34.2 million,
or $0.86 per share. This represents an immediate increase in net tangible book value of $0.16 per share to existing stockholders and
an immediate dilution as adjusted net tangible book value of $0.49 per share to new investors in this offering.
The
following table illustrates this dilution on a per share basis. The as adjusted information is illustrative only and will adjust based
on the actual public offering price, the actual number of shares sold and other terms of the offering determined at the time shares of
our common stock are sold pursuant to this prospectus supplement. The as adjusted information assumes that all of our common stock in
the aggregate amount of $14,500,000 is sold at the assumed public offering price of $1.35 per share. The shares sold in this offering,
if any, will be sold from time to time at various prices.
| Assumed public offering price per share | |
| | | |
$ | 1.35 | |
| Historical net tangible book value per share as of December 31, 2021 | |
$ | 0.70 | | |
| | |
| Increase in net tangible
book value per share attributable to this offering | |
$ | 0.16 | | |
| | |
| As adjusted net tangible
book value per share, after giving effect to this offering | |
| | | |
$ | 0.86 | |
| Dilution per share to
new investors in this offering | |
| | | |
$ | 0.49 | |
This
information is supplied for illustrative purposes only, and will adjust based on the actual offering prices, the actual number of shares
that we offer and sell in this offering and other terms of each sale of shares in this offering. An increase of $0.50 per share in the
price at which the shares are sold from the assumed offering price of $1.35 per share shown in the table above, assuming all of our common
stock in the aggregate amount of $14,500,000 is sold at that price, would increase our as adjusted net tangible book value per share
after the offering to $0.93 per share and would increase the dilution in as adjusted net tangible book value per share to new investors
in this offering to $0.92 per share, after deducting estimated offering expenses and commissions payable by us. A decrease of $0.50 per
share in the price at which the shares are sold from the assumed offering price of $1.35 per share shown in the table above, assuming
all of our common stock in the aggregate amount of $14,500,000 is sold at that price, would decrease our as adjusted net tangible book
value per share after the offering to $0.74 per share and would decrease the dilution in as adjusted net tangible book value per share
to new investors in this offering to $0.11 per share, after deducting estimated offering expenses and commissions payable by us.
The
above discussion and tables are based on 28,992,995 shares of common stock outstanding as of December 31, 2021 and excludes the following:
| ● |
2,296,913
shares of common stock issuable upon the exercise of outstanding warrants at a weighted average exercise price of $7.14 per share; |
| |
|
| ● |
2,320,097
shares of common stock issuable upon the exercise of outstanding stock options issued pursuant to our Incentive Plans at a weighted
average exercise price of $4.19 per share; |
| |
|
| ● |
8,676
shares of common stock issuable upon the settlement of outstanding restricted stock units issued pursuant to our 2021 Equity Incentive
Plan; and |
| |
|
| ● |
3,075,734
shares of common stock reserved for future issuance under our 2021 Equity Incentive Plan; and |
| |
|
| ● |
405,953
shares of common stock issued to Lincoln Park Capital Find, LLC pursuant to the Purchase Agreement, dated March 28, 2022. |
PLAN
OF DISTRIBUTION
We
have entered into the Equity Distribution Agreement with Canaccord under which we may issue and sell shares of our common stock having
an aggregate gross sales price of up to $20,000,000 from time to time through Canaccord acting as sales agent. The Equity Distribution
Agreement has been filed as an exhibit to a Current Report on Form 8-K and is incorporated by reference into this prospectus supplement.
However, due to the offering limitations applicable to us under General Instruction I.B.6. of Form S-3 and our public float as of the
date of this prospectus supplement, and in accordance with the terms of the Equity Distribution Agreement, we are offering common shares
having an aggregate gross sales price of up to $14.5 million pursuant to this prospectus supplement and the accompanying prospectus.
If our public float increases such that we may sell additional amounts under the Equity Distribution Agreement and the registration statement
of which this prospectus supplement and the accompanying prospectus are a part, we will file another prospectus supplement prior to making
additional sales.
Upon
delivery of a placement notice and subject to the terms and conditions of the Equity Distribution Agreement, Canaccord may sell our common
stock by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 promulgated under the
Securities Act, including sales made directly on The Nasdaq Capital Market, on any other existing trading market for our common stock
or to or through a market maker. Canaccord may also sell our common stock by any other method permitted by law, including in privately
negotiated transactions. We may instruct Canaccord not to sell common stock if the sales cannot be effected at or above the price designated
by us from time to time. We or Canaccord may suspend the offering of common stock upon notice and subject to other conditions.
We
will pay Canaccord commissions, in cash, for its services in acting as agent in the sale of our common stock. Canaccord will be entitled
to compensation at a fixed commission rate of 3.0% of the gross sales price per share sold. Because there is no minimum offering amount
required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are
not determinable at this time. We have also agreed to reimburse Canaccord for certain specified expenses, including the fees and disbursements
of its legal counsel, in the amount of $75,000. We estimate that the total expenses for the offering, excluding compensation and reimbursement
payable to Canaccord under the terms of the Equity Distribution Agreement, will be approximately $185,000
Settlement
for sales of common stock will occur on the second business day following the date on which any sales are made, or on some other date
that is agreed upon by us and Canaccord in connection with a particular transaction, in return for payment of the net proceeds to us.
Sales of our common stock as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust
Company or by such other means as we and Canaccord may agree upon. There is no arrangement for funds to be received in an escrow, trust
or similar arrangement.
Canaccord
will use its commercially reasonable efforts, consistent with its sales and trading practices, to solicit offers to purchase the common
stock shares under the terms and subject to the conditions set forth in the Equity Distribution Agreement. In connection with the sale
of the common stock on our behalf, Canaccord will be deemed to be an “underwriter” within the meaning of the Securities Act
and the compensation of Canaccord will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification
and contribution to Canaccord against certain civil liabilities, including liabilities under the Securities Act.
The
offering of our common stock pursuant to the Equity Distribution Agreement will terminate automatically upon the sale of all shares of
our common stock subject to the Equity Distribution Agreement or as otherwise permitted therein. We and Canaccord may each terminate
the Equity Distribution Agreement at any time upon three days’ prior written notice.
Canaccord
and its affiliates may in the future provide various investment banking, commercial banking and other financial services for us and our
affiliates, for which they may in the future receive customary fees. To the extent required by Regulation M, Canaccord will not engage
in any market making activities involving our common stock while the offering is ongoing under this prospectus supplement.
This
prospectus in electronic format may be made available on a website maintained by Canaccord and Canaccord may distribute this prospectus
supplement electronically.
LEGAL
MATTERS
Lowenstein
Sandler LLP, Roseland, New Jersey, will pass upon the validity of the shares of common stock offered by this prospectus supplement. Canaccord
is being represented in connection with this offering by Goodwin Procter LLP, New York, New York.
EXPERTS
The
consolidated financial statements of Vyant Bio Inc. and subsidiaries as of and for the years ended December 31, 2021 and 2020, incorporated
by reference in this prospectus supplement, have been audited by Deloitte & Touche LLP, an independent registered public accounting
firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm given
their authority as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual reports, quarterly reports, current reports, proxy statements and other information with the SEC. Our SEC filings are and
will become available to the public over the Internet at the SEC’s website at www.sec.gov. You can also find our public filings
on our website at www.cuebiopharma.com. Our website and the information contained therein or connected thereto are not part of this prospectus
supplement or the accompanying prospectus.
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the shares of common stock being
offered by this prospectus supplement. This prospectus supplement and the accompanying prospectus are a part of that registration statement
but do not contain all of the information set forth in the registration statement or the exhibits to the registration statement. For
further information with respect to us and the shares we are offering pursuant to this prospectus supplement, you should refer to the
registration statement and its exhibits. Statements contained in this prospectus supplement as to the contents of any contract, agreement
or other document referred to are not necessarily complete, and you should refer to the copy of that contract or other documents filed
as an exhibit to the registration statement. You may read or obtain a copy of the registration statement at the SEC’s website referred
to above.
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 supplement and the accompanying prospectus. Information in this prospectus supplement supersedes information
incorporated by reference that we filed with the SEC prior to the date of this prospectus supplement.
We
incorporate by reference the documents listed below that we have previously filed with the SEC:
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our
Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 30, 2022; |
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our
Current Report on Form 8-K filed with the SEC on January 24, 2022 (other than any portions thereof deemed furnished and not filed); |
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the
description of our common stock, par value $0.0001 per share, contained in our Form 8-A filed on August 12, 2013, including any amendment
or report filed for the purpose of updating such description. |
All
documents we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except as to any portion of any report
or documents that is not deemed filed under such provisions, on or after the date of this prospectus supplement until the termination
of this offering shall be deemed incorporated by reference in this prospectus supplement and the accompanying prospectus and to be a
part of this prospectus supplement from the date of filing of those documents.
We
will furnish without charge to you, on written or oral request, a copy of any or all of the documents incorporated by reference, including
exhibits to these documents. You should direct any requests for documents to Vyant Bio, Inc., 2370 1357 Route 70 West, Two Executive
Campus, Suite 310, Cherry Hill, NJ 08002-4102; Telephone: (201) 479-9200. Copies of the above reports may also be accessed from our website
at www.vyantbio.com. The information contained on, or that may be obtained from, our website is not, and shall not be deemed to be, a
part of this prospectus supplement or the accompanying prospectus.
We
have authorized no one to provide you with any information that differs from that contained in this prospectus supplement, the accompanying
prospectus or incorporated by reference herein or therein. Accordingly, you should not rely on any information that is not contained
in this prospectus supplement or the accompanying prospectus or incorporated by reference herein or therein. You should not assume that
the information in this prospectus supplement is accurate as of any date other than the date of the front cover of this prospectus supplement.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus supplement will be deemed
modified, superseded or replaced for purposes of this prospectus supplement to the extent that a statement contained in this prospectus
supplement or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus supplement modifies,
supersedes or replaces such statement.
PROSPECTUS
Cancer
Genetics, Inc.
$100,000,000
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Subscription
Rights
Units
We
may offer, issue and sell from time to time together or separately, in one or more offerings, any combination of (i) our common stock,
(ii) our preferred stock, which we may issue in one or more series, (iii) warrants, (iv) senior or subordinated debt securities, (v)
subscription rights and (vi) units. The debt securities may consist of debentures, notes, or other types of debt. The debt securities,
preferred stock, warrants and subscription rights may be convertible into, or exercisable or exchangeable for, common or preferred stock
or other securities of ours. The units may consist of any combination of the securities listed above.
The
aggregate public offering price of the securities that we may offer will not exceed $100,000,000. We will offer the securities in an
amount and on terms that market conditions will determine at the time of the offering. Our common stock is listed on the Nasdaq Capital
Market under the symbol “CGIX.” The last reported sale price for our common stock on June 25, 2020 as quoted on the Nasdaq
Capital Market was $3.04 per share. You are urged to obtain current market quotations of our common stock. We have no preferred stock,
warrants, debt securities, subscription rights or units listed on any market. Each prospectus supplement will indicate if the securities
offered thereby will be listed on any securities exchange.
Investing
in our securities involves risk. You should carefully consider the risks that we refer you to under the section captioned “Risk
Factors” in this prospectus on page 3 before buying our securities.
Should
we offer any of the securities described in this prospectus, we will provide you with the specific terms of the particular securities
being offered in supplements to this prospectus. You should read this prospectus and any supplement, together with additional information
described under the headings “Additional Information” and “Incorporation of Certain Information by Reference”
carefully before you invest. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
We
may sell these securities directly to our stockholders or to other purchasers or through agents on our behalf or through underwriters
or dealers as designated from time to time. If any agents or underwriters are involved in the sale of any of these securities, the applicable
prospectus supplement will provide the names of the agents or underwriters and any applicable fees, commissions or discounts.
The
aggregate market value of the shares of our common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3 is
approximately $8,680,000, which was calculated based on 2,169,880 shares of our common stock outstanding and held by non-affiliates as
of the date of this Prospectus and a price of $4.00 per share, the closing price of our common stock on the Nasdaq Capital Market on
June 8, 2020. We have not sold any securities of the types listed above pursuant to General Instruction I.B.6 of Form S-3 during the
prior 12 calendar month period that ends on, and includes the date of this Prospectus.
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 July 21, 2020.
TABLE
OF CONTENTS
Cancer
Genetics, Inc. is referred to herein as “Cancer Genetics,” “the Company,” “we,” “us,”
and “our,” unless the context indicates otherwise.
You
may only rely on the information contained in this prospectus and the accompanying prospectus supplement or that we have referred you
to. We have not authorized anyone to provide you with different information. This prospectus and any prospectus supplement do not constitute
an offer to sell or a solicitation of an offer to buy any securities other than the securities offered by this prospectus and the prospectus
supplement. This prospectus and any prospectus supplement do not constitute an offer to sell or a solicitation of an offer to buy any
securities in any circumstances in which such offer or solicitation is unlawful. Neither the delivery of this prospectus or any prospectus
supplement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in our affairs
since the date of this prospectus or such prospectus supplement or that the information contained by reference to this prospectus or
any prospectus supplement is correct as of any time after its date.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration process, we may from time to time offer and sell, in one or more offerings, any or
all of the securities described in this prospectus, separately or together, up to an aggregate offering price of $100,000,000. This prospectus
provides you with a general description of our securities being offered. When we issue the securities being offered by this prospectus,
we will provide a prospectus supplement (which term includes, as applicable, the at-the-market sale agreement prospectus filed with the
registration statement of which this prospectus forms a part) that will contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described under the heading “Additional Information” and
“Incorporation of Certain Information by Reference.”
PROSPECTUS
SUMMARY
The
following summary highlights some information from this prospectus. It is not complete and does not contain all of the information that
you should consider before making an investment decision. You should read this entire prospectus, including the “Risk Factors”
section on page 3 and the disclosures to which that section refers you, the financial statements and related notes and the other more
detailed information appearing elsewhere or incorporated by reference into this prospectus before investing in any of the securities
described in this prospectus.
Overview
Cancer
Genetics, Inc. supports the efforts of the biotechnology and pharmaceutical industries to develop innovative new drug therapies. Until
the closing of the Business Disposals (as defined below) in July 2019, the Company was an emerging leader in enabling precision medicine
in oncology by providing multi-disciplinary diagnostic and data solutions, facilitating individualized therapies through the Company’s
diagnostic tests, services and molecular markers. Following the Business Disposals, the Company currently has an extensive set of anti-tumor
referenced data based on predictive xenograft and syngeneic tumor models from the acquisition of vivoPharm, Pty Ltd. (“vivoPharm”)
in 2017, to provide Discovery Services such as contract research services, focused primarily on unique specialized studies to guide drug
discovery and development programs in the oncology and immuno-oncology fields. The Company’s tests and techniques target a wide
range of indications, covering all ten of the top cancers in prevalence in the United States, with additional unique capabilities offered
by its FDA-cleared Tissue of Origin® test for identifying difficult to diagnose tumor types or poorly differentiated metastatic disease.
The
Company offers preclinical services such as predictive tumor models, human orthotopic xenografts and syngeneic immuno-oncology relevant
tumor models in its Hershey, PA facility, and is a leader in the field of immuno-oncology preclinical services in the United States.
This service is supplemented with GLP toxicology and extended bioanalytical services in the Company’s Australian-based facilities
in Clayton, Victoria, and Gilles Plains, South Australia.
Corporate
Information
Our
principal executive offices are located at 201 Route 17 North, 2nd Floor, Rutherford, New Jersey 07070, and our telephone
number is (201) 528-9200. Our common stock is currently traded on The NASDAQ Capital Market under the symbol “CGIX.” We maintain
a corporate website at www.cancer genetics.com. The contents of our website are not incorporated by reference into this prospectus
and should not be considered to be a part of this prospectus or relied upon in connection herewith. You should not rely on our website
or any such information in making your decision whether to purchase our securities.
We
were incorporated in the State of Delaware on April 8, 1999. On July 16, 2014 we purchased substantially all of the assets of Gentris
Corporation, a laboratory specializing in pharmacogenomics profiling for therapeutic development, companion diagnostics and clinical
trials, which previously supported our BioPharma Business. On October 9, 2015, we acquired substantially all the assets and assumed certain
liabilities of Response Genetics, Inc., which previously supported our Clinical Business. On August 15, 2017, we purchased all of the
outstanding stock of vivoPharm, with its principal place of business in Victoria, Australia. On July 8, 2019, we consummated the sale
of our Clinical Business (the “Clinical Sale”), and on July 15, 2019, we consummated the sale of our BioPharma Business (the
“BioPharma Sale” and, together with the Clinical Sale, the “Business Disposals”).
RISK
FACTORS
Before
purchasing any of the securities you should carefully consider the risk factors incorporated by reference in this prospectus from our
Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and any subsequent updates described in our Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K, as well as the risks, uncertainties and additional information set forth in our SEC reports
on Forms 10-K, 10-Q and 8-K and in the other documents incorporated by reference in this prospectus. For a description of these reports
and documents, and information about where you can find them, see “Additional Information” and “Incorporation of Certain
Information By Reference.” Additional risks not presently known or that we presently consider to be immaterial could subsequently
materially and adversely affect our financial condition, results of operations, business and prospects.
FORWARD-LOOKING
STATEMENTS
This
prospectus, including the documents that we incorporate by reference, contains forward-looking statements as that term is defined in
the federal securities laws. The events described in forward-looking statements contained in this prospectus, including the documents
that we incorporate by reference, may not occur. Generally, these statements relate to our business plans or strategies, projected or
anticipated benefits or other consequences of our plans or strategies, financing plans, projected or anticipated benefits from acquisitions
that we may make, or projections involving anticipated revenues, earnings or other aspects of our operating results or financial position,
and the outcome of any contingencies. Any such forward-looking statements are based on current expectations, estimates and projections
of management. We intend for these forward-looking statements to be covered by the safe-harbor provisions for forward-looking statements.
Words such as “may,” “expect,” “believe,” “anticipate,” “project,” “plan,”
“intend,” “estimate,” and “continue,” and their opposites and similar expressions are intended to
identify forward-looking statements. We caution you that these statements are not guarantees of future performance or events and are
subject to a number of uncertainties, risks and other influences, many of which are beyond our control that may influence the accuracy
of the statements and the projections upon which the statements are based. Factors that may affect our results include, but are not limited
to, the risks and uncertainties discussed in the “Risk Factors” section on page 3 of this prospectus, in our Annual Report
on Form 10-K for the fiscal year ended December 31, 2019 or in other reports we file with the Securities and Exchange Commission.
Any
one or more of these uncertainties, risks and other influences could materially affect our results of operations and whether forward-looking
statements made by us ultimately prove to be accurate. Our actual results, performance and achievements could differ materially from
those expressed or implied in these forward-looking statements. We undertake no obligation to publicly update or revise any forward-looking
statements, whether from new information, future events or otherwise.
You
should rely only on the information in this prospectus. We have not authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should not rely upon it.
USE
OF PROCEEDS
Unless
we inform you otherwise in the prospectus supplement relating to a particular offering of securities, we will use the net proceeds from
the sale of the securities offered by this prospectus and the exercise price from the exercise of any convertible securities, if any,
for working capital and other general corporate purposes, which may include funding acquisitions or investments in businesses, products
or technologies that are complementary to our own and reducing indebtedness.
When
particular securities are offered, the prospectus supplement relating to that offering will set forth our intended use of the net proceeds
received from the sale of those securities we sell. Pending the application of the net proceeds for these purposes, we expect to invest
the proceeds in short-term, interest-bearing instruments or other investment-grade securities.
THE
SECURITIES WE MAY OFFER
General
The
descriptions of the securities contained in this prospectus, together with the applicable prospectus supplements, summarize all of the
material terms and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus supplement
relating to any securities the particular terms of the securities offered by that prospectus supplement. If we indicate in the applicable
prospectus supplement, the terms of the securities may differ from the terms we have summarized below. We may also include in the prospectus
supplement information about material United States federal income tax considerations relating to the securities, and the securities
exchange, if any, on which the securities will be listed.
We
may sell from time to time, in one or more offerings:
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common
stock; |
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preferred
stock; |
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debt
securities; |
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subscription
rights to purchase shares of common stock, preferred stock or debt securities; |
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warrants
to purchase shares of common stock or preferred stock; and |
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units
consisting of any combination of the securities listed above. |
In
this prospectus, we refer to the common stock, preferred stock, debt securities, subscription rights, warrants and units collectively
as “securities.” The total dollar amount of all securities that we may sell pursuant to this prospectus will not exceed $100,000,000.
If
we issue debt securities at a discount from their original stated principal amount, then, for purposes of calculating the total dollar
amount of all securities issued under this prospectus, we will treat the initial offering price of the debt securities as the total original
principal amount of the debt securities.
This
prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION
OF CAPITAL STOCK
General
Our
authorized capital stock consists of:
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100,000,000
shares of common stock, par value $0.0001 per share; and |
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9,764,000
shares of preferred stock, par value $0.0001 per share, of which, as of the date of this prospectus, none of which shares have been
designated. |
As
of close of business on June 25, 2020, 2,260,883 shares of common stock were issued and outstanding and no shares of preferred stock
were issued and outstanding.
The
additional shares of our authorized capital stock available for issuance may be issued at times and under circumstances so as to have
a dilutive effect on earnings per share and on the equity ownership of the holders of our common stock. The ability of our board of directors
to issue additional shares of stock could enhance the board’s ability to negotiate on behalf of the stockholders in a takeover
situation but could also be used by the board to make a change of control more difficult, thereby denying stockholders the potential
to sell their shares at a premium and entrenching current management. The following description is a summary of the material provisions
of our capital stock. You should refer to our certificate of incorporation, as amended, and our bylaws, both of which are on file with
the SEC as exhibits to previous SEC filings, for additional information. The summary below is qualified by provisions of applicable law.
Common
Stock
Voting.
Holders of our common stock are entitled to one vote per share in the election of directors and on all other matters on which stockholders
are entitled or permitted to vote. Holders of our common stock are not entitled to cumulative voting rights.
Dividends.
Subject to the terms of any outstanding series of preferred stock, the holders of our common stock are entitled to dividends in the amounts
and at times as may be declared by the board of directors out of funds legally available therefor.
Liquidation
Rights. Upon liquidation or dissolution, holders of our common stock are entitled to share ratably in all net assets available for
distribution to stockholders after we have paid, or provided for payment of, all of our debts and liabilities, and after payment of any
liquidation preferences to holders of our preferred stock.
Other
Matters. Holders of our common stock have no redemption, conversion or preemptive rights. There are no sinking fund provisions applicable
to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to the rights of the holders
of shares of any series of preferred stock that we may issue in the future.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company, LLC.
Preferred
Stock
We
are authorized to issue up to 9,764,000 shares of preferred stock, all of which are undesignated. Our board of directors has the authority
to issue preferred stock in one or more classes or series and to fix the designations, powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, including dividend rights, conversion right, voting rights, terms of redemption, liquidation preferences
and the number of shares constituting any class or series, without further vote or action by the stockholders. Although we have no present
plans to issue any other shares of preferred stock, the issuance of shares of preferred stock, or the issuance of rights to purchase
such shares, could decrease the amount of earnings and assets available for distribution to the holders of common stock, could adversely
affect the rights and powers, including voting rights, of the common stock, and could have the effect of delaying, deterring or preventing
a change of control of us or an unsolicited acquisition proposal. The preferred stock may provide for an adjustment of the conversion
price in the event of an issuance or deemed issuance at a price less than the applicable conversion price, subject to certain exceptions.
If
we offer a specific series of preferred stock under this prospectus, we will describe the terms of the preferred stock in the prospectus
supplement for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the SEC. To the
extent required, this description will include:
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the title and stated value; |
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the number of shares offered, the liquidation preference per share and the purchase price; |
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the dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such dividends; |
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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the
procedures for any auction and remarketing, if any; |
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the
provisions for a sinking fund, if any; |
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the
provisions for redemption, if applicable; |
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any
listing of the preferred stock on any securities exchange or market; |
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whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion price (or how it will be calculated)
and conversion period; |
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whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated)
and exchange period; |
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voting
rights, if any, of the preferred stock; |
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a
discussion of any material and/or special U.S. federal income tax considerations applicable to the preferred stock; |
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution or winding
up of our affairs; and |
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any
material limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred
stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs. |
Transfer
Agent and Registrar for Preferred Stock
The
transfer agent and registrar for any series or class of preferred stock will be set forth in each applicable prospectus supplement.
Anti-takeover
Effects of Delaware Law and our Certificate of Incorporation, as amended
The
provisions of Delaware law, our certificate of incorporation and our bylaws described below may have the effect of delaying, deferring
or discouraging another party from acquiring control of us.
Section
203 of the Delaware General Corporation Law
We
are subject to Section 203 of the Delaware General Corporation Law, which prohibits a Delaware corporation from engaging in any business
combination with any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder,
with the following exceptions:
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before
such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder; |
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upon
completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining
the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by
persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
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on
or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting
of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that
is not owned by the interested stockholder. |
In
general, Section 203 defines a “business combination” to include any merger or consolidation involving the corporation and
the interested stockholder; any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving
the interested stockholder; subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation
of any stock of the corporation to the interested stockholder; any transaction involving the corporation that has the effect of increasing
the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or the
receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits by or through
the corporation.
Certificate
of Incorporation and Bylaws
Our
certificate of incorporation and bylaws provide that:
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the
authorized number of directors can be changed only by resolution of our board of directors; |
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our
bylaws may be amended or repealed by our board of directors or our stockholders; |
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no
action can be taken by stockholders except at an annual or special meeting of the stockholders called in accordance with our bylaws,
and stockholders may not act by written consent, unless the stockholders amend the certificate of incorporation to provide otherwise; |
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stockholders
may not call special meetings of the stockholders or fill vacancies on the board; |
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our
board of directors will be authorized to issue, without stockholder approval, preferred stock, the rights of which will be determined
at the discretion of the board of directors and that, if issued, could operate as a “poison pill” to dilute the stock
ownership of a potential hostile acquirer to prevent an acquisition that our board of directors does not approve; |
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our
stockholders do not have cumulative voting rights, and therefore our stockholders holding a majority of the shares of common stock
outstanding will be able to elect all of our directors; and |
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our
stockholders must comply with advance notice provisions to bring business before or nominate directors for election at a stockholder
meeting. |
Potential
Effects of Authorized but Unissued Stock
We
have shares of common stock and preferred stock available for future issuance without stockholder approval. We may utilize these additional
shares for a variety of corporate purposes, including future public offerings to raise additional capital, to facilitate corporate acquisitions
or payment as a dividend on the capital stock.
The
existence of unissued and unreserved common stock and preferred stock may enable our board of directors to issue shares to persons friendly
to current management or to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to
obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management.
In addition, the board of directors has the discretion to determine designations, rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences of each series of preferred stock,
all to the fullest extent permissible under the Delaware General Corporation Law and subject to any limitations set forth in our certificate
of incorporation. The purpose of authorizing the board of directors to issue preferred stock and to determine the rights and preferences
applicable to such preferred stock is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred
stock, while providing desirable flexibility in connection with possible financings, acquisitions and other corporate purposes, could
have the effect of making it more difficult for a third-party to acquire, or could discourage a third-party from acquiring, a majority
of our outstanding voting stock.
DESCRIPTION
OF STOCK WARRANTS
We
summarize below some of the provisions that will apply to the warrants unless the applicable prospectus supplement provides otherwise.
This summary may not contain all information that is important to you. The complete terms of the warrants will be contained in the applicable
warrant certificate and warrant agreement. These documents have been or will be included or incorporated by reference as exhibits to
the registration statement of which this prospectus is a part. You should read the warrant certificate and the warrant agreement. You
should also read the prospectus supplement, which will contain additional information and which may update or change some of the information
below.
General
We
may issue, together with common or preferred stock as units or separately, warrants for the purchase of shares of our common or preferred
stock. The terms of each warrant will be discussed in the applicable prospectus supplement relating to the particular series of warrants.
The form(s) of certificate representing the warrants and/or the warrant agreement will be, in each case, filed with the SEC as an exhibit
to a document incorporated by reference in the registration statement of which this prospectus is a part on or prior to the date of any
prospectus supplement relating to an offering of the particular warrant. The following summary of material provisions of the warrants
and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement
and warrant certificate applicable to a particular series of warrants.
The
prospectus supplement relating to any series of warrants that are offered by this prospectus will describe, among other things, the following
terms to the extent they are applicable to that series of warrants:
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the
procedures and conditions relating to the exercise of the warrants; |
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the
number of shares of our common or preferred stock, if any, issued with the warrants; |
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the
date, if any, on and after which the warrants and any related shares of our common or preferred stock will be separately transferable; |
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the
offering price of the warrants, if any; |
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the
number of shares of our common or preferred stock which may be purchased upon exercise of the warrants and the price or prices at
which the shares may be purchased upon exercise; |
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the
date on which the right to exercise the warrants will begin and the date on which the right will expire; |
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a
discussion of the material United States federal income tax considerations applicable to the exercise of the warrants; |
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anti-dilution
provisions of the warrants, if any; |
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call
provisions of the warrants, if any; and |
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any
other material terms of the warrants. |
Each
warrant may entitle the holder to purchase for cash, or, in limited circumstances, by effecting a cashless exercise for, the number of
shares of our common or preferred stock at the exercise price that is described in the applicable prospectus supplement. Warrants will
be exercisable during the period of time described in the applicable prospectus supplement. After that period, unexercised warrants will
be void. Warrants may be exercised in the manner described in the applicable prospectus supplement.
A
holder of a warrant will not have any of the rights of a holder of our common or preferred stock before the stock is purchased upon exercise
of the warrant. Therefore, before a warrant is exercised, the holder of the warrant will not be entitled to receive any dividend payments
or exercise any voting or other rights associated with shares of our common or preferred stock which may be purchased when the warrant
is exercised.
Transfer
Agent and Registrar
The
transfer agent and registrar, if any, for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
This
prospectus describes certain general terms and provisions of debt securities that we may offer. The debt securities may be issued pursuant
to, in the case of senior debt securities, a senior indenture, and in the case of subordinated debt securities, a subordinated indenture,
in each case in the forms filed as exhibits to this registration statement, which we refer to as the “indentures.” The indentures
will be entered into between us and a trustee to be named prior to the issuance of any debt securities, which we refer to as the “trustee.”
The indentures will not limit the amount of debt securities that can be issued thereunder and will provide that the debt securities may
be issued from time to time in one or more series pursuant to the terms of one or more securities resolutions or supplemental indentures
creating such series.
We
have summarized below the material provisions of the indentures and the debt securities or indicated which material provisions will be
described in the related prospectus supplement for any offering of debt securities. These descriptions are only summaries, and you should
refer to the relevant indenture for the particular offering of debt securities itself which will describe completely the terms and definitions
of the offered debt securities and contain additional information about the debt securities.
Terms
When
we offer to sell a particular series of debt securities, we will describe the specific terms of the securities in a prospectus supplement.
The prospectus supplement will set forth the following terms, as applicable, of the debt securities offered thereby:
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the
designation, aggregate principal amount, currency or composite currency and denominations; |
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the
price at which such debt securities will be issued and, if an index formula or other method is used, the method for determining amounts
of principal or interest; |
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the
maturity date and other dates, if any, on which principal will be payable; |
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of
any subordination; |
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the
interest rate (which may be fixed or variable), if any; |
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the
date or dates from which interest will accrue and on which interest will be payable, and the record dates for the payment of interest;
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the
manner of paying principal and interest; |
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the
place or places where principal and interest will be payable; |
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the
terms of any mandatory or optional redemption by us or any third party including any sinking fund; |
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the
terms of any conversion or exchange; |
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the
terms of any redemption at the option of holders or put by the holders; |
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any
tax indemnity provisions; |
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if
the debt securities provide that payments of principal or interest may be made in a currency other than that in which the debt securities
are denominated, the manner for determining such payments; |
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the
portion of principal payable upon acceleration of a Discounted Debt Security (as defined below); |
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whether
and upon what terms debt securities may be defeased; |
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any
events of default or covenants in addition to or in lieu of those set forth in the indentures; |
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provisions
for electronic issuance of debt securities or for the issuance of debt securities in uncertificated form; and |
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any
additional provisions or other special terms not inconsistent with the provisions of the indentures, including any terms that may
be required or advisable under United States or other applicable laws or regulations, or advisable in connection with the marketing
of the debt securities. |
Debt
securities of any series may be issued as registered debt securities or uncertificated debt securities, in such denominations as specified
in the terms of the series.
Securities
may be issued under the indentures as Discounted Debt Securities to be offered and sold at a substantial discount from the principal
amount thereof. Special United States federal income tax and other considerations applicable thereto will be described in the prospectus
supplement relating to such Discounted Debt Securities. “Discounted Debt Security” means a security where the amount of principal
due upon acceleration is less than the stated principal amount.
We
are not obligated to issue all debt securities of one series at the same time and, unless otherwise provided in the prospectus supplement,
we may reopen a series, without the consent of the holders of the debt securities of that series, for the issuance of additional debt
securities of that series. Additional debt securities of a particular series will have the same terms and conditions as outstanding debt
securities of such series, except for the date of original issuance and the offering price, and will be consolidated with, and form a
single series with, such outstanding debt securities.
Ranking
The
senior debt securities will rank equally with all of our other senior and unsubordinated debt. Our secured debt, if any, will be effectively
senior to the senior debt securities to the extent of the value of the assets securing such debt. The subordinated debt securities will
be subordinate and junior in right of payment to all of our present and future senior indebtedness to the extent and in the manner described
in the prospectus supplement and as set forth in the board resolution, officer’s certificate or supplemental indenture relating
to such offering.
We
have only a stockholder’s claim on the assets of our subsidiaries. This stockholder’s claim is junior to the claims that
creditors of our subsidiaries have against our subsidiaries. Holders of our debt securities will be our creditors and not creditors of
any of our subsidiaries. As a result, all the existing and future liabilities of our subsidiaries, including any claims of their creditors,
will effectively be senior to the debt securities with respect to the assets of our subsidiaries. In addition, to the extent that we
issue any secured debt, the debt securities will be effectively subordinated to such secured debt to the extent of the value of the assets
securing such secured debt.
The
debt securities will be obligations exclusively of Cancer Genetics, Inc. To the extent that our ability to service our debt, including
the debt securities, may be dependent upon the earnings of our subsidiaries, our ability to do so will be dependent on the ability of
our subsidiaries to distribute those earnings to us as dividends, loans or other payments.
Certain
Covenants
Any
covenants that may apply to a particular series of debt securities will be described in the prospectus supplement relating thereto.
Successor
Obligor
The
indentures will provide that, unless otherwise specified in the securities resolution or supplemental indenture establishing a series
of debt securities, we shall not consolidate with or merge into, or transfer all or substantially all of our assets to, any person in
any transaction in which we are not the survivor, unless:
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the
person is organized under the laws of the United States or a jurisdiction within the United States; |
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the
person assumes by supplemental indenture all of our obligations under the relevant indenture, the debt securities and any coupons; |
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immediately
after the transaction no Default (as defined below) exists; and |
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we
deliver to the trustee an officers’ certificate and opinion of counsel stating that the transaction complies with the foregoing
requirements and that all conditions precedent provided for in the indenture relating to the transaction have been complied with.
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In
such event, the successor will be substituted for us, and thereafter all of our obligations under the relevant indenture, the debt securities
and any coupons will terminate.
The
indentures will provide that these limitations shall not apply if our board of directors makes a good faith determination that the principal
purpose of the transaction is to change our state of incorporation.
Exchange
of Debt Securities
Registered
debt securities may be exchanged for an equal aggregate principal amount of registered debt securities of the same series and date of
maturity in such authorized denominations as may be requested upon surrender of the registered debt securities at an agency of the Company
maintained for such purpose and upon fulfillment of all other requirements of such agent.
Default
and Remedies
Unless
the securities resolution or supplemental indenture establishing the series otherwise provides (in which event the prospectus supplement
will so state), an “Event of Default” with respect to a series of debt securities will occur if:
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we
default in any payment of interest on any debt securities of such series when the same becomes due and payable and the default continues
for a period of 30 days; |
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we
default in the payment of all or any part of the principal and premium, if any, of any debt securities of such series when the same
becomes due and payable at maturity or upon redemption, acceleration or otherwise and such default shall continue for five or more
days; |
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we
default in the performance of any of our other agreements applicable to the series and the default continues for 30 days after the
notice specified below; |
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a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law (as defined below) that: |
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for relief against us in an involuntary case, |
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appoints
a Custodian (as defined below) for us or for any substantial part of our property, or |
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orders
the winding up or liquidation of us, and the order or decree remains unstayed and in effect for 90 days; |
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we,
pursuant to or within the meaning of any Bankruptcy Law: |
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commence
a voluntary case, |
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consent
to the entry of an order for relief against us in an involuntary case, |
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consent
to the appointment of a Custodian for us or for any substantial part of our property, or |
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make
a general assignment for the benefit of our creditors; or |
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there
occurs any other Event of Default provided for in such series. |
The
term “Bankruptcy Law” means Title 11 of the United States Code or any similar Federal or State law for the relief of debtors.
The term “Custodian” means any receiver, trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
“Default”
means any event which is, or after notice or passage of time would be, an Event of Default. A Default under subparagraph (3) above is
not an Event of Default until the trustee or the holders of at least 25% in principal amount of the series notify us of the Default and
we do not cure the Default within the time specified after receipt of the notice.
The
trustee may require indemnity satisfactory to it before it enforces the indentures or the debt securities of the series. Subject to certain
limitations, holders of a majority in principal amount of the debt securities of the series may direct the trustee in its exercise of
any trust or power with respect to such series. Except in the case of Default in payment on a series, the trustee may withhold from securityholders
of such series notice of any continuing Default if the trustee determines that withholding notice is in the interest of such securityholders.
We are required to furnish the trustee annually a brief certificate as to our compliance with all conditions and covenants under the
indentures.
The
indentures will not have cross-default provisions. Thus, a default by us on any other debt, including any other series of debt securities,
would not constitute an Event of Default.
Amendments
and Waivers
The
indentures and the debt securities or any coupons of the series may be amended, and any Default may be waived as follows:
Unless
the securities resolution or supplemental indenture otherwise provides (in which event the applicable prospectus supplement will so state),
the debt securities and the indentures may be amended with the consent of the holders of a majority in principal amount of the debt securities
of all series affected voting as one class. Unless the securities resolution or supplemental indenture otherwise provides (in which event
the applicable prospectus supplement will so state), a Default other than a Default in payment on a particular series may be waived with
the consent of the holders of a majority in principal amount of the debt securities of the series. However, without the consent of each
securityholder affected, no amendment or waiver may:
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change
the fixed maturity of or the time for payment of interest on any debt security; |
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reduce
the principal, premium or interest payable with respect to any debt security; |
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change
the place of payment of a debt security or the currency in which the principal or interest on a debt security is payable; |
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change
the provisions for calculating any redemption or repurchase price with respect to any debt security; |
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adversely
affect any holder’s right to receive payment of principal and interest or to institute suit for the enforcement of any such
payment; |
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reduce
the amount of debt securities whose holders must consent to an amendment or waiver; |
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make
any change that materially adversely affects the right to convert any debt security; |
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waive
any Default in payment of principal of or interest on a debt security; or |
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adversely
affect any holder’s rights with respect to redemption or repurchase of a debt security. |
Without
the consent of any securityholder, the indentures or the debt securities may be amended to:
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provide
for assumption of our obligations to securityholders in the event of a merger or consolidation requiring such assumption; |
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cure
any ambiguity, omission, defect or inconsistency; |
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conform
the terms of the debt securities to the description thereof in the prospectus and prospectus supplement offering such debt securities;
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create
a series and establish its terms; |
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provide
for the acceptance of appointment by a successor trustee or to facilitate the administration of the trusts by more than one trustee; |
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provide
for uncertificated or unregistered securities; |
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make
any change that does not adversely affect the rights of any securityholder; |
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add
to our covenants; or |
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make
any other change to the indentures so long as no debt securities are outstanding. |
Conversion
Rights
Any
securities resolution or supplemental indenture establishing a series of debt securities may provide that the debt securities of such
series will be convertible at the option of the holders thereof into or for our common stock or other equity or debt instruments. The
securities resolution or supplemental indenture may establish, among other things, (1) the number or amount of shares of common stock
or other equity or debt instruments for which $1,000 aggregate principal amount of the debt securities of the series is convertible,
as may be adjusted pursuant to the terms of the relevant indenture and the securities resolution; and (2) provisions for adjustments
to the conversion rate and limitations upon exercise of the conversion right. The indentures provide that we will not be required to
make an adjustment in the conversion rate unless the adjustment would require a cumulative change of at least 1% in the conversion rate.
However, we will carry forward any adjustments that are less than 1% of the conversion rate and take them into account in any subsequent
adjustment of the conversion rate.
Legal
Defeasance and Covenant Defeasance
Debt
securities of a series may be defeased in accordance with their terms and, unless the securities resolution or supplemental indenture
establishing the terms of the series otherwise provides, as set forth below. We at any time may terminate as to a series all of our obligations
(except for certain obligations, including obligations with respect to the defeasance trust and obligations to register the transfer
or exchange of a debt security, to replace destroyed, lost or stolen debt securities and coupons and to maintain paying agencies in respect
of the debt securities) with respect to the debt securities of the series and any related coupons and the relevant indenture, which we
refer to as legal defeasance. We at any time may terminate as to a series our obligations with respect to any restrictive covenants which
may be applicable to a particular series, which we refer to as covenant defeasance.
We
may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option. If we exercise our legal
defeasance option, a series may not be accelerated because of an Event of Default. If we exercise our covenant defeasance option, a series
may not be accelerated by reference to any covenant which may be applicable to a series.
To
exercise either defeasance option as to a series, we must (1) irrevocably deposit in trust with the trustee (or another trustee) money
or U.S. Government Obligations (as defined below), deliver a certificate from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and interest when due on the deposited U.S. Government Obligations, without reinvestment,
plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal
and interest when due on all debt securities of such series to maturity or redemption, as the case may be; and (2) comply with certain
other conditions. In particular, we must obtain an opinion of tax counsel that the defeasance will not result in recognition of any gain
or loss to holders for federal income tax purposes.
“U.S.
Government Obligations” means direct obligations of the United States or any agency or instrumentality of the United States, the
payment of which is unconditionally guaranteed by the United States, which, in either case, have the full faith and credit of the United
States pledged for payment and which are not callable at the issuer’s option, or certificates representing an ownership interest
in such obligations.
Regarding
the Trustee
Unless
otherwise indicated in a prospectus supplement, the trustee will also act as depository of funds, transfer agent, paying agent and conversion
agent, as applicable, with respect to the debt securities. In certain circumstances, we or the securityholders may remove the trustee
as the trustee under a given indenture. The indenture trustee may also provide additional unrelated services to us as a depository of
funds, registrar, trustee and similar services.
Governing
Law
The
indentures and the debt securities will be governed by New York law, except to the extent that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We
may issue subscription rights to purchase our common stock or debt securities. These subscription rights may be offered independently
or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the subscription rights
in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters
or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed
for after such offering.
The
prospectus supplement relating to any subscription rights we offer, if any, will, to the extent applicable, include specific terms relating
to the offering, including some or all of the following:
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the
price, if any, for the subscription rights; |
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the
exercise price payable for our common stock or debt securities upon the exercise of the subscription rights; |
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the
number of subscription rights to be issued to each stockholder; |
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the
number and terms of our common stock or debt securities which may be purchased per each subscription right; |
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the
extent to which the subscription rights are transferable; |
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any
other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of
the subscription rights; |
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the
date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
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the
extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities or an
over-allotment privilege to the extent the securities are fully subscribed; and |
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if
applicable, the material terms of any standby underwriting or purchase arrangement which may be entered into by us in connection
with the offering of subscription rights. |
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit will be issued
so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security (but, to the extent convertible securities are included in the units, the holder
of the units will be deemed the holder of the convertible securities and not the holder of the underlying securities). The unit agreement
under which a unit is issued, if any, may provide that the securities included in the unit may not be held or transferred separately,
at any time or at any time before a specified date. The applicable prospectus supplement may describe:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
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the
terms of the unit agreement governing the units; |
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United
States federal income tax considerations relevant to the units; and |
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whether
the units will be issued in fully registered global form. |
This
summary of certain general terms of units and any summary description of units in the applicable prospectus supplement do not purport
to be complete and are qualified in their entirety by reference to all provisions of the applicable unit agreement and, if applicable,
collateral arrangements and depositary arrangements relating to such units. The forms of the unit agreements and other documents relating
to a particular issue of units will be filed with the SEC each time we issue units, and you should read those documents for provisions
that may be important to you.
FORMS
OF SECURITIES
Each
debt security and, to the extent applicable, warrant, subscription right and unit, will be represented either by a certificate issued
in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Certificated
securities in definitive form and global securities will be issued in registered form. Definitive securities name you or your nominee
as the owner of the security, and in order to transfer or exchange these securities or to receive payments other than interest or other
interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent,
as applicable. Global securities name a depositary or its nominee as the owner of the debt securities or warrants represented by these
global securities. The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the
securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain
more fully below.
Global
Securities
Registered
Global Securities. We may issue the registered debt securities and, to the extent applicable, warrants, subscription rights and units,
in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the
applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global
securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount
of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive
registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered
global security, the nominees of the depositary or any successors of the depositary or those nominees.
If
not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered
global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions
will apply to all depositary arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the
depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face
amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution
of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will
be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect
to interests of participants, and on the records of participants, with respect to interests of persons holding through participants.
The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes
under the applicable indenture or warrant agreement. Except as described below, owners of beneficial interests in a registered global
security will not be entitled to have the securities represented by the registered global security registered in their names, will not
receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders
of the securities under the applicable indenture or warrant agreement. Accordingly, each person owning a beneficial interest in a registered
global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant,
on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable
indenture or warrant agreement. We understand that under existing industry practices, if we request any action of holders or if an owner
of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take
under the applicable indenture or warrant agreement, the depositary for the registered global security would authorize the participants
holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning
through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal,
premium, if any, interest payments on debt securities and any payments to holders with respect to warrants represented by a registered
global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may
be, as the registered owner of the registered global security. None of the Company, the trustees, the warrant agents or any other agent
of the Company, the trustees or the warrant agents will have any responsibility or liability for any aspect of the records relating to
payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing
any records relating to those beneficial ownership interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal,
premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will
immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered
global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests
in a registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,”
and will be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, or the Exchange Act,
and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue
securities in definitive form in exchange for the registered global security that had been held by the depositary. Any securities issued
in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to
the relevant trustee or warrant agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions
will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered
global security that had been held by the depositary.
PLAN
OF DISTRIBUTION
Initial
Offering and Sale of Securities
Unless
otherwise set forth in a prospectus supplement accompanying this prospectus, we may sell the securities being offered hereby, from time
to time, by one or more of the following methods:
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to
or through underwriting syndicates represented by managing underwriters; |
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through
one or more underwriters without a syndicate for them to offer and sell to the public; |
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through
dealers or agents; and |
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to
investors directly in negotiated sales or in competitively bid transactions. |
Offerings
of securities covered by this prospectus also may be made into an existing trading market for those securities in transactions at other
than a fixed price, either:
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on
or through the facilities of the Nasdaq Capital Market or any other securities exchange or quotation or trading service on which
those securities may be listed, quoted, or traded at the time of sale; and/or |
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to
or through a market maker other than on the securities exchanges or quotation or trading services set forth above. |
Those
at-the-market offerings, if any, will be conducted by underwriters acting as principal or agent of the Company, who may also be third-party
sellers of securities as described above. The prospectus supplement with respect to the offered securities will set forth the terms of
the offering of the offered securities, including:
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the
name or names of any underwriters, dealers or agents; |
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the
purchase price of the offered securities and the proceeds to us from such sale; |
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any
underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation; |
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any
initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers; |
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any
securities exchange on which such offered securities may be listed; and |
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any
underwriter, agent or dealer involved in the offer and sale of any series of the securities. |
The
distribution of the securities may be effected from time to time in one or more transactions:
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at
fixed prices, which may be changed; |
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at
market prices prevailing at the time of the sale; |
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at
varying prices determined at the time of sale; or |
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at
negotiated prices. |
Each
prospectus supplement will set forth the manner and terms of an offering of securities including:
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whether
that offering is being made to underwriters, through agents or directly to the public; |
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the
rules and procedures for any auction or bidding process, if used; |
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the
securities’ purchase price or initial public offering price; and |
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the
proceeds we anticipate from the sale of the securities, if any. |
In
addition, we may enter into derivative or hedging transactions with third parties, or sell securities not covered by this prospectus
to third parties in privately negotiated transactions. The applicable prospectus supplement may indicate, in connection with such a transaction,
that the third parties may sell securities covered by and pursuant to this prospectus and an applicable prospectus supplement. If so,
the third party may use securities pledged by us or borrowed from us or others to settle such sales and may use securities received from
us to close out any related short positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus
supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged
securities pursuant to this prospectus and the applicable prospectus supplement.
Sales
Through Underwriters
If
underwriters are used in the sale of some or all of the securities covered by this prospectus, the underwriters will acquire the securities
for their own account. The underwriters may resell the securities, either directly to the public or to securities dealers, at various
times in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the securities will be subject to certain conditions. Unless indicated
otherwise in a prospectus supplement, the underwriters will be obligated to purchase all the securities of the series offered if any
of the securities are purchased.
Any
initial public offering price and any concessions allowed or reallowed to dealers may be changed intermittently.
Sales
Through Agents
Unless
otherwise indicated in the applicable prospectus supplement, when securities are sold through an agent, the designated agent will agree,
for the period of its appointment as agent, to use specified efforts to sell the securities for our account and will receive commissions
from us as will be set forth in the applicable prospectus supplement.
Securities
bought in accordance with a redemption or repayment under their terms also may be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing by one or more firms acting as principals for their own accounts or as agents
for us. Any remarketing firm will be identified and the terms of its agreement, if any, with us and its compensation will be described
in the prospectus supplement. Remarketing firms may be deemed to be underwriters in connection with the securities remarketed by them.
If
so indicated in the applicable prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase securities at a price set forth in the prospectus supplement pursuant to delayed delivery contracts providing
for payment and delivery on a future date specified in the prospectus supplement. These contracts will be subject only to those conditions
set forth in the applicable prospectus supplement, and the prospectus supplement will set forth the commissions payable for solicitation
of these contracts.
Direct
Sales
We
may also sell offered securities directly to institutional investors or others. In this case, no underwriters or agents would be involved.
The terms of such sales will be described in the applicable prospectus supplement.
General
Information
Broker-dealers,
agents or underwriters may receive compensation in the form of discounts, concessions or commissions from us and/or the purchasers of
securities for whom such broker-dealers, agents or underwriters may act as agents or to whom they sell as principal, or both. This compensation
to a particular broker-dealer might be in excess of customary commissions.
Underwriters,
dealers and agents that participate in any distribution of the offered securities may be deemed “underwriters” within the
meaning of the Securities Act of 1933, as amended, or the Securities Act, so any discounts or commissions they receive in connection
with the distribution may be deemed to be underwriting compensation. Those underwriters and agents may be entitled, under their agreements
with us, to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution
by us to payments that they may be required to make in respect of those civil liabilities. Certain of those underwriters or agents may
be customers of, engage in transactions with, or perform services for, us or our affiliates in the ordinary course of business. We will
identify any underwriters or agents, and describe their compensation, in a prospectus supplement. Any institutional investors or others
that purchase offered securities directly, and then resell the securities, may be deemed to be underwriters, and any discounts or commissions
received by them from us and any profit on the resale of the securities by them may be deemed to be underwriting discounts and commissions
under the Securities Act.
We
will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, if we enter into any material
arrangement with a broker, dealer, agent or underwriter for the sale of securities through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer. Such prospectus supplement will disclose:
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the
name of any participating broker, dealer, agent or underwriter; |
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the
number and type of securities involved; |
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the
price at which such securities were sold; |
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any
securities exchanges on which such securities may be listed; |
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the
commissions paid or discounts or concessions allowed to any such broker, dealer, agent or underwriter, where applicable; and |
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other
facts material to the transaction. |
In
order to facilitate the offering of certain securities under this prospectus or an applicable prospectus supplement, certain persons
participating in the offering of those securities may engage in transactions that stabilize, maintain or otherwise affect the price of
those securities during and after the offering of those securities. Specifically, if the applicable prospectus supplement permits, the
underwriters of those securities may over-allot or otherwise create a short position in those securities for their own account by selling
more of those securities than have been sold to them by us and may elect to cover any such short position by purchasing those securities
in the open market.
In
addition, the underwriters may stabilize or maintain the price of those securities by bidding for or purchasing those securities in the
open market and may impose penalty bids, under which selling concessions allowed to syndicate members or other broker-dealers participating
in the offering are reclaimed if securities previously distributed in the offering are repurchased in connection with stabilization transactions
or otherwise. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that
which might otherwise prevail in the open market. The imposition of a penalty bid may also affect the price of securities to the extent
that it discourages resales of the securities. No representation is made as to the magnitude or effect of any such stabilization or other
transactions. Such transactions, if commenced, may be discontinued at any time.
In
order to comply with the securities laws of certain states, if applicable, the securities must be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the securities may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Rule
15c6-1 under the Exchange Act generally requires that trades in the secondary market settle in two business days, unless the parties
to any such trade expressly agree otherwise. Your prospectus supplement may provide that the original issue date for your securities
may be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade
securities on any date prior to the second business day before the original issue date for your securities, you will be required, by
virtue of the fact that your securities initially are expected to settle in more than two scheduled business days after the trade date
for your securities, to make alternative settlement arrangements to prevent a failed settlement.
This
prospectus, any applicable prospectus supplement and any applicable pricing supplement in electronic format may be made available on
the Internet sites of, or through other online services maintained by, us and/or one or more of the agents and/or dealers participating
in an offering of securities, or by their affiliates. In those cases, prospective investors may be able to view offering terms online
and, depending upon the particular agent or dealer, prospective investors may be allowed to place orders online.
Other
than this prospectus, any applicable prospectus supplement and any applicable pricing supplement in electronic format, the information
on our website or the website of any agent or dealer, and any information contained in any other website maintained by any agent or dealer:
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is
not part of this prospectus, any applicable prospectus supplement or any applicable pricing supplement or the registration statement
of which they form a part; |
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has
not been approved or endorsed by us or by any agent or dealer in its capacity as an agent or dealer, except, in each case, with respect
to the respective website maintained by such entity; and |
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should
not be relied upon by investors. |
There
can be no assurance that we will sell all or any of the securities offered by this prospectus.
This
prospectus may also be used in connection with any issuance of common stock or preferred stock upon exercise of a warrant if such issuance
is not exempt from the registration requirements of the Securities Act.
In
addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing securityholders.
In some cases, we or dealers acting with us or on our behalf may also purchase securities and reoffer them to the public by one or more
of the methods described above. This prospectus may be used in connection with any offering of our securities through any of these methods
or other methods described in the applicable prospectus supplement.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered hereby will be passed upon for us
by Lowenstein Sandler LLP, Roseland, New Jersey. If the validity of the securities offered hereby in connection with offerings made pursuant
to this prospectus are passed upon by counsel for the underwriters, dealers or agents, if any, such counsel will be named in the prospectus
supplement relating to such offering.
EXPERTS
The
consolidated financial statements of Cancer Genetics, Inc. and subsidiaries as of December 31, 2019 and for the year ended December 31,
2019 have been audited by Marcum LLP, an independent registered public accounting firm, as stated in their report which is incorporated
by reference herein, (which report includes an explanatory paragraph as to the Company’s ability to continue as a going concern
and a paragraph regarding other matters including 1) the audit of the restatement for discontinued operations, 2) a reverse stock-split
and 3) change in accounting principle). Such financial statements have been incorporated by reference herein in reliance on the report
of such firm, given upon their authority as experts in auditing and accounting.
The
consolidated financial statements as of December 31, 2018 and for the year then ended have been audited by RSM US LLP, an independent
registered public accounting firm, as stated in their report thereon (which report expresses an unqualified opinion on the financial
statements, except for effects of the adjustments, if any, as might have been determined to be necessary had they been engaged to audit
the Company’s restatement for discontinued operations and a reverse stock-split and emphasis of matter paragraphs stating 1) they
were not engaged to audit the restatement for discontinued operations and a reverse stock-split, 2) for substantial doubt about the Company’s
ability to continue as a going concern and 3) change in accounting principle), incorporated herein by reference, and have been incorporated
in this Registration Statement in reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
DISCLOSURE
OF COMMISSION POSITION
ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section
145 of the DGCL provides that we may indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal or investigative (other than an action by us or in our right)
by reason of the fact that he is or was our director, officer, employee or agent, or is or was serving at our request as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection
with such action, suit or proceeding if he acted in good faith and in a manner he or she reasonably believed to be in or not opposed
to our best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful. Section 145 further provides that we similarly may indemnify any such person serving in any such capacity who was or is
a party or is threatened to be made a party to any threatened, pending or completed action or suit by is or in our right to procure judgment
in our favor, against expenses actually and reasonably incurred in connection with the defense or settlement of such action or suit if
he or she acted in good faith and in a manner he reasonably believed to be in or not opposed to our best interests and except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable
to us unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Our
certificate of incorporation, as amended, limits the liability of our directors to the fullest extent permitted by Delaware law. In addition,
we have entered into indemnification agreements with certain of our directors and officers whereby we have agreed to indemnify those
directors and officers to the fullest extent permitted by law, including indemnification against expenses and liabilities incurred in
legal proceedings to which the director or officer was, or is threatened to be made, a party by reason of the fact that such director
or officer is or was a director, officer, employee or agent of the Company, provided that such director or officer acted in good faith
and in a manner that the director or officer reasonably believed to be in, or not opposed to, the best interests of the Company.
We
have director and officer liability insurance to cover liabilities our directors and officers may incur in connection with their services
to us, including matters arising under the Securities Act. Our certificate of incorporation and bylaws also provide that we will indemnify
our directors and officers who, by reason of the fact that he or she is one of our officers or directors of our company, is involved
in any action, suit or proceeding, whether civil, criminal, administrative or investigative, related to their board role with the company.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have 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 the registrant of expenses incurred or paid by a director, officer or controlling person
of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as
expressed in the Securities Act and will be governed by the final adjudication of such issue.
ADDITIONAL
INFORMATION
This
prospectus is part of a Registration Statement on Form S-3 that we have filed with the SEC relating to the shares of our securities being
offered hereby. This prospectus does not contain all of the information in the Registration Statement and its exhibits. The Registration
Statement, its exhibits and the documents incorporated by reference in this prospectus and their exhibits, all contain information that
is material to the offering of the securities hereby. Whenever a reference is made in this prospectus to any of our contracts or other
documents, the reference may not be complete. You should refer to the exhibits that are a part of the Registration Statement in order
to review a copy of the contract or documents. The Registration Statement and the exhibits are available at the SEC’s Public Reference
Room or through its website.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet site at
http://www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers, such as us, that
file electronically with the SEC. Additionally, you may access our filings with the SEC through our website at http://www.cancergenetics.com.
We have included our website address as an inactive textual reference only and our website and the information contained on, or that
can be accessed through, our website will not be deemed to be incorporated by reference in, and are not considered part of, this prospectus.
We
will provide you without charge, upon your oral or written request, with an electronic or paper copy of any or all reports, proxy statements
and other documents we file with the SEC, as well as any or all of the documents incorporated by reference in this prospectus (other
than exhibits to such documents unless such exhibits are specifically incorporated by reference into such documents). Requests for such
copies should be directed to:
Cancer
Genetics, Inc.
201
Routh 17 North, 2nd Floor
Rutherford,
NJ 07070
Telephone
number: (201) 528-9200
You
should rely only on the information in this prospectus and the additional information described above and under the heading “Incorporation
of Certain Information by Reference” below. We have not authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should not rely upon it. We are not making an offer to sell these
securities in any jurisdiction where such offer or sale is not permitted. You should assume that the information in this prospectus was
accurate on the date of the front cover of this prospectus only. Our business, financial condition, results of operations and prospects
may have changed since that date.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it into this prospectus, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is an important
part of this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that
we file later with the SEC will automatically update and supersede information contained in this prospectus and any accompanying prospectus
supplement.
We
incorporate by reference the documents listed below that we have previously filed with the SEC:
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our
Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on May 29, 2020; |
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our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, filed with the SEC on June 24, 2020; |
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our
Current Reports on Form 8-K filed with the SEC on February 27, 2020, March 30, 2020, May
14, 2020 and June 12, 2020 (other than any portions thereof deemed furnished and not filed);
and
|
| ● |
the
description of our common stock, par value $0.0001 per share, contained in our Form 8-A filed on August 12, 2013, including any amendment
or report filed for the purpose of updating such description. |
All
reports and other documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
the initial registration statement and prior to effectiveness of the registration statement, and after the date of this prospectus but
before the termination of the offering of the securities hereunder will also be considered to be incorporated by reference into this
prospectus from the date of the filing of these reports and documents, and will supersede the information herein; provided, however,
that all reports, exhibits and other information that we “furnish” to the SEC will not be considered incorporated by reference
into this prospectus. We undertake to provide without charge to each person (including any beneficial owner) who receives a copy of this
prospectus, upon written or oral request, a copy of all of the preceding documents that are incorporated by reference (other than exhibits,
unless the exhibits are specifically incorporated by reference into these documents). You may request a copy of these materials in the
manner set forth under the heading “Additional Information,” above.
VYANT
BIO, INC.
Up
to $14,500,000 of Common Stock
PROSPECTUS
SUPPLEMENT
April
8, 2022
Canaccord
Genuity
Cancer Genetics (NASDAQ:CGIX)
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De May 2024 a Jun 2024
Cancer Genetics (NASDAQ:CGIX)
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De Jun 2023 a Jun 2024
