Filed Pursuant to
Rule 424(b)(5)
Registration No.
333-272956
PROSPECTUS SUPPLEMENT
(To Prospectus
dated July 10, 2023)
EXPION360 INC.
474,193 Shares
of Common Stock
Pre-Funded Warrants
to Purchase Up to 574,193 Shares of Common Stock
Up to 574,193 Shares
of Common Stock Issuable Upon Exercise of the Pre-Funded Warrants
We are offering 474,193 shares of our common stock,
par value $0.001 per share (“Common Stock”), to investors pursuant to this prospectus supplement, the accompanying base prospectus,
and that certain securities purchase agreement, dated January 2, 2025, by and between us and each investor. The offering price of
each share is $2.48.
We are also offering
pre-funded warrants (the “Pre-Funded Warrants”) to purchase up to 574,193 shares of our Common Stock to each investor
whose purchase of shares of our Common Stock in this offering would otherwise result in the investor, together with its affiliates and
certain related parties, beneficially owning more than 4.99% (or, at the election of the investor, 9.99%) of our outstanding shares of
Common Stock immediately following consummation of this offering, if such investor so elects. Each Pre-Funded Warrant is exercisable
for one share of Common Stock. The offering price of each Pre-Funded Warrant is $2.479, which is the price per share of Common Stock
sold in this offering, minus $0.001, and the exercise price of each Pre-Funded Warrant is $0.001 per share. Each Pre-Funded Warrant is
exercisable immediately and may be exercised at any time until exercised in full. This prospectus supplement also relates to the offering
of the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants (the “Pre-Funded Warrant Shares”).
We refer to the shares
of Common Stock, the Pre-Funded Warrants, and the Pre-Funded Warrant Shares to be issued and sold in this offering collectively as the
“Securities.”
In a concurrent private placement (the “Warrant
Private Placement”), we are also selling to the investors warrants (the “Unregistered Warrants”) to purchase up to
an aggregate of 1,048,386 shares of Common Stock (the “Unregistered Warrant Shares” and, together with the Unregistered Warrants,
the “Unregistered Securities”). The Unregistered Securities are not currently being registered under the Securities
Act of 1933, as amended (the “Securities Act”), and are not offered pursuant to this prospectus supplement and the accompanying
base prospectus. The Unregistered Securities are being offered pursuant to an exemption from the registration requirements of the Securities
Act provided in Section 4(a)(2) of the Securities Act and Rule 506 promulgated thereunder. The Unregistered Warrants are exercisable
immediately and expire five years from the date of issuance and have an exercise price of $2.36 per Unregistered Warrant
Share.
Our Common Stock
is listed on The Nasdaq Capital Market (“Nasdaq”) under the symbol “XPON.” On January 2, 2025, the last reported
sale price of our Common Stock on Nasdaq was $2.00 per share. There is no established public trading market for the Pre-Funded Warrants,
and we do not expect a market for the Pre-Funded Warrants to develop. We do not intend to apply for a listing of the Pre-Funded Warrants
on any national securities exchange. Without an active trading market, the liquidity of the Pre-Funded Warrants will be limited.
As of January
2, 2025, the aggregate market value of our outstanding Common Stock held by non-affiliates, or public float, was approximately $8.9 million.
This value was computed by reference to the highest closing price of our common stock on the Nasdaq Capital Market within the preceding
60 days ($4.25 per share on November 5, 2024) multiplied
by 2,094,227 shares held by non-affiliates. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities in
a public primary offering with a value exceeding one-third of our public float in any 12-month period so long as our public float remains
below $75.0 million. During the 12 calendar months prior to and including the date of this prospectus supplement (excluding this offering),
we have sold $278,840 in securities pursuant to General Instruction I.B.6 of Form S-3.
We are an “emerging growth company,”
as that term is used in the Jumpstart Our Business Startups Act of 2012 and, under applicable Securities and Exchange Commission (“SEC”)
rules, we have elected to take advantage of certain reduced public company reporting requirements for this prospectus supplement
and future filings.
We intend to use the net proceeds received from the
offering for working capital and other general corporate purposes. We also intend to use approximately
$500,000 of the net proceeds to satisfy a portion of certain amounts owed to the holders of our Series A Warrants pursuant to the
terms thereof. Additional information regarding our intended use of the proceeds of the offering is set forth in the section entitled
“Use of Proceeds” beginning on page S-12 of this prospectus supplement.
We have engaged Aegis
Capital Corp. (the “placement agent”), as our placement agent in connection with this offering. The placement agent agreed
to use its best efforts to arrange for the sale of the Securities offered by this prospectus supplement; there was no minimum offering
requirement. The placement agent has not purchased or sold any of the Securities offered hereby and is not required to arrange the purchase
or sale of any specific number of Securities or dollar amount. We have agreed to pay the placement agent the placement agent fees set
forth in the table below. There is no arrangement for funds to be received in escrow, trust, or similar arrangement. We will bear all
costs associated with the offering. See “Plan of Distribution” beginning on page S-17 of this prospectus supplement
for more information regarding these arrangements.
| | |
Per Share | |
Per Pre-Funded Warrant | |
Total |
| Offering price | |
$ | 2.48 | | |
$ | 2.479 | | |
$ | 2,599,423 | (1) |
| Placement agent fees (8.0%)(2) | |
$ | 0.198 | | |
$ | 0.198 | | |
$ | 207,954 | |
| Proceeds, before expenses, to us(3) | |
$ | 2.282 | | |
$ | 2.281 | | |
$ | 2,391,469 | |
| |
(1) |
Assumes
no exercise of the Pre-Funded Warrants. |
| |
(2) |
In addition, we have agreed
to reimburse the placement agent for certain out-of-pocket expenses. See “Plan of Distribution” beginning on page
S-17 of this prospectus supplement for additional information with respect to the compensation we will pay and expenses we
will reimburse to the placement agent in connection with this offering. |
| |
(3) |
The amount of the offering proceeds to us presented in this table does not take into account any proceeds from the exercise of any of the Unregistered Warrants being issued in the Warrant Private Placement. |
Investing in
our Securities involves a high degree of risk. Refer to the sections entitled “Risk Factors” beginning on page
S-9 of this prospectus supplement and beginning on page 7 of the accompanying base prospectus for a discussion of information that
should be considered in connection with an investment in our Securities.
Neither
the SEC nor any state securities commission has approved or disapproved of the shares or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
Delivery of the Securities
offered hereby occurred on January 3, 2025.
Aegis
Capital Corp.
The date of this
prospectus supplement is January 3, 2025.
TABLE OF CONTENTS
Prospectus Supplement
Base Prospectus
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
prospectus supplement and the accompanying base prospectus are part of a Registration Statement on Form S-3 (File No. 333-272956)
that we filed with the SEC utilizing a “shelf” registration process. Under this shelf registration process, we are offering
the Securities described in this prospectus supplement.
This
document is in two parts. The first part is this prospectus supplement, which describes the specific terms of the offering and also adds
to and updates information contained in the accompanying base prospectus and the documents incorporated by reference herein and therein.
The second part, the accompanying base prospectus, provides more general information. Generally, when we refer to this prospectus, we
are referring to both parts of this document combined. To the extent there is a conflict between the information contained in this prospectus
supplement and the information contained in the accompanying base prospectus or any document incorporated by reference herein or therein
filed prior to the date of this prospectus supplement, you should rely on the information in this prospectus supplement; provided that
if any statement in one of these documents is inconsistent with a statement in another document having a later date—for example,
a document incorporated by reference in the accompanying base prospectus—the statement in the document having the later date modifies
or supersedes the earlier statement.
You
should rely only on the information contained in this prospectus, or the information incorporated by reference herein. We have not authorized
anyone to provide you with information that is different. The information contained in this prospectus, or incorporated by reference
herein, is accurate only as of the respective dates thereof, regardless of the time of delivery of this prospectus or of any issuance
of our shares. It is important that you read and consider all information contained in this prospectus, including the documents incorporated
by reference herein, in making your investment decision. You should also read and consider the information in the documents to which
we have referred you in the sections entitled “Where You Can Find More Information” and “Incorporation of
Certain Information by Reference” in this prospectus supplement.
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.
We
are offering the Securities offered by this prospectus only in jurisdictions where offers are permitted. The distribution of this prospectus
and the offering of our Securities in certain jurisdictions may be restricted by law. Persons outside the United States who come into
possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of our Securities
and the distribution of this prospectus outside the United States. This prospectus 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 by any person in any jurisdiction
in which it is unlawful for such person to make such an offer or solicitation.
Unless
otherwise mentioned or unless the context requires otherwise, all references in this prospectus to the “Company,” “we,”
“us,” “our” and “Expion360” refer to Expion360 Inc., a Nevada corporation.
PROSPECTUS
SUPPLEMENT SUMMARY
This prospectus supplement
summary highlights selected information included elsewhere in the prospectus and does not contain all of the information you should consider
before investing in our Securities. You should read the entire prospectus carefully, including the section entitled “Risk
Factors” and the financial statements and related notes incorporated by reference into this prospectus, before deciding to invest
in our Securities. Some of the statements in this prospectus supplement constitute forward-looking statements. For additional information,
refer to the section of this prospectus supplement entitled “Cautionary Note Regarding Forward-Looking Statements.”
Our Business
Overview
Expion360
focuses on the design, assembly, manufacturing, and sale of lithium iron phosphate (“LiFePO4”) batteries and supporting accessories
for recreational vehicles (“RVs”), marine applications and home energy storage products with plans to expand into industrial
applications. We design, assemble, and distribute high-powered, lithium battery solutions using ground-breaking concepts with a creative
sales and marketing approach. We believe that our product offerings include some of the most dense and minimal-footprint batteries in
the RV and marine industries. We are developing our e360 Home Energy Storage System, which we expect to change the industry in barrier
price, flexibility, and integration. We are deploying multiple intellectual property strategies with research and products to sustain
and scale the business. We currently have customers consisting of dealers, wholesalers, private label customers, and original equipment
manufacturers who are driving revenue and brand awareness nationally.
Our
primary target markets are currently the RV and marine industries. We believe that we are well-positioned to capitalize on the rapid
market conversion from lead-acid to lithium batteries as the primary method of power sourcing in these industries. We are also focused
on expanding into the home energy storage market with the introduction of our two LiFePO4 battery storage solutions, where we aim to
provide a cost-effective, low barrier of entry, flexible system for those looking to power their homes via solar energy, wind, or grid
back-up. Along with RV, marine and home energy storage markets, we aim to provide additional capacities to the ever-expanding electric
forklift and industrial material handling markets.
Our
e360 product line, which is manufactured for the RV and marine industries, was launched in December 2020. The e360 product line, through
its sales growth, has shown to be a preferred conversion solution for lead-acid batteries. In December 2023, we announced our entrance
into the home energy storge market with our introduction of two LiFePO4 battery storage solutions that enable residential and small business
customers to create their own stable micro-energy grid and lessen the impact of increasing power fluctuations and outages. We have received
purchase orders for our e360 Home Energy Storage Solutions (“HESS”) from Wellspring Solar, a division of Wellspring Components,
which has served as a key partner to Expion360 in connection with a HESS pilot program and testing, and provided expertise regarding
HESS system development. We believe that our HESS have strong revenue potential with recurring income opportunities for us and our associated
sales partners.
Our
products provide numerous advantages for various industries that are looking to migrate to lithium-based energy storage. They incorporate
detailed-oriented design and engineering and strong case materials and internal and structural layouts and are backed by responsive customer
service.
Recent Developments
Certain Preliminary
Financial Results for the Three Months Ended December 31, 2024
Although
we have not finalized our full financial results for the three months and year ended December 31, 2024, we expect to report preliminary
financial information as follows:
| |
● |
Preliminary, unaudited revenue for the three months ended December 31, 2024 in the range of approximately $1.8 to $2.0 million, up sequentially from $1.4 million in the three months ended December 31, 2023. |
| |
● |
Preliminary, unaudited gross profit for the three months ended December 31, 2024 is expected to be in the range of approximately $350,000 to $450,000, compared to gross profit of $205,000 in the prior year period. |
| |
● |
Preliminary, unaudited net loss for the three months ended December 31, 2024 is expected to be in the range of approximately $450,000 to $350,000, compared to a net loss of $2.2 million in the prior year period. Preliminary, unaudited net loss from operations for the three months ended December 31, 2024 is expected to be in the range of approximately $1.3 to $1.2 million. |
Net loss for the three
months ended December 31, 2024 reflects our net loss from operations plus approximately $5.8 million from an increase in fair
value of the Series A Warrants and Series B Warrants (each as defined below) we issued in the quarter ended September 30, 2024, partially
offset by a $5.0 million Reverse Stock Split Cash True-Up Payment (as defined below) contingent liability
arising in connection with the warrant issuance, the cumulative effect of which was to increase net income by approximately
$887,000.
The information above is
based on preliminary unaudited information and estimates for the three months and year ended December 31, 2024, is not a comprehensive
statement of our financial results for this period, and is subject to change pending completion of our financial closing procedures,
final adjustments, completion of the review of our financial statements and other developments that may arise between now and the time
the review of our financial statements is completed. This preliminary estimate may change and the change may be material. Our expectation
with respect to the preliminary financial information as of December 31, 2024 presented above is based upon management’s estimates.
Our independent registered public accounting firm has not conducted an audit or review of, and has not expressed an opinion or
any other form of assurance with respect to, these preliminary estimates. Our actual results for the three months and year ended December
31, 2024 will not be available until after this offering is completed. See “—August 2024 Financing and Subsequent Warrant
Exercises and Adjustments to Warrant Exercise and Reset Prices” and “Reverse Stock Split
and Reverse Stock Split True-Up Payment” below for more information regarding the Series A Warrants and Series B Warrants
and Reverse Stock Split True-Up Payment, respectively.
Resignation
of Chief Financial Officer and Appointment of Interim Chief Financial Officer
On
December 16, 2024, Greg Aydelott, our Chief Financial Officer, notified us of his resignation effective December 31, 2024, due to family
health concerns. Mr. Aydelott is remaining with the Company in a consulting role on an ongoing basis. In
connection with Mr. Aydelott’s resignation, on December 20, 2024, our Board of Directors (the “Board”) appointed Brian
Schaffner, who currently serves as our Chief Executive Officer and as a member of the Board, to serve as our interim Chief Financial
Officer effective immediately upon Mr. Aydelott’s resignation.
Chief
Operating Officer Medical Leave of Absence
Effective
November 16, 2024, Paul Shoun, our Co-Founder, President, Chief Operating Officer, and Chairman of the Board, commenced a temporary medical
leave of absence from his duties as Chief Operating Officer. Mr. Shoun is continuing to perform his duties as President and Chairman
of the Board during his leave. We anticipate that Mr. Shoun will resume his responsibilities as Chief Operating Officer in February 2025.
During his absence, Carson Heagen, our Vice President of Operations, is temporarily assuming the duties of Chief Operating Officer.
Reverse
Stock Split and Reverse Stock Split True-Up Payment
Effective
as of 5:00 p.m. Pacific Time on October 8, 2024 (the “Effective Date”), we effected a 1-for-100 reverse stock split of our
Common Stock (the “Reverse Stock Split”), which was approved by the Board on September 27, 2024, following stockholder approval
at our annual meeting of stockholders held on September 27, 2024. No fractional shares of Common Stock were issued as a result of the
Reverse Stock Split and instead each holder of Common Stock who was otherwise entitled to receive a fractional share as a result of the
Reverse Stock Split received one whole share of Common Stock in lieu of such fractional share. As a result of this, 210,668 shares were
issued on or before October 17, 2024. In addition, the Reverse Stock Split effected a reduction in the number of shares issuable pursuant
to our equity awards, warrants and non-plan options outstanding as of the Effective Date, and a corresponding increase in the respective
exercise prices, conversion prices, reset prices and the like thereunder.
As
a result of the daily volume weighted average price of the Common Stock during the five trading days before and after the Reverse Stock
Split, a Reverse Stock Split cash true-up payment provision in the Series A Warrants, which is capped at $5.0 million in the aggregate
under all Series A Warrants (the “Reverse Stock Split Cash True-Up Payment”), was triggered, but the payment of the Reverse
Stock Split cash true-up payment was suspended in accordance with the terms of the Series A Warrants. However, in connection with the
closing of this offering, we intend to use approximately $500,000 of the net proceeds from the offering to satisfy a portion of
certain amounts owed to the holders of the Series A Warrants pursuant to the terms thereof.
All
of our historical share and per share information related to issued and outstanding Common Stock and outstanding options and warrants
exercisable for Common Stock in this prospectus supplement have been adjusted, on a retroactive basis, to reflect the Reverse Stock Split.
August
2024 Public Offering and Subsequent Warrant Exercises and Adjustments to Warrant Exercise and Reset Prices
On
August 8, 2024, we sold in a public offering (the “August 2024 Public Offering”) (i) 33,402,000 common units (the “Common
Units,” pre-Reverse Stock Split), each consisting of one share of Common Stock, two Series A warrants each to purchase one share
of Common Stock (pre-Reverse Stock Split and pre-Adjustment (as defined below) and each, a “Series A Warrant”) and one Series
B warrant to purchase such number of shares of Common Stock as determined in the Series B warrant (each, a “Series B Warrant”),
and (ii) 16,598,000 pre-funded units (the “Pre-Funded Units,” and together with the Common Units, the “Units,”
pre-Reverse Stock Split), each consisting of one pre-funded warrant to purchase one share of Common Stock (each, an “August 2024
Pre-Funded Warrant”), two Series A Warrants, and one Series B Warrant, through Aegis Capital Corp. serving as underwriter (in its
capacity as such, the “Underwriter”). The Common Units were sold at a price of $0.20 per unit and the August 2024 Pre-Funded
Warrants were sold at a price of $0.199 per unit (pre-Reverse Stock Split).
In
addition, we granted the Underwriter a 45-day option to purchase additional shares of Common Stock and/or August 2024 Pre-Funded Warrants
and/or Series A Warrants and/or Series B Warrants, representing up to 15% of the number of the respective securities sold in the August
2024 Public Offering, solely to cover over-allotments, if any. The Underwriter partially exercised its over-allotment option with respect
to 15,000,000 Series A Warrants and 7,500,000 Series B Warrants (pre-Reverse Stock Split).
The
August 2024 Pre-Funded Warrants were immediately exercisable at an exercise price of $0.001 per share (pre-Reverse Stock Split) and could
be exercised at any time until exercised in full. All August 2024 Pre-Funded Warrants have been exercised.
Each
Series A Warrant is exercisable at any time or times beginning on September 30, 2024, which was the first trading day following our notice
to the Series A Warrant holders of stockholder approval received at the 2024 Annual Meeting, and will expire five years from such date.
Each Series A Warrant was initially exercisable at an exercise price of $24.00 per share of common stock (post-Reverse Stock Split).
The exercise price of the Series A Warrants was subject to reduction on the 11th trading day after the stockholder approval to the
greater of the lowest daily volume weighted average price (“VWAP”) during the ten-trading-day period following the stockholder
approval and the floor price of $5.206 (representing 20% of the lower of our Common Stock’s closing price on Nasdaq on the date
that we priced the August 2024 Public Offering, post-Reverse Stock Split) or our Common Stock’s average closing price on Nasdaq
for the five trading days ending on such date (such lower price, without giving effect to such 20% reduction, the “Nasdaq Minimum
Price”), and the number of shares issuable upon exercise would be proportionately adjusted such that the aggregate exercise price
would remain unchanged. As of September 30, 2024, there would have been 5,301,592 shares of
Common Stock (post-Reverse Stock Split and assuming the Adjustment had occurred on September 30, 2024) issuable upon exercise of the
Series A Warrants as of that date. Subsequent to September 30, 2024, the exercise price under the Series A Warrants was reduced to the
floor price of $5.206 (representing 20% of the Nasdaq Minimum Price, post-Reverse Stock Split), beginning on October 14, 2024, the 11th trading
day following stockholder approval. As of December 31, 2024, 14,900 shares of Common Stock have been issued upon exercise of Series A
Warrants and 5,286,692 shares of Common Stock remain issuable upon exercise of Series A Warrants.
Each
Series B Warrant was exercisable immediately upon issuance at an exercise price of $0.10 per share (post-Reverse Stock Split). The number
of shares of Common Stock issuable under the Series B Warrants were subject to adjustment
using a reset price based on the weighted average price of common stock over a rolling five-trading-day period between the issuance date
of the Class B Warrants and the close of trading on the tenth trading day following stockholder approval, subject to certain floor prices.
As of September 30, 2024, 342,588 shares of Common Stock (post-Reverse Stock Split) had been issued upon exercise of Series B Warrants
and there were 1,032,198 shares of Common Stock (post-Reverse Stock Split) issuable upon exercise of Series B Warrants based on the reset
price of $5.45 (representing the lowest arithmetic average of the daily VWAP during the five-trading-day period from September 12, 2024
through September 18, 2024). Effective October 8, 2024, after market close, the Reverse Stock Split occurred and as of December 31, 2024,
87,384 shares of Common Stock remain issuable upon exercise of Series B Warrants using the
reset price, which was reduced to the floor price of $5.206 (representing 20% of the Nasdaq Minimum Price (post-Reverse Stock Split and
post-Adjustment).
Corporate Information
Expion360
was initially organized as a limited liability company under the name “Yozamp Products Company, LLC” in the State of Oregon
on June 16, 2016, and converted to a Nevada corporation under its current name pursuant to articles of conversion dated as of November
16, 2021. Our principal executive offices are located at 2025 SW Deerhound Ave., Redmond, Oregon 97756 and our phone number is (541)
797-6714. Our principal website is expion360.com. The information contained on, or that can be accessed through, our website
is not a part of this prospectus or the Registration Statement of which it forms a part. The inclusion of our website address in this
prospectus is an inactive textual reference only. Investors should not rely on any such information in deciding whether to purchase our
Common Stock.
The
Offering
| Common Stock outstanding prior to this offering |
2,096,082 shares of Common Stock. |
| |
|
|
Common Stock offered by us
Offering price per share |
474,193 shares
$2.48 |
| |
|
| Pre-Funded Warrants offered by us |
Pre-Funded Warrants to purchase up to 574,193 shares of Common Stock at an offering price of $2.479 per share, which is the price per share of Common Stock sold in this offering, minus $0.001. The exercise price of each Pre-Funded Warrant is $0.001 per share. Each Pre-Funded Warrant is immediately exercisable and may be exercised at any time until exercised in full. There is no expiration date for the Pre-Funded Warrants. To better understand the terms of the Pre-Funded Warrants, you should carefully read the “Description of Securities We Are Offering” section of this prospectus supplement. This prospectus supplement also relates to the offering of shares of common stock issuable upon exercise of the Pre-Funded Warrants. |
| |
|
| Common Stock to be outstanding after this offering |
3,144,468 shares of Common Stock, assuming exercise in full of all Pre-Funded Warrants and excluding shares of Common Stock issuable upon exercise of the Unregistered Warrants. |
| |
|
| Warrant Private Placement |
In
the Warrant Private Placement we are offering to the investors Unregistered Warrants to purchase up to 1,048,386 Unregistered Warrant
Shares. The Unregistered Securities are not currently being registered under the Securities Act and are not offered pursuant
to this prospectus supplement and the accompanying base prospectus, and are being offered pursuant to an exemption from the registration
requirements of the Securities Act provided in Section 4(a)(2) of the Securities Act and Rule 506 promulgated thereunder. The Unregistered
Warrants are exercisable immediately, will expire five years from the date of issuance, and have an exercise price of $2.36 per Unregistered
Warrant Share. See “Warrant Private Placement” on page S-16 of this prospectus supplement for a more complete
description of the Unregistered Securities. |
| |
|
| Use of proceeds |
We
estimate that the net proceeds of this offering, after deducting placement agent fees and estimated offering expenses, will be approximately
$2.2 million, assuming the exercise in full of all Pre-Funded Warrants offered hereby. We intend to use any proceeds from the offering
for working capital and other general corporate purposes. We also intend to use approximately
$500,000 of the net proceeds from the offering to satisfy a portion of certain amounts owed to the holders of the Series A Warrants
pursuant to the terms thereof. For additional information, refer to the section entitled “Use of Proceeds”
beginning on page S-12 of this prospectus supplement. |
| |
|
| Risk factors |
Investing in our Common Stock involves a high degree of risk. You should carefully consider the information set forth in the section entitled “Risk Factors” beginning on page S-9 of this prospectus supplement and beginning on page 7 of the accompanying base prospectus, for a discussion of information that should be considered in connection with an investment in our Common Stock. |
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|
| Nasdaq symbol |
Our Common Stock is listed on Nasdaq under the symbol “XPON.” We do not intend to apply for the listing of the Pre-Funded Warrants on any national securities exchange or other trading system. Without an active trading market, the liquidity of the Pre-Funded Warrants will be limited. |
The number of shares of Common
Stock that will be outstanding is based on the 2,096,082 shares outstanding as of December 31, 2024, and excludes, unless otherwise noted:
| |
● |
5,286,692
shares of Common Stock issuable upon the exercise of Series A Warrants to purchase Common Stock outstanding as of December 31, 2024,
at an exercise price of $5.206 per share; |
| |
|
|
| |
● |
87,384
shares of Common Stock issuable upon the exercise of Series B Warrants to purchase Common Stock outstanding as of December 31, 2024,
at an exercise price of $0.10 per share; |
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|
|
| |
● |
5,149 shares of Common Stock issuable upon the exercise of warrants to purchase Common Stock outstanding as of December 31, 2024, at an exercise price of $332.00 per share; |
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|
|
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● |
891 shares of Common Stock issuable upon the exercise of options outstanding as of December 31, 2024, at an exercise price of $450.00 per share; |
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|
|
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● |
250 shares of Common Stock issuable upon the exercise of warrants to purchase Common Stock outstanding as of December 31, 2024, at an exercise price of $500.00 per share; |
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|
|
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● |
599 shares of Common Stock issuable upon the exercise of warrants to purchase Common Stock outstanding as of December 31, 2024, at an exercise price of $910.00 per share; |
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|
|
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● |
11,430 shares of Common Stock issuable upon the exercise of equity incentive awards outstanding under our 2021 Incentive Award Plan as of December 31, 2024; |
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|
|
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● |
5,879 shares of Common Stock available for future issuance under our 2021 Incentive Award Plan as of December 31, 2024; |
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|
|
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● |
any shares of Common Stock available for future issuance under our 2021 Incentive Award Plan, which will continue to increase in future years pursuant to the plan’s evergreen provision; |
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|
|
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● |
25,000 shares of Common Stock available for future issuance under our 2021 Employee Stock Purchase Plan as of December 31, 2024; |
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|
|
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● |
any shares of our Common Stock issuable upon the exercise of Unregistered Warrants being issued to the investors in the Warrant Private Placement; and |
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|
|
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● |
any additional shares of Common Stock we may issue from time to time after January 3, 2025. |
Unless otherwise indicated, all
information in this prospectus assumes no exercise of outstanding options or warrants, and no conversion of convertible notes.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus supplement, the accompanying base prospectus, and the documents incorporated by reference herein and therein, contain “forward-looking
statements” within the meaning of the federal securities laws, which statements are subject to considerable risks and uncertainties.
These forward-looking statements are intended to qualify for the safe harbor from liability established by the Private Securities Litigation
Reform Act of 1995. All statements included or incorporated by reference in this prospectus, other than statements of historical fact,
are forward-looking statements. You can identify forward-looking statements by the use of words such as “anticipate,” “believe,”
“continue” “could,” “expect,” “intend,” “may,” “will,” or the
negative of such terms, or other comparable terminology. Forward-looking statements also include the assumptions underlying or relating
to such statements. In particular, forward-looking statements included or incorporated by reference in this prospectus relate to, among
other things, our future or assumed financial condition, results of operations, liquidity, business forecasts and plans, strategic plans
and objectives, and competitive environment. We caution you that the foregoing list may not include all of the forward-looking statements
made in this prospectus.
Our
forward-looking statements are based on our management’s current assumptions and expectations about future events and trends, which
affect or may affect our business, strategy, operations or financial performance. Although we believe that these forward-looking statements
are based upon reasonable assumptions, they are subject to numerous known and unknown risks and uncertainties and are made in light of
information currently available to us. Our actual financial condition and results could differ materially from those anticipated in these
forward-looking statements as a result of various factors, including those set forth in the section entitled “Risk Factors”
beginning on page S-9 of this prospectus supplement, beginning on page 7 of the accompanying base prospectus, as well as in the
other reports we file with the SEC. You should read this prospectus with the understanding that our actual future results may be materially
different from and worse than what we expect.
Moreover,
we operate in an evolving environment. New risk factors and uncertainties emerge from time to time and it is not possible for our management
to predict all risk factors and uncertainties, nor can we assess the impact of all factors on our business or the extent to which any
factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
Forward-looking
statements speak only as of the date they were made, and, except to the extent required by law or the Nasdaq listing rules, we undertake
no obligation to update or review any forward-looking statement because of new information, future events or other factors.
We
qualify all of our forward-looking statements by these cautionary statements.
RISK
FACTORS
An
investment in our Common Stock involves a high degree of risk. Before deciding whether to invest in our Common Stock, you should consider
carefully the risks described below, as well as the risk factors contained in our most recent Annual Report on Form 10-K and Quarterly
Reports on Form 10-Q, together with the other information contained in this prospectus supplement, in the accompanying base prospectus,
and in the information and documents incorporated by reference herein and therein. If any of these risks actually occurs, our business,
financial condition, results of operations and liquidity could be materially adversely impacted. This could cause the trading price of
our Common Stock to decline, resulting in a loss of all or part of your investment.
Risks Related
to The Offering
We have broad
discretion in the use of the net proceeds from the offering and may not use them effectively.
Our management will have broad
discretion in the application of the net proceeds from the offering and could spend the proceeds in ways that do not improve our results
of operations or enhance the value of our Common Stock. We currently intend to use the net proceeds for working capital and general corporate
purposes. We also intend to use approximately $500,000 of the net proceeds from the offering to satisfy
a portion of certain amounts owed to the holders of the Series A Warrants, which will limit the amount of net proceeds available for
other purposes. The failure by our management to apply these funds effectively could result in financial losses, and
these financial losses could have a material adverse effect on our business, cause the price of our Common Stock to decline and delay
the development of our products. We may invest the net proceeds from the offering, pending their use, in a manner that does not produce
income or that loses value
If you purchase
our securities in this offering, you may experience future dilution as a result of future equity offerings or other equity issuances.
We
may be required to raise additional capital in the future to fund the growth and operation of our business. 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 as prior issuances of Common Stock. We may not be able to sell
shares of our Common Stock or other securities in any other offering at a price per share that is equal to or greater than the price
per share previously paid by investors, and investors purchasing shares or other securities in the future could have rights superior
to existing stockholders. The price per share at which we sell additional shares of our Common Stock or securities convertible into Common
Stock in future transactions may be higher or lower than the prices per share previously paid. You will incur dilution upon exercise
of any outstanding stock options, warrants or upon the issuance of shares of Common Stock under our stock incentive programs. In addition,
the issuance of the securities in this offering, and any future sales of a substantial number of shares of our Common Stock in the public
market, or the perception that such sales may occur, could adversely affect the price of our Common Stock. We cannot predict the effect,
if any, that market sales of such shares of Common Stock or the availability of such shares for sale will have on the market price of
our Common Stock.
There is no public market for the
Pre-Funded Warrants sold in this offering.
There
is no established public trading market for the Pre-Funded Warrants being offered and sold in this offering. We will not list the Pre-Funded
Warrants on any securities exchange or nationally recognized trading system, including Nasdaq. Therefore, we do not expect a market to
ever develop for the Pre-Funded Warrants. Without an active market, the liquidity of the Pre-Funded Warrants will be limited.
The Pre-Funded
Warrants are speculative in nature. Holders of the Pre-Funded Warrants offered hereby will have no rights as common stockholders with
respect to the shares our Common Stock underlying such warrants until such holders exercise their warrants and acquire our Common Stock,
except as otherwise provided in the Pre-Funded Warrants.
The
Pre-Funded Warrants do not confer any rights of Common Stock ownership on their holders, such as voting rights or the right to receive
dividends, but merely represent the right to acquire shares of Common Stock at a fixed price. Commencing on the date of issuance, holders
of the Pre-Funded Warrants may exercise their right to acquire the underlying shares of Common Stock and pay the respective stated warrant
exercise price per share.
Until
holders of the Pre-Funded Warrants acquire shares of our Common Stock upon exercise thereof, such holders will have no rights with respect
to shares of our Common Stock, except as provided in the Pre-Funded Warrants. Upon exercise of the Pre-Funded Warrants, such holders
will be entitled to the rights of a common stockholder only as to matters for which the record date occurs after the exercise date.
We have never
declared dividends on our Common Stock and have no intention to declare dividends in the foreseeable future.
We
have never declared or paid any dividends on our Common Stock and do not anticipate that we will pay any dividends to holders of our
Common Stock in the foreseeable future. We intend to use any excess cash for the development, operation and expansion of our business.
The decision to pay cash dividends on our Common Stock rests with our board of directors and will depend on a number of factors, including
our financial condition, results of operations and capital requirements.
This offering
may cause the trading price of our shares of Common Stock to decrease.
The
price per share, together with the number of shares of Common Stock we propose to issue and ultimately will issue if this offering is
completed, may result in an immediate decrease in the market price of our shares. This decrease may continue after the completion of
this offering.
Future sales
and issuances of our Common Stock in the public market might result in significant dilution and could cause the price of our Common Stock
to fall.
Sales
of a substantial number of shares of our Common Stock in the public market, or the perception that these sales might occur, could depress
the market price of our Common Stock and could impair our ability to raise capital through the sale of additional equity securities.
As of December 31, 2024, we had 2,096,082 shares of Common Stock outstanding, all of which shares were, and continue to be, eligible
for sale in the public market, subject in some cases to compliance with the requirements of Rule 144, including the volume limitations
and manner of sale requirements. In addition, all of the Securities offered under this prospectus will be freely tradable without restriction
or further registration upon issuance.
Dividend
Policy
We
have never declared or paid any dividends on our Common Stock and do not anticipate that we will pay any dividends to holders of our
Common Stock in the foreseeable future. Instead, we currently plan to retain any earnings to finance the growth of our business. Any
future determination relating to dividend policy will be made at the discretion of our board of directors and will depend on our financial
condition, results of operations, and capital requirements, as well as other factors deemed relevant by our board of directors.
USE
OF PROCEEDS
We estimate the net proceeds
we will receive from this offering will be approximately $2.2 million, after deducting the estimated placement agent fees and offering
expenses payable by us, and assuming exercise in full of the Pre-Funded Warrants. This estimate excludes the proceeds, if any, from the
exercise of Unregistered Warrants being issued in the Warrant Private Placement. We intend to use the net proceeds from the offering
for working capital and other general corporate purposes. We also intend to use approximately $500,000
of the net proceeds from the offering to satisfy a portion of certain amounts owed to the holders of the Series A Warrants, which
will limit the amount of net proceeds available for other purposes.
This expected use of net proceeds
from this offering represents our intentions based upon our current plans and business conditions, which could change in the future as
our plans and business conditions evolve. Our management will have broad discretion in the application of the net proceeds from this offering
and could use them for purposes other than those contemplated at the time of this offering. Our stockholders may not agree with the manner
in which our management chooses to allocate and spend the net proceeds. Moreover, our management may use the net proceeds for corporate
purposes that may not result in our being profitable or that increases our market value.
Pending our use of the net proceeds
from this offering, we intend to invest the net proceeds in a variety of capital preservation investments, including short-term, investment-grade,
interest-bearing instruments and U.S. government securities.
DILUTION
If you invest in our Common Stock
in this offering, your ownership interest will be immediately diluted to the extent of the difference between the offering price per share
of our Common Stock and the “as adjusted” pro forma net tangible book value per share of our Common Stock upon the closing
of this offering.
Net tangible book value per share
of our common stock is determined by subtracting our total liabilities from the amount of our total tangible assets (total assets less
intangible assets) and then dividing the difference by the number of shares of our Common Stock deemed to be outstanding.
As of September 30, 2024, we had
total liabilities of approximately $7.6 million and total tangible assets of approximately $10.1 million, and 918,724 shares of Common
Stock outstanding (on a post-Reverse Stock Split basis). However, subsequent to September 30, 2024, the following events occurred which,
in the aggregate, resulted in material changes to our capitalization:
| |
● |
effective as of October 8, 2024, we effected the 1-for-100 Reverse Stock Split of our Common Stock; |
| |
● |
as of December 31, 2024, an aggregate of 14,900 shares of Common Stock had been issued upon exercise of the Series A Warrants issued in the August 2024 Public Offering; and |
| |
● |
as of December 31, 2024,
an aggregate of 951,970 shares of Common Stock had been issued upon exercise of the Series B Warrants issued in the August 2024
Public Offering. |
To capture the capitalization
changes described above, we are illustrating the dilution per share to investors participating in this offering and presenting our net
tangible book value per share of Common Stock as of September 30, 2024 on an “as adjusted” basis based on the 2,096,082 shares
of Common Stock outstanding as of December 31, 2024 rather than the 918,724 shares outstanding as of September 30, 2024. Accordingly,
as of September 30, 2024, we had an “as adjusted” net tangible book value of $1.214 per share of Common Stock.
Dilution per share represents
the difference between the assumed offering price per share of our Common Stock and the as adjusted pro forma net tangible book value
per share of our Common Stock included in this offering after giving effect to this offering. Any sale of our Common Stock in this offering
at a price per share greater than the net tangible book value per share will result in (after giving effect to estimated offering expenses
payable by us) an increase in our pro forma net tangible book value per share of Common Stock with respect to our existing stockholders
and an immediate dilution in net tangible book value per share of Common Stock to investors in this offering.
After giving effect to the sale
of 474,193 shares of Common Stock in this offering at an offering price of $2.48 per share, and assuming exercise in full of the Pre-Funded
Warrants resulting in the issuance of 574,193 shares of Common Stock, and after deducting estimated placement agent fees and estimated
offering expenses payable by us, our pro forma net tangible book value as of September 30, 2024 would have been approximately $4.7 million,
and our “as adjusted” pro forma net tangible book value per share would have been $1.506. This represents an immediate increase
in “as adjusted” pro forma net tangible book value of $0.697 per share to our existing stockholders and an immediate dilution
in “as adjusted” pro forma net tangible book value of $0.974 per share to investors participating in this offering.
The following table illustrates this dilution per share to investors participating in this offering:
| Offering price per share |
|
|
|
$ |
2.48 |
|
| “As
adjusted” net tangible book value per
share as of September 30, 2024 |
|
$ |
1.214 |
|
|
|
|
| Increase in “as adjusted” pro forma net tangible book value per share attributable this offering |
|
|
0.697 |
|
|
|
|
| “As adjusted” pro forma net tangible book value per share after giving effect to this offering |
|
|
|
|
|
1.506 |
|
| Dilution per share to investors purchasing Securities in this offering |
|
|
|
|
$ |
0.974 |
|
The number of shares of Common
Stock that will be outstanding is based on the 2,096,082 shares outstanding as of December 31, 2024, and excludes, unless otherwise noted:
| |
● |
5,286,692
shares of Common Stock issuable upon the exercise of Series A Warrants to purchase Common Stock outstanding as of December 31, 2024,
at an exercise price of $5.206 per share; |
| |
|
|
| |
● |
87,384
shares of Common Stock issuable upon the exercise of Series B Warrants to purchase Common Stock outstanding as of December 31, 2024,
at an exercise price of $0.10 per share; |
| |
|
|
| |
● |
5,149 shares of Common Stock issuable upon the exercise of warrants to purchase Common Stock outstanding as of December 31, 2024, at an exercise price of $332.00 per share; |
| |
|
|
| |
● |
891 shares of Common Stock issuable upon the exercise of options outstanding as of December 31, 2024, at an exercise price of $450.00 per share; |
| |
|
|
| |
● |
250 shares of Common Stock issuable upon the exercise of warrants to purchase Common Stock outstanding as of December 31, 2024, at an exercise price of $500.00 per share; |
| |
|
|
| |
● |
599 shares of Common Stock issuable upon the exercise of warrants to purchase Common Stock outstanding as of December 31, 2024, at an exercise price of $910.00 per share; |
| |
|
|
| |
● |
11,430 shares of Common Stock issuable upon the exercise of equity incentive awards outstanding under our 2021 Incentive Award Plan as of December 31, 2024; |
| |
|
|
| |
● |
5,879 shares of Common Stock available for future issuance under our 2021 Incentive Award Plan as of December 31, 2024; |
| |
|
|
| |
● |
any shares of Common Stock available for future issuance under our 2021 Incentive Award Plan, which will continue to increase in future years pursuant to the plan’s evergreen provision; |
| |
|
|
| |
● |
25,000 shares of Common Stock available for future issuance under our 2021 Employee Stock Purchase Plan as of December 31, 2024; |
| |
|
|
| |
● |
any shares of our Common Stock issuable upon the exercise of Unregistered Warrants being issued to the investors in the Warrant Private Placement; and |
| |
|
|
| |
● |
any additional shares of Common Stock we may issue from time to time after January 3, 2025. |
Unless otherwise indicated, all
information in this prospectus assumes no exercise of outstanding options or warrants, and no conversion of convertible notes.
To the extent that outstanding
options or warrants are exercised, or restricted stock awards are settled, you may experience further dilution. In addition, we may choose
to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current
or future operating plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities,
the issuance of these securities could result in further dilution to our stockholders.
DESCRIPTION OF
SECURITIES WE ARE OFFERING
We are offering pursuant to
this prospectus 474,193 shares of our Common Stock, and Pre-Funded Warrants to purchase up to 574,193 shares of our Common Stock.
Common Stock
The offering price of each
share of Common Stock is $2.48. The material characteristics of our Common Stock are described in the section entitled “Description
of Capital Stock” in the accompanying base prospectus.
Pre-Funded Warrants
The
following summary of certain terms and provisions of the Pre-Funded Warrants that are being offered hereby is not complete and is subject
to, and qualified in its entirety by the provisions of, the Pre-Funded Warrants. Prospective investors should carefully review the terms
and provisions of the form of Pre-Funded Warrant for a complete description of the terms and conditions of the Pre-Funded Warrants.
The
term “Pre-Funded” refers to the fact that the purchase price of our Common Stock in this offering includes almost the entire
exercise price that will be paid under the Pre-Funded Warrants, except for a nominal remaining exercise price of $0.001. The purpose
of the Pre-Funded Warrants is to enable investors that may have restrictions on their ability to beneficially own more than 4.99% (or,
upon election of the holder, 9.99%) of our outstanding shares of Common Stock following the consummation of this offering the opportunity
to make an investment in the Company without triggering their ownership restrictions, by receiving Pre-Funded Warrants in lieu of our
Common Stock which would result in such ownership of more than 4.99% (or 9.99%), and receive the ability to exercise their option to
purchase the shares underlying the Pre-Funded Warrants at such nominal price at a later date.
Duration.
The Pre-Funded Warrants offered hereby entitle the holders thereof to purchase our shares of Common Stock at a nominal exercise price
of $0.001 per share, commencing immediately on the date of issuance. There is no expiration date for the Pre-Funded Warrants.
Exercise
Limitation. A holder will not have the right to exercise any portion of the Pre-Funded Warrants if the holder (together with
its affiliates) would beneficially own in excess of 4.99% of the number of our shares of Common Stock outstanding immediately after giving
effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Pre-Funded Warrants. However,
any holder may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such
percentage shall not be effective until 61 days following notice from the holder to us. It is the responsibility of the holder to determine
whether any exercise would exceed the exercise limitation.
Exercise
Price. The Pre-Funded Warrants will have an exercise price of $0.001 per share. The exercise price is subject to appropriate
adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar
events affecting our Common Stock and also upon any distributions of assets, including cash, stock or other property to our stockholders.
The holder may elect to exercise the Pre-Funded Warrants through a cashless exercise, in which case the holder would receive upon such
exercise the net number of shares of Common Stock determined according to the formula set forth in the Pre-Funded Warrants.
Transferability.
Subject to applicable laws, the Pre-Funded Warrants may be offered for sale, sold, transferred or assigned without our consent.
Absence
of Trading Market. There is no established trading market for the Pre-Funded Warrants and we do not expect a market to develop.
In addition, we do not intend to apply for the listing of the Pre-Funded Warrants on any national securities exchange or other trading
market. Without an active trading market, the liquidity of the Pre-Funded Warrants will be limited.
Fundamental
Transactions. In the event of a fundamental transaction, generally including any reorganization, recapitalization or reclassification
of our Common Stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation,
merger, amalgamation or arrangement with or into another person, the acquisition of more than 50% of our outstanding Common Stock, or
any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding Common Stock, the holder
will have the right to receive, for each share of Common Stock that would have been issuable upon such exercise immediately prior to
the occurrence of such fundamental transaction, the number of shares of the successor or acquiring corporation or of us if we are the
surviving corporation, and any additional consideration receivable as a result of such fundamental transaction by a holder of the number
of shares for which the Pre-Funded Warrant was exercisable immediately prior to such fundamental transaction.
No
Rights as a Stockholder. Except as otherwise provided in the Pre-Funded Warrants or by virtue of such holder’s ownership
of our shares of Common Stock, the holder of Pre-Funded Warrants does not have the rights or privileges of a holder of our Common Stock,
including any voting rights, until the holder exercises the Pre-Funded Warrant.
Transfer Agent
and Registrar
The
transfer agent and registrar for our Common Stock is Pacific Stock Transfer Company. Pacific Stock Transfer Company’s address is
6725 Via Austi Pkwy, Suite 300, Las Vegas, Nevada 89119 and telephone number is (800) 785-7782.
WARRANT
PRIVATE PLACEMENT
In
the Warrant Private Placement closing concurrently with the offering, we are selling Unregistered Warrants to purchase up to 1,048,386
shares of our Common Stock. For each share of our Common Stock sold in this offering, an accompanying Unregistered Warrant will be issued
to the investor thereof. Each Unregistered Warrant will be exercisable for one share of our Common Stock at an exercise price of $2.36
per share, will be immediately exercisable, and will have a term of exercise equal to five years from the date of issuance.
The Unregistered Warrants and
Unregistered Warrant Shares issuable upon the exercise of the Unregistered Warrants are not currently being registered under the
Securities Act, nor are they being offered pursuant to this prospectus supplement and accompanying prospectus. The Unregistered Warrants
and Unregistered Warrant Shares are being offered pursuant to the exemption provided in Section 4(a)(2) of the Securities Act and Rule
506 promulgated thereunder.
Accordingly,
the investors in the Warrant Private Placement may exercise the Unregistered Warrants and sell the Unregistered Warrant Shares issuable
upon the exercise of such security only pursuant to an effective registration statement under the Securities Act covering the resale
of those shares, an exemption under Rule 144 under the Securities Act or another applicable exemption under the Securities Act or, if
and only if there is no effective registration statement registering the resale of the Unregistered Warrant Shares, or no current prospectus
available for such shares, the investors may exercise the Unregistered Warrants by means of a “cashless exercise.” We have
entered into a registration rights agreement with the investors in this offering pursuant to which we have agreed to file a registration
statement covering the resale of the Unregistered Warrant Shares (the “Resale Registration Statement”) within 15 calendar
days of the closing of this offering.
If,
at the time a holder exercises its Unregistered Warrants, a registration statement registering the Unregistered Warrant Shares under
the Securities Act is not then effective or available for the resale of such shares, then in lieu of making the cash payment otherwise
contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive
upon such exercise (either in whole or in part) the net number of shares of common stock determined according to a formula set forth
in the Unregistered Warrants. No fractional shares will be issued upon the exercise of the Unregistered Warrants. We will, at our election,
either pay a cash adjustment in respect of any such final fraction in an amount equal to such fraction multiplied by the exercise price
or round up to the next whole share.
We
may not effect the exercise of any Unregistered Warrant, and a holder will not have the right to exercise any portion of any Unregistered
Warrant if, upon giving effect to such exercise, the aggregate number of shares of our common stock beneficially owned by the holder
(together with its affiliates) would exceed 4.99% (or 9.99%, as elected by the holder), of the number of shares of our common
stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the
terms of such warrant, which percentage may be increased at the holder’s election upon 61 days’ notice to us subject to the
terms of such warrants, provided that such percentage may in no event exceed 9.99% (or 19.99%, as elected by the holder).
In
certain circumstances, upon a fundamental transaction (as described in the Unregistered Warrants, and generally including any reclassification,
reorganization or recapitalization of our common stock; the sale, lease, license, assignment, conveyance, transfer or other disposition
of all or substantially all of our assets; our consolidation or merger with or into another person in which we are not the surviving
entity, the acquisition of more than 50% of our outstanding common stock; or any person or group becoming the beneficial owner of 50%
of the voting power of our outstanding common stock and in connection with such transaction our common stock is converted into or exchanged
for other securities, cash or property), the holders of Unregistered Warrants will be entitled to receive upon exercise of the Unregistered
Warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the Unregistered
Warrants immediately prior to such fundamental transaction.
Except
as otherwise provided in the Unregistered Warrants or by virtue of such holder’s ownership of shares of our common stock, the holders
of the Unregistered Warrants do not have the rights or privileges of holders of our common stock, including any voting rights, until
they exercise their Unregistered Warrants, as applicable.
The
Unregistered Warrants are not and will not be listed for trading on any national securities exchange or any other nationally recognized
trading system.
PLAN
OF DISTRIBUTION
We have engaged Aegis Capital
Corp. to act as our sole placement agent to solicit offers to purchase the Securities offered by this prospectus supplement and
the accompanying base prospectus. Under the terms of a placement agent agreement, dated January 2, 2025, between us and the placement
agent, the placement agent is not purchasing or selling any Securities offered by this prospectus supplement, nor is it required
to arrange for the purchase and sale of any specific number or dollar amount of the Securities offered, but only to use
its best efforts to arrange for the sale of the Securities by us. The terms of this offering were subject to market conditions and negotiations
between us and the prospective investors. In connection with the offering, we have entered into a securities purchase agreement
directly with the investors who have agreed to purchase our securities in this offering. We will only sell Securities in this offering
to such investors. The securities purchase agreement includes representations and warranties by us and each investor. The public offering
price of the Securities in this offering has been determined based upon arm’s-length negotiations between the investors and us.
Our obligation to issue and sell the securities to the investors was subject to the closing conditions set forth in the securities purchase
agreement, including the absence of any material adverse change in our business and the receipt of certain opinions, letters and certificates
from us or our counsel, which may be waived by the respective parties. All of the securities were sold at the offering price specified
in this prospectus and at a single closing.
The Securities being offered
pursuant to this prospectus are being bought by certain accredited investors pursuant to the
securities purchase agreement, with Aegis Capital Corp. acting as the sole placement agent in connection with this offering.
Delivery of the Securities offered
hereby occurred on January 3, 2025.
Fees and Expenses
We have agreed to pay the placement
agent an aggregate cash placement fee equal to 8.0% of the aggregate gross proceeds from the offering. The following table
shows the per share and total cash fee we have paid to the placement agent in connection with the sale of our Securities offered pursuant
to this prospectus supplement and the accompanying base prospectus:
| |
|
Per Share |
|
|
Per Pre-Funded
Warrant |
|
|
Total |
|
| Offering price |
|
$ |
2.48 |
|
|
$ |
2.479 |
|
|
$ |
2,599,423(1) |
|
| Placement
agent fees (8.0%)(2) |
|
$ |
0.198 |
|
|
$ |
0.198 |
|
|
$ |
207,954 |
|
| Proceeds,
before expenses, to us(3) |
|
$ |
2.282 |
|
|
$ |
2.281 |
|
|
$ |
2,391,469 |
|
| |
(1) |
Assumes no
exercise of the Pre-Funded Warrants. |
| |
(2) |
In addition, we have agreed
to reimburse the placement agent for certain out-of-pocket expenses, described below. |
| |
(3) |
The amount of the offering
proceeds to us presented in this table does not take into account any proceeds from the exercise of any of the Unregistered Warrants
being issued in the Warrant Private Placement. |
We
have also agreed to reimburse the placement agent for certain of its out-of-pocket expenses, including $75,000 in legal fees.
We estimate the total
expenses payable by us in connection with this offering, other than the placement agent fees and expenses referred to above, will be
approximately $125,000. We will pay all of our expenses in connection with the registration, offering, and issuance of the shares of
our Securities pursuant to the securities purchase agreement.
Nasdaq Listing
Our Common Stock is listed on
Nasdaq under the symbol “XPON.” On January 2, 2025, the last reported sale price of our Common Stock on Nasdaq was $2.00 per
share.
There is no established public
trading market for the Pre-Funded Warrants, and we do not plan on making an application to list the Pre-Funded Warrants on Nasdaq, any
national securities exchange or other nationally recognized trading system. We will act as the registrar and transfer agent for the Pre-Funded
Warrants.
Indemnification
We have agreed to indemnify the
placement agent and its affiliates and each controlling person against any losses, claims, damages, judgments, assessments, costs,
and other liabilities, as the same are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of
the offering, undertaken in good faith.
Lock-Up Agreements
Pursuant to certain “lock-up”
agreements, our executive officers, directors and holders of at least 10% of our Common Stock and securities exercisable for or convertible
into Common Stock outstanding immediately upon the closing of this offering, have agreed, subject to certain exceptions, not to offer,
sell, assign, transfer, pledge, contract to sell, or otherwise dispose of or announce the intention to otherwise dispose of, or enter
into any swap, hedge or similar agreement or arrangement that transfers, in whole or in part, the economic risk of ownership of, directly
or indirectly, engage in any short selling of any shares of Common Stock or securities convertible into or exchangeable or exercisable
for any shares of Common Stock, whether currently owned or subsequently acquired, without the prior written consent of the placement
agent, for a period ending 90 days after the later of the closing of this offering or the effectiveness of the Resale Registration
Statement.
The placement agent, in its sole
discretion, may release our Common Stock and other securities subject to the lock-up agreements described above in whole or in part at
any time. When determining whether or not to release Common Stock and other securities from lock-up agreements, the placement agent
will consider, among other factors, the holder’s reasons for requesting the release, the number of shares of Common Stock and
other securities for which the release is being requested and market conditions at the time.
Company Standstill
We
have agreed, for a period ending 90 days after the later of the closing of this offering or the effectiveness of the Resale Registration
Statement (the “Standstill Period”), that without the prior written consent of the placement agent, we will not (a) offer,
sell, issue, or otherwise transfer or dispose of, directly or indirectly, any equity of our Company or any securities convertible into
or exercisable or exchangeable for equity of our Company; (b) file or caused to be filed any registration statement with the SEC relating
to the offering of any equity of our Company or any securities convertible into or exercisable or exchangeable for equity of our Company;
or (c) enter into any agreement or announce the intention to effect any of the actions described in subsections (a) or (b) hereof (all
of such matters, the “Standstill Restrictions”). So long as none of such equity securities shall be saleable in the public
market until the expiration of the Standstill Period, the following matters shall not be prohibited by the Standstill Restrictions: (i)
the adoption of an equity incentive plan and the grant of awards or equity pursuant to any equity incentive plan, and the filing of a
registration statement on Form S-8; (ii) securities issued pursuant to agreements, options, restricted share units or convertible securities
existing as of the date hereof provided the terms are not modified; and (iii) securities issued pursuant to acquisitions or strategic
transactions (whether by merger, consolidation, purchase of equity, purchase of assets, reorganization or otherwise) approved by a majority
of the disinterested directors of our Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the Standstill Period, and provided that any such issuance shall only be to a person or entity (or to the equityholders of an
entity) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the
business of our Company and shall provide to our Company additional benefits in addition to the investment of funds, but shall not include
a transaction in which our Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business
is investing in securities. In no event should any equity transaction during the Standstill Period result in the sale of equity at an
offering price to investors less than that of this offering.
Right of First
Refusal
If,
between the period beginning on the closing of this offering and ending on August 6, 2026, we or any of our subsidiaries (a) decides
to finance or refinance any indebtedness, the placement agent (or any affiliate designated by the placement agent) shall have the right
to act as sole book-runner, sole manager, sole placement agent or sole agent with respect to such financing or refinancing; or (b) decides
to raise funds by means of a public offering (including at-the-market facility) or a private placement or any other capital raising financing
of equity, equity-linked or debt securities, the placement agent (or any affiliate designated by the placement agent) shall have the
right to act as sole book-running manager, sole underwriter or sole placement agent for such financing. If the placement agent or one
of its affiliates decides to accept any such engagement, the agreement governing such engagement will contain, among other things, provisions
for customary fees and terms for transactions of similar size and nature, including indemnification, which are appropriate to such a
transaction. The foregoing rights of the placement agent and its affiliates are subject to any pre-existing obligations that we have
and that have been previously identified to the placement agent.
Notwithstanding the foregoing,
the decision to accept our engagement shall be made by the placement agent or one of its affiliates, by a written notice to us, within
ten days of the receipt of our notification of financing needs, including a detailed term sheet. The placement agent’s determination
of whether in any case to exercise its right of first refusal will be strictly limited to the terms on such term sheet, and any waiver
of such right of first refusal shall apply only to such specific terms. If the placement agent waives its right of first refusal, any
deviation from such terms shall void the waiver and require us to seek a new waiver from the right of first refusal.
Other Relationships
The
placement agent and certain of its affiliates are full service financial institutions engaged in various activities, which may include
securities sales and trading, commercial and investment banking, financial advisory, investment management, investment research,
principal investment, hedging, market making, financing and brokerage activities and services. The placement agent and certain
of its affiliates have, from time to time, performed, and may in the future perform, various commercial and investment banking and financial
advisory services for us and our affiliates, for which they received or will receive customary fees and expenses. For example, the placement
agent served as the Underwriter in connection with the August 2024 Public Offering. Pursuant to an underwriting
agreement by and between us and the Underwriter in connection with the August 2024 Public Offering, we paid the Underwriter a total cash
underwriting discount of $700,000, equal to 7% of gross proceeds received in the August 2024 Public Offering, reimbursement for Underwriter
expenses of $100,000, equal to 1% of gross proceeds received, and reimbursement for road show, diligence, legal fees and disbursements
of $100,000, equal to 1% of gross proceeds received, as well as $5,000 for investor counsel fee, totaling $905,000 in cash fees deducted
from cash proceeds. The placement agent is also acting as the placement agent in the Warrant Private Placement. However, except
as disclosed in this prospectus supplement, we have no present arrangements with the placement agent for any further services.
In the ordinary course of their
various business activities, the placement agent and certain of its affiliates may make or hold a broad array of investments and actively
trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account
and for the accounts of their customers, and such investment and securities activities may involve securities and/or instruments issued
by us and our affiliates. If the placement agent or its affiliates have a lending relationship with us, they routinely hedge their credit
exposure to us consistent with their customary risk management policies. The placement agent and its affiliates may hedge such exposure
by entering into transactions that consist of either the purchase of credit default swaps or the creation of short positions in our securities
or the securities of our affiliates, including potentially the Common Stock offered hereby. Any such short positions could adversely affect
future trading prices of the Common Stock offered hereby. The placement agent and certain of its affiliates may also communicate independent
investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of such securities
or instruments and may at any time hold, or recommend to clients that they acquire, long and/or short positions in such securities and
instruments.
Determination of Offering Price
The public offering price
of the securities we are offering was negotiated between us and the investors, in consultation with the placement agent based on the
trading of our Common Stock prior to the offering, among other things. Other factors considered in determining the public offering price
of the securities we are offering include our history and prospects, the stage of development of our business, our business plans for
the future and the extent to which they have been implemented, an assessment of our management, general conditions of the securities
markets at the time of the offering and such other factors as were deemed relevant.
Regulation M
The placement agent may be
deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any
profit realized on the resale of the securities sold by it while acting as principal might be deemed to be underwriting discounts or
commissions under the Securities Act. As an underwriter, the placement agent would be required to comply with the requirements of the
Securities Act and the Exchange Act, including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and Regulation
M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of shares of Common Stock by the placement
agent acting as principal. Under these rules and regulations, the placement agent:
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not engage in any stabilization activity in connection with our securities; and |
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not bid for or purchase any of our securities or attempt to induce any person to purchase
any of our securities, other than as permitted under the Exchange Act, until it has completed
its participation in the distribution. |
Potential Conflicts of Interest
The placement agent and its
affiliates may, from time to time, engage in transactions with and perform services for us in the ordinary course of their business for
which it may receive customary fees and reimbursement of expenses. In the ordinary course of its various business activities, the placement
agent and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative
securities) and financial instruments (including bank loans) for its own accounts and for the accounts of its customers and such investment
and securities activities may involve securities and/or instruments of our Company. The placement agent and is affiliates may also make
investment recommendations and/or publish or express independent research views in respect of such securities or instruments and may
at any time hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.
Electronic Distribution
This prospectus supplement
may be made available in electronic format on websites or through other online services maintained by the placement agent or by an affiliate.
Other than this prospectus, the information on the placement agent’s website and any information contained in any other website
maintained by the placement agent is not part of this prospectus supplement and the accompanying base prospectus or the registration
statement of which this prospectus supplement and the accompanying base prospectus forms a part, has not been approved and/or endorsed
by us or the placement agent, and should not be relied upon by investors.
Offer Restrictions Outside the United States
Other than in the United States,
no action has been taken by us or the placement agent that would permit a public offering of the securities offered by this prospectus
in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold,
directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale
of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with
the applicable rules and regulations of that jurisdiction. Persons who come into possession of this prospectus are advised to inform
themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does
not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in
which such an offer or a solicitation is unlawful.
MATERIAL UNITED
STATES FEDERAL INCOME TAX CONSIDERATIONS
The
following discussion describes the material U.S. federal income tax consequences of the acquisition, ownership and disposition of shares
of the Common Stock and Pre-Funded Warrants acquired in this offering. This discussion is based on the current provisions of the Internal
Revenue Code of 1986, as amended (the “Code”), existing and proposed U.S. Treasury regulations promulgated thereunder, and
administrative rulings and court decisions in effect as of the date hereof, all of which are subject to change at any time, possibly
with retroactive effect. No ruling has been or will be sought from the Internal Revenue Service (the “IRS”) with respect
to the matters discussed below, and there can be no assurance the IRS will not take a contrary position regarding the tax consequences
of the acquisition, ownership or disposition of the Common Stock or Pre-Funded Warrants, or that any such contrary position would not
be sustained by a court. Except as provided herein, this summary does not discuss the potential effects, whether adverse or beneficial,
of any proposed legislation that, if enacted, could be applied on a retroactive or prospective basis.
We
assume in this discussion that the shares of Common Stock and Pre-Funded Warrants will be held as capital assets (generally, property
held for investment). This discussion does not address all aspects of U.S. federal income taxes, does not discuss the potential application
of the Medicare contribution tax or the alternative minimum tax and does not address state or local taxes or U.S. federal gift and estate
tax laws, except as specifically provided below with respect to Non-U.S. Holders (as defined below), or any non-U.S. tax consequences
that may be relevant to holders in light of their particular circumstances. In addition, except as specifically set forth below, this
summary does not discuss applicable tax reporting requirements. This discussion also does not address the special tax rules applicable
to particular holders, such as:
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persons
who acquired our Common Stock or Pre-Funded Warrants as compensation for services; |
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traders
in securities that elect to use a mark-to-market method of accounting for their securities holdings; |
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persons
that own, or are deemed to own, more than 5% of our Common Stock (except to the extent specifically set forth below); |
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persons
required for U.S. federal income tax purposes to conform the timing of income accruals to their financial statements under Section
451(b) of the Code (except to the extent specifically set forth below); |
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persons
for whom our common stock constitutes “qualified small business stock” within the meaning of Section 1202 of the Code
or “Section 1244 stock” for purposes of Section 1244 of the Code; |
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persons
deemed to sell our Common Stock or Pre-Funded Warrants under the constructive sale provisions of the Code; |
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banks
or other financial institutions; |
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brokers
or dealers in securities or currencies; |
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tax-exempt
organizations or tax-qualified retirement plans; |
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corporations (and stockholders thereof); |
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partnerships
or other entities treated as partnerships for U.S. federal income tax purposes (and partners or other owners thereof); |
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corporations
organized outside the United States, any state thereof, or the District of Columbia that are nonetheless treated as U.S. persons
for U.S. federal income tax purposes; |
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pension
plans; |
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regulated
investment companies or real estate investment trusts; |
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persons
that hold the Common Stock or Pre-Funded Warrants as part of a straddle, hedge, conversion transaction, synthetic security or other
integrated investment; |
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insurance
companies; |
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controlled
foreign corporations, passive foreign investment companies, or corporations that accumulate earnings to avoid U.S. federal income
tax; |
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U.S.
Holders that are subject to taxing jurisdictions other than, or in addition to, the United States with respect to the Common Stock
or Pre-Funded Warrants; and |
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certain
U.S. expatriates, former citizens, or long-term residents of the United States. |
In
addition, this discussion does not address the tax treatment of partnerships (including any entity or arrangement classified as a partnership
for U.S. federal income tax purposes) or other pass-through entities or persons who hold shares of Common Stock or Pre-Funded Warrants
through such partnerships or other entities which are pass-through entities for U.S. federal income tax purposes. If such a partnership
or other pass-through entity holds shares of Common Stock or Pre-Funded Warrants, the treatment of a partner in such partnership or investor
in such other pass-through entity generally will depend on the status of the partner or investor and upon the activities of the partnership
or other pass-through entity. A partner in such a partnership and an investor in such other pass-through entity that will hold shares
of Common Stock or Pre-Funded Warrants should consult his, her or its own tax advisor regarding the tax consequences of the ownership
and disposition of shares of Common Stock or Pre-Funded Warrants through such partnership or other pass-through entity, as applicable.
This
discussion of U.S. federal income tax considerations is for general information purposes only and is not tax advice. Prospective investors
should consult their own tax advisors regarding the U.S. federal, state, local and non-U.S. income and other tax considerations of acquiring,
holding and disposing of our Common Stock and Pre-Funded Warrants.
For
the purposes of this discussion, a “U.S. Holder” means a beneficial owner of shares of Common Stock or Pre-Funded Warrants
acquired in this offering that is for U.S. federal income tax purposes (a) an individual citizen or resident of the United States, (b)
a corporation (or other entity taxable as a corporation for U.S. federal income tax purposes), created or organized in or under the laws
of the United States, any state thereof or the District of Columbia, (c) an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or (d) a trust if it (1) is subject to the primary supervision of a court within the United States
and one or more U.S. persons (within the meaning of Section 7701(a)(30) of the Code) has the authority to control all substantial decisions
of the trust or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a domestic trust. A “Non-U.S.
Holder” is, for U.S. federal income tax purposes, a beneficial owner of shares of Common Stock or Pre-Funded Warrants that is not
a U.S. Holder or a partnership for U.S. federal income tax purposes.
Treatment of Pre-Funded
Warrants
Although it is not entirely
free from doubt, a Pre-Funded Warrant should be treated as a share of Common Stock for U.S. federal income tax purposes and a holder of
Pre-Funded Warrants should generally be taxed in the same manner as a holder of Common Stock, as described below. Accordingly, no gain
or loss should be recognized upon the exercise of a Pre-Funded Warrant and, upon exercise, the holding period of a Pre-Funded Warrant
should carry over to the share of Common Stock received. Similarly, the tax basis of the Pre-Funded Warrant should carry over to the share
of Common Stock received upon exercise, increased by the exercise price of $0.001 per share. Each holder should consult his, her or its
own tax advisor regarding the risks associated with the acquisition of Pre-Funded Warrants pursuant to this offering (including potential
alternative characterizations). The balance of this discussion generally assumes that the characterization described above is respected
for U.S. federal income tax purposes.
Tax Considerations
Applicable to U.S. Holders
Distributions
In
the event that we make distributions on our common stock to a U.S. Holder, those distributions generally will constitute dividends for
U.S. tax purposes to the extent paid out of our current or accumulated earnings and profits (as determined under U.S. federal income
tax principles). Distributions in excess of our current and accumulated earnings and profits will constitute a return of capital that
is applied against and reduces, but not below zero, a U.S. Holder’s adjusted tax basis in our common stock. Any remaining excess
will be treated as gain realized on the sale or exchange of shares of Common Stock as described below under the section titled “Disposition
of Common Stock or Pre-Funded Warrants.”
Certain Adjustments to Pre-Funded
Warrants
The
number of shares of Common Stock issued upon the exercise of the Pre-Funded Warrants and the exercise price of Pre-Funded Warrants are
subject to adjustment in certain circumstances. Adjustments (or failure to make adjustments) that have the effect of increasing a U.S.
Holder’s proportionate interest in our assets or earnings and profits may, in some circumstances, result in a constructive distribution
to the U.S. Holder. Adjustments to the conversion rate made pursuant to a bona fide reasonable adjustment formula which has the effect
of preventing the dilution of the interest of the holders of Pre-Funded Warrants generally should not be deemed to result in a constructive
distribution. If an adjustment is made that does not qualify as being made pursuant to a bona fide reasonable adjustment formula, a U.S.
Holder of Pre-Funded Warrants may be deemed to have received a constructive distribution from us, even though such U.S. Holder has not
received any cash or property as a result of such adjustment. The tax consequences of the receipt of a distribution from us are described
above under the section titled “Distributions.”
Disposition
of Common Stock or Pre-Funded Warrants
Upon
a sale or other taxable disposition (other than a redemption treated as a distribution, which will be taxed as described above under
the section titled “Distributions”) of shares of Common Stock or Pre-Funded Warrants, a U.S. Holder generally will
recognize capital gain or loss in an amount equal to the difference between the amount realized and the U.S. Holder’s adjusted
tax basis in the Common Stock or Pre-Funded Warrants sold. Capital gain or loss will constitute long-term capital gain or loss if the
U.S. Holder’s holding period for the Common Stock or Pre-Funded Warrants exceeds one year. The deductibility of capital losses
is subject to certain limitations. U.S. Holders who recognize losses with respect to a disposition of shares of Common Stock or Pre-Funded
Warrants should consult their own tax advisors regarding the tax treatment of such losses.
Information
Reporting and Backup Reporting
Information
reporting requirements generally will apply to payments of distributions (including constructive distributions) on the Common Stock and
Pre-Funded Warrants and to the proceeds of a sale or other disposition of Common Stock and Pre-Funded Warrants paid by us to a U.S. Holder
unless such U.S. Holder is an exempt recipient, such as a corporation. Backup withholding will apply to those payments if the U.S. Holder
fails to provide the holder’s taxpayer identification number, or certification of exempt status, or if the holder otherwise fails
to comply with applicable requirements to establish an exemption.
Backup
withholding is not an additional tax. Rather, any amounts withheld under the backup withholding rules will be allowed as a refund or
a credit against the U.S. Holder’s U.S. federal income tax liability provided the required information is timely furnished to the
IRS. U.S. Holders should consult their own tax advisors regarding their qualification for exemption from information reporting and backup
withholding and the procedure for obtaining such exemption.
Tax Considerations
Applicable to Non-U.S. Holders
Distributions
In
the event that we make distributions on our common stock to a Non-U.S. Holder, those distributions generally will constitute dividends
for U.S. federal income tax purposes as described above under the section titled “U.S. Holders—Distributions.”
To the extent those distributions do not constitute dividends for U.S. federal income tax purposes (i.e., the amount of such distributions
exceeds both our current and our accumulated earnings and profits), they will constitute a return of capital and will first reduce a
Non-U.S. Holder’s basis in our common stock (determined separately with respect to each share of common stock), but not below zero,
and then will be treated as gain from the sale of that share common stock as described below under the section titled “Disposition
of Common Stock or Pre-Funded Warrants.”
Any
distribution (including constructive distributions) on shares of common stock that is treated as a dividend paid to a Non-U.S. Holder
that is not effectively connected with the holder’s conduct of a trade or business in the United States will generally be subject
to withholding tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty between the United States
and the Non-U.S. Holder’s country of residence. To obtain a reduced rate of withholding under a treaty, a Non-U.S. Holder generally
will be required to provide the applicable withholding agent with a properly executed IRS Form W-8BEN, IRS Form W-8BEN-E or other appropriate
form, certifying the Non-U.S. Holder’s entitlement to benefits under that treaty. Such form must be provided prior to the payment
of dividends and must be updated periodically. If a Non-U.S. Holder holds stock through a financial institution or other agent acting
on the holder’s behalf, the holder will be required to provide appropriate documentation to such agent. The holder’s agent
may then be required to provide certification to the applicable withholding agent, either directly or through other intermediaries. If
you are eligible for a reduced rate of U.S. withholding tax under an income tax treaty, you should consult with your own tax advisor
to determine if you are able to obtain a refund or credit of any excess amounts withheld by timely filing an appropriate claim for a
refund with the IRS.
We
generally are not required to withhold tax on dividends paid (or constructive dividends deemed paid) to a Non-U.S. Holder that are effectively
connected with the holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax
treaty, are attributable to a permanent establishment or fixed base that the holder maintains in the United States) if a properly executed
IRS Form W-8ECI, stating that the dividends are so connected, is furnished to us (or, if stock is held through a financial institution
or other agent, to the applicable withholding agent). In general, such effectively connected dividends will be subject to U.S. federal
income tax on a net income basis at the regular tax rates applicable to U.S. persons. A corporate Non-U.S. Holder receiving effectively
connected dividends may also be subject to an additional “branch profits tax,” which is imposed, under certain circumstances,
at a rate of 30% (or such lower rate as may be specified by an applicable treaty) on the corporate Non-U.S. Holder’s effectively
connected earnings and profits, subject to certain adjustments.
See
also the sections below titled “Backup Withholding and Information Reporting” and “Foreign Accounts”
for additional withholding rules that may apply to dividends paid to certain foreign financial institutions or non-financial foreign
entities.
Disposition
of Common Stock or Pre-Funded Warrants
Subject
to the discussions below under the sections titled “Backup Withholding and Information Reporting” and “Foreign
Accounts,” a Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax with respect to gain recognized
on a sale or other disposition (other than a redemption treated as a distribution, which will be taxable as described above under the
section titled “Distributions”) of shares of Common Stock or Pre-Funded Warrants unless:
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the
gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the United States, and if an applicable
income tax treaty so provides, the gain is attributable to a permanent establishment or fixed base maintained by the Non-U.S. Holder
in the United States; in these cases, the Non-U.S. Holder will be taxed on a net income basis at the regular tax rates and in the
manner applicable to U.S. persons, and if the Non-U.S. Holder is a corporation, an additional branch profits tax at a rate of 30%,
or a lower rate as may be specified by an applicable income tax treaty, may also apply; |
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the
Non-U.S. Holder is a nonresident alien present in the United States for 183 days or more in the taxable year of the disposition and
certain other requirements are met, in which case the Non-U.S. Holder will be subject to a 30% tax (or such lower rate as may be
specified by an applicable income tax treaty between the United States and such holder’s country of residence) on the net gain
derived from the disposition, which may be offset by certain U.S.-source capital losses of the Non-U.S. Holder, if any; or |
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we
are, or have been, at any time during the five-year period preceding such sale or other taxable disposition (or the Non-U.S. Holder’s
holding period, if shorter) a “U.S. real property holding corporation,” unless our common stock is regularly traded
on an established securities market and the Non-U.S. Holder holds no more than 5% of our outstanding common stock, directly or indirectly,
actually or constructively, during the shorter of the five-year period ending on the date of the disposition or the period that the
Non-U.S. Holder held our common stock. Generally, a corporation is a U.S. real property holding corporation only if the fair market
value of its U.S. real property interests equals or exceeds 50% of the sum of the fair market value of its worldwide real property
interests plus its other assets used or held for use in a trade or business. Although there can be no assurance, we do not believe
that we are, or have been, a U.S. real property holding corporation, or that we are likely to become one in the future. No assurance
can be provided that the common stock will be regularly traded on an established securities market for purposes of the rules described
above.” |
See
the sections below titled “Backup Withholding and Information Reporting” and “Foreign Accounts”
for additional information regarding withholding rules that may apply to proceeds of a disposition of the Common Stock or Pre-Funded
Warrants paid to foreign financial institutions or non-financial foreign entities.
Backup Withholding
and Information Reporting
We
must report annually to the IRS and to each Non-U.S. Holder the gross amount of the distributions (including constructive distributions)
on the Common Stock or Pre-Funded Warrants paid to such holder and the tax withheld, if any, with respect to such distributions. Non-U.S.
Holders may have to comply with specific certification procedures to establish that the holder is not a U.S. person (as defined in the
Code) in order to avoid backup withholding at the applicable rate, currently 24%, with respect to dividends (or constructive dividends)
on the Common Stock or Pre-Funded Warrants. Generally, a holder will comply with such procedures if it provides a properly executed IRS
Form W-8BEN (or other applicable IRS Form W-8) or otherwise meets documentary evidence requirements for establishing that it is a Non-U.S.
Holder, or otherwise establishes an exemption. Dividends paid to Non-U.S. Holders subject to withholding of U.S. federal income tax,
as described above under the section titled “Distributions,” will generally be exempt from U.S. backup withholding.
Information
reporting and backup withholding generally will apply to the proceeds of a disposition of the Common Stock or Pre-Funded Warrants by
a Non-U.S. Holder effected by or through the U.S. office of any broker, U.S. or foreign, unless the holder certifies its status as a
Non-U.S. Holder and satisfies certain other requirements, or otherwise establishes an exemption. Generally, information reporting and
backup withholding will not apply to a payment of disposition proceeds to a Non-U.S. Holder where the transaction is effected outside
the United States through a non-U.S. office of a broker. However, for information reporting purposes, dispositions effected through a
non-U.S. office of a broker with substantial U.S. ownership or operations generally will be treated in a manner similar to dispositions
effected through a U.S. office of a broker. Non-U.S. Holders should consult their own tax advisors regarding the application of the information
reporting and backup withholding rules to them.
Copies
of information returns may be made available to the tax authorities of the country in which the Non-U.S. Holder resides or is incorporated
under the provisions of a specific treaty or agreement.
Backup
withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a Non-U.S. Holder can
be refunded or credited against the Non-U.S. Holder’s U.S. federal income tax liability, if any, provided that an appropriate claim
is timely filed with the IRS.
Foreign Accounts
The
Foreign Account Tax Compliance Act (“FATCA”) generally imposes a 30% withholding tax on dividends (including constructive
dividends) on the Common Stock and Pre-Funded Warrants if paid to a non-U.S. entity unless (i) if the non-U.S. entity is a “foreign
financial institution,” the non-U.S. entity undertakes certain due diligence, reporting, withholding, and certification obligations,
(ii) if the non-U.S. entity is not a “foreign financial institution,” the non-U.S. entity identifies certain of its U.S.
investors, if any, or (iii) the non-U.S. entity is otherwise exempt under FATCA.
Withholding
under FATCA generally will apply to payments of dividends (including constructive dividends) on the Common Stock and Pre-Funded Warrants.
While withholding under FATCA would have also applied to payments of gross proceeds from a sale or other disposition of the Common Stock
or Pre-Funded Warrants, under proposed U.S. Treasury Regulations withholding on payments of gross proceeds is not required. Although
such regulations are not final, applicable withholding agents may rely on the proposed regulations until final regulations are issued.
An
intergovernmental agreement between the United States and an applicable foreign country may modify the requirements described in this
section. Under certain circumstances, a holder may be eligible for refunds or credits of the tax. Holders should consult their own tax
advisors regarding the possible implications of FATCA on their investment in the Common Stock and Pre-Funded Warrants.
Federal Estate
Tax
Common
stock owned or treated as owned by an individual who is not a citizen or resident of the United States (as specially defined for U.S.
federal estate tax purposes) at the time of death will be included in the individual’s gross estate for U.S. federal estate tax
purposes and, therefore, may be subject to U.S. federal estate tax, unless an applicable estate tax or other treaty provides otherwise.
The foregoing may also apply to Pre-Funded Warrants. A Non-U.S. Holder should consult his, her, or its own tax advisor regarding the
U.S. federal estate tax consequences of the ownership or disposition of shares of the Common Stock and Pre-Funded Warrants.
The
preceding discussion of material U.S. federal tax considerations is for information only. It is not tax advice. Prospective investors
should consult their own tax advisors regarding the particular U.S. federal, state, local and non-U.S. tax consequences of purchasing,
holding and disposing of the Common Stock or Pre-Funded Warrants, including the consequences of any proposed changes in applicable laws.
LEGAL
MATTERS
The validity of the shares of
Common Stock and the Pre-Funded Warrant Shares offered under this prospectus will be passed upon by Stradling Yocca Carlson &
Rauth LLP, Newport Beach, California.
EXPERTS
The
consolidated financial statements of the Company as of December 31, 2023 and 2022, and for each of the two years in the period ended
December 31, 2023, incorporated by reference in this prospectus supplement, have been audited by M&K CPAS, PLLC, an independent registered
public accounting firm. Such financial statements are incorporated by reference in reliance upon the report of such firm given their
authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act, and the rules and regulations promulgated thereunder,
with respect to our Common Stock offered under this prospectus. This prospectus, which constitutes a part of the registration statement,
does not contain all of the information contained in the registration statement and the exhibits and schedules thereto. Certain contracts
and other documents described in this prospectus are filed as exhibits to the registration statement, or to documents incorporated by
reference into the registration statement, and you may review the full text of these contracts and documents by referring to these exhibits.
For further information with respect to us and our Common Stock offered under this prospectus, reference is made to the registration
statement and its exhibits and schedules.
We
file annual, quarterly and current reports, proxy statements, and other information with the SEC. The SEC maintains a website that contains
these reports, proxy and information statements, and other information we file electronically with the SEC. Our filings are available
free of charge at the SEC’s website at www.sec.gov. We also maintain a website at www.expion360.com, at which you
may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to,
the SEC. Information contained on or accessible through our website is not a part of this prospectus, and the inclusion of our website
address in this prospectus is an inactive textual reference only.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” into this prospectus much of the information we file with the SEC, which means
that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate
by reference into this prospectus is considered to be part of this prospectus. These documents may include Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements and information statements. You should read
the information incorporated by reference because it is an important part of this prospectus.
This
prospectus incorporates by reference the documents listed below, other than those documents or the portions of those documents deemed
to be furnished and not filed in accordance with SEC rules:
| |
● |
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as filed with the SEC on March 28, 2024; |
| |
|
|
| |
● |
our Amendment
No. 1 to our Annual Report on Form 10-K/A for the fiscal year ended December 31, 2023, as filed with the SEC on April 29, 2024; |
| |
|
|
| |
● |
our Quarterly
Reports on Form 10-Q for each of the quarterly periods ended March 31, 2024, June 30, 2024, and September 30, 2024, as filed
with the SEC on May 14, 2024, August 14, 2024, and November 14, 2024, respectively; |
| |
|
|
| |
● |
our Current
Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such
reports that relate to such items) filed with the SEC on May 7, 2024, May 28, 2024, August 6, 2024, August 9, 2024, August 27, 2024,
September 27, 2024, September 30, 2024, October 7, 2024, and December 20, 2024; and |
| |
|
|
| |
● |
the Description
of Capital Stock contained in our Registration Statement on Form 8-A (File No. 001-41347), filed with the SEC on March 31, 2022,
pursuant to Section 12 of the Exchange Act, as updated by Exhibit 4.4 to our Annual Report on Form 10-K for the fiscal year ended
December 31, 2023, as filed with the SEC on March 28, 2024. |
We
also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K, and
exhibits filed on such form that are related to such items, unless such Form 8-K expressly provides to the contrary) made with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus supplement but prior to the termination
of this offering, and such future filings will become a part of this prospectus from the respective dates that such documents are filed
with the SEC. Any statement contained herein, or in a document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes hereof or of the related prospectus supplement to the extent that a statement contained
herein or in any other subsequently filed document which is also incorporated or deemed to be incorporated herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this prospectus.
You
may obtain copies of the documents incorporated by reference in this prospectus from us free of charge by requesting them in writing
or by telephone at the following address:
Brian Schaffner
Chief Executive Officer
Expion360 Inc.
2025 SW Deerhound
Avenue
Redmond, Oregon 97756
(541) 797-6714
Statements
contained in this prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance
investors are referred to the copy of the contract or other document filed as an exhibit to the registration statement, each such statement
being qualified in all respects by such reference and the exhibits and schedules thereto.
Expion360 Inc.
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
From
time to time, we may offer and sell up to $50,000,000 in aggregate principal amount of our common stock, preferred stock, debt securities
or warrants, in each case in one or more issuances and at prices and on terms that we will determine at the time of the offering. We
may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or
common stock, preferred stock or debt securities upon the exchange of warrants.
This
prospectus describes the general manner in which any of these securities may be offered using this prospectus. We will specify in an
accompanying prospectus supplement the terms of the securities offered and other details regarding the offering thereof. The supplement
may also add, update or change information contained in this prospectus with respect to that offering.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “XPON.” On June 26, 2023, the last reported sales price
of our common stock was $4.76 per share.
As
of June 26, 2023, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was approximately
$24,867,078 million, based on 6,910,717 shares of outstanding common stock, of which approximately 1,686,541 shares were held by affiliates,
and a price of $4.76 per share, which was the price at which our common stock was last sold on the Nasdaq Capital Market on such date.
We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the prior 12-calendar-month period that ends
on and includes the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered
on this registration statement in a public primary offering with a value exceeding more than one-third of our public float in any 12-month
period so long as our public float remains below $75 million (the “Baby Shelf Limitation”).
We
are an “emerging growth company” as defined under U.S. federal securities laws and, as such, have elected to comply with
reduced public company reporting requirements. This prospectus complies with the requirements that apply to an issuer that is an emerging
growth company.
The
securities covered by this prospectus may be sold directly by us to investors, through agents designated by us from time to time or through
underwriters or dealers at prices and on terms to be determined at the time of offering. We will include in an applicable prospectus
supplement the names of any underwriters or agents and any applicable commissions or discounts. Additional information on the methods
of sale appears under “Plan of Distribution” in this prospectus. We will also describe in an applicable prospectus
supplement the way(s) in which we expect to use the net proceeds we receive from any sale.
Investing
in our securities involves risks. See the section entitled “Risk Factors” beginning on page 7 of this prospectus to
read about factors you should consider before buying our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This
prospectus may not be used to offer or sell any securities unless accompanied by a prospectus supplement.
The date
of this prospectus is July 10, 2023
TABLE OF
CONTENTS
You
should rely only on the information contained, or incorporated by reference, in this prospectus and in an applicable prospectus supplement
to this prospectus. We have not authorized any other person to provide you with different or additional information. If anyone provides
you with different, additional or inconsistent information, you should not rely on it. We do not take responsibility for, and can provide
no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities
or soliciting any offer to buy these securities in any jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus, any applicable prospectus supplement or any free writing prospectus we authorize to be
delivered to you is accurate only as of the date of that document or any other date set forth in that document. Additionally, any information
we have incorporated by reference in this prospectus or in any applicable prospectus supplement is accurate only as of the date of the
document incorporated by reference or other date set forth in that document, regardless of the time of delivery of this prospectus, any
applicable prospectus supplement or any sale of securities. Our business, financial condition, results of operations, cash flow and prospects
may have changed since that date.
ABOUT THIS
PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we have filed with the Securities and Exchange Commission (the “SEC”)
using a “shelf” registration process.
Under
this process, we may sell the securities described in this prospectus in one or more offerings for an aggregate offering amount of up
to $50,000,000, subject to the Baby Shelf Limitation. This prospectus describes the general manner in which we may offer the securities
described in this prospectus. Each time we sell securities pursuant to this registration statement, we will provide a prospectus supplement
that will contain specific information about the offering and the securities offered, and may also add, update or change information
contained in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings. If there is any inconsistency between information in this prospectus and any accompanying prospectus
supplement or free writing prospectus, you should rely on the information in the most recent applicable prospectus supplement or free
writing prospectus and documents incorporated by reference herein and therein. This prospectus may not be used to offer to sell, solicit
an offer to buy or consummate a sale of our securities unless it is accompanied by a prospectus supplement.
This
prospectus, together with any accompanying prospectus supplement and any additional information incorporated by reference herein and
therein, contains important information you should know before investing in our securities, including important information about us
and the securities being offered. You should carefully read both documents, as well as the additional information contained in the documents
described under “Where You Can Find More Information” and “Incorporation By Reference” in both
this prospectus and any applicable prospectus supplement, and in particular the annual, quarterly and current reports and other documents
we file with the SEC. Neither this prospectus nor any accompanying prospectus supplement is an offer to sell these securities or is soliciting
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
This
prospectus contains or incorporates by reference summaries of certain provisions contained in some of the documents described herein,
but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual
documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described
below in the section of this prospectus entitled “Incorporation By Reference.”
SELECTED
DEFINITIONS
Unless otherwise
stated in this prospectus or the context otherwise requires, reference to:
“Articles
of Incorporation” means the articles of incorporation of Expion360.
“Bylaws”
means the bylaws of Expion360.
“common
stock” means the shares of common stock, par value $0.001 per share, of Expion360.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Expion360”,
the “Company,” “we,” “us,” and “our” means Expion360 Inc.,
a Nevada corporation.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, together with any accompanying prospectus supplement, and the documents incorporated by reference herein or therein may include
“forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act.
All statements in this prospectus, together with any accompanying prospectus supplement, and the documents incorporated by reference
herein or therein, other than statements of historical fact, are “forward-looking statements” for purposes of these provisions,
including, without limitation, any projections regarding the markets where we operate, any statements of the plans and objectives of
our management for future operations, any statements concerning proposed new products or services, any statements regarding expected
capital expenditures, any statements regarding future economic conditions or performance, and any statements of assumptions underlying
any of the foregoing. All forward-looking statements included in this prospectus and the documents incorporated by reference herein are
made as of the date hereof or thereof, as applicable, and are based on information available to us as of such dates. We assume no obligation
to update any forward-looking statement. In some cases, forward-looking statements can be identified by the use of terminology such as
“may,” “will,” “expects,” “plans,” “should,” “anticipates,” “intends,”
“seeks,” “believes,” “estimates,” “potential,” “forecasts,” “continue,”
or other forms of these words or similar words or expressions, or the negative thereof or other comparable terminology. Although we believe
that the expectations reflected in the forward-looking statements contained herein are reasonable, there can be no assurance that such
expectations or any of the forward-looking statements will prove to be correct. Actual results will likely differ, and could differ materially,
from those projected or assumed in the forward-looking statements. Prospective investors are cautioned not to unduly rely on any such
forward-looking statements.
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:
| |
● |
We operate in an extremely
competitive industry and are subject to pricing pressures. |
| |
● |
We have a history of losses
and our audited financial statements include a statement that there is a substantial doubt about our ability to continue as a going
concern. As our costs increase, we may not be able to generate sufficient revenue to achieve and sustain profitability. |
| |
● |
Our business and future
growth depends on the needs and success of our customers, and we have substantial customer concentration. |
| |
● |
We may not be able to successfully
manage our growth. |
| |
● |
We may be negatively impacted
by public health epidemics or outbreaks, including the novel coronavirus (“COVID-19”) as well as uncertainty in global
economic conditions. |
| |
● |
We may fail to expand our
sales and distribution channels and our ability to expend into international markets is uncertain. |
| |
● |
Nearly all of our raw materials
enter the United States through a limited number of ports, and we rely on third parties to store and ship some of our inventory;
labor unrest at these ports or other product delivery difficulties could interfere with our distribution plans and reduce our revenue. |
| |
● |
Government reviews, inquiries,
investigations, and actions could harm our business or reputation. |
| |
● |
We are dependent on third-party
manufacturers and suppliers, including suppliers located outside the United States, and our operating results could be adversely
affected by changes in the cost and availability of raw materials as well as increases in costs, disruption of supply, or shortage
of any of our battery components, such as electronic and mechanical parts, or raw materials used in the production of such parts. |
| |
● |
We rely on two warehouse
facilities and if any of our facilities becomes inoperable for any reason or if our expansion plans fail, our ability to produce
our products could be negatively impacted. |
| |
● |
Lithium-ion battery cells
have been observed to catch fire or release smoke and flame, which may have a negative impact on our reputation and business. |
| |
● |
We could face potential
product liability claims relating to our products, which could result in significant costs and liabilities, which would reduce our
profitability. |
| |
● |
Our operations expose us
to litigation, tax, environmental, and other legal compliance risks. |
| |
● |
Our failure to introduce
new products and product enhancements and broad market acceptance of new technologies introduced by our competitors could adversely
affect our business. |
| |
● |
We may not be able to adequately
protect our proprietary intellectual property and technology and we may need to defend ourselves against intellectual property infringement
claims. |
| |
● |
Quality problems with our
products could harm our reputation and erode our competitive position. |
| |
● |
Our ability to raise capital
in the future may be limited and our stockholders may be diluted by future securities offerings. |
| |
● |
We depend on our senior
management team and other key employees, and significant attrition within our management team or unsuccessful succession planning
could adversely affect our business. |
| |
● |
We are an “emerging
growth company” and elect to comply with certain reduced reporting requirements applicable to emerging growth companies, which
could make our securities less attractive to investors. |
| |
● |
Such other factors as discussed
under “Risk Factors” herein and in the documents incorporated by reference herein, including our latest Annual Report
on Form 10-K. |
All
forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by these cautionary
statements. Our actual results will likely differ, and may differ materially, from anticipated results. Financial estimates are subject
to change and are not intended to be relied upon as predictions of future operating results, and we assume no obligation to update or
disclose revisions to those estimates. If we do update or correct one or more forward-looking statements, investors and others should
not conclude that we will make additional updates or corrections.
WHERE YOU
CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-3, including exhibits, under the Securities Act with respect to the securities
offered by this prospectus and any applicable prospectus supplement. This prospectus and the applicable prospectus supplement, which
constitutes part of the registration statement, does not contain all of the information in the registration statement and its exhibits.
For further information with respect to Expion360 and the securities offered by this prospectus and any applicable prospectus supplement,
we refer you to the registration statement and its exhibits. Statements contained in this prospectus and any applicable prospectus supplement
as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance, we refer you
to the copy of the contract or other document filed as an exhibit to the registration statement. Each of these statements is qualified
in all respects by this reference. You can read our SEC filings, including the registration statement, at the SEC’s website at
www.sec.gov.
We
are subject to the information reporting requirements of the Exchange Act, and we are required to file reports, proxy statements and
other information with the SEC. These reports, proxy statements and other information will be available for review at the SEC’s
website referred to above. We also maintain a website at www.expion360.com, at which you may access these materials free of charge as
soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on or accessible
through our website is not a part of this prospectus or any prospectus supplement, and the inclusion of our website address in this prospectus
or any prospectus supplement is an inactive textual reference only.
INCORPORATION
BY REFERENCE
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus and any applicable prospectus supplement,
which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The
information incorporated by reference is deemed to be part of this prospectus and any applicable prospectus supplement, and subsequent
information that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus
or any applicable prospectus supplement or a previously filed document incorporated by reference will be deemed to be modified or superseded
for purposes of this prospectus or any applicable prospectus supplement to the extent that a statement contained in this prospectus or
any applicable prospectus supplement or a subsequently filed document incorporated by reference modifies or replaces that statement.
This
prospectus and any applicable prospectus supplement incorporate by reference the documents
set forth below that have previously been filed with the SEC:
| ● | Our
Annual Report on Form
10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023;
|
| ● | Our
Quarterly Report on Form
10-Q for the period ended March 31, 2023, filed with the SEC on May 11, 2023; |
| ● | Our
Current Report on Form
8-K filed with the SEC on February 1, 2023; and |
| ● | The
description of the common stock contained in our registration statement on Form
8-A (File No. 001-41347), filed with the SEC on March 31, 2022, pursuant to Section
12 of the Exchange Act, as updated by Exhibit
4.4 to our Annual Report on Form 10-K for the year ended December 31, 2022 filed
with the SEC on March 30, 2023. |
All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior
to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will
also be incorporated by reference into this prospectus
or any applicable prospectus supplement and deemed to be part of this prospectus or any applicable prospectus supplement from the date
of the filing of such reports and documents. Under no circumstances shall any information furnished under Item 2.02, 7.01 or 9.01 of
Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
PROSPECTUS
SUMMARY
The
following summary highlights information contained in greater details elsewhere in this prospectus or incorporated by reference into
this prospectus. This summary is not complete and does not contain all of the information you should consider in making your investment
decision. You should read the entire prospectus, any applicable prospectus supplement and the documents we have incorporated by reference
in this prospectus carefully before making an investment in our securities. You should carefully consider, among other things, our financial
statements and related notes and the information set forth in the section entitled “Risk Factors” and other information incorporated
by reference into this prospectus from our filings with the SEC. See also the sections entitled “Where You Can Find More Information”
and “Incorporation By Reference.”
Overview
Expion360
Inc. (the “Company,” “Expion360”, “we,” “us” or “our”) focuses on the design,
assembly, manufacturing, and sales of lithium iron phosphate (LiFePO4) batteries and supporting accessories for recreational vehicles
(“RVs”) and marine applications with plans to expand into home energy storage products and industrial applications. We design,
assemble, and distribute high-powered, lithium battery solutions using ground-breaking concepts with a creative sales and marketing approach.
We believe that our product offerings include some of the most dense and minimal-footprint batteries in the RV & Marine industry.
We are developing the e360 Home Energy Storage: a system that we expect to significantly change the industry in barrier price, flexibility,
and integration. We are deploying multiple IP strategies with cutting-edge research and unique products to sustain and scale the business.
We currently have customers consisting of dealers, wholesalers, private label customers and original equipment manufacturers who are
driving revenue and brand awareness nationally.
Our
corporate headquarters are based in Redmond, Oregon, with assembly in the United States and suppliers based in Asia and Europe. We are
currently in the process of building out manufacturing capacity at our corporate headquarters. Our long-term target is to onshore the
manufacturing of most of our components and assemblies, including cell manufacturing, to the United States.
Our
main target markets are currently the RV & Marine industry. We believe that we are well positioned to capitalize on the rapid market
conversion from lead-acid to lithium batteries as the primary method of power sourcing in these industries. Additional focus markets
include home energy storage, where we aim to provide a cost-effective, low barrier of entry, and a do-it-yourself (“DIY”)
flexible system for those looking to power their homes via solar energy, wind, or grid back-up. Along with RV/Marine and home energy
storage markets, we aim to provide additional capacities to the ever-expanding electric forklift and industrial material handling markets.
Expion360’s
e360 product line, which is manufactured for the RV/Marine industry, was launched in December 2020. The e360 product line, through its
rapid sales growth, has shown to be a preferred conversion solution for lead-acid batteries. We believe that our e360 Home Energy Storage
system has strong revenue potential with recurring income opportunities for us and our associated sales partners.
Our
products provide numerous advantages for various industries that are looking to migrate to lithium-based energy storage. They incorporate
detailed-oriented design and engineering and strong case materials and internal and structural layouts, and are backed by responsive
customer service.
Corporate Information
Expion360
Inc. was initially organized as a limited liability company under the name Yozamp Products Company, LLC in the State of Oregon on June
16, 2016, and converted to a Nevada corporation under its current name pursuant to articles of conversion dated as of November 16, 2021.
Our
website is https://expion360.com/ and on the Investor Relations section of our website, we post or will post, as applicable, the following
filings as soon as reasonably practicable after they are electronically filed with or furnished to the Securities and Exchange Commission
(“SEC”): our Annual Report on Form 10-K (the “Annual Report”), our Proxy Statement on Schedule 14A, our Quarterly
Reports on Form 10-Q, our Current Reports on Form 8-K and any amendments to those reports filed or furnished pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended.
All
of the information on our Investor Relations web page is available to be viewed free of charge. Information contained on our website
is not part of this prospectus or our other filings with the SEC. We assume no obligation to update or revise any forward-looking statements
in this prospectus whether as a result of new information, future events or otherwise, unless we are required to do so by law.
The
SEC also maintains a website (www.sec.gov) that contains reports, proxy and information statements and other information regarding issuers
that file electronically with the SEC.
RISK FACTORS
Investment
in the securities offered pursuant to this prospectus and any applicable prospectus supplement involves risks. You should carefully consider
the risk factors incorporated by reference to our most recent Annual Report on Form 10-K, and any subsequent Quarterly Reports on Form
10-Q or Current Reports on Form 8-K, and all other information contained or incorporated by reference into this prospectus, as updated
by our subsequent filings under the Exchange Act, and the risk factors and other information contained in or incorporated by reference
into any applicable prospectus supplement before acquiring any of such securities. The risks and uncertainties we have described are
not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our business operations. The occurrence of any of these risks might cause you to lose all or part of your investment
in the offered securities. The discussion of risks includes or refers to forward-looking statements. You should read the explanation
of the qualifications and limitations on such forward-looking statements contained or incorporated by reference into this prospectus
and in any applicable prospectus supplement.
USE OF PROCEEDS
Unless
otherwise described in any applicable prospectus supplement, we intend to use the net proceeds from the sale of any securities described
in this prospectus for general corporate purposes.
GENERAL DESCRIPTION
OF SECURITIES
We
may offer shares of common stock or preferred stock, various series of senior or subordinated debt securities or warrants to purchase
any of the foregoing, in each case from time to time under this prospectus, together with any applicable prospectus supplement, at prices
and on terms to be determined by market conditions at the time of offering. This prospectus provides you with a general description of
the securities we may offer. At the time we offer a particular type or series of securities, we will provide an applicable prospectus
supplement describing the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation or classification;
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aggregate principal amount
or aggregate offering price; |
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voting or other rights;
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rates and times of payment
of interest, dividends or other payments; |
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liquidation preference;
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original issue discount;
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redemption, conversion,
exercise, exchange, settlement or sinking fund terms, including prices or rates, and any provisions for changes to or adjustments
in such prices or rates and in the securities or other property receivable upon conversion, exercise, exchange or settlement; |
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any securities exchange
or market listing arrangements; and |
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important U.S. federal
income tax considerations. |
This
prospectus may not be used to offer or sell securities unless accompanied by an applicable prospectus supplement. The applicable prospectus
supplement may add, update or change information contained in this prospectus or in documents incorporated by reference in this prospectus.
You should read the applicable prospectus supplement related to any securities being offered.
We
may sell the securities to or through underwriters, dealers or agents, directly to purchasers or through a combination of any of these
methods of sale or as otherwise set forth under “Plan of Distribution”. We and our underwriters, dealers or agents
reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters
or agents, we will include in the applicable prospectus supplement (i) the names of the underwriters or agents and applicable fees, discounts
and commissions to be paid to them; (ii) details regarding over-allotment options, if any; and (iii) net proceeds to us.
The
following descriptions are not complete and may not contain all the information you should consider before investing in any securities
we may offer hereunder; they are summarized from, and qualified by reference to, our articles of incorporation, bylaws and the other
documents referred to in herein, all of which are or will be publicly filed with the SEC, as applicable. See “Where You Can
Find More Information.”
DESCRIPTION
OF CAPITAL STOCK
Expion360
has one class of securities registered under Section 12 of the Securities Exchange Act: the Company’s common stock, par value $0.001
per share (the “common stock”).
The
following description of our capital stock is a summary of the rights of our capital stock and summarizes certain provisions of our certificate
of incorporation and our bylaws. This summary does not purport to be complete and is qualified in its entirety by the provisions of our
certificate of incorporation and bylaws, copies of which have been filed as exhibits to the registration statement of which this prospectus
forms a part, as well as to the applicable provisions of Nevada law.
General
Our
authorized capital stock consists of 200,000,000 shares of common stock, par value $0.001 per share and 20,000,000 shares of preferred
stock, par value $0.001 per share.
Common Stock
The
holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the stockholders. The
holders of our common stock do not have any cumulative voting rights. Holders of our common stock are entitled to receive ratably any
dividends declared by the board of directors out of funds legally available for that purpose, subject to any preferential dividend rights
of any outstanding preferred stock. Our common stock has no preemptive rights, conversion rights or other subscription rights or redemption
or sinking fund provisions. We currently do not have any shares of, or securities convertible into, preferred stock outstanding.
In
the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in all assets
remaining after payment of all debts and other liabilities and any liquidation preference of any outstanding preferred stock.
Warrants
$2.90
Warrants
On
November 9, 2021, the Company issued warrants to purchase 151,000 of shares of the Company’s common stock with an exercise price
of $2.90 per share (the “$2.90 Warrants”). The $2.90 Warrants are exercisable for a period of 3 years from date of grant.
If holders of the $2.90 Warrants elect to exercise them on a cashless basis, they would pay the exercise price by surrendering their
$2.90 Warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the difference between the “fair
market value” (defined below) multiplied by the number of shares underlying such holder’s $2.90 Warrants and the exercise
price multiplied by the number of shares underlying such holder’s $2.90 Warrants by (y) the fair market value. The “fair
market value” shall mean the prior five-day average closing price of the common stock on the date on which the holder elects to
exercise their $2.90 Warrants. The $2.90 Warrants have certain adjustment rights upon certain events.
$3.32
Warrants
On
November 22, 2021, the Company issued warrants to purchase 559,431 shares of the Company’s common stock at an exercise price of
$3.32 per share (the “$3.32 Warrants”). The $3.32 Warrants are exercisable for a period of 10 years from date of grant. If
holders of the $3.32 Warrants elect to exercise them on a cashless basis, they would pay the exercise price by surrendering their $3.32
Warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the difference between the “fair
market value” (defined below) multiplied by the number of shares underlying such holder’s $3.32 Warrants and the exercise
price multiplied by the number of shares underlying such holder’s $3.32 Warrants by (y) the fair market value. The “fair
market value” shall mean the volume weighted average of the closing sales price of the common stock averaged over 20 consecutive
trading days ending on the trading day prior to the date on which “fair market value” is determined. The $3.32 Warrants have
certain adjustment rights upon certain events. The Company is required to cause a registration statement registering the resale of the
shares of our common stock issuable upon exercise of the $3.32 Warrants to become effective in connection with its initial public offering.
As of the date of this prospectus, the Company has an effective registration statement which satisfies this requirement.
Underwriter
Warrants
Concurrent
with the closing of the initial public offering, the Company issued warrants to purchase an aggregate of 128,700 shares of its common
stock to Alexander Capital LP and Paulson Investment Company LLC (as apportioned in accordance with agreements amongst them), or their
designees, at an exercise price of $9.10 per share (the “Underwriter Warrants”). The Underwriter Warrants are initially exercisable
on September 27, 2022 and expire on March 31, 2027.
If
there is not an effective registration statement registering the resale of the shares of common stock issuable upon exercise of the Underwriter
Warrants, holders of the Underwriter Warrants may elect to exercise them on a cashless basis and pay the exercise price by surrendering
their Underwriter Warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the product of the
number of shares of common stock underlying the Underwriter Warrants, multiplied by the difference between (i) the daily volume weighted
average price of the common stock on the trading day immediately preceding the date of the exercise notice or on the date of the exercise
notice (if delivered after regular trading hours) and (ii) the exercise price of the Underwriter Warrants and by (y) the daily volume
weighted average price of the common stock on the trading day immediately preceding the date of the exercise notice or on the date of
the exercise notice (if delivered after regular trading hours). If the Company does not deliver common stock to a holder upon such holder’s
exercise of their Underwriter Warrants in compliance with the timing set out in the Underwriter Warrants, the Company will have to pay
cash to such holder in accordance with the terms of the Underwriter Warrants. The Underwriter Warrants include anti-dilution provisions
(for stock dividends, splits and recapitalizations and similar transactions), which results in the adjustment of the exercise price and
entitles holders of the Underwriter Warrants to participate in subsequent rights offerings or distributions to holders of the Company’s
common stock, as applicable. The Underwriter Warrants also have certain adjustment rights upon certain events. Further, the Underwriter
Warrants provide for a one-time demand registration right, exercisable until March 31, 2027 and unlimited piggyback rights, exercisable
until September 27, 2024.
Options
Prior
to our initial public offering, we issued options to purchase 30,000 shares of common stock granted to one individual which had an exercise
price of $3.32.
Anti-Takeover
Effects of Provisions of Our Charter Documents
The
provisions of Nevada law and our Bylaws may have the effect of delaying, deferring or preventing another party from acquiring control
of the company. These provisions may discourage and prevent coercive takeover practices and inadequate takeover bids.
Nevada
Law
Nevada
law contains a provision governing “acquisition of controlling interest.” This law provides generally that any person or
entity that acquires 20% or more of the outstanding voting shares of a publicly-held Nevada corporation in the secondary public or private
market may be denied voting rights with respect to the acquired shares, unless a majority of the disinterested stockholders of the corporation
elects to restore such voting rights in whole or in part. The control share acquisition act provides that a person or entity acquires
“control shares” whenever it acquires shares that, but for the operation of the control share acquisition act, would bring
its voting power within any of the following three ranges: 20 to 33-1/3%; 33-1/3 to 50%; or more than 50%.
Our
Articles of Incorporation include a mandatory forum provision that, to the fullest extent permitted by law, the Nevada Eighth Judicial
District of Clark County Nevada shall be the sole and exclusive forum for (a) any derivative action or proceeding brought in the name
or right of the Company or on its behalf, (b) any action asserting a claim for breach of any fiduciary duty owed by any director, officer,
employee or agent of the Company to the Company or the Company's stockholders, (c) any action arising or asserting a claim arising pursuant
to any provision of NRS Chapters 78 or 92Aor any provision of the Articles of Incorporation or Bylaws, (d) any action to interpret, apply,
enforce or determine the validity of the Articles of Incorporation or Bylaws or (e) any action asserting a claim governed by the internal
affairs doctrine. This exclusive forum provision would not apply to suits brought to enforce any liability or duty created by the Securities
Act or the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. To the extent that any such claims
may be based upon federal law claims, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to
enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. Furthermore, Section 22 of the Securities
Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the
Securities Act or rules and regulations thereunder and would preempt the choice of forum provisions in our Articles of Incorporation
with respect to such matters.
A
“control share acquisition” is generally defined as the direct or indirect acquisition of either ownership or voting power
associated with issued and outstanding control shares. The stockholders or Board of Directors of a corporation may elect to exempt the
stock of the corporation from the provisions of the control share acquisition act through adoption of a provision to that effect in the
articles of incorporation or bylaws of the corporation. Our Articles of Incorporation and Bylaws do not exempt our common stock from
the control share acquisition act.
The
control share acquisition act is applicable only to shares of “Issuing Corporations” as defined by the Nevada law. An Issuing
Corporation is a Nevada corporation which (i) has 200 or more stockholders, with at least 100 of such stockholders being both stockholders
of record and residents of Nevada, and (ii) does business in Nevada directly or through an affiliated corporation.
At
this time, we do not believe we have 100 stockholders of record resident of Nevada and we do not conduct business in Nevada directly.
Therefore, the provisions of the control share acquisition act are believed not to apply to acquisitions of our shares and will not until
such time as these requirements have been met. At such time as they may apply, the provisions of the control share acquisition act may
discourage companies or persons interested in acquiring a significant interest in or control of us, regardless of whether such acquisition
may be in the interest of our stockholders.
The
Nevada “Combination with Interested Stockholders Statute” may also have an effect of delaying or making it more difficult
to effect a change in control of us. This statute prevents an “interested stockholder” and a resident domestic Nevada corporation
from entering into a “combination,” unless certain conditions are met. The statute defines “combination” to include
any merger or consolidation with an “interested stockholder,” or any sale, lease, exchange, mortgage, pledge, transfer or
other disposition, in one transaction or a series of transactions with an “interested stockholder” having (i) an aggregate
market value equal to 5% or more of the aggregate market value of the assets of the corporation, (ii) an aggregate market value equal
to 5% or more of the aggregate market value of all outstanding shares of the corporation, or (iii) representing 10% or more of the earning
power or net income of the corporation.
An
“interested stockholder” means the beneficial owner of 10% or more of the voting shares of a resident domestic corporation,
or an affiliate or associate thereof. A corporation affected by the statute may not engage in a “combination” within three
years after the interested stockholder acquires its shares unless the combination or purchase is approved by the Board of Directors before
the interested stockholder acquired such shares. If approval is not obtained, then after the expiration of the three-year period, the
business combination may be consummated with the approval of the Board of Directors or a majority of the voting power held by disinterested
stockholders, or if the consideration to be paid by the interested stockholder is at least equal to the highest of (i) the highest price
per share paid by the interested stockholder within the three years immediately preceding the date of the announcement of the combination
or in the transaction in which he became an interested stockholder, whichever is higher, (ii) the market value per common share on the
date of announcement of the combination or the date the interested stockholder acquired the shares, whichever is higher, or (iii) if
higher for the holders of preferred stock, the highest liquidation value of the preferred stock.
Articles
of Incorporation and Bylaws
Our
Articles of Incorporation are silent as to cumulative voting rights in the election of our directors. Nevada law requires the existence
of cumulative voting rights to be provided for by a corporation’s Articles of Incorporation. In the event that a few stockholders
end up owning a significant portion of our issued and outstanding common stock, the lack of cumulative voting would make it more difficult
for other stockholders to replace our Board of Directors or for a third party to obtain control of us by replacing our Board of Directors.
Our Articles of Incorporation and Bylaws do not contain any explicit provisions that would have an effect of delaying, deferring or preventing
a change in control of us.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common shares is Pacific Stock Transfer Company. Pacific Stock Transfer Company’s address
and phone number is: 6725 Via Austi Pkwy, Suite 300, Las Vegas, Nevada 89119; telephone number (800) 785-7782.
Listing
Our
common stock has been traded on The Nasdaq Capital Market under the symbol “XPON” since April 1, 2022.
DESCRIPTION
OF DEBT SECURITIES
We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement.
The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context
requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of
a particular series of debt securities.
We
will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will
be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an
exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a
part or will be incorporated by reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference
to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus
supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well
as the complete indenture that contains the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal
amount that we may authorize and that the debt securities may be in any currency or currency unit that we may designate. Except for the
limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the
indenture do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes
in our operations, financial condition or transactions involving us.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
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the title of the series
of debt securities; |
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any limit upon the aggregate
principal amount that may be issued; |
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the maturity date or dates; |
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the form of the debt securities
of the series; |
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the applicability of any
guarantees; |
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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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if the price (expressed
as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the
principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof,
or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method
by which any such portion shall be determined; |
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the interest rate or rates,
which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest
will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
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our right, if any, to defer
payment of interest and the maximum length of any such deferral period; |
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if applicable, the date
or dates after which, or the period or periods during which, and the price or prices at which, we may, at our option, redeem the
series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions; |
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the date or dates, if any,
on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions
or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency
unit in which the debt securities are payable; |
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the denominations in which
we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
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any and all terms, if applicable,
relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to
such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series; |
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whether the debt securities
of the series shall be issued in whole or in part in the form of a global security or securities; |
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the terms and conditions,
if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the
depositary for such global security or securities; |
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if applicable, the provisions
relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities
will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and
may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable
conversion or exchange period and the manner of settlement for any conversion or exchange; |
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if other than the full
principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration
of acceleration of the maturity thereof; |
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additions to or changes
in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or
sale covenant; |
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additions to or changes
in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the
principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
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additions to or changes
in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
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additions to or changes
in the provisions relating to satisfaction and discharge of the indenture; |
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additions to or changes
in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued
under the indenture; |
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the currency of payment
of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; |
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whether interest will be
payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election
may be made; |
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the terms and conditions,
if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal amounts of the debt securities
of the series to any holder that is not a “United States person” for federal tax purposes; |
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any restrictions on transfer,
sale or assignment of the debt securities of the series; and |
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any other specific terms,
preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions
of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
We
may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be
issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other
characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued
with OID will be described in more detail in any applicable prospectus supplement.
Conversion or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety
or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all
of our obligations under the indenture or the debt securities, as appropriate.
Events of Default Under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indenture with respect to any series of debt securities that we may issue:
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if
we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and
such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in
accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this
purpose; |
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if
we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established
with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with
the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
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if
we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice
of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders
of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if specified events of
bankruptcy, insolvency or reorganization occur. |
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point
above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with respect to that series; |
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request; |
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such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the
trustee in compliance with the request; and |
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters:
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to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
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to
comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;” |
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to
provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
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to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit
of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred
upon us in the indenture; |
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to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture; |
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to
make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
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to
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above
under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of
debt securities; |
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to
evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we
and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending
the fixed maturity of any debt securities of any series; |
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption of any series of any debt securities; or |
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
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register the transfer or
exchange of debt securities of the series; |
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replace stolen, lost or
mutilated debt securities of the series; |
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pay principal of and premium
and interest on any debt securities of the series; |
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maintain paying agencies; |
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hold monies for payment
in trust; |
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• |
recover excess money held
by the trustee; |
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compensate and indemnify
the trustee; and |
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appoint any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that
series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to
any book-entry securities will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at
the close of business on the day of the mailing; or |
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part. |
Information Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the
same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The
indenture and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements, summarizes the
material terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant
certificates. While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular
terms of any series of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement,
the terms of any warrants offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements
will contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement,
which includes this prospectus.
General
We
may issue warrants for the purchase of our common stock, preferred stock and/or debt securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate
from these securities.
We
will evidence each series of warrants by warrant certificates that we will issue under a separate warrant agreement. We will enter into
the warrant agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement
relating to a particular series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
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the
offering price and aggregate number of warrants offered; |
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• |
the
currency for which the warrants may be purchased; |
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• |
if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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• |
if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
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in
the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
|
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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the
terms of any rights to redeem or call the warrants; |
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the
periods during which, and places at which, the warrants are exercisable; |
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the
manner of exercise; |
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the
dates on which the right to exercise the warrants will commence and expire; |
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the
manner in which the warrant agreement and warrants may be modified; |
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federal
income tax consequences of holding or exercising the warrants; |
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the
terms of the securities issuable upon exercise of the warrants; and |
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• |
any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
PLAN OF DISTRIBUTION
We
may sell the offered securities in and outside the United States (1) through underwriters or dealers, (2) directly to one or
more purchasers, including through a “registered direct” offering, including to a limited number of institutional purchasers,
to a single purchaser or to our affiliates and stockholders, (3) through agents or (4) through a combination of any of these
methods or otherwise.
If
underwriters or dealers are used in the sale, the securities will be acquired by the underwriters or dealers for their own account and
may be resold from time to time in one or more transactions, including:
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in
one or more transactions at a fixed price or prices, which may be changed from time to time; |
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in
“at-the-market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or
into an existing trading market, on an exchange or otherwise; |
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through
a market maker or into an existing trading market on an exchange or otherwise; |
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at
prices related to those prevailing market prices; or |
The
applicable prospectus supplement will set forth the following information to the extent applicable:
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the
terms of the offering; |
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• |
the
names of any underwriters, dealers or agents or other purchasers; |
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the
name or names of any managing underwriter or underwriters; |
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the
purchase price of the securities or other purchasers; |
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the
net proceeds from the sale of the securities; |
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any
option to purchase additional shares or other options under which underwriters, dealers, agents or other purchasers may purchase
additional securities from us; |
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any
delayed delivery arrangements; |
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any
underwriting discounts, commissions and other items constituting underwriters’ compensation; |
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any
initial public offering price; |
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any
discounts or concessions allowed or reallowed or paid to dealers; and |
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any
commissions paid to agents. |
Sale through Underwriters or
Dealers
If
any securities are offered through underwriters, the underwriters will acquire the securities for their own account and may resell them
from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. Underwriters may offer and sell securities to the public either through underwriting syndicates represented
by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise provided in the applicable
prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all of the offered securities if they purchase any of them. In connection with the sale of
securities, underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and
dealers may receive compensation from the underwriters in the form of discounts or concessions.
The underwriters
may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
In
order to facilitate the offering of securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect
the price of the securities. Specifically, the underwriters may overallot in connection with the offering, creating a short position
in the securities for their account. In addition, to cover overallotments or to stabilize the price of the shares, the underwriters may
bid for, and purchase, shares in the open market. Finally, an underwriting syndicate may reclaim selling concessions allowed to an underwriter
or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed shares in transactions
to cover syndicate short positions, in stabilization transactions, or otherwise. Any of these activities may stabilize or maintain the
market price of the offered securities above independent market levels. The underwriters are not required to engage in these activities,
and may discontinue any of these activities at any time.
Some
or all of the securities that we offer through this prospectus may be new issues of securities with no established trading market. Any
underwriters to whom we sell securities for public offering and sale may make a market in those securities, but they will not be obligated
to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of,
or continued trading markets for, any securities offered pursuant to this prospectus.
If
any securities are offered through dealers, we will sell the securities to them as principal. They may then resell those securities to
the public at varying prices determined by the dealers at the time of resale.
Direct Sales and Sales through
Agents
We
may sell the securities directly to purchasers, including through one or more “registered direct” offerings. If the securities
are sold directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act
with respect to any sale of those securities, we will describe the terms of any such sales in the applicable prospectus supplement. We
may also sell the securities through agents designated from time to time. Sales may be made by means of ordinary brokers’ transactions
on The Nasdaq Capital Market at market prices, in block transactions and such other transactions as agreed by us and any agent. In the
applicable prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe
any commissions payable to the agent. Unless otherwise provided in the applicable prospectus supplement, any agent will agree to use
its reasonable best efforts to solicit purchases for the period of its appointment.
At-the-Market Offerings
To
the extent that we make sales through one or more underwriters or agents in at-the-market offerings, we will do so pursuant
to the terms of a sales agency financing agreement or other at-the-market offering arrangement between us, on one hand, and
the underwriters or agents, on the other. If we engage in at-the-market sales pursuant to any such agreement, we will issue
and sell our securities through one or more underwriters or agents, which may act on an agency basis or a principal basis. During the
term of any such agreement, we may sell securities on a daily basis in exchange transactions or otherwise as we agree with the underwriters
or agents. Any such agreement will provide that any securities sold will be sold at prices related to the then prevailing market prices
for our securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at
this time. Pursuant to the terms of the agreement, we may agree to sell, and the relevant underwriters or agents may agree to solicit
offers to purchase blocks of our common stock or other securities. The terms of any such agreement will be set forth in more detail in
the applicable prospectus supplement.
Remarketing Arrangements
Offered
securities may also be offered and sold, if we so indicate in the applicable prospectus supplement, in connection with a remarketing
upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms,
acting as principals for their own accounts or as our agents. Any remarketing firm will be identified and the terms of its agreements,
if any, with us and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be
underwriters of the offered securities under the Securities Act.
Delayed Delivery Contracts
If
we so indicate in the applicable prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers by certain
institutions to purchase securities from us pursuant to contracts providing for payment and delivery on a specified future date. The
applicable prospectus supplement will describe the conditions to those contracts and the commission payable for solicitation of those
contracts.
General Information
We
may have agreements with the agents, dealers, underwriters and remarketing firms to indemnify them against certain civil liabilities,
including liabilities under the Securities Act, or to contribute with respect to payments that the agents, dealers or underwriters may
be required to make. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with or perform
services for us in the ordinary course of their businesses.
LEGAL MATTERS
The
validity and enforceability of the securities offered hereby as to Nevada law will be passed upon for us by Stradling Yocca Carlson &
Rauth, PC. The enforceability of the securities offered hereby as to New York law will be passed upon for us by Freshfields Bruckhaus
Deringer US LLP. Any underwriters or agents will be advised about other issues relating to the offering by counsel to be named in the
applicable prospectus supplement.
EXPERTS
The consolidated financial
statements of Expion360, Inc. as of December 31, 2022 and 2021, and for each of the two years in the period ended December 31, 2022,
incorporated by reference in this Prospectus, have been audited by M&K CPAS, PLLC, 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 accounting and auditing.
EXPION360 INC.
474,193 Shares of Common Stock
Pre-Funded Warrants to Purchase Up to 574,193
Shares of Common Stock
Up to 574,193 Shares of Common Stock Issuable
Upon Exercise of the Pre-Funded Warrants
PROSPECTUS SUPPLEMENT
January 3, 2025
Expion360 (NASDAQ:XPON)
Gráfica de Acción Histórica
De Dic 2024 a Ene 2025
Expion360 (NASDAQ:XPON)
Gráfica de Acción Histórica
De Ene 2024 a Ene 2025
