As
filed with the Securities and Exchange Commission on January 24, 2024
Registration
No. 333-275137
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT NO. 3
TO
FORM
S-1
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
SINTX
Technologies, Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
3841 |
|
84-1375299 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(I.R.S.
Employer
Identification
Number) |
1885
West 2100 South
Salt
Lake City, UT, 84119
(801)
839-3500
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
B.
Sonny Bal, MD
President
and Chief Executive Officer
SINTX
Technologies, Inc.
1885
West 2100 South
Salt
Lake City, UT, 84119
(801)
839-3500
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies
to:
David
F. Marx
Daniel
P. Lyman
Dorsey
& Whitney LLP
111
South Main Street, Suite 2100
Salt
Lake City, Utah 84111 |
|
Barry
I. Grossman
Sarah
E. Williams
Matthew
Bernstein
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas, 11th Floor
New
York, NY 10105 |
Approximate
date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
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Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
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Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Act or until the registration statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS, SUBJECT TO COMPLETION, DATED JANUARY 24, 2024
SINTX
TECHNOLOGIES, INC.
Up to 16,778,523 Units, Each Unit Consisting
of One Share of Common Stock or One Pre-Funded Warrant, One Class E Warrant to Purchase One Share of Common Stock, and one
Class F Warrant to Purchase One Share of Common Stock
671,141 Placement Agent Warrants
to Purchase an Aggregate of Up To 671,141 Shares of Common Stock
Up to 51,006,710 Shares of Common Stock
Issuable upon the Exercise of the Pre-Funded Warrants, Class E Warrants, Class F Warrants, and Placement Agent Warrants
We
are offering on a best-efforts basis up to 16,778,523 units (the “Units”), each consisting of one share of common
stock, one Class E Warrant to purchase one share of common stock (the “Class E Warrants”), and one Class F Warrant
to purchase one share of common stock (the “Class F Warrants” and together with the Class E Warrants, the “Warrants”),
at an assumed public offering price of $0.298 per Unit, equal to the closing price of our common stock on the Nasdaq Capital
Market, or Nasdaq, on January 19, 2024.
Each
Class E Warrant will be immediately exercisable for one share of common stock at an exercise price of $
per share (not less than 100% and not more than 120% of the public offering price of each Unit sold in this offering) and expire five
years after the issuance date. Each Class F Warrant will be immediately exercisable for one share of common stock at an exercise price
of $ per share (not less than 100% and not more than 120% of the public offering price of each Unit
sold in this offering) and expire eighteen months after the issuance date.
We
are also offering to each purchaser of Units that would otherwise result in the purchaser’s beneficial ownership exceeding 4.99%
of our outstanding shares of common stock immediately following the consummation of this offering the opportunity to purchase Units consisting
of one pre-funded warrant (in lieu of one share of common stock), one Class E Warrant, and one Class F Warrant. A holder
of pre-funded warrants will not have the right to exercise any portion of its pre-funded warrants if the holder, together with its affiliates,
would beneficially own in excess of 4.99% (or, at the election of the holder, such limit may be increased to up to 9.99%) of the number
of shares of common stock outstanding immediately after giving effect to such exercise. Each pre-funded warrant will be exercisable for
one share of common stock. The purchase price of each Unit including a pre-funded warrant will be equal to the price per Unit including
one share of common stock, minus $0.0001, and the remaining exercise price of each pre-funded warrant will equal $0.0001 per share. The
pre-funded warrants will be immediately exercisable (subject to the beneficial ownership cap) and may be exercised at any time until
all of the pre-funded warrants are exercised in full. For each Unit including a pre-funded warrant we sell (without regard to any limitation
on exercise set forth therein), the number of Units including a share of common stock we are offering will be decreased on a one-for-one
basis. The shares of common stock and pre-funded warrants, if any, can each be purchased in this offering only with the accompanying Warrants as part of a Unit, but the components of the Units will immediately separate upon issuance. See “Description of
Securities” in this prospectus for more information.
We
are also registering the shares of common stock issuable from time to time upon the exercise of the Warrants and pre-funded warrants
included in the Units offered hereby. We are also registering the shares of common stock issuable from time to time upon the exercise
of the placement agent’s warrants.
Our
common stock is listed on the Nasdaq Capital Market, or Nasdaq, under the symbol “SINT.” On January 23, 2024,
the last reported sale price of our common stock was $0.3125 per share. There is no established public trading market for the
Warrants or the pre-funded warrants. We do not intend to apply for listing of the Warrants or pre-funded warrants on any securities exchange
or recognized trading system. Without an active trading market, the liquidity of the Warrants and
pre-funded warrants will be limited.
The
public offering price for the Units in this offering will be determined at the time of pricing, and may be at a discount to the then
current market price. Therefore, the assumed combined public offering price used throughout this prospectus may not be indicative of
the final offering price. The final public offering price will be determined through negotiation between us and the investors based upon
a number of factors, including our history and our prospects, the industry in which we operate, our past and present operating results,
the previous experience of our executive officers and the general condition of the securities markets at the time of this offering.
The
Units will be offered at a fixed price and are expected to be issued in a single closing. We expect this offering to be completed not
later than two business days following the commencement of this offering and we will deliver all securities to be issued in connection
with this offering delivery versus payment/receipt versus payment upon receipt of investor funds received by us. Accordingly, neither
we nor the placement agent have made any arrangements to place investor funds in an escrow account or trust account since the placement
agent will not receive investor funds in connection with the sale of the securities offered hereunder.
We
have engaged Maxim Group LLC as our exclusive placement agent (“Maxim” or the “placement agent”) to use its reasonable
best efforts to solicit offers to purchase our securities in this offering. The placement agent is not purchasing or selling any of the
securities we are offering and is not required to arrange for the purchase or sale of any specific number or dollar amount of the securities.
Because there is no minimum offering amount required as a condition to closing in this offering the actual public offering amount, placement
agent’s fee, and proceeds to us, if any, are not presently determinable and may be substantially less than the total maximum offering
amounts set forth above and throughout this prospectus. We have agreed to pay the placement agent the placement agent fees set forth
in the table below. See “Plan of Distribution” in this prospectus for more information.
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Per
Unit |
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Total(2) |
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Public
Offering Price |
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$ |
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$ |
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Placement
Agent fees(1) |
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$ |
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$ |
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Proceeds,
before expenses, to us |
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$ |
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$ |
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(1) |
In
connection with this Offering, we have agreed to pay to Maxim as placement agent a cash fee equal to 7% of the gross proceeds received
by us in the Offering. We have also agreed to provide Maxim for all expenses related to the Offering including up to $100,000 for
reimbursement of legal expenses in connection with its engagement as placement agent and to grant Maxim warrants to purchase a number
of shares of common stock equal to 4% of the total number of Units being sold in the Offering. We have also agreed that a portion
of this compensation may be paid to Ascendiant Capital Markets, LLC. See “Plan of Distribution.” |
(2) |
Assumes
no pre-funded warrants are issued and all Units issued in the offering include common stock. |
The
above summary of offering proceeds to us does not give effect to any exercise of the Warrants being issued in this offering.
Investing
in our securities involves a high degree of risk. See the section entitled “Risk Factors” beginning on page 7 of the
prospectus. You should carefully consider these risk factors, as well as the information contained in this prospectus, before you invest.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Maxim
Group LLC
The
date of this prospectus is , 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
The
registration statement of which this prospectus forms a part that we have filed with the Securities and Exchange Commission, or SEC,
includes exhibits that provide more detail of the matters discussed in this prospectus. You should read this prospectus and the related
exhibits filed with the SEC before making your investment decision.
You
should rely only on the information provided in this prospectus or in a prospectus supplement or any free writing prospectuses or amendments
thereto. Neither we nor the placement agent have authorized anyone else to provide you with different information. We do not, and the
placement agent and its affiliates do not, take any responsibility for, and can provide no assurance as to the reliability of, any information
that others may provide to you. If anyone provides you with different or inconsistent information, you should not rely on it. You should
assume that the information in this prospectus is accurate only as of the date hereof, regardless of the time of delivery of this prospectus
or any sale of securities. Our business, financial condition, results of operations and prospects may have changed since that date.
We
are not, and the placement agent is not, offering to sell or seeking offers to purchase these securities in any jurisdiction where the
offer or sale is not permitted. We and the placement agent have not done anything that would permit this offering or possession or distribution
of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. 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 the securities as to distribution of the prospectus outside of the United States.
Unless
the context otherwise requires, references in this prospectus to “SINTX,” “the Company,” “we,” “us”
and “our” refer to SINTX Technologies, Inc. and our subsidiaries. Solely for convenience, trademarks and tradenames referred
to in this prospectus may appear without the ® or ™ symbols, but such references are not intended to indicate in any way that
we will not assert, to the fullest extent under applicable law, our rights, or that the applicable owner will not assert its rights,
to these trademarks and tradenames.
PROSPECTUS
SUMMARY
This
summary contains basic information about us and this offering. Because it is a summary, it does not contain all of the information that
you should consider before investing. Before you decide to invest in our Units, you should read this entire prospectus carefully, including
the section entitled “Risk Factors” and any information incorporated by reference herein.
Company
Overview
We
are an advanced ceramics company formed in December 1996 and are focused on providing solutions in a variety of biomedical,
technical, and antipathogenic applications. We have grown from focusing primarily on the research, development and commercialization
of medical devices manufactured with silicon nitride to becoming an advanced ceramics company engaged in diverse fields, including biomedical,
technical and antipathogenic applications. This diversification enables us to focus on our core competencies, which are the manufacturing,
research, and development of products comprised from advanced ceramic materials for external partners. We seek to connect with new customers,
partners and manufacturers to help them realize the goal of leveraging our expertise in advanced ceramics to create new, innovative products
across these sectors.
SINTX
Core Business
Biomedical
Applications: Since our inception, we have been focused on medical grade silicon nitride. SINTX silicon nitride products are biocompatible,
bioactive, antipathogenic, and have shown superb bone affinity. Spinal implants made from SINTX silicon nitride have been successfully
implanted in humans since 2008 in the US, Europe, Brazil, and Taiwan. This established use, along with its inherent resistance to bacterial
adhesion and bone affinity – means that it may also be suitable in other fusion device applications such as arthroplasty
implants, foot wedges, and dental implants. Bacterial infection of any biomaterial implants is always a concern. SINTX silicon nitride
is inherently resistant to bacterial colonization and biofilm formation, making it antibacterial. SINTX silicon nitride products can
be polished to a smooth and wear-resistant surface for articulating applications, such as bearings for hip and knee replacements.
We
believe that silicon nitride has a superb combination of properties that make it suited for long-term human implantation. Other biomaterials
are based on bone grafts, metal alloys, and polymers- all of which have well-known practical limitations and disadvantages. In contrast,
silicon nitride has a legacy of success in the most demanding and extreme industrial environments. As a human implant material, silicon
nitride offers bone ingrowth, resistance to bacterial and viral infection, ease of diagnostic imaging, resistance to corrosion, and superior
strength and fracture resistance, among other advantages, all of which claims are validated in our large and growing inventory of peer-reviewed,
published literature reports. We believe that our versatile silicon nitride manufacturing expertise positions us favorably to introduce
new and innovative devices in the medical and non-medical fields.
In
June 2022, we acquired TA&T, a nearly 40-year-old business with a mission to transition advanced materials and process technologies
from a laboratory environment to commercial products and services. TA&T has supplied ceramics for use in several biomedical applications.
These products were made via 3D printing and include components for surgical instruments as well as conceptual and prototype dental implants.
Technical
Applications: It is our belief that our silicon nitride has the best combination of mechanical,
thermal, and electrical properties of any technical ceramic material. It is a high-performance technical ceramic with high strength,
toughness, and hardness, and is extremely resistant to thermal shock and impact. It is also an electrically insulating ceramic material.
Typically, it is used in applications where high load-bearing capacity, thermal stability, and wear resistance are required. Our AS9100D
certification and ITAR registration have facilitated entry into the aerospace portion of this market.
We
entered the ceramic armor market through the purchase of assets from B4C, LLC and a technology partnership with Precision Ceramics USA.
We intend to develop and manufacture high-performance ceramics for personnel, aircraft, and vehicle armor including a 100% Boron Carbide
material for ultimate lightweight performance in ballistic applications, and a composite material made of Boron Carbide and Silicon Carbide
for exceptional multi-hit performance against ballistic threats. We have signed a 10-year lease for a building near our headquarters
in Salt Lake City, UT that houses development and manufacturing activities for SINTX Armor.
TA&T’s
primary area of expertise is material processing and fabrication know-how for a broad spectrum of monolithic ceramic, ceramic composite,
and coating materials. Primary technologies include Additive Manufacturing (3D Printing) of ceramics and metals, low-cost fabrication
of fiber reinforced ceramic matrix composites (CMCs) and refractory chemical vapor deposited (CVD) coatings, transparent ceramics for
ballistic armor and optical applications, and magnetron sputtered (PVD) coatings for lubrication, wear resistance and environmental barrier
coatings for CMCs. TA&T also provides a host of services that include 3D printing, PVD-CVD coatings, material processing-CMCs, CIP,
PS, HP, HIP, and material characterization for powders and finished parts-TGA/DSC, PSD. SA, Dilatometry, UV-VIS and FTIR transmission,
haze and clarity.
Antipathogenic
Applications: Today, there is a global need to improve protection against pathogens in everyday life. SINTX believes that by incorporating
its unique composition of silicon nitride antipathogenic powder into products such as face masks, filters, and wound care devices, it
is possible to manufacture surfaces that inactivate pathogens, thereby limiting the spread of infection and disease. The discovery in
2020 that SINTX silicon nitride inactivates SARS-CoV-2, the virus which causes the disease COVID-19, has opened new markets and applications
for our material.
We
presently manufacture advanced ceramic powders and components in our manufacturing facilities based in Salt Lake City, Utah.
Our
Strategy
Our
goal is to become a leading advanced ceramics company. Key elements of our strategy to achieve this goal are the following:
● |
Develop
new products with anti-pathogenic properties, including inactivation of the SARS-CoV-2 virus, utilizing our silicon nitride technology.
We have conducted multiple tests for over 10 years which have identified and verified the antipathogenic properties of our silicon
nitride powders, fully dense components, and silicon nitride-containing composites. Our research has explored the fundamental mechanisms
responsible for these antipathogenic properties with the objective of developing commercial products and revenue from them. We have
several partnerships exploring opportunities in face masks, filters, wound care, and coatings. |
|
|
● |
Develop
additional commercial opportunities outside of the medical device market. We have pursued the development of non-medical uses
for our silicon nitride since selling the retail spine business in 2018. In 2019, we became ITAR-registered and obtained AS9100D
certification of our quality management system. We have hired experienced business development employees to identify new markets
and applications for our materials and develop commercial relationships. We made the first shipments of non-medical products in our
history in 2020, and several of these have transitioned from prototype to regular production orders. We expect the launch of SINTX
Armor may generate revenue from new products. The acquisition of TA&T brings revenue from multiple markets that we have previously
not participated in. |
|
|
● |
Develop
new silicon nitride manufacturing technologies. Our current manufacturing process has allowed us to successfully produce spinal
implants for over 10 years. Over 40,000 of our spinal implants manufactured with silicon nitride have been implanted into patients,
with an excellent safety record. We have made advancements in our processes – including the purchase of new manufacturing
equipment – which we have leveraged to develop new porous and textured implants. In 2021, SINTX purchased new equipment for
its research and development team to develop new composite products of silicon nitride with rigid polymers and fabrics. We have received
three NIH grants over the last fifteen months in order to develop 3D printed silicon nitride / polymer implantable medical devices. |
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● |
Apply
our silicon nitride technology platform to new medical opportunities. We believe our biomaterial expertise, flexible manufacturing
process, and strong intellectual property will allow us to transition currently available medical device products made of inferior
biomaterials and manufacture them using silicon nitride and our technology platform to improve their characteristics. We are seeking
partnerships to utilize our capabilities and manufacture products for medical OEM and private label partnerships. We see specific
opportunities in markets such as foot and ankle, dental, maxillofacial, and arthroplasty. |
Intellectual
Property
We
rely on a combination of patents, trademarks, trade secrets, nondisclosure agreements, proprietary information ownership agreements and
other intellectual property measures to protect our intellectual property rights. We believe that to have a competitive advantage, we
must continue to develop and maintain the proprietary aspects of our technologies.
We
have fifteen issued U.S. patents, fifteen foreign patents, eighteen pending U.S. non-provisional patent applications, one
hundred twenty-three pending foreign applications and one pending PCT patent application. Our first issued patent expired in 2016,
with the last of these patents expiring in 2039.
We
have three U.S. patents directed to articulating implants using our high-strength, high toughness doped silicon nitride solid ceramic.
These issued patents, which include US 7,666,229; US 9,051,639; and US 9,517,136 will expire in November 2023, September 2032, and March
2034, respectively.
We
also have one U.S. patent related to our CSC technology that are directed to implants that have both a dense load-bearing, or cortical,
component and a porous, or cancellous, component, together with a surface coating. The issued patent US 9,649,197 will expire in July
2035.
In
addition, U.S. Patent No. 10,806,831 directed to antibacterial implants and U.S. Patent No. 11,191,787 directed to antipathogenic devices
were recently issued which will expire in 2037 and 2039, respectively.
With
respect to PCT patent application serial no. PCT/US2018/014781 directed to antibacterial biomedical implants, we entered the national
stage in Europe, Australia, Brazil, Canada, China, Japan, Hong Kong, and South Korea as well as one divisional patent application filed
in Europe and two divisional applications filed in Japan to seek potential patent protection for our proprietary technologies in those
countries.
With
respect to PCT patent application serial no. PCT/US2019/026789 directed to methods for improving the wear performance of ceramic-polyethylene
or ceramic-ceramic articulation couples utilized in orthopaedic joint prostheses, we entered the national stage in Australia, Brazil,
Canada, Europe, Japan, Korea, and Mexico to seek patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2019/048072 directed to antipathogenic devices and methods, we entered the national stage
in Europe, Japan, Mexico, Australia, Brazil, Canada, South Korea, China, and India to seek patent protection for our proprietary technologies
in those countries.
With
respect to PCT application serial no. PCT/US2020/037170 directed to methods of surface functionalization of zirconia-toughened alumina
with silicon nitride, we entered the national stage in Europe, Australia, Brazil, Canada, China, India, Japan, and Mexico to seek patent
protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/014725 directed to antifungal composites and methods thereof, we entered the national
stage in Europe, Brazil, Japan, Australia, Canada, China, India, Mexico, and South Korea to seek patent protection for our proprietary
technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/027258 directed to antipathogenic face mask, we entered the national stage in Australia,
Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection for our proprietary technologies in those
countries.
With
respect to PCT application serial no. PCT/US2021/027263 directed to systems and methods for rapid inactivation of SARS-CoV2 by silicon
nitride, copper, and aluminum nitride, we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South
Korea, and Mexico to seek patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/038364 directed to antipathogenic devices and methods thereof for antifungal applications,
we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection
for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/028975 directed to methods for laser coating of silicon nitride on a metal substrate,
we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection
for our proprietary technologies in those countries.
With
respect to PCT application serial no PCT/US2021/028641 directed to methods of silicon nitride laser cladding, we entered the national
stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection for our proprietary
technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/027270 directed to antiviral compositions and devices and methods of use thereof, we
entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek patent protection
for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/056461 directed to systems and methods for selective laser sintering of silicon nitride
and metal composites, we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico
to seek patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/056452 directed to systems and methods for hot-isostatic pressing to increase nitrogen
content in silicon nitride, we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and
Mexico to seek patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2021/062650 directed to nitride based antipathogenic compositions and devices and method
of use therof, we entered the national stage in Australia, Brazil, Canada, China, Europe, India, Japan, South Korea, and Mexico to seek
patent protection for our proprietary technologies in those countries.
With
respect to PCT application serial no. PCT/US2022/023868 directed to systems and methods for physical vapor deposition silicon nitride
coatings having antimicrobial and osteogenic enhancements, we entered the national stage in Australia, Brazil, Canada, China, Europe,
India, Japan, South Korea, and Mexico to seek patent protection for our proprietary technologies in those countries.
In
relation to the sale of our spine implant business to CTL Medical under the Asset Purchase Agreement dated September 5, 2018, we assigned
our entire right to forty-eight (48) U.S. patents, two (2) foreign patents and three (3) pending patent applications from our patent
portfolio to CTL Medical under that transaction. In addition, three (3) U.S. patents (U.S. patent nos. 9,399,309; 9,517,136; and 9,649,197)
directed to silicon nitride manufacturing processes were licensed to CTL Medical under an irrevocable, fully paid-up, worldwide license
for a ten-year term with CTL Medical also having a Right of First Negotiation to acquire these patents if SINTX decides to later sell
these IP assets to a third party.
Our
remaining issued patents and pending applications are directed to additional aspects of our products and technologies including, among
other things:
● |
designs
for intervertebral fusion devices; |
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● |
designs
for hip implants; |
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● |
designs
for knee implants; |
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|
● |
implants
with improved antibacterial characteristics; |
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|
● |
implants
with improved wear performance and surface functionalization |
|
|
● |
antipathogenic,
antibacterial, antimicrobial, antifungal, and antiviral compositions, devices, and methods; and |
|
|
● |
methods
and systems for hot-isostatic pressing laser cladding, laser coating, and laser sintering of silicon nitride. |
We
also expect to rely on trade secrets, know-how, continuing technological innovation and in-licensing opportunities to develop and maintain
our intellectual property position. However, trade secrets are difficult to protect. We seek to protect the trade secrets in our proprietary
technology and processes, in part, by entering into confidentiality agreements with commercial partners, collaborators, employees, consultants,
scientific advisors and other contractors and into invention assignment agreements with our employees and some of our commercial partners
and consultants. These agreements are designed to protect our proprietary information and, in the case of the invention assignment agreements,
to grant us ownership of the technologies that are developed.
Recent
Developments
Amendment
to Equity Distribution Agreement
On
October 12, 2023, we entered into an amendment to our Equity Distribution Agreement (the “Distribution Agreement”) with Maxim,
pursuant to which (1) the expiration date of the Distribution Agreement was extended to the earlier of: (i) the sale of shares having
an aggregate offering price of $15,000,000, (ii) the termination by either us or Maxim upon the provision of fifteen (15) days written
notice, or (iii) February 25, 2025 and (2) updates were made to references to the Company’s registration statement on Form S-3
filed on October 12, 2023. No other changes were made to the terms of the Distribution Agreement.
Equipment
Failure
On
October 6, 2023, a furnace used for our SINTX Armor manufacturing operations overheated and is no longer functional. We are continuing
to evaluate the extent of the damage to the furnace. In addition, we are coordinating with our insurance carrier and have filed a claim
to cover the cost of either repairing or replacing the furnace, which is estimated to be approximately $1 million. Further, we are working
with third parties to temporarily outsource the process performed by the non-functional furnace, and do not expect a significant decrease
in long-term production capacity. No assurance can be given that our insurance carrier will cover the cost of repairing or replacing
the furnace or that we will be successful in temporarily outsourcing the process. Failure to obtain insurance proceeds to cover the claim
or to outsource the process could have an adverse effect on the operations of our SINTX Armor business and our results of operations.
Preliminary
Fourth Quarter and Full Year 2023 Revenue
Preliminary
unaudited estimated revenue was approximately $902,000 in Q4 2023 and $2.6 million for the year ended December 31, 2023. This represents
a 18% increase in revenue over Q4 2022, and a 68% increase in revenue over the year ended December 31, 2022. We exceeded the annual revenue
of any prior year since selling the spine business in 2018, when we restructured to expand into the defense, aerospace, and industrial
markets for advanced ceramic materials.
Commercial
revenues of $583,000 in Q4 2023 and $1.2 million for the full year ended December 31, 2023 were achieved primarily by selling products
in the biomedical, aerospace, and energy markets. Government contracts within these markets made up $319,000 in Q4 and $1.4 million for
the full year. Customer adoption of new product offerings led to commercial revenue exceeding government contracts in Q4, for the first
time since acquisition of the Maryland site. Our sites in both Utah and Maryland both contributed to the full year revenue result.
Corporate
Information
Our
headquarters is located at 1885 West 2100 South, Salt Lake City, Utah 84119, and our telephone number is (801) 839-3500. We maintain
a website at https://www.sintx.com. Information on the website is not incorporated by reference and is not a part of this prospectus.
Summary
of the Offering
Securities
to be Offered |
|
Up
to 16,778,523 Units on a best-efforts basis, at an assumed public offering price of
$0.298 per Unit. Each Unit consists of one share of common stock, one Class E Warrant,
and one Class F Warrant.
We
are also offering to each purchaser, with respect to the purchase of Units that would otherwise result in the purchaser’s beneficial
ownership exceeding 4.99% of our outstanding shares of common stock immediately following the consummation of this offering, the
opportunity to purchase one pre-funded warrant in lieu of one share of common stock. A holder of pre-funded warrants will not have
the right to exercise any portion of its pre-funded warrant if the holder, together with its affiliates, would beneficially own in
excess of 4.99% (or, at the election of the holder, such limit may be increased to up to 9.99%) of the number of shares of common
stock outstanding immediately after giving effect to such exercise. Each pre-funded warrant will be exercisable for one share of
common stock. The purchase price per pre-funded warrant will be equal to the price per share of common stock, minus $0.0001, and
the exercise price of each pre-funded warrant will equal $0.0001 per share. The pre-funded warrants will be immediately exercisable
(subject to the beneficial ownership cap) and may be exercised at any time in perpetuity until all of the pre-funded warrants are
exercised in full. For more information regarding the pre-funded warrants, you should carefully read the section titled “Description
of Securities Included in this Offering” in this prospectus.
The
Units will not be certificated or issued in stand-alone form. The shares of common stock and pre-funded warrants, if any, can each
be purchased in this offering only with the accompanying Warrants as part of a Unit, but the components of the Units will
immediately separate upon issuance. We are also registering the shares of common stock issuable from time to time upon exercise of
the Warrants and pre-funded warrants included in the Units offered hereby. |
|
|
|
Size
of Offering |
|
Up
to $5,000,000 |
|
|
|
Subscription
Price Per Unit |
|
$0.298
(or $0.2979 per Unit including one pre-funded
warrant in lieu of one share of common stock) |
|
|
|
Description
of the Class E Warrants |
|
Each
Class E Warrant will have an exercise price of $ per share (not less than 100% and not
more than 120% of the public offering price of each Unit sold in this offering), will be exercisable upon issuance and will expire
five years from issuance. Each Class E Warrant is exercisable for one share of common stock, subject to adjustment in the
event of stock dividends, stock splits, stock combinations, reclassifications, reorganizations or similar events affecting our shares
of common stock as described herein. The terms of the Class E Warrants will be governed by a Warrant Agency Agreement, dated as of
the closing date of this offering, that we expect to be entered into between us and Equiniti Trust Company, LLC or its affiliate
(the “Warrant Agent”). This prospectus also relates to the offering of the shares of common stock issuable upon exercise
of the Class E Warrants. For more information regarding the Class E Warrants, you should carefully read the section titled “Description
of Securities Included in this Offering” in this prospectus. |
Description of the Class F Warrants |
|
Each Class F Warrant will have an exercise price of
$ per share (not less than 100% and not more than 120% of the public offering price of
each Unit sold in this offering), will be exercisable upon issuance and will expire eighteen months from issuance. Each Class F Warrant
is exercisable for one share of common stock, subject to adjustment in the event of stock dividends, stock splits, stock combinations,
reclassifications, reorganizations or similar events affecting our shares of common stock as described herein. The terms of the Class
F Warrants will be governed by a Warrant Agency Agreement, dated as of the closing date of this offering, that we expect to be entered
into between us and the Warrant Agent. This prospectus also relates to the offering of the shares of common stock issuable upon exercise
of the Class F Warrants. For more information regarding the Class F Warrants, you should carefully read the section titled “Description
of Securities Included in this Offering” in this prospectus. |
Placement Agent Warrants |
|
We have agreed to issue to the placement agent warrants to purchase a number of shares of common stock equal to 4% of the total number of securities being sold in the Offering. The placement agent’s warrants will be exercisable at any time, and from time to time, in whole or in part, during the four and one-half year period commencing 180 days from the effective date of the registration statement of which this prospectus forms a part. The placement agent’s warrants will be exercisable at a price per share equal to 110.0% of the exercise price of the Warrants. We are also registering the shares of common stock issuable upon the exercise of the placement agent warrants. |
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|
|
Common Stock Outstanding Prior to This Offering |
|
5,320,672 shares |
|
|
|
Common Stock Outstanding after This Offering |
|
Up to approximately 22,099,195 shares (assuming no issuance
of pre-funded warrants and no exercise of Warrants or placement agent’s warrants issued in connection with this offering),
or 56,327,382 shares if the Warrants and placement agent’s warrants are exercised in full. |
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|
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Use of Proceeds |
|
Assuming the maximum number of Units are sold in this offering at an
assumed public offering price of $0.298 per Unit, which represents the closing price of our common stock on Nasdaq on January
19, 2024, and assuming no issuance of pre-funded warrants and no exercise of the Warrants issued in connection with this
offering, we estimate the net proceeds of the Offering will be approximately $4.35 million. However, this is a best efforts offering
with no minimum number of securities or amount of proceeds as a condition to closing, and we may not sell all or any of these securities
offered pursuant to this prospectus; as a result, we may receive significantly less in net proceeds. We intend to use the net proceeds
from this offering for general corporate purposes, which may include research and development expenses, capital expenditures, working
capital and general and administrative expenses, and potential acquisitions of or investments in businesses, products and technologies
that complement our business, although we have no present commitments or agreements to make any such acquisitions or investments
as of the date of this prospectus. We expect to use any proceeds we receive from the exercise of Warrants for substantially the same
purposes and in substantially the same manner. Pending these uses, we intend to invest the funds in short-term, investment grade,
interest-bearing securities. It is possible that, pending their use, we may invest the net proceeds in a way that does not yield
a favorable, or any, return for us. See “Use of Proceeds.” Our management will
have broad discretion in the application of the net proceeds, and investors will be relying on our judgment regarding the application
of the net proceeds from this offering. See “Risk Factors” for a discussion of certain risks that may affect our intended
use of the net proceeds from this offering. |
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Market for Common Stock |
|
Our common stock is listed on Nasdaq under the symbol “SINT.” |
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Market for Pre-Funded Warrants and Warrants |
|
There is no established public trading market for the pre-funded warrants or Warrants, and we do not expect a market to develop. In addition, we do not intend to apply for listing of the pre-funded warrants or Warrants on any securities exchange or recognized trading system. Without an active trading market, the liquidity of the pre-funded warrants and Warrants will be limited. |
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|
|
Risk Factors |
|
An investment in our securities is highly speculative and involves a significant degree of risk. See “Risk Factors” and other information included in this prospectus for a discussion of factors you should carefully consider before deciding to invest in our securities. |
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|
|
Best Efforts Offering |
|
We have agreed to offer and sell the securities offered hereby to the purchasers through the placement agent. The placement agent is not required to buy or sell any specific number or dollar amount of the securities offered hereby, but it will use its reasonable best efforts to solicit offers to purchase the securities offered by this prospectus. See “Plan of Distribution” on page 39 of this prospectus. |
The number of shares of common stock to be outstanding
after this offering is based on 5,320,672 shares of common stock outstanding as of December 31, 2023 and excludes:
● |
27,515 shares of common
stock issuable upon the exercise of outstanding options and restricted stock units granted as of December 31, 2023 under our
equity incentive plans at a weighted average exercise price of $113.54 per share; |
● |
1,244,754 shares of common stock issuable upon the exercise of outstanding
warrants issued as of December 31, 2023; |
● |
80,473 shares of our common
stock issuable upon the conversion of 26 shares of series B convertible preferred stock outstanding as of December 31, 2023; |
● |
338 shares of our common stock issuable upon the conversion of 50 shares
of series C convertible preferred stock outstanding as of December 31, 2023; and |
● |
11,919 shares of common stock reserved for issuance upon conversion
of 180 shares of the Series D Preferred Stock outstanding as of December 31, 2023. |
Unless otherwise indicated, the information in this
prospectus, including the number of shares outstanding after this offering, does not reflect (i) any issuance, exercise, vesting, expiration,
or forfeiture of any additional equity awards under our incentive plans that occurred after December 31, 2023 or (ii) the effect
of the “full-ratchet” anti-dilution adjustment of the conversion price of our outstanding Series B Convertible Preferred
Stock and the exercise price of our outstanding October 2022 warrants.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before making an investment decision with respect to our securities, we urge you to
carefully consider the risks described in the “Risk Factors” section herein and in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2022 under the heading “Item 1A. Risk Factors,” and as described or may be described in any
subsequent quarterly report on Form 10-Q under the heading “Item 1A. Risk Factors,” as well as in any applicable prospectus
supplement and contained or to be contained in our filings with the SEC and incorporated by reference in this prospectus, together with
all of the other information contained in this prospectus, or any applicable prospectus supplement. For a description of these reports
and documents, and information about where you can find them, see “Where You Can Find More Information” and “Incorporation
by Reference.” These risk factors relate to our business, intellectual property, regulatory matters, and ownership of our common
stock. In addition, the following risk factors present material risks and uncertainties associated with the Offering. The risks and uncertainties
incorporated by reference into this prospectus or described below are not the only ones we face. Additional risks and uncertainties not
presently known or which we consider immaterial as of the date hereof may also have an adverse effect on our business. If any of the
matters discussed in the following risk factors were to occur, our business, financial condition, results of operations, cash flows or
prospects could be materially adversely affected, the market price of our common stock could decline and you could lose all or part of
your investment in our securities.
Risks
Related to Our Business and Strategy
We
have experienced, and may in the future experience, equipment failures and other manufacturing malfunctions, which have and may in the
future limit the supply of our products or result in adverse effects to our operations.
The
process of manufacturing our products is complex, highly regulated, and subject to several risks. For example, the process of manufacturing
our products is extremely susceptible to product loss due to equipment failure or malfunction, improper installation or operation of
equipment, or vendor or operator error. Even minor deviations from normal manufacturing processes for any of our products could result
in reduced production yields, product defects, and other supply disruptions. In addition, the manufacturing facilities in which our products
are made could be adversely affected by equipment failures, labor shortages, natural disasters, power failures and numerous other factors.
Starting
in October 2023, a furnace used in our SINTX Armor manufacturing process overheated and is currently non-functional. We have filed a
claim with our insurance carrier for the repair or replacement of the furnace, and are currently working with third parties to coordinate
the outsourcing of that portion of the manufacturing process. However, no assurance can be given that our insurance carrier will cover
the cost of repairing or replacing the furnace or that we will be successful in outsourcing the process. Failure to obtain insurance
proceeds to cover the repair of the furnace or to outsource the process could have an adverse effect on the operations of our SINTX Armor
business. Even if the furnace is repaired or replaced, we cannot guarantee that product or operational loss due to other such equipment
failure will not happen in the future.
Any
adverse developments affecting manufacturing operations for our products may result in shipment delays, inventory shortages, product
failures, withdrawals or recalls, or other interruptions in the supply of our products. We also may need to take inventory write-offs
and incur other charges and expenses for product candidates that fail to meet specifications, undertake costly remediation efforts, or
seek costlier manufacturing alternatives.
We
may be required to incur financial statement charges, such as asset or goodwill impairment charges, which may, in turn, have a further
adverse effect on our results of operations and financial condition.
If
our business, results of operations or financial condition are adversely affected by one or more circumstances, such as the failure to
repair or replace our furnace as described above, or from other risk factors described in this prospectus and elsewhere in our public
filings, we then may be required under applicable accounting rules to incur impairment charges associated with reducing the carrying
value on our financial statements of certain assets, such as goodwill, intangible assets or tangible assets. We cannot assure you that
a material impairment charge of our assets, including the furnace or other manufacturing equipment, will not occur in a future period.
Any impairment charge could have a material adverse effect on our financial position and results of operations in the period of recognition.
Risks
Related to This Offering and Ownership of Our Securities
There
is currently a limited market for our securities, and any trading market that exists in our securities may be highly illiquid and may
not reflect the underlying value of our net assets or business prospects.
Although
our common stock is traded on Nasdaq, there is currently a limited market for our common stock and an active market may never develop.
Investors are cautioned not to rely on the possibility that an active trading market may develop.
The
best efforts structure of this offering may have an adverse effect on our business plan.
The
placement agent is offering the securities in this offering on a best efforts basis. The placement agent is not required to purchase
any securities, but will use its best efforts to sell the securities offered. As a “best efforts” offering, there can be
no assurance that the offering contemplated hereby will ultimately be consummated or will result in any proceeds being made available
to us. The success of this offering will impact our ability to use the proceeds to execute our business plan. We may have insufficient
capital to implement our business plan, potentially resulting in greater operating losses unless we are able to raise the required capital
from alternative sources. There is no assurance that alternative capital, if needed, would be available on terms acceptable to us, or
at all.
Future
sales of our common stock may depress our share price.
As
of December 31, 2023, we had 5,320,672 shares of our common stock outstanding. Sales of a number of shares of common stock
in the public market or issuances of additional shares pursuant to the exercise of our outstanding warrants, or the expectation of such
sales or exercises, could cause the market price of our common stock to decline. We may also sell additional shares of common stock or
securities convertible into or exercisable or exchangeable for common stock in subsequent public or private offerings or other transactions,
which may adversely affect the market price of our common stock.
Our
stockholders may experience substantial dilution in the value of their investment if we issue additional shares of our capital stock.
Our
charter allows us to issue up to 250,000,000 shares of our common stock and up to 130,000,000 shares of preferred stock. To raise additional
capital, we may in the future sell additional shares of our common stock or other securities convertible into or exchangeable for our
common stock at prices that are lower than the prices paid by existing stockholders, and investors purchasing shares or other securities
in the future could have rights superior to existing stockholders, which could result in substantial dilution to the interests of existing
stockholders.
Certain
of our outstanding shares of convertible preferred stock and warrants contain full-ratchet anti-dilution protection, which may cause
significant dilution to our stockholders.
We currently have outstanding 26 shares of Series
B convertible preferred stock convertible into an aggregate of 80,473 shares of common stock, and warrants issued in October 2022
that are exercisable for an aggregate of 616,641 shares of common stock. The Series B convertible preferred stock and October 2022 warrants
contain full-ratchet anti-dilution provisions which, subject to limited exceptions, would reduce the conversion price of the Series B
preferred stock (and increase the number of shares issuable under the Series B preferred stock) and reduce the exercise price of the
October 2022 warrants in the event that we in the future issue common stock, or securities convertible into or exercisable to purchase
common stock, at a price per share lower than the conversion price or exercise price then in effect. Depending upon how such provisions
are interpreted, the alternative cashless exercise provision contained in the Class C Warrants and Class D Warrants could potentially
result in a significant reduction in the conversion or exercise price of the Series B convertible preferred stock and October 2022 warrants.
Our outstanding 26 shares of Series B preferred stock are, prior to this offering, convertible into 80,473 shares of common stock
at a conversion price of $0.3554 per share. The October 2022 warrants are exercisable at an exercise price of $0.3554 per
share. These full ratchet anti-dilution provisions will likely be triggered by the issuance of the Units in this offering.
Our
management will have broad discretion over the use of the net proceeds from this offering, you may not agree with how we use the proceeds
and the proceeds may not be invested successfully.
Other
than amounts required to be paid to certain lenders, our management will have broad discretion as to the use of the net proceeds from
this offering and could use them for purposes other than those contemplated at the time of commencement of this offering. Accordingly,
you will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity,
as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that, pending their
use, we may invest the net proceeds in a way that does not yield a favorable, or any, return for us. The failure of our management to
use such funds effectively could have a material adverse effect on our business, financial condition, operating results and cash flows.
Your
interest in our Company may be diluted as a result of this offering.
The shares issuable upon the exercise of the Warrants to be issued pursuant
to the offering will dilute the ownership interest of stockholders not participating in this offering and holders of Warrants who have
not exercised their Warrants.
This
offering may cause the trading price of our common stock to decrease.
The
number of shares of common stock underlying the securities 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 common stock. This decrease may continue after the completion of this
offering. We cannot predict the effect, if any, that the availability of shares for future sale represented by the Warrants issued
in connection with the offering will have on the market price of our common stock from time to time.
Holders
of pre-funded warrants and Warrants will have no rights as a common stockholder until such holders exercise their pre-funded warrants
and Warrants, respectively, and acquire our common stock.
Until holders of pre-funded warrants and Warrants acquire shares of our
common stock upon exercise of the pre-funded warrants and Warrants, as the case may be, holders of pre-funded warrants and Warrants will
have no rights with respect to the shares of our common stock underlying such pre-funded warrants and Warrants. Upon exercise of the pre-funded
warrants and Warrants, the holders thereof will be entitled to exercise the rights of a common stockholder only as to matters for which
the record date occurs after the exercise date.
There
is no public market for the pre-funded warrants or Warrants in this offering.
There
is no established public trading market for the pre-funded warrants or Warrants, and we do not expect a market to develop. In addition,
we do not intend to apply for listing of the pre-funded warrants or Warrants on any securities exchange or recognized trading system.
Without an active trading market, the liquidity of the pre-funded warrants and Warrants will be
limited.
Absence
of a public trading market for the pre-funded warrants or Warrants may limit your ability to resell the pre-funded warrants or Warrants.
There is no established trading market for the pre-funded warrants or Warrants
to be issued pursuant to this offering, and they will not be listed for trading on Nasdaq or any other securities exchange or market,
and the pre-funded warrants or Warrants may not be widely distributed. Purchasers of the pre-funded warrants or Warrants may be unable
to resell the pre-funded warrants or Warrants or sell them only at an unfavorable price for an extended period of time, if at all.
The
market price of our common stock may never exceed the exercise price of the Warrants issued in connection with this offering.
The Warrants being issued in connection with this offering become exercisable
upon issuance and will expire five years from the date of issuance. The market price of our common stock may never exceed the exercise
price of the Warrants prior to their date of expiration. Any Warrants not exercised by their date of expiration will expire worthless
and we will be under no further obligation to the Warrant holder.
Since
the Warrants are executory contracts, they may have no value in a bankruptcy or reorganization proceeding.
In
the event a bankruptcy or reorganization proceeding is commenced by or against us, a bankruptcy court may hold that any unexercised Warrants are executory contracts that are subject to rejection by us with the approval of the bankruptcy court. As a result, holders
of the Warrants may, even if we have sufficient funds, not be entitled to receive any consideration for their Warrants
or may receive an amount less than they would be entitled to if they had exercised their Warrants prior to the commencement of
any such bankruptcy or reorganization proceeding.
The
exclusive jurisdiction, waiver of trial by jury, and choice of law clauses set forth in the form of securities purchase agreement to
be used in this offering may have the effect of limiting a purchaser’s rights to bring legal action against us and could limit
a purchaser’s ability to obtain a favorable judicial forum for disputes with us.
The
form of securities purchase agreement used in this offering requires investors to consent to exclusive jurisdiction to courts located
in New York, New York and provides for a waiver of the right to a trial by jury. Disputes arising under the form of securities purchase
agreement are governed by Delaware and New York law, respectively. These provisions may have the effect of limiting the ability of investors
to bring a legal claim against us due to geographic limitations and/or preference for a trial by jury and may limit an investor’s
ability to bring a claim in a judicial forum that it finds favorable for disputes with us. Alternatively, if a court were to find this
exclusive forum provision inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or proceedings,
we may incur additional costs associated with resolving such matters in other jurisdictions, which could adversely affect our business
and financial condition.
We
could be delisted from Nasdaq, which could seriously harm the liquidity of our stock and our ability to raise capital.
On
October 20, 2023, we received a notice from the
Nasdaq Listing Qualifications Department (the “Staff”) of the Nasdaq Stock Market LLC (“Nasdaq”) stating that
the bid price of our common stock for the last 30 consecutive trading days had closed below the minimum $1.00 per share required
for continued listing under Listing Rule 5550(a)(2). We initially have a period of 180 calendar days, or until April
17, 2024, to regain compliance with such rule. If we do not regain compliance with Rule 5550(a)(2) by April 17, 2024, we may be
afforded a second 180 calendar day period to regain compliance. To qualify, we would be required to meet the continued listing requirement
for market value of publicly held shares and all other initial listing standards for The Nasdaq Capital Market, except for the minimum
bid price requirement. In addition, we would be required to notify Nasdaq of our intent to cure the deficiency during the second compliance
period, which may include, if necessary, implementing a reverse stock split. There can be no assurance that we will be able to regain
compliance with Nasdaq requirements or will otherwise be in compliance with other Nasdaq listing criteria.
If
we cease to be eligible to trade on the Nasdaq Capital Market:
● |
We
may have to pursue trading on a less recognized or accepted market, such as the OTC Bulletin Board or the “pink sheets.” |
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The
trading price of our common stock could suffer, including an increased spread between the “bid” and “asked”
prices quoted by market makers. |
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● |
Shares
of our common stock could be less liquid and marketable, thereby reducing the ability of stockholders to purchase or sell our shares
as quickly and as inexpensively as they have done historically. If our stock is traded as a “penny stock,” transactions
in our stock would be more difficult and cumbersome. |
● |
We
may be unable to access capital on favorable terms or at all, as companies trading on alternative markets may be viewed as less attractive
investments with higher associated risks, such that existing or prospective institutional investors may be less interested in, or
prohibited from, investing in our common stock. This may also cause the market price of our common stock to decline. |
The
price of our common stock is volatile and is likely to continue to fluctuate due to reasons beyond our control.
The
volatility of publicly traded company stocks, including shares of our common stock, often do not correlate to the operating performance
of the companies represented by such stocks or our operating performance. Some of the factors that may cause the market price of our
common stock to fluctuate include:
● |
the
sentiment of retail investors (including as may be expressed on financial trading and other social media sites and online forums); |
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the
direct access by retail investors to broadly available trading platforms; |
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the
amount and status of short interest in our securities; |
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● |
access
to margin debt; |
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● |
trading
in options and other derivatives on our common stock and any related hedging; |
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● |
CTL’s
ability to sell silicon nitride based spinal fusion products and our cost of manufacturing such products for CTL; |
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● |
our
ability to develop, obtain regulatory clearances or approvals for, and market new and enhanced product candidates on a timely basis; |
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● |
our
ability to enter into OEM and private label partnership agreements and the terms of those agreements; |
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● |
our
ability to develop products that are effective in inactivating the SARS-CoV-2 virus; |
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● |
changes
in governmental regulations or in the status of our regulatory approvals, clearances or future applications; |
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our
announcements or our competitors’ announcements regarding new products, product enhancements, significant contracts, number
and productivity of distributors, number of hospitals and surgeons using products, acquisitions or strategic investments; |
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announcements
of technological or medical innovations for the treatment of orthopedic pathology; |
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● |
delays
or other problems with the manufacturing of our products, product candidates and related instrumentation; |
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● |
volume
and timing of orders for our products and our product candidates, if and when commercialized; |
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changes
in the availability of third-party reimbursement in the United States and other countries; |
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● |
quarterly
variations in our or our competitors’ results of operations; |
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● |
changes
in earnings estimates or recommendations by securities analysts, if any, who cover our common stock; |
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● |
failure
to meet estimates or recommendations by securities analysts, if any, who cover our stock; |
● |
changes
in the fair value of our derivative liabilities resulting from changes in the market price of our common stock, which may result
in significant fluctuations in our quarterly and annual operating results; |
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● |
changes
in healthcare policy in the United States and internationally; |
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● |
product
liability claims or other litigation involving us; |
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● |
sales
of a substantial aggregate number of shares of our common stock; |
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● |
sales
of large blocks of our common stock, including sales by our executive officers, directors and significant stockholders; |
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● |
disputes
or other developments with respect to intellectual property rights; |
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● |
changes
in accounting principles; |
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● |
changes
to tax policy; and |
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● |
general
market conditions and other factors, including factors unrelated to our operating performance or the operating performance of our
competitors. |
These
and other external factors may cause the market price and demand for our common stock to fluctuate substantially, which may limit or
prevent our stockholders from readily selling their shares of our common stock and may otherwise negatively affect the liquidity of our
common stock. In addition, in the past, when the market price of a stock has been volatile, holders of that stock have sometimes instituted
securities class action litigation against the company that issued the stock. If our stockholders brought a lawsuit against us, we could
incur substantial costs defending the lawsuit regardless of the merits of the case or the eventual outcome. Such a lawsuit also would
divert the time and attention of our management from running our company.
Securities
analysts may not continue to provide coverage of our common stock or may issue negative reports, which may have a negative impact on
the market price of our common stock.
Since
completing our initial public offering of shares of our common stock in February 2014, a limited number of securities analysts have been
providing research coverage of our common stock. If securities analysts do not continue to cover our common stock, the lack of research
coverage may cause the market price of our common stock to decline. The trading market for our common stock may be affected in part by
the research and reports that industry or financial analysts publish about our business. If one or more of the analysts who elect to
cover us downgrade our stock, our stock price would likely decline rapidly. If one or more of these analysts cease coverage of us, we
could lose visibility in the market, which in turn could cause our stock price to decline. In addition, under the Sarbanes-Oxley Act
of 2002, and a global settlement among the SEC, other regulatory agencies and a number of investment banks, which was reached in 2003,
many investment banking firms are required to contract with independent financial analysts for their stock research. It may be difficult
for a company such as ours, with a smaller market capitalization, to attract independent financial analysts that will cover our common
stock. This could have a negative effect on the market price of our stock.
Anti-takeover
provisions in our organizational documents and Delaware law may discourage or prevent a change in control, even if an acquisition would
be beneficial to our stockholders, which could affect our stock price adversely and prevent attempts by our stockholders to replace or
remove our current management.
Our
restated certificate of incorporation, as amended, (the “Restated Certificate of Incorporation”) and amended and restated
bylaws (the “Restated Bylaws”) contain provisions that could discourage, delay or prevent a merger, acquisition or other
change in control of our company or changes in our board of directors that our stockholders might consider favorable, including transactions
in which you might receive a premium for your shares. These provisions also could limit the price that investors might be willing to
pay in the future for shares of our common stock, thereby depressing the market price of our common stock. Stockholders who wish to participate
in these transactions may not have the opportunity to do so. Furthermore, these provisions could prevent or frustrate attempts by our
stockholders to replace or remove management. These provisions:
● |
allow
the authorized number of directors to be changed only by resolution of our board of directors; |
|
|
● |
provide
for a classified board of directors, such that not all members of our board will be elected at one time; |
|
|
● |
prohibit
our stockholders from filling board vacancies, limit who may call stockholder meetings, and prohibit the taking of stockholder action
by written consent; |
|
|
● |
prohibit
our stockholders from making certain changes to our restated certificate of incorporation or restated bylaws except with the approval
of holders of 75% of the outstanding shares of our capital stock entitled to vote; |
|
|
● |
require
advance written notice of stockholder proposals that can be acted upon at stockholders’ meetings and of director nominations
to our board of directors; and |
|
|
● |
authorize
our board of directors to create and issue, without prior stockholder approval, preferred stock that may have rights senior to those
of our common stock and that, if issued, could operate as a “poison pill” to dilute the stock ownership of a potential
hostile acquirer to prevent an acquisition that is not approved by our board of directors. |
In
addition, we are subject to the provisions of Section 203 of the Delaware General Corporation Law, which may prohibit certain business
combinations with stockholders owning 15% or more of our outstanding voting stock. Any delay or prevention of a change in control transaction
or changes in our board of directors could cause the market price of our common stock to decline.
We
do not intend to pay cash dividends.
We
have never declared or paid cash dividends on our capital stock and we do not anticipate paying any cash dividends in the foreseeable
future. We currently intend to retain all available funds and any future earnings for debt service and use in the operation and expansion
of our business. In addition, the terms of any future debt or credit facility may preclude us from paying any dividends.
Our
outstanding shares of Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, Series D Convertible Preferred Stock
and our outstanding common stock warrants are convertible and exercisable into shares of our common stock and when converted or exercised,
the issuance of additional shares of common stock may result in downward pressure on the trading price of our common stock.
We
have outstanding shares of Series B Convertible Preferred Stock, Series C Convertible Preferred Stock and Series D Convertible Preferred
Stock that are each convertible into shares of common stock. We believe that as such holders convert their preferred shares into common
stock, they will immediately sell their shares of common stock. The sale of such shares of common stock may result in downward pressure
on the trading price of our common stock resulting in a lower stock price. Additionally, we have outstanding warrants to purchase shares
of common stock. Many of these warrants have a cashless exercise provision that if exercised may also result in downward pressure on
the trading price of our common stock and cause such price to decline.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated herein by reference contain forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements are based on our management’s current beliefs, expectations and assumptions about
future events, conditions and results and on information currently available to us. Discussions containing these forward-looking statements
may be found, among other places, in the Sections titled “Business,” “Risk Factors” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” in this prospectus and in any of our filings with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
All
statements, other than statements of historical fact, included or incorporated herein regarding our strategy, future operations, financial
position, future revenues, projected costs, plans, prospects and objectives are forward-looking statements. Words such as “expect,”
“anticipate,” “intend,” “plan,” “believe,” “seek,” “estimate,”
“think,” “may,” “could,” “will,” “would,” “should,” “continue,”
“potential,” “likely,” “opportunity” and similar expressions or variations of such words are intended
to identify forward-looking statements but are not the exclusive means of identifying forward-looking statements. Examples of our forward-looking
statements include:
● |
our
ability to achieve sufficient market acceptance of any of our products or product candidates; |
|
|
● |
our
ability to enter into and maintain successful OEM arrangements with third parties; |
|
|
● |
our
perception of the growth in the size of the potential market for our products and product candidates; |
|
|
● |
our
estimate of the advantages of our silicon nitride technology platform; |
|
|
● |
our
ability to become a profitable biomaterial technology company; |
|
|
● |
our
ability to design, manufacture and commercialize armor plates for military, police and civilian use; |
|
|
● |
Our
ability to successfully integrate the recently acquired Technology Assessment & Transfer and develop and commercialize products
arising from this acquisition; |
|
|
● |
our
estimates regarding our needs for additional financing and our ability to obtain such additional financing on suitable terms; |
|
|
● |
our
ability to succeed in obtaining FDA clearance or approvals for our product candidates; |
|
|
● |
our
ability to receive CE Marks for our product candidates; |
|
|
● |
the
timing, costs and other limitations involved in obtaining regulatory clearance or approval for any of our product candidates and
product candidates and, thereafter, continued compliance with governmental regulation of our existing products and activities; |
|
|
● |
our
ability to protect our intellectual property and operate our business without infringing upon the intellectual property rights of
others; |
|
|
● |
our
ability to obtain sufficient quantities and satisfactory quality of raw materials to meet our manufacturing needs; |
|
|
● |
the
availability of adequate coverage reimbursement from third-party payers in the United States; |
|
|
● |
our
estimates regarding anticipated operating losses, future product revenue, expenses, capital requirements and liquidity; |
|
|
● |
our
ability to maintain and continue to develop our sales and marketing infrastructure; |
● |
our
ability to enter into and maintain suitable arrangements with an adequate number of distributors; |
|
|
● |
our
manufacturing capacity to meet future demand; |
|
|
● |
our
ability to develop effective and cost-efficient manufacturing processes for our products; |
|
|
● |
our
reliance on third parties to supply us with raw materials and our non-silicon nitride products and instruments; |
|
|
● |
the
safety and efficacy of products and product candidates; |
|
|
● |
potential
changes to the healthcare delivery systems and payment methods in the United States or internationally; |
|
|
● |
our
ability to attract and retain a qualified management team, engineering team, sales and marketing team, distribution team, and other
qualified personnel and advisors. |
Because
forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some
of which are beyond our control, you should not rely on these forward-looking statements as predictions of future events. The events
and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially
from those projected in the forward- looking statements. Moreover, we operate in an evolving environment. New risk factors and uncertainties
may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties. Except as required
by applicable law, we do not plan to publicly update or revise any forward- looking statements contained herein, whether as a result
of any new information, future events, changed circumstances or otherwise.
This
prospectus and the documents incorporated herein by reference also refer to estimates and other statistical data made by independent
parties and by us relating to market size and growth and other data about our industry. This data involves a number of assumptions and
limitations, and you are cautioned not to give undue weight to such estimates. In addition, projections, assumptions and estimates of
our future performance and the future performance of the markets in which we operate are necessarily subject to a high degree of uncertainty
and risk.
USE
OF PROCEEDS
We
estimate that the net proceeds from the Offering will be approximately $4.35 million (assuming the sale of all Units offered hereby at
the assumed public offering price of $0.298 per Unit, which represents the closing sale price of our common stock on Nasdaq on
January 19, 2024, and assuming no issuance of pre-funded warrants and no exercise of the Warrants issued in connection
with this offering), after deducting expenses relating to this offering payable by us estimated at approximately $0.7 million, including
placement agent fees and expenses which include fees payable to Ascendiant Capital Markets, LLC (“Ascendiant”), for certain
financial advisor services provided in connection with the Offering.
| |
100% of Units Sold | | |
% of Total | | |
50% of Units Sold | | |
% of Total | | |
25% of Units Sold | | |
% of Total | |
Gross Proceeds from Offering | |
$ | 5,000,000 | | |
| | | |
$ | 2,500,000 | | |
| | | |
$ | 1,250,000 | | |
| | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Use of Proceeds | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Placement Agent Fees | |
$ | 350,000 | | |
| 7.0 | % | |
$ | 175,000 | | |
| 7.0 | % | |
$ | 87,500 | | |
| 7.0 | % |
Offering Expenses | |
$ | 300,000 | | |
| 6.0 | % | |
$ | 300,000 | | |
| 12.0 | % | |
$ | 300,000 | | |
| 24.0 | % |
General Corporate | |
$ | 4,350,000 | | |
| 87.0 | % | |
$ | 2,025,000 | | |
| 81.0 | % | |
$ | 862,500 | | |
| 69.0 | % |
Total Use of Proceeds | |
$ | 5,000,000 | | |
| 100.0 | % | |
$ | 2,500,000 | | |
| 100.0 | % | |
$ | 1,250,000 | | |
| 100.0 | % |
We
intend to use the net proceeds from the Offering for general corporate purposes, which may include research and development expenses,
capital expenditures, working capital and general and administrative expenses, and potential acquisitions of or investments in businesses,
products and technologies that complement our business, although we have no present commitments or agreements to make any such acquisitions
or investments as of the date of this prospectus. We expect to use any proceeds we receive from the exercise of Warrants for
substantially the same purposes and in substantially the same manner. Pending these uses, we intend to invest the funds in short-term,
investment grade, interest-bearing securities. It is possible that, pending their use, we may invest the net proceeds in a way that does
not yield a favorable, or any, return for us.
Our
management will have broad discretion as to the allocation of the net proceeds from this offering and could use them for purposes other
than those contemplated at the time of commencement of this offering.
CAPITALIZATION
The
following table sets forth our actual cash and cash equivalents and capitalization, each as of September 30, 2023, and as adjusted to
give effect to the issuance and sale of securities in this offering at an assumed public offering price of $0.298 per Unit, which
is the last reported sale price for our common stock on the Nasdaq Capital Market on January 19, 2024, and an aggregate offering
amount of $4.35 million, after deducting the placement agent fees and estimated offering expenses payable by us.
The
as adjusted information set forth below is illustrative only and will be adjusted based on the actual public offering price and other
terms of this offering determined at pricing.
You
should read this information in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results
of Operations” and our condensed consolidated financial statements and related notes appearing in our Quarterly Report on Form
10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023, and our Annual Report on Form 10-K for
the fiscal year ended December 31, 2022, which are incorporated by reference in this prospectus.
| |
As of September 30, 2023 | |
| |
(unaudited, amounts in thousands except for share and per share information) | |
| |
Actual | | |
As Adjusted(1) | |
Cash and cash equivalents | |
$ | 6,219 | | |
$ | 10,566 | |
Borrowings | |
$ | 72 | | |
$ | 72 | |
Operating lease liability | |
$ | 1,842 | | |
$ | 1,842 | |
Stockholders’ equity | |
| | | |
| | |
Convertible preferred stock Series B, $0.01 par value, 130,000,000 total shares authorized inclusive of all series of preferred; 26 shares outstanding (actual and as adjusted) | |
| | | |
| | |
Convertible preferred stock Series C, $0.01 par value, 130,000,000 total shares authorized inclusive of all series of preferred; 50 shares outstanding (actual and as adjusted) | |
| | | |
| | |
Convertible preferred stock Series D, $0.01 par value, 130,000,000 total shares authorized inclusive of all series of preferred; 180 shares outstanding (actual and as adjusted) | |
| | | |
| | |
Common stock, $0.01 par value; 250,000,000 shares authorized; 4,208,150 shares issued and outstanding
(actual); 20,986,673 shares (as adjusted) | |
$ | 42 | | |
$ | 210 | |
Additional paid-in capital | |
$ | 279,040 | | |
$ | 283,219 | |
Accumulated deficit | |
$ | (268,393 | ) | |
$ | (268,393 | ) |
Total stockholders’ equity | |
$ | 10,689 | | |
$ | 15,036 | |
Total capitalization | |
$ | 12,603 | | |
$ | 16,950 | |
(1) |
A
$0.05 increase or decrease in the assumed combined public offering price of $0.298 per Unit, which is the last reported
sale price of our common stock on Nasdaq on January 19, 2024, would increase or decrease, as appropriate, our as adjusted
cash and cash equivalents, additional paid-in capital and total stockholders’ equity by approximately $0.8 million,
assuming the number of Units offered by us as set forth on the cover page of this prospectus remains the same, and after deducting
the estimated placement agent fees and estimated offering expenses payable by us. Similarly, a 1,000,000 Unit increase or decrease
in the number of Units offered by us, based on the assumed combined public offering price of $0.298 per Unit, would increase
or decrease our as adjusted cash and cash equivalents, and total stockholders’ equity by approximately $0.3 million,
after deducting the estimated placement agent fees and estimated offering expenses payable by us. |
Except
as otherwise noted, all information in this prospectus reflects and assumes (i) no sale of pre-funded warrants in this offering, which,
if sold, would reduce the number of shares of common stock that we are offering on a one-for-one basis and (ii) no exercise of the Warrants
or placement agent’s warrants issued in this offering. The above discussion and table are based on 4,208,150 shares of common
stock outstanding as of September 30, 2023 and excludes, as of such date:
● |
11,909
shares of our common stock issuable upon the exercise of stock options, with a weighted-average exercise price of $120 per share,
and vesting of restricted stock units; |
● |
1,244,754
shares of common stock issuable upon the exercise of outstanding warrants; |
● |
10,576
shares of our common stock issuable upon the conversion of 26 shares of series B convertible preferred stock outstanding; |
● |
338
shares of our common stock issuable upon the conversion of 50 shares of series C convertible preferred stock outstanding; |
● |
11,919
shares of our common stock issuable upon the conversion of 180 shares of series D convertible preferred stock outstanding; |
Unless
otherwise indicated, the information set forth above, including the number of shares outstanding after this offering, does not reflect:
|
● |
any
issuance, exercise, vesting, expiration, or forfeiture of any additional equity awards under our equity incentive plans or stock
purchase plans that occurred after September 30, 2023; |
|
● |
the
sale of 2,462,949 shares of common stock under the Equity Distribution Agreement after September 30, 2023 through January
18, 2024; or |
|
● |
the
effect of the “full-ratchet” anti-dilution adjustment of the conversion price of our outstanding Series B Convertible
Preferred Stock and the exercise price of our outstanding October 2022 warrants. |
MARKET
PRICE AND DIVIDEND POLICY
Our
shares of common stock are currently quoted on The Nasdaq Capital Market under the symbol “SINT”. On January 23,
2024, the last reported sales price of our common stock on Nasdaq was $0.3125.
Holders
of Record
As
of December 31, 2023, we had approximately 159 holders of record of our common stock. Because many of our shares of common stock
are held by brokers and other institutions on behalf of stockholders, this number is not indicative of the total number of stockholders
represented by these stockholders of record.
Dividends
We
have not declared or paid dividends to stockholders since inception and do not plan to pay cash dividends in the foreseeable future.
We currently intend to retain earnings, if any, to finance our growth.
Issuer
Purchases of Equity Securities
None
EXECUTIVE
AND BOARD COMPENSATION
The
following discussion relates to the compensation of our “named executive officers.”
Summary
Compensation Table
The
following table sets forth information about certain compensation awarded or paid to our named executive officers for the 2023 and 2022
fiscal years.
Name and Principal Position | |
Year | | |
Salary | | |
Bonus | | |
Non-Equity Incentive Plan Compensation | | |
Stock Awards | | |
Option Awards | | |
All Other Comp (1) | | |
Total Compensation | |
B. Sonny Bal | |
| 2023 | | |
$ | 412,692 | | |
$ | 36,750 | | |
$ | - | | |
$ | 14,772 | | |
$ | 61,367 | | |
$ | 11,370 | | |
$ | 537,312 | |
Chief Executive Officer | |
| 2022 | | |
$ | 400,000 | | |
$ | 31,500 | | |
$ | - | | |
$ | 7,616 | | |
$ | 62,207 | | |
$ | 10,462 | | |
$ | 511,784 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
David O’Brien | |
| 2023 | | |
$ | 397,308 | | |
$ | 23,681 | | |
$ | - | | |
$ | 9,405 | | |
$ | 41,735 | | |
$ | 11,474 | | |
$ | 453,602 | |
Chief Operating Officer | |
| 2022 | | |
$ | 300,710 | | |
$ | 20,300 | | |
$ | - | | |
$ | 15,677 | | |
$ | 44,179 | | |
$ | 11,037 | | |
$ | 391,903 | |
(1) |
Amounts
reflect matching of 401(k) contributions paid by us, unless otherwise noted. |
Narrative
Disclosure to Summary Compensation Table. We do not have written employment agreements with any of our executive officers. All of
our executive officers serve on an at-will basis. The base salaries for our named executive officers were determined by our compensation
committee after reviewing a number of factors, including: the responsibilities associated with the position, the seniority of the executive’s
position, the base salary level in prior years, compensation surveys of other similarly situated companies and our financial position;
and for executive officers other than our Chief Executive Officer, recommendations made by our Chief Executive Officer. The Board, on
an annual basis, adopts an executive bonus payment plan that is designed to provide executive officers with annual incentive compensation
based on the achievement of certain pre-established performance objectives. By utilizing a combination of objective and subjective performance
factors critical to our success, this program incentivizes our executive officers to achieve results that benefit them and the Company.
Performance factors include the achievement of predetermined financial performance objectives, adherence to financial discipline measures
and achievement of business development, product development and long-term business stability. The Board may modify or re-weight the
objectives during the course of the fiscal year, if necessary, to reflect changes in our business plan.
Outstanding
Equity Awards at Fiscal Year-End
The
following table shows information regarding equity awards held by our named executive officers as of December 31, 2023:
| |
Number of Securities Underlying Unexercised Options
(#)(1) | | |
Option Exercise | | |
Option Expiration | |
Number of Restricted Stock Units that have not vested | | |
Market value of shares or units of stock that have
not vested ($) | |
Name | |
Exercisable | | |
Unexercisable | | |
Price | | |
Date | |
| | |
| |
Sonny Bal | |
| 500 | | |
| - | (2) | |
$ | 47.00 | | |
4/21/2030 | |
| - | | |
$ | - | |
| |
| 683 | | |
| 67 | (3) | |
| 193.00 | | |
3/2/2031 | |
| 6 | | |
| 2 | |
| |
| 458 | | |
| 292 | (4) | |
| 49.00 | | |
1/26/2032 | |
| 84 | | |
| 32 | |
| |
| - | | |
| - | | |
| - | | |
| |
| 5,362 | | |
| 2,045 | |
| |
| | | |
| | | |
| | | |
| |
| | | |
| | |
David O’Brien | |
| 500 | | |
| - | (5) | |
| 47.00 | | |
4/21/2030 | |
| - | | |
| - | |
| |
| 455 | | |
| 45 | (6) | |
| 193.00 | | |
3/2/2031 | |
| 4 | | |
| 1 | |
| |
| 305 | | |
| 195 | (7) | |
| 49.00 | | |
1/26/2032 | |
| 54 | | |
| 20 | |
| |
| - | | |
| - | | |
| - | | |
| |
| 3,455 | | |
| 1,318 | |
(1) |
The
options have not been, and may never be, exercised, and actual gains, if any, on exercise will depend on the value of the shares
of common stock on the date of exercise. |
|
|
(2) |
28%
of the stock option vests on the one-year anniversary of the date of the grant and 3% per month thereafter. |
|
|
(3) |
28%
of the stock option vests on the one-year anniversary of the date of the grant and 3% per month thereafter. |
|
|
(4) |
28%
of the stock option vests on the one-year anniversary of the date of the grant and 3% per month thereafter. |
|
|
(5) |
28%
of the stock option vests on the one-year anniversary of the date of the grant and 3% per month thereafter. |
|
|
(6) |
28%
of the stock option vests on the one-year anniversary of the date of the grant and 3% per month thereafter. |
|
|
(7) |
28%
of the stock option vests on the one-year anniversary of the date of the grant and 3% per month thereafter. |
401(k)
Plan
We
offer our executive officers, including our named executive officers, retirement benefits, including participation in our tax-qualified
profit sharing plan that includes a “cash-or-deferred” (or 401(k)) feature in the same manner as other employees. The plan
is intended to satisfy the requirements of Section 401 of the Internal Revenue Code. Our employees may elect to reduce their current
compensation by up to the statutorily prescribed annual limit and have a like amount contributed to the plan. In addition, we may make
discretionary and/or matching contributions to the plan in amounts determined annually by our Board. We currently elect to match the
contributions of our employees who participate in our 401(k) plan as follows: a match of 100% on the first 3% of compensation contributed
by a plan participant and a match of 50% on amounts above 3%, up to 5%, of compensation contributed by a plan participant.
Potential
Payments upon Termination or Change in Control
We
had entered into certain agreements and maintained certain plans that may have required us to make certain payments and/or provide certain
benefits to the executive officers named in the Summary Compensation Table in the event of a termination of employment or change in control.
Pursuant
to severance agreements that we have entered into with each of our named executive officers, upon the consummation of a change in control,
all outstanding options, restricted stock and other such rights held by the executives will fully vest. Additionally, if a change in
control occurs and at any time during the one-year period following the change in control (i) we or our successor terminate the executive’s
employment other than for cause (but not including termination due to the executive’s death or disability) or (ii) the executive
terminates his employment for good reason, then such executive has the right to receive payment consisting of a lump sum payment equal
to two times his highest annual salary with us during the preceding three-year period, including the year of such termination and including
bonus payments (measured on a fiscal year basis), but not including any reimbursements and amounts attributable to stock options and
other non-cash compensation. “Change in control” is defined in the severance agreements as occurring upon: (i) any “person”
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becoming the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities representing 50% or more of the total voting power represented by
our then outstanding voting securities (excluding securities held by us or our affiliates or any of our employee benefit plans) pursuant
to a transaction or a series of related transactions which our Board did not approve; (ii) a merger or consolidation of our company,
other than a merger or consolidation which would result in our voting securities outstanding immediately prior thereto continuing to
represent at least 50% of the total voting securities or such surviving entity or parent of such corporation outstanding immediately
after such merger or consolidation; or (iii) the approval by our stockholders of an agreement for the sale or disposition of all or substantially
all of our assets. As defined in the severance agreements, “cause” means: (i) the executive’s commission of a felony
(other than through vicarious liability or through a motor vehicle offense); (ii) the executive’s material disloyalty or dishonesty
to us; (iii) the commission by the executive of an act of fraud, embezzlement or misappropriation of funds; (iv) a material breach by
the executive of any material provision of any agreement to which the executive and we are party, which breach is not cured within 30
days after our delivery to the executive of written notice of such breach; or (v) the executive’s refusal to carry out a lawful
written directive from our Board. “Good reason” as defined in the severance agreements means, without the executive’s
consent: (i) a change in the principal location at which the executive performs his duties to a new work location that is at least 50
miles from the prior location; or (ii) a material change in the executive’s compensation, authority, functions, duties or responsibilities,
which would cause his position with us to become of less responsibility, importance or scope than his prior position, provided, however,
that such material change is not in connection with the termination of the executive’s employment with us for any reason.
In
the event that an officer entitled to receive or receives payment or benefit under the severance agreements described above, or under
any other plan, agreement or arrangement with us, or any person whose action results in a change in control or any other person affiliated
with us and it is determined that the total amount of payments will be subject to excise tax under Section 4999 of the Internal Revenue
Code, or any similar successor provisions, we will be obligated to pay such officer a “gross up” payment to cover all taxes,
including any excise tax and any interest or penalties imposed with respect to such taxes due to such payment.
Code
of Business Conduct Violations
It
is our policy under our Code of Business Conduct to take appropriate action against any executive officer whose actions are found to
violate the Code or any other policy of SINTX. Disciplinary actions may include immediate termination of employment and, where SINTX
has suffered a loss, pursuing its remedies against the executive officer responsible. SINTX will cooperate fully with the appropriate
authorities where laws have been violated.
Role
of the Board in Risk Oversight
Risk
is inherent with every business, and how well a business manages risk can ultimately determine its success. Management is responsible
for the day-to-day management of the risks that we face, while our Board of Directors, as a whole and through its committees, has responsibility
for the oversight of risk management. In its risk oversight role, our Board of Directors is responsible for satisfying itself that the
risk management processes designed and implemented by management are adequate and functioning as designed.
Our
Board of Directors does not have a standing risk management committee, but rather administers this oversight function directly through
our Board of Directors as a whole, as well as through various standing committees of the Board of Directors that address risks inherent
in their respective areas of oversight. In particular, our Board of Directors is responsible for monitoring and assessing strategic risk
exposure, including a determination of the nature and level of risk appropriate for us. Our Audit Committee has the responsibility to
consider and discuss our major financial risk exposures and the steps our management has taken to monitor and control these exposures,
including guidelines and policies to govern the process by which risk assessment and management is undertaken. The Audit Committee also
monitors oversight of the performance of our internal audit function. Our Corporate Governance and Nominating Committee monitors the
effectiveness of our corporate governance guidelines, including whether they are successful in preventing illegal or improper liability-creating
conduct. Our Compensation Committee assesses and monitors whether any of our compensation policies and programs have the potential to
encourage excessive risk-taking or promote behaviors contra to our Code of Business Conduct.
Board
Compensation
The
following table shows the total compensation paid or accrued during the fiscal year ended December 31, 2023 to each of our non-employee
directors.
Name | |
Fees
Earned or Paid in Cash ($) | | |
Stock
Awards ($) | | |
Option
Awards ($)(5) | | |
Total
($) | |
David W. Truetzel (1) | |
$ | 120,780 | | |
$ | - | | |
$ | 3,427 | | |
$ | 124,207 | |
Jeffrey S. White (2) | |
| 40,000 | | |
| - | | |
| 3,427 | | |
| 43,427 | |
Eric A. Stookey (3) | |
| 40,000 | | |
| - | | |
| 3,427 | | |
| 43,427 | |
Mark Froimson (4) | |
| 40,000 | | |
| - | | |
| 3,180 | | |
| 43,180 | |
(1) |
As
of December 31, 2023 Mr. Truetzel had 900 option awards outstanding. |
|
|
(2) |
As
of December 31, 2023 Mr. White had 900 option awards outstanding. |
|
|
(3) |
As
of December 31, 2023 Mr. Stookey had 900 option awards outstanding. |
|
|
(4) |
As
of December 31, 2023 Mr. Froimson had 850 option awards outstanding. |
|
|
(5) |
The
amounts in this column do not reflect compensation actually received by our non-employee directors nor do they reflect the actual
value that will be recognized by the non-employee directors. Instead, the amounts reflect the aggregate grant date fair value computed
in accordance with Accounting Standards Codification (“ASC”) 718 of awards of stock options made to non-employee directors
for the fiscal year ended December 31, 2023 but excludes an estimate for forfeitures. The fair value of each option award is estimated
on the date of grant using the Black-Scholes option-pricing model. |
The
following compensation schedule sets forth compensation for non-employee directors (paid on a quarterly basis) as approved by the Board:
● |
Annual
Retainer of $40,000 paid in 12 equal monthly installments of $3,333 each; |
|
|
● |
$1,000
for each board and committee meeting attended in person; |
|
|
● |
$500
for each board and committee meeting attended via telephone or other remote medium; and |
|
|
● |
Reimbursement
of reasonable expenses as supported by documentation and receipts. |
A
new Board appointee receives an award of 400 stock options upon appointment. Further, each non-employee member of the Board is awarded
an option grant for 150 stock options on an annual basis.
The
chair of the Audit Committee is paid an annual retainer of $120,000 payable in monthly increments of $10,000 each.
Equity
Compensation Plan Information
The
following table sets forth information as of December 31, 2023 relating to all of our equity compensation plans:
Plan Category | |
(a)
Number of Securities to
be Issued upon Exercise
of Outstanding
Options,
Warrants and Rights | | |
(b)
Weighted- average Exercise Price
of Outstanding Options,
Warrants and Rights | | |
(c)
Number of Securities Remaining
Available for Future Issuance under Equity
Compensation Plans
(Excluding Securities
Referenced in
Column (a)) | |
Equity compensation plans approved by stockholders | |
| 27,515 | (1) | |
$ | 113.54 | (2) | |
| 6,268 | |
Equity compensation plans not approved by Stockholders | |
| - | | |
| - | | |
| - | |
Total | |
| 27,515 | (1) | |
$ | 113.54 | (2) | |
| 6,268 | |
(1) |
Includes
options outstanding under our 2012 Equity Incentive Plan. |
|
|
(2) |
Represents
weighted-average exercise price per share of common stock acquirable upon exercise of outstanding stock options and does not take
into account restricted stock units awarded under the 2020 Plan. |
2020
Equity Incentive Plan
The
2020 Plan provides for the grant of nonqualified stock options, incentive stock options, restricted stock, restricted stock units, stock
appreciation rights (SARs), and performance share awards to employees, officers, consultants, advisors, non-employee directors and independent
contractors designated by either the board of directors of the Company or if so authorized by the board of directors, the Compensation
Committee (the “Committee”) of the Board of Directors. Under the 2020 Plan, the maximum number of shares of common stock
approved for issuance under the 2020 Plan, subject to adjustment as described below, is 19,025 shares of common stock, which includes
25 shares that have been rolled over from our 2012 Plan. In addition, 4 shares that were subject to outstanding awards under our 2012
Plan were forfeited or reacquired by the Company due to termination or cancellation of the awards and are now part of the total number
of shares of common stock permitted to be granted under the 2020 Plan. For stock options and SARs, the aggregate number of shares with
respect to which such awards are exercisable, rather than the number of shares actually issued upon exercise, will be counted against
the number of shares available for awards under the 2020 Plan. If awards under the 2020 Plan expire or otherwise terminate without being
exercised, the shares not acquired pursuant to such awards again become available for issuance under the 2020 Plan in accordance with
its terms. However, under the following circumstances, shares will not again be available for issuance under the 2020 Plan: (i) shares
unissued due to a “net exercise” of a stock option, (ii) any shares withheld, or shares tendered to satisfy tax withholding
obligations with respect to a stock option or SAR, (iii) shares covered by a SAR that is not settled in shares upon exercise and (iv)
shares repurchased using stock option exercise proceeds.
Administration
The
2020 Plan is to be administered by the Committee, or in the board of director’s sole discretion, by the board of directors.
Subject
to the express provisions of the 2020 Plan, the Committee has authority to administer and interpret the 2020 Plan, including the authority
to determine who is eligible to participate in the 2020 Plan and to whom and when awards are granted under the 2020 Plan, to grant awards,
to determine the number of shares of common stock subject to awards and the exercise or purchase price of such shares under an award,
to establish and verify the extent of satisfaction of any performance criteria applicable to awards, to prescribe and amend the terms
of the agreements evidencing awards made under the 2020 Plan, and to make other determinations deemed necessary or advisable for the
administration of the 2020 Plan.
Eligibility
Participants
under the 2020 Plan are limited to employees, officers, non-employee directors, and consultants providing services to the Company, or
any person to whom an offer of employment or engagement with the Company is extended.
Transferability
Generally,
no award (other than fully vested and unrestricted shares) and no right under any such award shall be transferable by a participant other
than by will or by the laws of descent and distribution, and no award (other than fully vested and unrestricted shares) or right under
any such award may be pledged, alienated, attached or otherwise encumbered.
Corporate
Transactions
In
the event of any Change-in-Control Event (as defined in the 2020 Plan), reorganization, merger, consolidation, split-up, spin-off, combination,
plan of arrangement, take-over bid or tender offer, repurchase or exchange of common stock or other securities of the Company or any
other similar corporate transaction or event involving the Company, all outstanding options and SARs shall become immediately exercisable
with respect to 100% of the shares subject to such options or SARs, and/or the restricted period shall expire immediately with respect
to 100% of the outstanding shares of restricted stock awards or restricted stock units. Further, with respect to performance share awards
and cash awards, in the event of a Change-in-Control, all performance goals or other vesting criteria will be deemed achieved at 100%
of target levels and all other terms and conditions will be deemed met.
Amendment
and Termination
No
awards may be granted pursuant to the 2020 Plan after the ten-year anniversary of the effective date of the 2020 Plan which, if the shareholders
approve the amendment and restatement of the 2020 Plan, will be April 21, 2030.
The
Committee may amend, modify or terminate an outstanding award, provided, however, that, except as expressly provided in the 2020 Plan,
the Committee may not, without the participant’s consent, amend, modify or terminate an outstanding award unless it determines
that the action would not adversely alter or impair the terms or conditions of such award. However, the Committee reserves the right
to reprice any previously granted “underwater” option or SAR by (i) lowering the exercise price, (ii) canceling the underwater
option or SAR and granting a substitute award, or (iii) repurchasing the underwater option or SAR.
DESCRIPTION
OF SECURITIES
As
of the date of this prospectus, our Restated Certificate of Incorporation authorizes us to issue 250,000,000 shares of common stock,
par value $0.01 per share, and 130,000,000 shares of preferred stock, par value $0.01 per share. The following is a summary of the rights
of our common and preferred stock and some of the provisions of our Restated Certificate of Incorporation and Restated Bylaws, our outstanding
warrants, our registration rights agreements and the Delaware General Corporation Law. Because it is only a summary, it does not contain
all the information that may be important to you and is subject to and qualified in its entirety by our Restated Certificate of Incorporation
and our Restated Bylaws, a copy of each of which has been incorporated as an exhibit to the registration statement of which this prospectus
forms a part.
Our
Restated Certificate of Incorporation and our Restated Bylaws contain certain provisions that are intended to enhance the likelihood
of continuity and stability in the composition of the Board of Directors, which may have the effect of delaying, deferring or preventing
a future takeover or change in control of the Company unless such takeover or change in control is approved by our Board of Directors.
Common
Stock
As
of December 31, 2023, there were 5,320,672 shares of common stock outstanding. Each outstanding share of common stock entitles
the holder thereof to one vote per share on all matters. Our Restated Bylaws provide that any vacancy occurring in the Board of Directors
may be filled by the affirmative vote of a majority of the remaining directors. Holders of our common stock do not have preemptive rights
to purchase shares in any future issuance of our common stock. In the event of our liquidation, dissolution or winding up, holders of
our common stock are entitled to receive, ratably, the net assets available to stockholders after payment of all creditors.
Holders
of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, and
do not have cumulative voting rights. Accordingly, the holders of a majority of the shares of our common stock entitled to vote can elect
all directors standing for election. Subject to preferences that may be applicable to any outstanding shares of preferred stock, holders
of our common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by our Board of Directors
out of funds legally available for dividend payments. All outstanding shares of our common stock are fully paid and nonassessable, and
any shares of our common stock to be sold pursuant to this prospectus will be fully paid and nonassessable. The holders of common stock
have no preferences or rights of conversion, exchange, pre-emption, or other subscription rights. There are no redemption or sinking
fund provisions applicable to our common stock. In the event of any liquidation, dissolution or winding-up of our affairs, holders of
our common stock will be entitled to share ratably in our assets that are remaining after payment or provision for payment of all of
our debts and obligations and after liquidation payments to holders of outstanding shares of preferred stock, if any.
The
transfer agent and registrar for our common stock is Equiniti Trust Company, LLC. The transfer agent and the registrar’s
address is 48 Wall Street, 22nd Floor, New York, NY 10005. Their telephone number is 1-347-554-1818.
Our common stock is listed on The Nasdaq Capital Market under the symbol “SINT”.
Description
of Securities Included in this Offering
We
are offering Units, each Unit consisting of one share of common stock, one Class E Warrant to purchase one share of common
stock, and one Class F Warrant to purchase one share of common stock.
We
are offering to each purchaser whose purchase of shares of common stock in this offering would otherwise result in the purchaser, together
with its affiliates, beneficially owning more than 4.99% (or, at the election of the holder, 9.99%) of our outstanding shares of common
stock immediately following the consummation of this offering, the opportunity to purchase, if the purchaser so chooses, Units containing
pre-funded warrants, in lieu of shares of common stock that would otherwise result in the purchaser’s beneficial ownership exceeding
4.99% (or, at the election of the holder, 9.99%) of our outstanding shares of common stock. For each pre-funded warrant we sell (without
regard to any limitation on exercise set forth therein), the number of shares of common stock we are offering will be decreased on a
one-for-one basis. Because one Class E Warrant and one Class F Warrant are being sold together in this offering with each share
of common stock or, in the alternative, each pre-funded warrant to purchase one share of common stock, the number of Class E Warrants
and Class F Warrants sold in this offering will not change as a result of a change in the mix of the shares of common stock and
pre-funded warrants sold.
We
are also registering the shares of common stock issuable from time to time upon exercise of the Class E Warrants, Class F Warrants,
and pre-funded warrants included in the Units offered hereby. Our Units have no stand-alone rights and will not be certificated or
issued as stand-alone securities. The shares of common stock (or pre-funded warrants), Class E Warrants, and Class F Warrants
comprising our Units are immediately separable and will be issued separately in this offering.
The
following summary of certain terms and provisions of the pre-funded warrants, Class E Warrants, and Class F Warrants offered
hereby is not complete and is subject to, and qualified in its entirety by the provisions of the form of pre-funded warrant, the form
of Class E Warrant, and the form of Class F Warrant which are filed as exhibits to the registration statement of which this
prospectus forms a part. Prospective investors should carefully review the terms and provisions set forth in the form of Class E Warrant,
the form of Class F Warrant, and the form of pre-funded warrant.
Exercisability.
The pre-funded warrants are exercisable at any time after their original issuance until they are exercised in full. The Class E Warrants
are exercisable at any time after their original issuance and at any time up to the date that is five years after their original issuance.
The Class F Warrants are exercisable at any time after their original issuance and at any time up to the date that is eighteen months
after their original issuance. Each of the Warrants and the pre-funded warrants will be exercisable, at the option of each holder,
in whole or in part by delivering to us a duly executed exercise notice and, at any time a registration statement registering the issuance
of the shares of common stock underlying the Warrants or pre-funded warrants, under the Securities Act of 1933, as amended (the
“Securities Act”) is effective and available for the issuance of such shares, by payment in full in immediately available
funds for the number of shares of common stock purchased upon such exercise. If a registration statement registering the issuance of
the shares of common stock underlying the Warrants or pre-funded warrants under the Securities Act is not effective or available, the
holder may, in its sole discretion, elect to exercise the Warrant or pre-funded warrant 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
warrant. We may be required to pay certain amounts as liquidated damages as specified in the warrants in the event we do not deliver
shares of common stock upon exercise of the warrants within the time periods specified in the warrants. No fractional shares of common
stock will be issued in connection with the exercise of a warrant.
Exercise
Limitation. A holder will not have the right to exercise any portion of the pre-funded warrants or Warrants if the holder
(together with its affiliates) would beneficially own in excess of 4.99% (or, upon election by a holder prior to the issuance of any
warrants, 9.99%) 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 the warrants. However, any holder may increase or decrease such percentage to
any other percentage not in excess of 9.99%, upon at least 61 days’ prior notice from the holder to us with respect to any increase
in such percentage.
Exercise
Price. The exercise price for the pre-funded warrants is $0.0001 per share. The exercise price per whole share of common stock purchasable
upon exercise of the Warrants is $ per share. The exercise price and number of shares of common stock issuable on exercise are
subject to appropriate adjustments in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications
or similar events affecting our common stock.
Transferability.
Subject to applicable laws, the Warrants and pre-funded warrants may be offered for sale, sold, transferred or assigned without
our consent.
Exchange
Listing. We do not intend to list the Warrants or the pre-funded warrants offered in this offering on any securities exchange
or other trading market. Without an active trading market, the liquidity of these securities will be limited.
Warrant
Agent. The pre-funded warrants and Warrants are expected to be issued in registered form under a warrant agreement between
Equiniti Trust Company, LLC, as warrant agent, and us. The Warrants and the pre-funded warrants shall initially be represented
only by one or more global warrants deposited with the warrant agent, as custodian on behalf of The Depository Trust Company (DTC) and
registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC.
Fundamental
Transactions. In the event of a fundamental transaction, as described in the Warrants and pre-funded warrants and generally including,
with certain exceptions, 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 or merger with or into another person, the acquisition of
more than 50% of our outstanding shares of common stock, or any person or group becoming the beneficial owner of 50% of the voting power
represented by our outstanding shares of common stock, the holders of the Warrants and pre-funded warrants will be entitled to receive
upon exercise of the warrants the kind and amount of securities, cash or other property that the holders would have received had they
exercised the warrants immediately prior to such fundamental transaction. In addition, in the event of a fundamental transaction, we
or the successor entity, at the request of a holder of Warrants, will be obligated to purchase any unexercised portion of such Warrants
in accordance with the terms of the Warrants. Additionally, as more fully described in the Warrants,
in the event of certain fundamental transactions, the holders of the Warrants will be entitled to receive consideration in an amount
equal to the Black Scholes value of the Warrants on the date of consummation of such transaction.
Rights
as a Shareholder. Except as otherwise provided in the Warrants or pre-funded warrants or by virtue of such holder’s
ownership of our shares of common stock, the holder of a Warrant or pre-funded warrant does not have the rights or privileges
of a holder of our common stock, including any voting rights, until the holder exercises the warrant. Holders of Warrants
and pre-funded warrants have the right to participate in dividends and certain distributions as specified in the warrant.
Governing
Law. The pre-funded warrants, Warrants, and warrant agreement are governed by New York law.
Description
of Other Outstanding Securities of the Company
Preferred
Stock
Our
Board of Directors has the authority under our Restated Certificate of Incorporation, without further action by our stockholders, to
issue up to 130,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be included
in each such series, to fix the rights, preferences, privileges and restrictions of the shares of each wholly unissued series, including
dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference and sinking fund terms, and to increase
or decrease the number of shares of any such series (but not below the number of shares of such series then outstanding).
Our
Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could have the effect of restricting
dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock or
otherwise adversely affecting the rights of holders of our common stock. The issuance of preferred stock, while providing flexibility
in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring
or preventing a change of control and may adversely affect the market price of our common stock.
Series
B Preferred Stock.
Our
Board of Directors designated 15,000 shares of our preferred stock as Series B Preferred Stock. There are currently 26 shares
of Series B Preferred stock outstanding which are convertible into 48,706 shares of our common stock.
Conversion
Each
share of Series B Preferred Stock is convertible into shares of our common stock at any time at the holder’s option at the Conversion
Price described below. We may not effect any conversion of Series B Preferred Stock, with certain exceptions, to the extent that, after
giving effect to an attempted conversion, the holder of Series B Preferred Stock (together with such holder’s affiliates, and any
persons acting as a group together with such holder or any of such holder’s affiliates) would beneficially own a number of shares
of common stock in excess of 4.99% (or, at the election of the holder, 9.99%) of the shares of our common stock then outstanding after
giving effect to such conversion, referred to as the Preferred Stock Beneficial Ownership Limitation; provided, however, that upon notice
to us, the holder may increase or decrease the Preferred Stock Beneficial Ownership Limitation, provided that in no event may the Preferred
Stock Beneficial Ownership Limitation exceed 9.99% and any increase in the Preferred Stock Beneficial Ownership Limitation will not be
effective until 61 days following notice of such increase from the holder to us.
Subject
to certain ownership limitations as described below and certain equity conditions being met, if during any 30 consecutive trading days,
the volume weighted average price of our common stock exceeds $13,060.80 and the daily dollar trading volume during such period exceeds
$500,000 per trading day, we have the right to force the conversion of the Series B Preferred Stock into common stock.
Conversion
Price.
The
Series B Preferred Stock is convertible into shares of common stock by dividing the stated value of the Series B Preferred Stock ($1,100)
by $0.3554 (the “Conversion Price”). The Conversion Price is subject to adjustment for stock splits, stock dividends,
and distributions of common stock or securities convertible, exercisable or exchangeable for common stock, subdivisions, combinations
and reclassifications.
Subject
to certain exclusions contained in the Certificate of Designation, if we in any manner grant or sell any rights, warrants or options
and the lowest price per share for which one share of common stock is at any time issuable upon the exercise of any such option or upon
conversion, exercise or exchange of any Common Stock Equivalents (as defined in the Certificate of Designation) issuable upon exercise
of any such option, exercise or exchange of any Common Stock Equivalent issuable upon the exercise of such option or otherwise pursuant
to the terms thereof is less than the Conversion Price, then such share of common stock will be deemed to be outstanding and to have
been issued and sold by us at the time of the granting or sale of such option for such price per share. For purposes of this paragraph
only, the “lowest price per share for which one share of common stock is issuable upon the exercise of any such options or upon
conversion, exercise or exchange of any Common Stock Equivalent issuable upon exercise of any such option or otherwise pursuant to the
terms thereof” will be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or
receivable by us with respect to any one share of common stock upon the granting or sale of such option, upon exercise of such option
and upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of such option or otherwise pursuant
to the terms thereof and (y) the lowest exercise price set forth in such option for which one share of common stock is issuable upon
the exercise of any such options or upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of any
such option or otherwise pursuant to the terms thereof. Except as contemplated by the terms of the Certificate of Designation, no further
adjustment of the Conversion Price will be made upon the actual issuance of such shares of common stock or of such convertible securities
upon the exercise of such options or otherwise pursuant to the terms of or upon the actual issuance of such Common Stock Equivalents.
Subject
to certain exclusions contained in the Certificate of Designation, if we in any manner issue or sell any Common Stock Equivalents and
the lowest price per share for which one share of common stock is at any time issuable upon the conversion, exercise or exchange thereof
or otherwise pursuant to the terms thereof is less than the Conversion Price, then such share of common stock will be deemed to be outstanding
and to have been issued and sold by us at the time of the issuance or sale of such convertible securities for such price per share. For
purposes of this paragraph only, the “lowest price per share for which one share of common stock is issuable upon the conversion,
exercise or exchange thereof or otherwise pursuant to the terms thereof” will be equal to (1) the lower of (x) the sum
of the lowest amounts of consideration (if any) received or receivable by us with respect to one share of common stock upon the issuance
or sale of the Common Stock Equivalent and upon conversion, exercise or exchange of such convertible security or otherwise pursuant to
the terms thereof and (y) the lowest conversion price set forth in such convertible security for which one share of common stock is issuable
upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable
to the holder of such Common Stock Equivalent (or any other person) upon the issuance or sale of such Common Stock Equivalent plus the
value of any other consideration received or receivable by, or benefit conferred on, the holder of such Common Stock Equivalent (or any
other person). Except as contemplated by the terms of the Certificate of Designation, no further adjustment of the Conversion Price will
be made upon the actual issuance of such shares of common stock upon conversion, exercise or exchange of such Common Stock Equivalents
or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Common Stock Equivalents is made upon exercise of
any options for which adjustment of the Conversion Price has been or is to be made, except as contemplated by the terms of the Certificate
of Designation, no further adjustment of the Conversion Price will be made by reason of such issuance or sale.
If
the purchase or exercise price provided for in any options, the additional consideration, if any, payable upon the issue, conversion,
exercise or exchange of any convertible securities, or the rate at which any convertible securities are convertible into or exercisable
or exchangeable for shares of common stock increases or decreases at any time (other than proportional changes in conversion or exercise
prices, as applicable, in connection with stock dividends, splits or combination of outstanding common stock) the Conversion Price in
effect at the time of such increase or decrease will be adjusted to the Conversion Price which would have been in effect at such time
had such options or convertible securities provided for such increased or decreased purchase price, additional consideration or increased
or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. If the terms of any option or convertible
security that was outstanding as of the date of issuance of the Preferred Stock and related Warrants are increased or decreased in the
manner described in the immediately preceding sentence, then such option or convertible security and the shares of common stock deemed
issuable upon exercise, conversion or exchange thereof will be deemed to have been issued as of the date of such increase or decrease.
No adjustment will be made if such adjustment would result in an increase of the Conversion Price then in effect.
If
any option and/or convertible security and/or Adjustment Right is issued in connection with the issuance or sale or deemed issuance or
sale of any other securities of the Company (as determined by the holder of Preferred Stock, the “Primary Security”, and
such option and/or convertible security and/or Adjustment Right (as defined below), the “Secondary Securities” and together
with the Primary Security, each a “unit”), together comprising one integrated transaction, the aggregate consideration per
share of common stock with respect to such Primary Security will be deemed to be the lower of (x) the purchase price of such
unit, (y) if such Primary Security is an option and/or convertible security, the lowest price per share for which one share of common
stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with the paragraphs above and (z)
the lowest volume-weighted average price of the common stock on any trading day during the four trading day period immediately following
the public announcement of such dilutive issuance. If any shares of common stock, options or convertible securities are issued or sold
or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration
received by us therefor. If any shares of common stock, options or convertible securities are issued or sold for a consideration other
than cash, the amount of such consideration received by us will be the fair value of such consideration, except where such consideration
consists of publicly traded securities, in which case the amount of consideration received by us for such securities will be the arithmetic
average of the volume-weighted average prices of such security for each of the five (5) trading days immediately preceding the date of
receipt. If any shares of common stock, options or convertible securities are issued to the owners of the non-surviving entity in connection
with any merger in which we are the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as is attributable to such shares of common stock, options or convertible
securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined
jointly by us and the holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring
valuation (the “Valuation Event”), the fair value of such consideration will be determined within five trading days after
the tenth day following such Valuation Event by an independent, reputable appraiser jointly selected by us and the holder.
“Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or sale
(or deemed issuance or sale in accordance with the paragraph above) of shares of common stock that could result in a decrease in the
net consideration received by us in connection with, or with respect to, such securities (including, without limitation, any cash settlement
rights, cash adjustment or other similar rights).
In
addition, holders of Series B Preferred Stock may be eligible to elect an alternative price in the event we issue certain variable price
securities.
Liquidation;
Dividends; Repurchases.
In
the event of a liquidation, the holders of Series B Preferred Stock are entitled to participate on an as-converted-to-common stock basis
with holders of the common stock in any distribution of assets of the Company to the holders of the common stock. Additionally, we will
not pay any dividends on shares of common stock (other than dividends in the form of common stock) unless and until such time as we pay
dividends on each Series B Preferred Share on an as-converted basis. Other than as set forth in the previous sentence, no other dividends
will be paid on Series B Preferred Stock and we will pay no dividends (other than dividends in the form of common stock) on shares of
common stock unless we simultaneously comply with the previous sentence.
Redemption
Right.
We
hold an option to redeem some or all of the Series B Preferred Stock at any time after the six-month anniversary of its issuance date
at a 25% premium to the stated value of the Series B Preferred Stock subject to redemption, upon 30 days prior written notice to the
holder of the Series B Preferred Stock. The Series B Preferred Stock would be redeemed by us for cash.
Fundamental
Transactions.
In
the event of any fundamental transaction, generally including any merger with or into another entity, sale of all or substantially all
of our assets, tender offer or exchange offer, or reclassification of our common stock, then upon any subsequent conversion of the Series
B Preferred Stock, the holder will have the right to receive as alternative consideration, for each share of our common stock that would
have been issuable upon such conversion immediately prior to the occurrence of such fundamental transaction, the number of shares of
common stock of the successor or acquiring corporation or of our company, if it is the surviving corporation, and any additional consideration
receivable upon or as a result of such transaction by a holder of the number of shares of our common stock for which the Series B Preferred
Stock is convertible immediately prior to such event.
Voting
Rights.
With
certain exceptions, the holders of shares of Series B Preferred Stock have no voting rights. However, as long as any shares of Series
B Preferred Stock remain outstanding, we may not, without the affirmative vote of holders of a majority of the then-outstanding Series
B Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Series B Preferred Stock or alter or
amend the Certificate of Designation, (b) increase the number of authorized shares of Series B Preferred Stock, (c) amend our Certificate
of Incorporation or other charter documents in any manner that adversely affects any rights of holders of Series B Preferred Stock disproportionately
to the rights of holders of our other capital stock, or (d) enter into any agreement with respect to any of the foregoing.
Jurisdiction
and Waiver of Trial by Jury
Other
than with respect to suits, actions or proceedings arising under the federal securities laws, the Certificate of Designation provides
for investors to consent to exclusive jurisdiction to courts located in New York, New York and provides for a waiver of the right to
a trial by jury. It also provides that disputes are governed by Delaware law.
Series
C Preferred Stock.
Our
Board of Directors designated 9,440 shares of our preferred stock as Series C Preferred Stock. There are currently 50 shares of
Series C Preferred stock outstanding which are convertible into 338 shares of our common stock.
Conversion.
Each share of Series C Preferred Stock will be convertible at our option at any time on or after the first anniversary of the expiration
of the Rights Offering or at the option of the holder at any time, into the number of shares of our common stock determined by dividing
the $1,000 stated value per share of the Series C Preferred Stock by a conversion price of $148.14 per share. In addition, the conversion
price per share is subject to adjustment for stock dividends, distributions, subdivisions, combinations or reclassifications. Subject
to limited exceptions, a holder of the Series C Preferred Stock will not have the right to convert any portion of the Series C Preferred
Stock to the extent that, after giving effect to the conversion, the holder, together with its affiliates, would beneficially own in
excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect to its conversion. A holder of
the Series C Preferred Stock, upon notice to us, may increase or decrease the beneficial ownership limitation provisions of such holder’s
Series C Preferred Stock, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding
immediately after giving effect to its conversion. In the event that a conversion is effected at our option, we will exercise such option
to convert shares of Series C Preferred Stock on a pro rata basis among all of the holders based on such holders’ shares of Series
C Preferred Stock.
Fundamental
Transactions. In the event we effect certain mergers, consolidations, sales of substantially all of our assets, tender or exchange
offers, reclassifications or share exchanges in which our common stock is effectively converted into or exchanged for other securities,
cash or property, we consummate a business combination in which another person acquires 50% of the outstanding shares of our common stock,
or any person or group becomes the beneficial owner of 50% of the aggregate ordinary voting power represented by our issued and outstanding
common stock, then, upon any subsequent conversion of the Series C Preferred Stock, the holders of the Series C Preferred Stock will
have the right to receive any shares of the acquiring corporation or other consideration it would have been entitled to receive if it
had been a holder of the number of shares of common stock then issuable upon conversion in full of the Series C Preferred Stock.
Dividends.
Holders of Series C Preferred Stock shall be entitled to receive dividends (on an as-if-converted-to-common-stock basis) in the same
form as dividends actually paid on shares of the common stock when, as and if such dividends are paid on shares of common stock.
Voting
Rights. Except as otherwise provided in the certificate of designation or as otherwise required by law, the Preferred Stock has no
voting rights.
Liquidation
Preference. Upon our liquidation, dissolution or winding-up, whether voluntary or involuntary, holders of Series C Preferred
Stock will be entitled to receive out of our assets, whether capital or surplus, the same amount that a holder of common stock would
receive if the Series C Preferred Stock were fully converted (disregarding for such purpose any conversion limitations under the certificate
of designation) to common stock, which amounts shall be paid pari passu with all holders of common stock.
Redemption
Rights. We are not obligated to redeem or repurchase any shares of Series C Preferred Stock. Shares of Series C Preferred Stock are
not otherwise entitled to any redemption rights, or mandatory sinking fund or analogous provisions.
Series
D Preferred Stock
Our
board of directors designated 4,656 shares of our preferred stock as Series D Preferred Stock. There are currently 180 shares
of Series D Preferred stock outstanding which are convertible into 11,919 shares of our common stock.
Conversion.
Each share of Series D Preferred Stock is convertible at the option of the holder at any time, into the number of shares of our common
stock determined by dividing the $1,000 stated value per share of the Preferred Stock by a conversion price of $15.102 per share. In
addition, the conversion price per share is subject to adjustment for stock dividends, distributions, subdivisions, combinations or reclassifications.
Subject to limited exceptions, a holder of the Preferred Stock will not have the right to convert any portion of the Series D Preferred
Stock to the extent that, after giving effect to the conversion, the holder, together with its affiliates, would beneficially own in
excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect to its conversion. A holder of
the Series D Preferred Stock, upon notice to us, may increase or decrease the beneficial ownership limitation provisions of such holder’s
Series D Preferred Stock, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding
immediately after giving effect to its conversion.
Fundamental
Transactions. In the event we effect certain mergers, consolidations, sales of substantially all of our assets, tender or exchange
offers, reclassifications or share exchanges in which our common stock is effectively converted into or exchanged for other securities,
cash or property, we consummate a business combination in which another person acquires 50% of the outstanding shares of our common stock,
or any person or group becomes the beneficial owner of 50% of the aggregate ordinary voting power represented by our issued and outstanding
common stock, then, upon any subsequent conversion of the Series D Preferred Stock, the holders of the Series D Preferred Stock will
have the right to receive any shares of the acquiring corporation or other consideration it would have been entitled to receive if it
had been a holder of the number of shares of common stock then issuable upon conversion in full of the Series D Preferred Stock.
Dividends.
Holders of Preferred Stock shall be entitled to receive dividends (on an as-if-converted-to-common-stock basis) in the same form
as dividends actually paid on shares of the common stock when, as and if such dividends are paid on shares of common stock.
Voting
Rights. Except as otherwise provided in the certificate of designation or as otherwise required by law, the Series D Preferred Stock
has no voting rights.
Liquidation
Preference. Upon our liquidation, dissolution or winding-up, whether voluntary or involuntary, holders of Series D Preferred
Stock will be entitled to receive out of our assets, whether capital or surplus, the same amount that a holder of common stock would
receive if the Series D Preferred Stock were fully converted (disregarding for such purpose any conversion limitations under the certificate
of designation) to common stock, which amounts shall be paid pari passu with all holders of common stock.
Redemption
Rights. We are not obligated to redeem or repurchase any shares of Series D Preferred Stock. Shares of Series D Preferred Stock are
not otherwise entitled to any redemption rights, or mandatory sinking fund or analogous provisions.
Future
Preferred Stock.
Our
Board of Directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series
that we sell under this prospectus and applicable prospectus supplements in the certificate of designation relating to that series. We
will file as an exhibit to the registration statement of which this prospectus is a part, or incorporate by reference into the registration
statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred
stock we are offering before the issuance of the related series of preferred stock. This description will include:
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the
title and stated value; |
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the
number of shares we are offering; |
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the
liquidation preference per share; |
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the
purchase price per share; |
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the
dividend rate per share, dividend period and payment dates and method of calculation for dividends; |
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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our
right, if any, to defer payment of dividends and the maximum length of any such deferral period; |
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the
procedures for any auction and remarketing, if any; |
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the
provisions for a sinking fund, if any; |
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the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase
rights; |
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any
listing of the preferred stock on any securities exchange or market; |
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whether
the preferred stock will be convertible into our common stock or other securities of ours, including warrants, and, if applicable,
the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted; |
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voting
rights, if any, of the preferred stock; |
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preemption
rights, if any; |
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restrictions
on transfer, sale or other assignment, if any; |
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a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock; |
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our
affairs; |
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any
limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred
stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any
other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock. |
When
we issue shares of preferred stock under this prospectus, the shares will be fully paid and nonassessable and will not have, or be subject
to, any preemptive or similar rights.
The
General Corporation Law of the State of Delaware, the state of our incorporation, provides that the holders of preferred stock will have
the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders of that preferred stock.
This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
Warrants
There
are currently 1,244,754 common stock purchase warrants outstanding, which expire between February 2025 and February 2028. Each of these
warrants entitles the holder to purchase one share of common stock at prices ranging between $0.3554 and $150 per share. Certain
of these warrants has a net exercise provision under which its holder may, in lieu of payment of the exercise price in cash, surrender
the warrant and receive a net amount of shares based on the fair market value of our common stock at the time of exercise of the warrant
after deduction of the aggregate exercise price. Additionally, certain of these warrants entitle a holder to also effect an “alternative
cashless exercise” wherein the holder may surrender a certain number of warrants in return for a lesser number of shares of our
common stock on a cashless basis. Each of these warrants also contains provisions for the adjustment of the exercise price and the aggregate
number of shares issuable upon the exercise of the warrant in the event of dividends, share splits, reorganizations and reclassifications
and consolidations. Certain of these warrants contain a provision requiring a reduction to the exercise price in the event we issue common
stock, or securities convertible into or exercisable for common stock, at a price per share lower than the warrant exercise price.
The
holders of certain of these warrants have registration rights, as described in greater detail below.
February
2023 Offering Warrants
On
February 7, 2023, we issued a Class C Common Stock Purchase Warrant to purchase up to 2,150,000 shares of Common Stock (the “Class
C Warrants”) and a Class D Common Stock Purchase Warrant to purchase up to 1,075,000 shares of Common Stock (the “Class D
Warrants”). The Class C and Class D Warrants are exercisable at a price of $5.60 per share. The Class C Warrants will expire five
years from the date of issuance and the Class D Warrants will expire three years from the date of issuance. In addition, a holder may
also effect an “alternative cashless exercise” wherein the aggregate number of shares of common stock issuable in such alternative
cashless exercise shall equal the product of (x) the aggregate number of shares of common stock that would be issuable upon exercise
of the Class C Warrant or Class D Warrant in accordance with the terms of such warrant if such exercise were by means of a cash exercise
rather than a cashless exercise and (y) 0.40 with respect to the Class C Warrant or 0.80 with respect to the Class D Warrant.
The
following summary of certain terms and provisions of the Class C Warrants, and Class D Warrants is not complete and is subject to, and
qualified in its entirety by the provisions of the form of Class C Warrant, and the form of Class D Warrant, which are filed as exhibits
to this registration statement.
Exercisability.
The Class C Warrants are exercisable at any time after their original issuance and at any time up to the date that is five years after
their original issuance. The Class D Warrants are exercisable at any time after their original issuance and at any time up to the date
that is three years after their original issuance. Each of the Class C Warrants, Class D Warrants, are exercisable, at the option of
each holder, in whole or in part by delivering to us a duly executed exercise notice and, at any time a registration statement registering
the issuance of the shares of common stock underlying the Class C Warrants or Class D Warrants, under the Securities Act of 1933, as
amended (the “Securities Act”) is effective and available for the issuance of such shares, by payment in full in immediately
available funds for the number of shares of common stock purchased upon such exercise. If a registration statement registering the issuance
of the shares of common stock underlying the Class C Warrants, Class D Warrants, under the Securities Act is not effective or available,
the holder may, in its sole discretion, elect to exercise the Class C Warrant or Class D Warrant, 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 warrant. We may be required to pay certain amounts as liquidated damages as specified in the warrants in the event we do not deliver
shares of common stock upon exercise of the warrants within the time periods specified in the warrants. In addition, a holder may also
effect an “alternative cashless exercise.” In such event, the aggregate number of shares of common stock issuable in such
alternative cashless exercise shall equal the product of (x) the aggregate number of shares of common stock that would be issuable upon
exercise of the Class C Warrant or Class D Warrant in accordance with the terms of such warrant if such exercise were by means of a cash
exercise rather than a cashless exercise and (y) 0.40 with respect to the Class C Warrant or 0.80 with respect to the Class D Warrant.
No fractional shares of common stock will be issued in connection with the exercise of a Class C Warrant or Class D Warrant. With respect
to any alternative cashless exercise, fractional shares will be rounded down to the nearest whole share.
Fractional
Shares. No fractional shares of common stock will be issued in connection with the exercise of a warrant. Other than as described
above with respect to alternative cashless exercises, in lieu of fractional shares, we will, at our election, either pay the holder an
amount in cash equal to the fractional amount multiplied by the exercise price or round up to the next whole share.
Exercise
Limitation. A holder will not have the right to exercise any portion of the Class C Warrants, or Class D Warrants if the holder (together
with its affiliates) would beneficially own in excess of 4.99% (or, upon election by a holder prior to the issuance of any warrants,
9.99%) 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 the warrants. However, any holder may increase or decrease such percentage to any other
percentage not in excess of 9.99%, upon at least 61 days’ prior notice from the holder to us with respect to any increase in such
percentage.
Exercise
Price. The exercise price per whole share of common stock purchasable upon exercise of the Class C Warrants and the Class D Warrants
is $5.60 per share. The exercise price and number of shares of common stock issuable on exercise are subject to appropriate adjustments
in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting
our common stock.
Transferability.
Subject to applicable laws, the Class C Warrants and Class D Warrants may be offered for sale, sold, transferred or assigned without
our consent.
Exchange
Listing. We do not intend to list the Class C Warrants or the Class D Warrants on any securities exchange or other trading market.
Without an active trading market, the liquidity of these securities will be limited.
Warrant
Agent. The Class C Warrants and Class D Warrants are issued in registered form under a warrant agreement between American Stock Transfer
& Trust Company, LLC, as warrant agent, and us. The Class C Warrants and Class D Warrants shall initially be represented only by
one or more global warrants deposited with the warrant agent, as custodian on behalf of The Depository Trust Company (DTC) and registered
in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC.
Fundamental
Transactions. In the event of a fundamental transaction, and generally including, with certain exceptions, 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 or merger with or into another person, the acquisition of more than 50% of our outstanding shares of common stock,
or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding shares of common stock,
the holders of the Class C Warrants and Class D Warrants will be entitled to receive upon exercise of the warrants the kind and amount
of securities, cash or other property that the holders would have received had they exercised the warrants immediately prior to such
fundamental transaction. In addition, in the event of a fundamental transaction, we or the successor entity, at the request of a holder
of Class C Warrants or Class D Warrants, will be obligated to purchase any unexercised portion of such Class C Warrants or Class D Warrants
in accordance with the terms of the warrants. Additionally, as more fully described in the warrants, in the event of certain fundamental
transactions, the holders of the warrants will be entitled to receive consideration in an amount equal to the Black Scholes value of
the warrants on the date of consummation of such transaction.
Rights
as a Shareholder. Except as otherwise provided in the Class C Warrants and Class D Warrants or by virtue of such holder’s ownership
of our shares of common stock, the holder of a Class C Warrant or Class D Warrant does not have the rights or privileges of a holder
of our common stock, including any voting rights, until the holder exercises the warrant.
Governing
Law. The Class C Warrants, Class D Warrants, and warrant agreement are governed by New York law.
Maxim
and Ascendiant February 2023 Warrants
In
connection with the February 2023 Offering, we issued (i) to Maxim, as our sole placement agent for the 2023 Offering, 73,100 warrants
to purchase shares of our common stock and (ii) to Ascendiant, as a financial advisor to us in the February 2023 Offering, 12,900 warrants
to purchase shares of our common stock (collectively, the “Placement Agent Warrants”). The Placement Agent Warrants will
expire on February 7, 2028. The Placement Agent Warrants are exercisable at a price of $6.16 per share, subject to adjustment for stock
dividends, distributions, subdivisions, combinations, or reclassifications, and for certain dilutive issuances. Subject to limited exceptions,
a holder of the Placement Agent Warrants will not have the right to exercise any portion of the Placement Agent Warrants to the extent
that, after giving effect to the exercise, the holder, together with its affiliates, and any other person acting as a group together
with the holder or any of its affiliates, would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding
immediately after giving effect to its exercise. The holder, upon notice to us, may increase or decrease the beneficial ownership limitation
provisions of the Placement Agent Warrants, provided that in no event shall the limitation exceed 9.99% of the number of shares of our
common stock outstanding immediately after giving effect to the exercise of the Placement Agent Warrants. The Placement Agent Warrants
may be exercised as to all or a lesser number of shares of our common stock and contain certain demand registration rights and unlimited
“piggyback” registration rights for a period of five years after February 7, 2023, at our expense. We relied on the exemption
from registration available under Section 4(a)(2) of the Securities Act in connection with the issuance of the Dealer Manager Warrants
to Maxim and Ascendiant.
The
foregoing description of the Placement Agent Warrants is not complete. For the complete terms of the Placement Agent Warrants, you should
refer to the form of Placement Agent Warrant filed as an exhibit to this registration statement.
October
2022 Rights Offering Warrants
On
October 17, 2022, we issued 308,321 common stock warrants designated as our “Class A” warrants and 308,321 common stock warrants
designated as our “Class B” warrants (collectively the “October 2022 Warrants”) in a rights offering to our stockholders
(the “October 2022 Rights Offering”). Each of these warrants entitles the holder to purchase one share of common stock at
an exercise price of $0.3554 per share. The Class A Warrants and Class B Warrants have the same terms, except that the Class A
Warrants expire five years from the date of issuance and the Class B Warrants expire three years from the date of issuance. The material
terms and provisions of the October 2022 Warrants are summarized below. This summary of the October 2022 Warrants is not complete. For
the complete terms of the October 2022 Warrants, you should refer to the form of October 2022 Warrant filed as an exhibit to the registration
statement of which this prospectus forms a part.
Pursuant
to a warrant agency agreement between us and American Stock Transfer & Trust Company, LLC, as warrant agent, the October 2022 Warrants
were issued in book-entry form and are represented only by one or more global warrants deposited with the warrant agent, as custodian
on behalf of The Depository Trust Company, or DTC, and registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed
by DTC.
Exercisability
Each
Class A Warrant is exercisable at any time and will expire five years from the date of issuance. Each Class B Warrant is exercisable
at any time and will expire three years from the date of issuance. The Warrants are exercisable, at the option of each holder, in whole
or in part by delivering to us a duly executed exercise notice and payment in full for the number of shares of our common stock purchased
upon such exercise, except in the case of a cashless exercise as discussed below. The number of shares of common stock issuable upon
exercise of the Warrants is subject to adjustment in certain circumstances, including a stock split of, stock dividend on, or a subdivision,
combination or recapitalization of the common stock. If we effect a merger, consolidation, sale of substantially all of our assets, or
other similar transaction, then, upon any subsequent exercise of a Warrants, the Warrant holder will have the right to receive any shares
of the acquiring corporation or other consideration it would have been entitled to receive if it had been a holder of the number of shares
of common stock then issuable upon exercise in full of the Warrant.
Cashless
Exercise
If
at any time there is no effective registration statement registering, or the prospectus contained therein is not available for issuance
of, the shares issuable upon exercise of the warrant, the holder may exercise the warrant on a cashless basis. When exercised on a cashless
basis, a portion of the warrant is cancelled in payment of the purchase price payable in respect of the number of shares of our common
stock purchasable upon such exercise.
Exercise
Price
Each
warrant represents the right to purchase one share of common stock at an exercise price equal to the Conversion Price. In addition, the
exercise price per share is subject to adjustment for stock dividends, distributions, subdivisions, combinations, or reclassifications,
and for certain dilutive issuances. The exercise price is also subject to adjustment in the event that we sell, issue, or grant any option
to purchase, or sell or issue any right to reprice, or otherwise dispose of or issue (or enter into any agreement relating to the offer,
sale, grant or any option to purchase or other disposition) any common stock or convertible securities (as defined in the warrants),
at an effective price per share less than the exercise price then in effect. In addition, if at any time there occurs a stock dividend,
distribution, subdivision, combination, or reclassification and the volume weighted average price of the shares of common stock for the
five trading days following such event is less than the exercise price then in effect (after giving effect to the adjustment of the exercise
price pursuant to such event under the terms of the Warrants), then on the fifth trading day following such event, the exercise price
shall be reduced to the volume weighted average price of the shares of common stock for the five trading days following such event.
Subject
to limited exceptions, a holder of warrants will not have the right to exercise any portion of the warrant to the extent that, after
giving effect to the exercise, the holder, together with its affiliates, and any other person acting as a group together with the holder
or any of its affiliates, would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately
after giving effect to its exercise. The holder, upon notice to us, may increase or decrease the beneficial ownership limitation provisions
of the warrant, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding immediately
after giving effect to the exercise of the warrant.
Transferability
Subject
to applicable laws and restrictions, a holder may transfer a warrant upon surrender of the warrant to us with a completed and signed
assignment in the form attached to the warrant. The transferring holder will be responsible for any tax that liability that may arise
as a result of the transfer.
No
Market
There
is no public trading market for the October 2022 Warrants and they will not be listed for trading on Nasdaq or any other securities exchange
or market.
Rights
as Stockholder
Except
as set forth in the October 2022 Warrants, the holder of an October 2022 Warrant, solely in such holder’s capacity as a holder
of such warrant, will not be entitled to vote, to receive dividends, or to any of the other rights of our stockholders.
Amendments
and Waivers
The
provisions of each October 2022 Warrant may be modified or amended or the provisions thereof waived with the written consent of us and
the holder.
The
October 2022 Warrants were issued pursuant to a warrant agent agreement by and between us and America Stock Transfer & Trust Company,
the warrant agent.
Maxim
and Ascendiant October 2022 Warrants
In
connection with the October 2022 Rights Offering, we issued (i) to Maxim, as the dealer-manager in the October 2022 Rights Offering,
10,483 warrants to purchase shares of our common stock and (ii) to Ascendiant, as a financial advisor to us in the October 2022 Rights
Offering, 1,850 warrants to purchase shares of the Company’s common stock (collectively, the “Dealer Manager Warrants”).
The Dealer Manager Warrants are non-exercisable for 6 months from October 17, 2022 and will expire on September 23, 2027. The Dealer
Manager Warrants will be exercisable at a price of $16.61 per share, subject to adjustment for stock dividends, distributions, subdivisions,
combinations, or reclassifications, and for certain dilutive issuances. Subject to limited exceptions, a holder of the Dealer Manager
Warrants will not have the right to exercise any portion of the Dealer Manager Warrants to the extent that, after giving effect to the
exercise, the holder, together with its affiliates, and any other person acting as a group together with the holder or any of its affiliates,
would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect to
its exercise. The holder, upon notice to us, may increase or decrease the beneficial ownership limitation provisions of the Dealer Manager
Warrants, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding immediately
after giving effect to the exercise of the Dealer Manager Warrants. In addition, the Dealer Manager Warrants shall not be redeemable
and may not be sold, transferred, assigned, pledged or hypothecated or be the subject of any hedging, short sale, derivative, put, or
call transaction for a period of 180 days following September 23, 2022, except that they may be assigned, in whole or in part, to any
officer or partner of Maxim (or to Ascendiant). The Dealer Manager Warrants may be exercised as to all or a lesser number of shares of
our common stock, and contain unlimited “piggyback” registration rights for a period of five years after September 23, 2022,
at the Company’s expense. We relied on the exemption from registration available under Section 4(a)(2) of the Securities Act in
connection with the issuance of the Dealer Manager Warrants to Maxim and Ascendiant.
The
foregoing description of the Dealer Manager Warrants is not complete. For the complete terms of the Dealer Manager Warrants, you should
refer to the form of Dealer Manager Warrant filed as an exhibit to the registration statement of which this prospectus forms a part.
February
2020 Rights Offering Warrants
On
February 6, 2020, we issued 63,720 common stock warrants (the “February 2020 Warrants”) in a rights offering to our stockholders.
The material terms and provisions of the February 2020 Warrants are summarized below. This summary of the February 2020 Warrants is not
complete. For the complete terms of the February 2020 Warrants, you should refer to the form of February 2020 Warrant filed as an exhibit
to the registration statement of which this prospectus forms a part.
Pursuant
to a warrant agency agreement between us and American Stock Transfer & Trust Company, LLC, as warrant agent, the February 2020 Warrants
were issued in book-entry form and are represented only by one or more global warrants deposited with the warrant agent, as custodian
on behalf of The Depository Trust Company, or DTC, and registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed
by DTC.
Exercisability.
Each February 2020 Warrant became exercisable at the time of issuance and will expire five years from their issuance date. The February
2020 Warrants are exercisable, at the option of each holder, in whole or in part by delivering to us a duly executed exercise notice
and payment in full for the number of shares of our common stock purchased upon such exercise, except in the case of a cashless exercise
as discussed below. The number of shares of common stock issuable upon exercise of the February 2020 Warrants is subject to adjustment
in certain circumstances, including a stock split of, stock dividend on, or a subdivision, combination or recapitalization of the common
stock. If we effect a merger, consolidation, sale of substantially all of our assets, or other similar transaction, then, upon any subsequent
exercise of a February 2020 Warrant, the February 2020 Warrant holder will have the right to receive any shares of the acquiring corporation
or other consideration it would have been entitled to receive if it had been a holder of the number of shares of common stock then issuable
upon exercise in full of the February 2020 Warrant.
Cashless
Exercise. After the earlier of (a) the date that is 30 days after the initial exercise date of the February 2020 Warrants or (b)
such trading day that the aggregate volume of shares of common stock sold since the expiration of the Offering exceeds three times the
number of shares of common stock and common stock equivalents sold in the Offering, the holder shall be permitted to exercise the February
2020 Warrant, on a cashless basis, regardless of the then applicable trading price of the common stock on Nasdaq, for an aggregate number
of shares of common stock equal to the product of (i) the aggregate number of shares of common stock that would be issuable upon exercise
of the Warrant if such exercise were by means of a cash exercise and (ii) 0.70.
Additionally,
if at any time there is no effective registration statement registering, or the prospectus contained therein is not available for issuance
of, the shares issuable upon exercise of the warrant, the holder may exercise the warrant on a cashless basis, in which a portion of
the warrant is cancelled in payment of the purchase price payable in respect of the number of shares of our common stock purchasable
upon such exercise.
Exercise
Price. Each February 2020 Warrant represents the right to purchase one share of common stock at an exercise price of $150 per share.
In addition, the exercise price per share is subject to adjustment for stock dividends, distributions, subdivisions, combinations, or
reclassifications, and for certain dilutive issuances. Subject to limited exceptions, a holder of warrants will not have the right to
exercise any portion of the warrant to the extent that, after giving effect to the exercise, the holder, together with its affiliates,
and any other person acting as a group together with the holder or any of its affiliates, would beneficially own in excess of 4.99% of
the number of shares of our common stock outstanding immediately after giving effect to its exercise. The holder, upon notice to the
Company, may increase or decrease the beneficial ownership limitation provisions of the warrant, provided that in no event shall the
limitation exceed 9.99% of the number of shares of our common stock outstanding immediately after giving effect to the exercise of the
warrant.
Fundamental
Transactions. In the event we consummate a merger or consolidation with or into another person or other reorganization event in which
our shares of common stock are converted or exchanged for securities, cash or other property, or we sell, lease, license, assign, transfer,
convey or otherwise dispose of all or substantially all of our assets or we or another person acquires 50% or more of our outstanding
shares of common stock, referred to as a fundamental transaction, then following such event, the holders will have the option, which
may be exercised within 30 days after the consummation of the fundamental transaction, to require us or our successor entity purchase
the February 2020 Warrant from the holder by paying to the holder an amount of cash equal to the Black Scholes value of the remaining
unexercised portion of the warrant on the date of the consummation of the fundamental transaction. However, if the fundamental transaction
is not within our control, including not approved by our Board of Directors, the holder will only be entitled to receive from us or any
successor entity, as of the date of consummation of such fundamental transaction, the same type or form of consideration (and in the
same proportion), at the Black Scholes value of the unexercised portion of the February 2020 Warrant, that is being offered and paid
to the holders of our common stock in connection with the fundamental transaction, whether that consideration be in the form of cash,
stock or any combination thereof, or whether the holders of common stock are given the choice to receive from among alternative forms
of consideration in connection with the fundamental transaction.
Transferability.
Subject to applicable laws and restrictions, a holder may transfer a warrant upon surrender of the warrant to us with a completed
and signed assignment in the form attached to the warrant. The transferring holder will be responsible for any tax that liability that
may arise as a result of the transfer.
No
Market. There is no public trading market for the February 2020 Warrants, and they are not listed for trading on Nasdaq or any other
securities exchange or market.
Rights
as Stockholder. Except as set forth in the February 2020 Warrants, the holder of a warrant, solely in such holder’s capacity
as a holder of a February 2020 Warrant, will not be entitled to vote, to receive dividends, or to any of the other rights of our stockholders.
Redemption
Rights. We may redeem the warrants for $0.01 per warrant if our common stock closes above $8.00 per share for ten consecutive trading
days, provided that we may not do so prior to the first anniversary of expiration of the Rights Offering.
Amendments
and Waivers. The provisions of each February 2020 Warrant may be modified or amended or the provisions thereof waived with the written
consent of us and the holder.
Maxim
and Ascendiant February 2020 Warrants
Also
on February 6, 2020, in connection with a rights offering, we issued 2,039 common stock warrants (the “Maxim Warrants”) to
Maxim, as the dealer manager in such rights offering, and 510 common stock warrants (the “Ascendiant Warrants”) to Ascendiant,
as a financial advisor to us in such rights offering. The Maxim Warrants and Ascendiant Warrants have the same material terms as the
February 2020 Warrants, except as described below.
The
Maxim Warrants and Ascendiant Warrants became exercisable 6 months from February 6, 2020 and will expire on January 17, 2025. The Maxim
Warrants and Ascendiant Warrants are exercisable at a price of $162.95 per share, subject to adjustment for stock dividends, distributions,
subdivisions, combinations, or reclassifications, and for certain dilutive issuances. Subject to limited exceptions, a holder of the
Maxim Warrants and Ascendiant Warrants will not have the right to exercise any portion of such warrant to the extent that, after giving
effect to the exercise, the holder, together with its affiliates, and any other person acting as a group together with the holder or
any of its affiliates, would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately
after giving effect to its exercise. The holder, upon notice to us, may increase or decrease the beneficial ownership limitation provisions
of the warrant, provided that in no event shall the limitation exceed 9.99% of the number of shares of our common stock outstanding immediately
after giving effect to the exercise of the warrant.
The
Maxim Warrants and Ascendiant Warrants contain the same provisions regarding fundamental transactions as those contained in the February
2020 Warrants, except that the Maxim Warrants and Ascendiant Warrants do not provide the holders thereof with the option to require us,
or a successor entity, to pay an amount equal to the Black Scholes value of the warrants in the event of certain fundamental transactions.
The
Maxim Warrants and Ascendiant Warrants are not redeemable. The Maxim Warrants and Ascendiant Warrants contain unlimited “piggyback”
registration rights for a period of five years after February 6, 2020 (but not longer than 7 years from January 17, 2020) at our expense,
subject to certain exceptions. We relied on the exemption from registration available under Section 4(a)(2) of the Securities Act in
connection with the issuance of the warrants to Maxim and Ascendiant.
This
summary of the Maxim Warrants and Ascendiant Warrants is not complete. For the complete terms of the Maxim Warrants and Ascendiant Warrants,
you should refer to the form of Maxim Warrants and Ascendiant Warrants filed as an exhibit to the registration statement of which this
prospectus forms a part.
Effects
of Anti-Takeover Provisions of Our Restated Certificate of Incorporation, Our Restated Bylaws and Delaware Law
The
provisions of (1) Delaware law, (2) our Restated Certificate of Incorporation and (3) our Restated Bylaws discussed below could discourage
or make it more difficult to prevail in a proxy contest or effect other change in our management or the acquisition of control by a holder
of a substantial amount of our voting stock. It is possible that these provisions could make it more difficult to accomplish, or could
deter, transactions that stockholders may otherwise consider to be in their best interests or our best interests. These provisions are
intended to enhance the likelihood of continuity and stability in the composition of our Board of Directors and in the policies formulated
by the Board of Directors and to discourage certain types of transactions that may involve an actual or threatened change in control
of our company. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. These provisions also
are intended to discourage certain tactics that may be used in proxy fights. These provisions also may have the effect of preventing
changes in our management.
Delaware
Statutory Business Combinations Provision. We are subject to the anti-takeover provisions of Section 203 of the Delaware General
Corporation Law. In general, Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three years after the date of the transaction in which the person became
an interested stockholder, unless the business combination is, or the transaction in which the person became an interested stockholder
was, approved in a prescribed manner or another prescribed exception applies. For purposes of Section 203, a “business combination”
is defined broadly to include a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder,
and, subject to certain exceptions, an “interested stockholder” is a person who, together with his or her affiliates and
associates, owns (or within three years prior, did own) 15% or more of the corporation’s voting stock.
Classified
Board of Directors; Appointment of Directors to Fill Vacancies; Removal of Directors for Cause. Our Restated Certificate of Incorporation
provides that our Board of Directors will be divided into three classes as nearly equal in number as possible. Each year the stockholders
will elect the members of one of the three classes to a three-year term of office. All directors elected to our classified Board of Directors
will serve until the election and qualification of their respective successors or their earlier resignation or removal. The Board of
Directors is authorized to create new directorships and to fill any positions so created and is permitted to specify the class to which
any new position is assigned. The person filling any of these positions would serve for the term applicable to that class. The Board
of Directors (or its remaining members, even if less than a quorum) is also empowered to fill vacancies on the Board of Directors occurring
for any reason for the remainder of the term of the class of directors in which the vacancy occurred. Members of the Board of Directors
may only be removed for cause and only by the affirmative vote of holders of at least 80% of our outstanding voting stock. These provisions
are likely to increase the time required for stockholders to change the composition of the Board of Directors. For example, in general,
at least two annual meetings will be necessary for stockholders to effect a change in a majority of the members of the Board of Directors.
Authorization
of Blank Check Preferred Stock. Our Restated Certificate of Incorporation provides that our Board of Directors is authorized to issue,
without stockholder approval, blank check preferred stock. Blank check preferred stock can operate as a defensive measure known as a
“poison pill” by diluting the stock ownership of a potential hostile acquirer to prevent an acquisition that is not approved
by our Board of Directors.
Advance
Notice Provisions for Stockholder Proposals and Stockholder Nominations of Directors. Our Restated Bylaws provide that, for nominations
to the Board of Directors or for other business to be properly brought by a stockholder before a meeting of stockholders, the stockholder
must first have given timely notice of the proposal in writing to our Secretary. For an annual meeting, a stockholder’s notice
generally must be delivered not less than 90 days nor more than 120 days prior to the anniversary of the mailing date of the proxy statement
for the previous year’s annual meeting. For a special meeting, the notice must generally be delivered no less than 60 days nor
more than 90 days prior to the special meeting or ten days following the day on which public announcement of the meeting is first made.
Detailed requirements as to the form of the notice and information required in the notice are specified in our Restated Bylaws. If it
is determined that business was not properly brought before a meeting in accordance with our bylaw provisions, this business will not
be conducted at the meeting.
Special
Meetings of Stockholders. Special meetings of the stockholders may be called only by our Board of Directors pursuant to a resolution
adopted by a majority of the total number of directors.
No
Stockholder Action by Written Consent. Our Restated Certificate of Incorporation does not permit our stockholders to act by written
consent. As a result, any action to be effected by our stockholders must be effected at a duly called annual or special meeting of the
stockholders.
Super-Majority
Stockholder Vote required for Certain Actions. The Delaware General Corporation Law provides generally that the affirmative vote
of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or
bylaws, unless the corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our
Restated Certificate of Incorporation requires the affirmative vote of the holders of at least 80% of our outstanding voting stock to
amend or repeal any of the provisions discussed in this section of this prospectus entitled “Effect of Anti-Takeover Provisions
of Our Restated Certificate of Incorporation, Our Restated Bylaws and Delaware Law” or to reduce the number of authorized shares
of common stock or preferred stock. This 80% stockholder vote would be in addition to any separate class vote that might in the future
be required pursuant to the terms of any preferred stock that might then be outstanding. A 80% vote is also required for any amendment
to, or repeal of, our Restated Bylaws by the stockholders. Our Restated Bylaws may be amended or repealed by a simple majority vote of
the Board of Directors.
Potential
Effects of Authorized but Unissued Stock
We
have shares of common stock and preferred stock available for future issuance without stockholder approval. We may utilize these additional
shares for a variety of corporate purposes, including future public offerings to raise additional capital, to facilitate corporate acquisitions
or payment as a dividend on the capital stock.
The
existence of unissued and unreserved common stock and preferred stock may enable our Board of Directors to issue shares to persons friendly
to current management or to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to
obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management.
In addition, the Board of Directors has the discretion to determine designations, rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences of each series of preferred stock,
all to the fullest extent permissible under the Delaware General Corporation Law and subject to any limitations set forth in our certificate
of incorporation. The purpose of authorizing the Board of Directors to issue preferred stock and to determine the rights and preferences
applicable to such preferred stock is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred
stock, while providing desirable flexibility in connection with possible financings, acquisitions and other corporate purposes, could
have the effect of making it more difficult for a third-party to acquire, or could discourage a third-party from acquiring, a majority
of our outstanding voting stock.
Stock
Market Listing
Our
common stock is listed on The NASDAQ Capital Market under the symbol “SINT”.
PLAN
OF DISTRIBUTION
We
are offering up to Units, based on a public offering price of $
per Unit, for gross proceeds of up to $ million before deduction of placement agent
commissions and offering expenses, in a best-efforts offering. There is no minimum amount of proceeds that is a condition to closing
of this offering. The actual amount of gross proceeds, if any, in this offering could vary substantially from the gross proceeds from
the sale of the maximum amount of securities being offered in this prospectus.
Pursuant
to a placement agency agreement, dated as of , 2024, we have engaged
Maxim Group LLC to act as our exclusive placement agent (the “Placement Agent”) to solicit offers to purchase the securities
offered by this prospectus. The Placement Agent is not purchasing or selling any securities, nor is it required to arrange for the purchase
and sale of any specific number or dollar amount of securities, other than to use its “reasonable best efforts” to arrange
for the sale of the securities by us. Therefore, we may not sell the entire amount of securities being offered. Investors purchasing
securities offered hereby will have the option to execute a securities purchase agreement with us. In addition to the rights and remedies
available to all investors in this offering under federal and state securities laws, the investors which enter into a securities purchase
agreement will also be able to bring claims of breach of contract against us. Investors who do not enter into a securities purchase agreement
shall rely solely on this prospectus in connection with the purchase of our securities in this offering. The Placement Agent may engage
one or more subagents or selected dealers in connection with this offering.
The
placement agency agreement provides that the Placement Agent’s obligations are subject to conditions contained in the placement
agency agreement.
We
will deliver the securities being issued to the investors upon receipt of investor funds for the purchase of the securities offered pursuant
to this prospectus. There is no arrangement for funds to be received in escrow, trust or similar arrangement and the Units will be offered
at a fixed price and are expected to be issued in a single closing. We expect to deliver the securities being offered pursuant to this
prospectus on or about , 2024.
Placement
Agent Fees, Commissions and Expenses
Upon
the closing of this offering, we will pay the placement agent a cash transaction fee equal to 7% of the aggregate gross cash proceeds
to us from the sale of the securities in the offering. In addition, we will reimburse the placement agent for its out-of-pocket expenses
incurred in connection with this offering, including the fees and expenses of the counsel for the placement agent, up to $100,000.
The
following table shows the public offering price, placement agent fees and proceeds, before expenses, to us.
| |
Per Unit | | |
Total | |
Public offering price | |
$ | | | |
$ | | |
Placement agent fees | |
$ | | | |
$ | | |
Proceeds, before expenses, to us | |
$ | | | |
$ | | |
We
estimate that the total expenses of the offering, including registration, filing and listing fees, printing fees and legal and accounting
expenses, but excluding the placement agent commission, will be approximately $ , all of which are payable by us. This figure includes,
among other things, the placement agent’s fees and expenses (including the legal fees, costs and expenses for the placement agent’s
legal counsel) up to $100,000.
Placement
Agent Warrants
Additionally,
we agreed to grant to the placement agent common stock purchase warrants exercisable for a number of shares of our common stock
equal to 4% of the Units sold in the offering. In the event that we engage Ascendiant Capital Markets, LLC as a financial advisor in
connection with the offering, the placement agent agreed that Ascendiant shall be entitled to 15% of the total fee earned by the
placement agent in connection with the offering and 15% of the placement agent warrants issuable upon closing (i.e., the placement
agent will receive 85% of the cash fee and placement agent warrants, and Ascendiant shall receive 15% of the cash fee and placement
agent warrants). The placement agent warrants will be non-exercisable for six (6) months after the date of the closing and will
expire five years after the commencement of sales of the offering. The placement agent warrants will be exercisable at a price equal
to 110.0% of the public offering price of the Units. The placement agent warrants shall not be redeemable. The placement agent
warrants may be exercised as to all or a lesser number of shares of our common stock. The placement agent warrants will
contain demand registration rights at the holder’s expense until the expiration of the placement agent warrants and
unlimited “piggyback” registration rights for a period of five years after the commencement of sales of the offering at
our expense.
Lock-Up
Agreements
We,
each of our officers and directors and stockholders holding five percent or more of our shares of common stock have agreed, subject to
certain exceptions, not to offer, issue, sell, contract to sell, encumber, grant any option for the sale of or otherwise dispose of any
shares of our common stock or other securities convertible into or exercisable or exchangeable for our common stock for a period of six
months after this offering is completed without the prior written consent of the placement agent.
The
placement agent may in its sole discretion and at any time without notice release some or all of the shares subject to lock-up agreements
prior to the expiration of the lock-up period. When determining whether or not to release shares from the lock-up agreements, the placement
agent will consider, among other factors, the security holder’s reasons for requesting the release, the number of shares for which
the release is being requested and market conditions at the time.
Indemnification
We
have agreed to indemnify the placement agent against certain liabilities, including liabilities under the Securities Act, and to contribute
to payments that the placement agent may be required to make for these liabilities.
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 10b-5 and Regulation M under the Exchange Act. These
rules and regulations may limit the timing of purchases and sales of our securities by the placement agent acting as principal. Under
these rules and regulations, the placement agent (i) may not engage in any stabilization activity in connection with our securities and
(ii) may 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.
Determination
of Offering Price and Warrant Exercise Price
The
actual offering price of the securities we are offering, and the exercise price of the Warrants included in the Units that we are offering,
were negotiated between us, the placement agent and the investors in the offering based on the trading of our shares of common stock
prior to the offering, among other things. Other factors considered in determining the public offering price of the securities we are
offering, as well as the exercise price of the Warrants that 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,
the general conditions of the securities markets at the time of the offering and such other factors as were deemed relevant.
Electronic
Distribution
A
prospectus in electronic format may be made available on a website maintained by the placement agent. In connection with the offering,
the placement agent or selected dealers may distribute prospectuses electronically. No forms of electronic prospectus other than prospectuses
that are printable as Adobe® PDF will be used in connection with this offering.
Other
than the prospectus in electronic format, 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 the prospectus or the registration statement of which this prospectus
forms a part, has not been approved and/or endorsed by us or the placement agent in its capacity as placement agent and should not be
relied upon by investors.
Certain
Relationships
The
placement agent and its affiliates have provided and may in the future provide, from time to time, investment banking and financial advisory
services to us in the ordinary course of business, for which they may receive customary fees and commissions.
In
connection with a rights offering in October 2022, we entered into a dealer-manager agreement with the placement agent, and on the closing
of such offering on October 17, 2022, we paid the placement agent a fee of 7% of the gross proceeds we received in the rights offering,
as well as certain expenses, and issued to the placement agent warrants to purchase 10,483 shares of our common stock and to Ascendiant
warrants to purchase 1,850 shares of our common stock.
On
February 25, 2021, we entered into an equity distribution agreement with the placement agent (the “Equity Distribution Agreement”),
pursuant to which we may sell shares of our common stock having an aggregate offering price of up to $15,000,000 from time to time through
the placement agent. The placement agent will be entitled to a transaction fee at a fixed rate of 2.0% of the gross sales price of shares
of common stock sold under the Equity Distribution Agreement. As of the date hereof, we have sold 51,599 shares of common stock
under the Equity Distribution Agreement for gross proceeds of $38,182.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Equiniti Trust Company, LLC, whose address is 48 Wall Street, 22nd
Floor, New York, New York 10005. Their telephone number is 1-347-554-1818.
Listing
Our
common stock is traded on Nasdaq under the symbol “SINT.”
Selling
Restrictions
Canada.
The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors,
as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are
permitted clients, as defined in National Instrument 31 103 Registration Requirements, Exemptions and Ongoing Registrant Obligations.
Any resale of the securities must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements
of applicable securities laws.
Securities
legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus
supplement (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised
by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser
should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars
of these rights or consult with a legal advisor.
Pursuant
to section 3A.3 of National Instrument 33 105 Underwriting Conflicts (NI 33 105), the underwriters are not required to comply
with the disclosure requirements of NI 33-105 regarding underwriters conflicts of interest in connection with this offering.
European
Economic Area. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive
(each, a “Relevant Member State”) an offer to the public of any securities may not be made in that Relevant Member State,
except that an offer to the public in that Relevant Member State of any securities may be made at any time under the following exemptions
under the Prospectus Directive, if they have been implemented in that Relevant Member State:
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to
any legal entity which is a qualified investor as defined in the Prospectus Directive; |
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to
fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural
or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive,
subject to obtaining the prior consent of the representatives for any such offer; or |
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in
any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of securities shall
result in a requirement for the publication by us or any underwriters of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For
the purposes of this provision, the expression an “offer to the public” in relation to any securities in any Relevant Member
State means the communication in any form and by any means of sufficient information on the terms of the offer and any securities to
be offered so as to enable an investor to decide to purchase any securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC
(and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes
any relevant implementing measure in the Relevant Member State, and the expression “2010 PD Amending Directive” means Directive
2010/73/EU.
Israel.
This document does not constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed
with or approved by the Israel Securities Authority. In the State of Israel, this document is being distributed only to, and is directed
only at, and any offer of the shares is directed only at, investors listed in the first addendum, or the Addendum, to the Israeli Securities
Law, consisting primarily of joint investment in trust funds, provident funds, insurance companies, banks, portfolio managers, investment
advisors, members of the Tel Aviv Stock Exchange, underwriters, venture capital funds, entities with equity in excess of NIS 50 million
and “qualified individuals”, each as defined in the Addendum (as it may be amended from time to time), collectively referred
to as qualified investors (in each case purchasing for their own account or, where permitted under the Addendum, for the accounts of
their clients who are investors listed in the Addendum). Qualified investors will be required to submit written confirmation that they
fall within the scope of the Addendum, are aware of the meaning of same and agree to it.
United
Kingdom. Each underwriter has represented and agreed that:
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it
has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the FSMA) received
by it in connection with the issue or sale of the securities in circumstances in which Section 21(1) of the FSMA does not apply to
us; and |
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it
has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the securities
in, from or otherwise involving the United Kingdom. |
Switzerland.
The securities may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (the SIX) or on any other
stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards
for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses
under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland.
Neither this document nor any other offering or marketing material relating to the securities or the offering may be publicly distributed
or otherwise made publicly available in Switzerland.
Neither
this document nor any other offering or marketing material relating to the offering, or the securities have been or will be filed with
or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of securities will
not be supervised by, the Swiss Financial Market Supervisory Authority FINMA, and the offer of securities has not been and will not be
authorized under the Swiss Federal Act on Collective Investment Schemes (CISA). Accordingly, no public distribution, offering or advertising,
as defined in CISA, its implementing ordinances and notices, and no distribution to any non-qualified investor, as defined in CISA, its
implementing ordinances and notices, shall be undertaken in or from Switzerland, and the investor protection afforded to acquirers of
interests in collective investment schemes under CISA does not extend to acquirers of securities.
Australia.
No placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities
and Investments Commission (ASIC), in relation to the offering.
This
prospectus does not constitute a prospectus, product disclosure statement or other disclosure document under the Corporations Act 2001
(the Corporations Act) and does not purport to include the information required for a prospectus, product disclosure statement or other
disclosure document under the Corporations Act.
Any
offer in Australia of the securities may only be made to persons (the Exempt Investors) who are “sophisticated investors”
(within the meaning of section 708(8) of the Corporations Act), “professional investors” (within the meaning of section 708(11)
of the Corporations Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it
is lawful to offer the securities without disclosure to investors under Chapter 6D of the Corporations Act.
The
securities applied for by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the
date of allotment under the offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act
would not be required pursuant to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant
to a disclosure document which complies with Chapter 6D of the Corporations Act. Any person acquiring securities must observe such Australian
on-sale restrictions.
This
prospectus contains general information only and does not take account of the investment objectives, financial situation or particular
needs of any particular person. It does not contain any securities recommendations or financial product advice. Before making an investment
decision, investors need to consider whether the information in this prospectus is appropriate to their needs, objectives and circumstances,
and, if necessary, seek expert advice on those matters.
Notice
to Prospective Investors in the Cayman Islands. No invitation, whether directly or indirectly, may be made to the public in the
Cayman Islands to subscribe for our securities.
Taiwan.
The securities have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities
laws and regulations and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitutes
an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial Supervisory
Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate
the offering and sale of the securities in Taiwan.
Notice
to Prospective Investors in Hong Kong. The contents of this prospectus have not been reviewed by any regulatory authority in
Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this prospectus,
you should obtain independent professional advice. Please note that (i) our shares may not be offered or sold in Hong Kong, by means
of this prospectus or any document other than to “professional investors” within the meaning of Part I of Schedule 1 of the
Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) (SFO) and any rules made thereunder, or in other circumstances which do
not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong)
(CO) or which do not constitute an offer or invitation to the public for the purpose of the CO or the SFO, and (ii) no advertisement,
invitation or document relating to our shares may be issued or may be in the possession of any person for the purpose of issue (in each
case whether in Hong Kong or elsewhere) which is directed at, or the contents of which are likely to be accessed or read by, the public
in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the shares which are or
are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of
the SFO and any rules made thereunder.
Notice
to Prospective Investors in the People’s Republic of China. This prospectus may not be circulated or distributed in the
PRC and the shares may not be offered or sold, and will not offer or sell to any person for re-offering or resale directly or indirectly
to any resident of the PRC except pursuant to applicable laws, rules and regulations of the PRC. For the purpose of this paragraph only,
the PRC does not include Taiwan and the special administrative regions of Hong Kong and Macau.
CERTAIN
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion of certain material U.S. federal
income tax consequences relating to the acquisition, ownership and disposition of Units, consisting of shares of common stock and Warrants,
the acquisition, ownership and disposition of units consisting of pre-funded warrants and Warrants (such units are referred to in this
discussion as “pre-funded units”), the acquisition, ownership, and disposition of shares of common stock acquired as part
of the Units, the acquisition, ownership, and disposition of pre-funded warrants acquired as part of the pre-funded units, the exercise,
disposition, or expiration of Warrants acquired as part of the Units or pre-funded units, the acquisition, ownership, and disposition
of shares of common stock received upon exercise of the pre-funded warrants, and the acquisition, ownership, and disposition of shares
of common stock received upon exercise of the Warrants (the “warrant shares”), all as acquired pursuant to this prospectus.
This discussion is based on current provisions of the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”),
existing and proposed U.S. Treasury Regulations promulgated or proposed thereunder and current administrative and judicial interpretations
thereof, all as in effect as of the date of this prospectus and all of which are subject to change or to differing interpretation, possibly
with retroactive effect. 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 have not sought and will not seek any rulings from the Internal
Revenue Service (the “IRS”), or an opinion of legal counsel, regarding the matters discussed below. There can be no assurance
that the IRS or a court will not take a contrary position.
This
discussion is limited to U.S. holders and non-U.S. holders who hold Units, pre-funded units, shares of common stock, pre-funded warrants, Warrants, or warrant shares, as applicable, as a capital asset within the meaning of Section 1221 of the Internal Revenue Code
(generally, as property held for investment). This discussion does not address all aspects of U.S. federal income taxation, such as the
U.S. alternative minimum income tax and the additional tax on net investment income, nor does it address any aspect of state, local or
non-U.S. taxes, or U.S. federal taxes other than income taxes, such as federal estate and gift taxes. Except as provided below, this
summary does not address tax reporting requirements. This discussion does not consider any specific facts or circumstances that may apply
to a holder and does not address the special tax considerations that may be applicable to particular holders, such as:
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insurance
companies; |
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tax-exempt
organizations and governmental organizations; |
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banks
or other financial institutions; |
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brokers
or dealers in securities or foreign currency; |
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traders
in securities who elect to apply a mark-to-market method of accounting; |
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real
estate investment trusts, regulated investment companies or mutual funds; |
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pension
plans; |
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controlled
foreign corporations, and shareholders thereof; |
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passive
foreign investment companies, and shareholders 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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persons
that own (directly, indirectly or constructively) more than 5% of the total voting power or total value of our common stock; |
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corporations
that accumulate earnings to avoid U.S. federal income tax; |
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persons
subject to the alternative minimum tax; |
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U.S.
expatriates and certain former citizens or long-term residents of the United States; |
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persons
that have a “functional currency” other than the U.S. dollar; |
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persons
that acquire Units, pre-funded units, shares of common stock, pre-funded warrants, Warrants or warrant shares as compensation
for services; |
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owners
that hold our stock as part of a straddle, hedge, conversion transaction, synthetic security or other integrated investment; |
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holders
subject to special accounting rules; |
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corporations (and shareholders 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); and |
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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 their Units, pre-funded
units, shares of common stock, pre-funded warrants, Warrants or warrant shares, or that hold such securities in connection
with a trade or business, permanent establishment or fixed base outside the United States. |
If
an entity or arrangement taxable as a partnership (or other “pass-through entity) for U.S. federal income tax purposes holds our
Units, pre-funded units, shares of common stock, pre-funded warrants, Warrants or warrant shares, the U.S. federal income tax
treatment of such entity (or arrangement) and the partners (or other owners) of such entity generally will depend on the status of the
partners, the activities of the entity and certain determinations made at the partner level. This summary does not address the tax consequences
to any such owner. Partners (or other owners) of entities or arrangements that are classified as partnerships or as “pass-through”
entities for U.S. federal income tax purposes should consult their own tax advisors regarding the U.S. federal, U.S. federal net investment
income, U.S. federal alternative minimum, U.S. federal estate and gift, U.S. state and local, and non-U.S. tax consequences arising from
and relating to the acquisition, ownership, and disposition our Units, pre-funded units, shares of common stock, pre-funded warrants, Warrants or warrant shares.
For
purposes of this discussion, the term “U.S. holder” means a beneficial owner of our Units, pre-funded units, shares of common
stock, pre-funded warrants, Warrants or warrant shares that is, for U.S. federal income tax purposes:
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an
individual who is a citizen or resident of the United States; |
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a
corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia; |
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an
estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
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a
trust, if (1) a U.S. court is able to exercise primary supervision over the administration of the trust and one or more U.S. persons
have authority to control all substantial decisions of the trust or (2) the trust has a valid election to be treated as a U.S. person
under applicable U.S. Treasury Regulations. |
A
“non-U.S. holder” is a beneficial owner of our Units, pre-funded units, shares of common stock, pre-funded warrants, Warrants or warrant shares that is neither a U.S. holder nor a partnership (or other entity treated as a partnership for U.S. federal
income tax purposes).
THIS
DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT, AND IS NOT INTENDED TO BE, LEGAL OR TAX ADVICE. PROSPECTIVE INVESTORS SHOULD
CONSULT THEIR OWN TAX ADVISORS REGARDING THE U.S. FEDERAL, STATE, LOCAL, AND NON-U.S. INCOME, ESTATE AND OTHER TAX CONSIDERATIONS OF
ACQUIRING, HOLDING AND DISPOSING OF OUR UNITS, PRE-FUNDED UNITS, SHARES OF COMMON STOCK, PRE-FUNDED WARRANTS, WARRANTS OR WARRANT
SHARES.
U.S.
Federal Income Tax Consequences of the Acquisition of Units or Pre-Funded Units
For
U.S. federal income tax purposes, the acquisition by a U.S. holder or a non-U.S. holder of a Unit will be treated as the acquisition
of one share of common stock and one Warrant. The purchase price for each Unit will be allocated among these two components in proportion
to their relative fair market values at the time the Unit is purchased by the U.S. holder or non-U.S. holder. This allocation of the
purchase price for each Unit will establish a U.S. holder’s or non-U.S. holder’s initial tax basis for U.S. federal income
tax purposes in the one share of common stock, the one Class E Warrant, and the one Class F Warrant that comprise each
Unit.
For this purpose, we will allocate $
of the purchase price for the Unit to the share of common stock, $ of the purchase
price for the Unit to the Class E Warrant, and $ of the purchase price for the Unit to the Class F Warrant. However, the IRS will
not be bound by such allocation of the purchase price for the Units, and therefore, the IRS or a U.S. court may not respect the allocation
set forth above. Each U.S. holder and non-U.S. holder should consult its own tax advisor regarding the allocation of the purchase price
for the Units.
For
U.S. federal income tax purposes, the acquisition by a U.S. holder or a non-U.S. holder of a pre-funded unit will be treated as the acquisition
of one pre-funded warrant and one Warrant. The purchase price for each pre-funded unit will be allocated among these two components in
proportion to their relative fair market values at the time the pre-funded unit is purchased by the U.S. holder or non-U.S. holder. This
allocation of the purchase price for each pre-funded unit will establish a U.S. holder’s or non-U.S. holder’s initial tax
basis for U.S. federal income tax purposes in the one pre-funded warrant, the one Class E Warrant, and the one Class F Warrant
that comprises each pre-funded unit.
For
this purpose, we will allocate $ of the purchase price for the pre-funded unit
to the pre-funded warrant, $ of the purchase price for each pre-funded unit
to the Class E Warrant, and $ of the purchase price for each pre-funded unit to the Class F Warrant.
However, the IRS will not be bound by such allocation of the purchase price for the pre-funded units, and therefore, the IRS or a
U.S. court may not respect the allocation set forth above. Each U.S. holder and non-U.S. holder should consult its own tax advisor regarding
the allocation of the purchase price for the pre-funded units.
Treatment
of Pre-Funded Warrants
Although
it is not entirely free from doubt, we believe that a pre-funded warrant should be treated as a separate class of shares of common stock
for U.S. federal income tax purposes and a U.S. holder or non-U.S. holder of pre-funded warrants should generally be taxed in the same
manner as a holder of shares of common stock except 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 shares of common stock
received. Similarly, the tax basis of the pre-funded warrant should carry over to the shares of common stock received upon exercise,
increased by the exercise price of $0.0001 per share. However, such characterization is not binding on the IRS, and the IRS may treat
the pre-funded warrants as warrants to acquire shares of common stock. If so, the amount and character of a U.S. holder’s or non-U.S.
holder’s gain with respect to an investment in pre-funded warrants could change. Accordingly, each U.S. holder and non-U.S. holder
should consult its own tax advisors regarding the risks associated with the acquisition of a pre-funded warrant pursuant to this prospectus
(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.
In
certain limited circumstances, a U.S. holder may be permitted to undertake a cashless exercise of pre-funded warrants into shares of
common stock. The U.S. federal income tax treatment of a cashless exercise of pre-funded warrants into shares of common stock is unclear,
and the tax consequences of a cashless exercise could differ from the consequences upon the exercise of a pre-funded warrant described
in the preceding paragraph. U.S. holders should consult their own tax advisors regarding the U.S. federal income tax consequences of
a cashless exercise of pre-funded warrants.
U.S.
Holders
U.S.
Federal Income Tax Consequences of the Exercise, Disposition or Expiration of Warrants or Certain Adjustments to the Warrants
Exercise
of Warrants
A U.S. holder should not recognize gain or loss on the exercise of Warrants
and related receipt of warrant shares (unless cash is received in lieu of the issuance of a fractional warrant share). A U.S. holder’s
initial tax basis in the warrant shares received on the exercise of Warrants should be equal to the sum of (a) such U.S. holder’s
tax basis in such Warrants plus (b) the exercise price paid by such U.S. holder on the exercise of such Warrants. It is unclear whether
a U.S. holder’s holding period for the warrant shares received on the exercise of Warrants would commence on the date of exercise
of the Warrants or the day following the date of exercise of the Warrants.
In certain limited circumstances, a U.S. holder may be permitted to undertake
a cashless exercise of Warrants into warrant shares. The U.S. federal income tax treatment of a cashless exercise of Warrants into warrant
shares is unclear, and the tax consequences of a cashless exercise could differ from the consequences upon the exercise of Warrants described
in the preceding paragraph. U.S. holders should consult their own tax advisors regarding the U.S. federal income tax consequences of a
cashless exercise of Warrants.
Disposition
of Warrants
A U.S. holder will recognize gain or loss on the sale or other taxable
disposition of a Warrant in an amount equal to the difference, if any, between (a) the amount of cash plus the fair market value of any
property received and (b) such U.S. holder’s tax basis in the Warrant sold or otherwise disposed of. Any such gain or loss generally
will be a capital gain or loss, which will be long-term capital gain or loss if the Warrant is held for more than one year. Deductions
for capital losses are subject to complex limitations under the Internal Revenue Code.
Expiration
of Warrants Without Exercise
Upon the lapse or expiration of a Warrant, a U.S. holder will recognize
a loss in an amount equal to such U.S. holder’s tax basis in the Warrant. Any such loss generally will be a capital loss and will
be long-term capital loss if the Warrant is held for more than one year. Deductions for capital losses are subject to complex limitations
under the Internal Revenue Code.
Certain
Adjustments to the Warrants
Under Section 305 of the Internal Revenue Code, an adjustment to the number
of warrant shares that will be issued on the exercise of the Warrants, or an adjustment to the exercise price of the Warrants, may be
treated as a constructive distribution to a U.S. holder of the Warrants if, and to the extent that, such adjustment has the effect of
increasing such U.S. holder’s proportionate interest in the “earnings and profits” or our assets, depending on the circumstances
of such adjustment (for example, if such adjustment is to compensate for a distribution of cash or other property to our shareholders).
Adjustments to the exercise price of Warrants made pursuant to a bona fide reasonable adjustment formula that has the effect of preventing
dilution of the interest of the holders of the Warrants should generally not be considered to result in a constructive distribution. Any
such constructive distribution would be taxable whether or not there is an actual distribution of cash or other property. (See more detailed
discussion of the rules applicable to distributions made by us at “Distributions on Shares of Common Stock, Pre-Funded Warrants
and Warrant Shares” below).
U.S.
Federal Income Tax Consequences of the Acquisition, Ownership, and Disposition of Shares of Common Stock, Pre-Funded Warrants and Warrant
Shares
Distributions
on Shares of Common Stock, Pre-Funded Warrants and Warrant Shares
A
U.S. holder that receives a distribution, including a constructive distribution, with respect to a share of common stock, pre-funded
warrant or warrant share (as well as any constructive distribution on a Warrant as described above) will be required to include
the amount of such distribution in gross income as a dividend to the extent of our current and accumulated “earnings and profits”,
as computed under U.S. federal income tax principles. To the extent that a distribution exceeds our current and accumulated “earnings
and profits”, such distribution will be treated first as a tax-free return of capital to the extent of a U.S. holder’s tax
basis in the shares of common stock, pre-funded warrants or warrant shares and thereafter as gain from the sale or exchange of such shares
of common stock, pre-funded warrants or warrant shares (see “Sale or Other Taxable Disposition of Shares of Common Stock, Pre-Funded
Warrants and/or Warrant Shares” below). Dividends received on shares of common stock, pre-funded warrants or warrant shares
may be eligible for a dividends received deduction, subject to certain restrictions relating to, among others, the corporate U.S. holder’s
taxable income, holding period and debt financing. Dividends paid by us to non-corporate U.S. holders, including individuals, generally
will be eligible for the preferential tax rates applicable to long-term capital gains for dividends, provided certain holding period
and other conditions are satisfied. The dividend rules are complex, and each U.S. holder should consult its own tax advisor regarding
the application of such rules.
Sale
or Other Taxable Disposition of Shares of Common Stock, Pre-Funded Warrants and/or Warrant Shares
Upon
the sale or other taxable disposition of shares of common stock, pre-funded warrants or warrant shares, a U.S. holder generally will
recognize capital gain or loss in an amount equal to the difference between (a) the amount of cash plus the fair market value of any
property received and (b) such U.S. holder’s tax basis in such shares of common stock, pre-funded warrants or warrant shares sold
or otherwise disposed of. Gain or loss recognized on such sale or other taxable disposition generally will be long-term capital gain
or loss if, at the time of the sale or other taxable disposition, the shares of common stock, pre-funded warrants or warrant shares have
been held for more than one year. Preferential tax rates may apply to long-term capital gain of a U.S. holder that is an individual,
estate, or trust. There are no preferential tax rates for long-term capital gain of a U.S. holder that is a corporation. Deductions for
capital losses are subject to significant limitations under the Internal Revenue Code.
Non-U.S.
Holders
U.S.
Federal Income Tax Consequences of the Exercise, Disposition or Expiration of Warrants or Certain Adjustments to the Warrants
Exercise
of Warrants
A non-U.S. holder generally will not recognize gain or loss on the exercise
of Warrants and related receipt of warrant shares (unless cash is received in lieu of the issuance of a fractional warrant share and certain
other conditions are present, as discussed below under “Gain on Sale, Exchange or Other Taxable Disposition of Shares of Common
Stock, Pre-Funded Warrants, Warrants and Warrant Shares”). A non-U.S. holder’s initial tax basis in the warrant shares
received on the exercise of Warrants should be equal to the sum of (i) the non-U.S. holder’s tax basis in the Warrants, plus (ii)
the exercise price paid by the non-U.S. holder on the exercise of the Warrants. It is unclear whether a non-U.S. holder’s holding
period for the warrant shares received on the exercise of Warrants would commence on the date of exercise of the Warrants or the day following
the date of exercise of the Warrants.
In certain limited circumstances, a non-U.S. holder may be permitted to
undertake a cashless exercise of Warrants into warrant shares. The U.S. federal income tax treatment of a cashless exercise of Warrants
into warrant shares is unclear, and the tax consequences of a cashless exercise could differ from the consequences upon the exercise of
Warrants described in the preceding paragraph. Non-U.S. holders should consult their own tax advisors regarding the U.S. federal income
tax consequences of a cashless exercise of Warrants.
Disposition
of Warrants
A
non-U.S. Holder will recognize gain or loss on the sale or other taxable disposition of a Warrant in an amount equal to the difference,
if any, between (a) the amount of cash plus the fair market value of any property received and (b) such non-U.S. holder’s tax basis
in the Warrant sold or otherwise disposed of. Any such gain or loss generally will be a capital gain or loss, which will be long-term
capital gain or loss if the Warrant is held for more than one year. Any such gain recognized by a non-U.S. holder will be taxable for
U.S. federal income tax purposes according to rules discussed under the heading “Gain on Sale, Exchange or Other Taxable Disposition
of Shares of Common Stock, Pre-Funded Warrants, Warrants and Warrant Shares” below.
Expiration
of Warrants without Exercise
Upon the lapse or expiration of a Warrant, a non-U.S. holder will recognize
loss in an amount equal to such non-U.S. holder’s tax basis in the Warrant. Any such loss generally will be a capital loss and will
be long-term capital loss if the Warrants are held for more than one year. Deductions for capital losses are subject to complex limitations
under the Internal Revenue Code.
Certain
Adjustments to the Warrants
Under Section 305 of the Internal Revenue Code, an adjustment to the number
of warrant shares that will be issued on the exercise of the Warrants, or an adjustment to the exercise price of the Warrants, may be
treated as a constructive distribution to a non-U.S. holder of the Warrants if, and to the extent that, such adjustment has the effect
of increasing such non-U.S. holder’s proportionate interest in our “earnings and profits” or assets, depending on the
circumstances of such adjustment (for example, if such adjustment is to compensate for a distribution of cash or other property to our
shareholders). Adjustments to the exercise price of a Warrant made pursuant to a bona fide reasonable adjustment formula that has the
effect of preventing dilution of the interest of the holders of the Warrants should generally not result in a constructive distribution.
See the more detailed discussion of the rules applicable to distributions made by us under the heading “Distributions on Shares
of Common Stock, Pre-Funded Warrants and Warrant Shares” below.
U.S.
Federal Income Tax Consequences of the Acquisition, Ownership, and Disposition of Shares of Common Stock, Pre-Funded Warrants and Warrant
Shares
Distributions
on Shares of Common Stock, Pre-Funded Warrants and Warrant Shares
If
we pay distributions of cash or property with respect to our shares of common stock, pre-funded warrants or warrant shares, those distributions
generally will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings
and profits, as determined under U.S. federal income tax principles. If a distribution exceeds our current and accumulated earnings and
profits, the excess will be treated as a tax-free return of the non-U.S. holder’s investment, up to such holder’s tax basis
in its shares of common stock, pre-funded warrants or warrants shares, as applicable. Any remaining excess will be treated as capital
gain, subject to the tax treatment described below under the heading “— Gain on Sale, Exchange or Other Taxable Disposition
of Shares of Common Stock, Pre-Funded Warrants, Warrants and Warrant Shares.” Dividends paid to a non-U.S. holder generally
will be subject to withholding of U.S. federal income tax at a 30% rate, 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. In the case of any constructive distribution, it is
possible that this tax would be withheld from any amount owed to the non-U.S. holder, including, but not limited to, distributions of
cash, shares of common stock or sales proceeds subsequently paid or credited to that holder. If we are unable to determine, at the time
of payment of a distribution, whether the distribution will constitute a dividend, we may nonetheless choose to withhold any U.S. federal
income tax on the distribution as permitted by U.S. Treasury Regulations. If we are a USRPHC (as defined below) and we do not qualify
for the Regularly Traded Exception (as defined below), distributions which constitute a return of capital will be subject to withholding
tax unless an application for a withholding certificate is filed to reduce or eliminate such withholding.
Distributions
that are treated as effectively connected with a trade or business conducted by a non-U.S. holder within the United States are generally
not subject to the 30% (or lower rate as may be specified by an applicable tax treaty) withholding tax if the non-U.S. holder provides
a properly executed IRS Form W-8ECI stating that the distributions are not subject to withholding because they are effectively connected
with the non-U.S. holder’s conduct of a trade or business in the United States. If a non-U.S. holder is engaged in a trade or business
in the United States and the distribution is effectively connected with the conduct of that trade or business, the distribution will
generally have the consequences described above for a U.S. holder (subject to any modification provided under an applicable income tax
treaty). Any U.S. effectively connected income received by a non-U.S. holder that is treated as a corporation for U.S. federal income
tax purposes may also, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate (or such
lower rate as may be specified by an applicable income tax treaty).
A
non-U.S. holder who claims the benefit of an applicable income tax treaty between the United States and such holder’s country of
residence generally will be required to provide a properly executed IRS Form W-8BEN or W-8BEN-E, as applicable, and satisfy applicable
certification and other requirements. A non-U.S. holder that is eligible for a reduced rate of U.S. withholding tax under an income tax
treaty generally may obtain a refund or credit of any excess amounts withheld by timely filing an appropriate claim with the IRS. Non-U.S.
holders should consult their own tax advisors regarding their entitlement to benefits under a relevant income tax treaty.
Gain
on Sale, Exchange or Other Taxable Disposition of Shares of Common Stock, Pre-Funded Warrants, Warrants and Warrant Shares
Subject
to the discussions below in “—Information Reporting and Backup Withholding” and “—Foreign Account
Tax Compliance Act,” a non-U.S. holder generally will not be subject to U.S. federal income tax on gain recognized on a sale,
exchange or other taxable disposition of our shares of common stock, pre-funded warrants, Warrants, or warrant shares 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 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 graduated rates and in the manner
applicable to a U.S. holder, 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 an individual present in the United States for 183 days or more in the taxable year of the disposition and certain
other conditions 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) on the amount by which such non-U.S. holder’s capital gains allocable to U.S. sources exceed
capital losses allocable to U.S. sources during the taxable year of the disposition; or |
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we
are or have been a “U.S. real property holding corporation” (“USRPHC”) for U.S. federal income tax
purposes at any time during the shorter of the non-U.S. holder’s holding period or the 5-year period ending on the date of
disposition of shares of common stock, pre-funded warrants, Warrants or warrant shares; provided, with respect to the shares
of common stock and warrant shares, that as long as our shares of common stock are regularly traded on an established securities
market as determined under the U.S. Treasury Regulations (the “Regularly Traded Exception”), a non-U.S. holder
would not be subject to taxation on the gain on the sale of shares of common stock or warrant shares under this rule unless the non-U.S.
holder has owned: (i) more than 5% of our shares of common stock at any time during such 5-year or shorter period; (ii) pre-funded
warrants with a fair market value on the date acquired by such holder greater than the fair market value on that date of 5% of our
shares of common stock; (iii) Warrants with a fair market value on the date acquired by such holder greater than the fair
market value on that date of 5% of our shares of common stock; or (iv) aggregate equity securities of ours with a fair market value
on the date acquired in excess of 5% of the fair market value of our shares of common stock on such date (in any case, a “5%
Shareholder”). Since the Warrants are not expected to be listed on a securities market, the Warrants are
unlikely to qualify for the Regularly Traded Exception. Special rules apply to the pre-funded warrants. Non-U.S. holders holding
pre-funded warrants should consult their own tax advisors regarding such rules. In determining whether a non-U.S. holder is a 5%
Shareholder, certain attribution rules apply in determining ownership for this purpose. We believe that we are not currently, and
do not anticipate becoming in the future, a USRPHC for U.S. federal income tax purposes. However, we can provide no assurances that
we are not currently, or will not become, a USRPHC, or if we are or become a USRPHC, that the shares of common stock, pre-funded
warrants, Warrants or warrant shares will meet the Regularly Traded Exception at the time a non-U.S. holder purchases such
securities or sells, exchanges or otherwise disposes of such securities. Non-U.S. holders should consult with their own tax advisors
regarding the consequences to them of investing in a USRPHC. If we are a USRPHC, a non-U.S. holder will be taxed as if any gain or
loss were effectively connected with the conduct of a trade or business as described above in “Distributions on Shares of
Common Stock, Pre-Funded Warrants and Warrant Shares” in the event that (i) such holder is a 5% Shareholder, or (ii) the
Regularly Traded Exception is not satisfied during the relevant period. |
Information
Reporting and Backup Withholding
Distributions
on, and the payment of the proceeds of a disposition of, our shares of common stock, pre-funded warrants and warrant shares generally
will be subject to information reporting if made within the United States or through certain U.S.-related financial intermediaries. Information
returns are required to be filed with the IRS and copies of information returns may be made available to the tax authorities of the country
in which a holder resides or is incorporated under the provisions of a specific treaty or agreement.
Backup
withholding may also apply if the holder fails to provide certification of exempt status or a correct U.S. taxpayer identification number
and otherwise comply with the applicable backup withholding requirements. Generally, a holder will not be subject to backup withholding
if it provides a properly completed and executed IRS Form W-9 or appropriate IRS Form W-8, as applicable. Backup withholding is not an
additional tax. Amounts withheld under the backup withholding rules may be refunded or credited against the holder’s U.S. federal
income tax liability, if any, provided certain information is timely filed with the IRS.
Foreign
Account Tax Compliance Act
Sections
1471 through 1474 of the Internal Revenue Code (commonly referred to as “FATCA”) impose a separate reporting regime
and potentially a 30% withholding tax on certain payments, including payments of dividends on our shares of common stock, pre-funded
warrants and warrant shares. Withholding under FATCA generally applies to payments made to or through a foreign entity if such entity
fails to satisfy certain disclosure and reporting rules. These rules generally require (i) in the case of a foreign financial institution,
that the financial institution agree to identify and provide information in respect of financial accounts held (directly or indirectly)
by U.S. persons and U.S.-owned entities, and, in certain instances, to withhold on payments to account holders that fail to provide the
required information, and (ii) in the case of a non-financial foreign entity, that the entity either identify and provide information
in respect of its substantial U.S. owners or certify that it has no such U.S. owners.
FATCA
withholding also potentially applies to payments of gross proceeds from the sale or other disposition of our shares of common stock,
pre-funded warrants and warrant shares. Proposed U.S. Treasury Regulations, however, would eliminate FATCA withholding on such payments,
and the U.S. Treasury Department has indicated that taxpayers may rely on this aspect of the proposed U.S. Treasury Regulations until
final U.S. Treasury Regulations are issued.
Non-U.S.
holders typically will be required to furnish certifications (generally on the applicable IRS Form W-8) or other documentation to provide
the information required by FATCA or to establish compliance with or an exemption from withholding under FATCA. FATCA withholding may
apply where payments are made through a non-U.S. intermediary that is not FATCA compliant, even where the non-U.S. holder satisfies the
holder’s own FATCA obligations.
The
United States and a number of other jurisdictions have entered into intergovernmental agreements to facilitate the implementation of
FATCA. Any applicable intergovernmental agreement may alter one or more of the FATCA information reporting and withholding requirements.
You are encouraged to consult with your own tax advisor regarding the possible implications of FATCA on your investment in our shares
of common stock, pre-funded warrants or warrant shares, including the applicability of any intergovernmental agreements.
THE
ABOVE SUMMARY IS NOT INTENDED TO CONSTITUTE A COMPLETE ANALYSIS OF ALL TAX CONSIDERATIONS APPLICABLE TO PROSPECTIVE INVESTORS WITH RESPECT
TO THE ACQUISITION, OWNERSHIP, AND DISPOSITION OF UNITS, PRE-FUNDED UNITS, SHARES OF COMMON STOCK, PRE-FUNDED WARRANTS, WARRANTS
OR WARRANT SHARES. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE TAX CONSIDERATIONS APPLICABLE TO THEM IN LIGHT
OF THEIR OWN PARTICULAR CIRCUMSTANCES.
LEGAL
MATTERS
The
validity of the securities offered hereby will be passed upon for us by Dorsey & Whitney LLP, Salt Lake City, Utah. The placement
agent is being represented by Ellenoff Grossman & Schole LLP, New York, New York.
EXPERTS
The
consolidated financial statements of SINTX Technologies, Inc., as of December 31, 2022 and 2021, and for each of the years in the two-year
period ended December 31, 2022, have been incorporated by reference herein in reliance on the report of Tanner LLC, an independent registered
public accounting firm, given on the authority of said firm as experts in auditing and accounting. Such financial statements have been
incorporated herein by reference in reliance on the report of such firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and other reports, proxy statements and other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC’s website at http://www.sec.gov. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and
Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the SEC
pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge through the Internet. These filings will be
available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. You may also
access these filings through our website at www.sintx.com.
We
have filed with the SEC a registration statement under the Securities Act relating to the offering of these securities. The registration
statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus does
not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement, at prescribed
rates, from the SEC at the address listed above. The registration statement, along with our most recent annual report on Form 10-K, subsequent
reports on Form 10-Q and current reports on Form 8-K, as well as other filings that we make with the SEC, are also available on our Internet
website, www.sintx.com. We have not incorporated by reference into this prospectus the information on our website, and you should not
consider it to be a part of this prospectus.
INCORPORATION
BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it into this prospectus, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is an important
part of this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that
we file later with the Commission will automatically update and supersede information contained in this prospectus and any accompanying
prospectus supplement. We incorporate by reference the documents listed below that we have previously filed with the Commission:
|
(a) |
The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022; |
|
|
|
|
(b) |
The
Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31, 2023, June
30, 2023, and September
30, 2023; |
|
|
|
|
(c) |
Our Definitive Proxy Statement on Schedule 14A (other
than information furnished rather than filed), filed with the SEC on October 25, 2023, as amended on October 26, 2023; |
|
|
|
|
(d) |
The
Company’s Current Reports on Form 8-K filed with the SEC on January
13, 2023, February
9, 2023, October
11, 2023, October
12, 2023, October
20, 2023, November
7, 2023, December
8, 2023, and January
4, 2024; and |
|
|
|
|
(e) |
The
description of the Company’s common stock, which is contained in the Registration Statement on Form 8-A, as filed with the
SEC on February 7, 2014, as updated by the description of our common stock contained in Exhibit 4.18 to our Annual Report on Form
10-K for the year ended December 31, 2022, including any amendment or report filed for the purpose of updating such description. |
We
also incorporate by reference any future filings (other than Current Reports furnished under Items 2.02 or 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 (i) after the date of the initial filing of the registration statement of which
this prospectus is a part and prior to effectiveness of the registration statement, and (ii) after the effectiveness of the registration
statement but prior to the termination of the offering of the securities covered by this prospectus, excluding, in each case, information
deemed furnished and not filed.
Any
statement contained in this prospectus, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded to the extent that a statement contained herein, or in any subsequently filed document that also is incorporated
or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request,
a copy of any or all of the information that has been incorporated by reference into this prospectus but not delivered with the prospectus,
including exhibits that are specifically incorporated by reference into such documents. Requests should be directed to: SINTX Technologies,
Inc., Attention: Investor Relations, 1885 West 2100 South, Salt Lake City, Utah 84119 and our telephone number is (801) 839-3500. You
may also access the documents incorporated by reference in this prospectus through our website at www.sintx.com. Except for the specific
incorporated documents listed above, no information available on or through our website shall be deemed to be incorporated in this prospectus
or the registration statement of which it forms a part.
Up to 16,778,523 Units, Each Unit Consisting
of One Share of Common Stock or One Pre-Funded Warrant, One Class E Warrant to Purchase One Share of Common Stock, and One
Class F Warrant to Purchase One Share of Common Stock
671,141 Placement Agent Warrants
to Purchase an Aggregate of Up To 671,141 Shares of Common Stock
Up to 51,006,710 Shares
of Common Stock Issuable upon the Exercise of the Pre-Funded Warrants, Class E Warrants, Class F Warrants, and Placement Agent
Warrants
PROSPECTUS
Maxim
Group LLC
,
2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution
The
following is a statement of estimated expenses in connection with the issuance and distribution of the securities being registered, excluding
dealer-manager fees. All expenses incurred with respect to the registration of the common stock will be borne by us. All amounts are
estimates except the SEC registration fee and the FINRA filing fee.
Item |
|
Amount
to be
Paid |
|
SEC
registration fee |
|
$ |
1,657 |
|
FINRA
filing fee |
|
$ |
2,183 |
|
Legal
fees and expenses |
|
$ |
200,000 |
|
Accounting
fees and expenses |
|
$ |
80,000 |
|
Transfer
Agent Fees and Expenses |
|
$ |
15,000 |
|
Miscellaneous
expenses |
|
$ |
10,000 |
|
Total |
|
$ |
308,840 |
|
Item
14. Indemnification of Directors and Officers
Our
Restated Certificate of Incorporation and Restated Bylaws provide that each person who was or is made a party or is threatened to be
made a party to or is otherwise involved (including, without limitation, as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was one of our directors or officers or is or was
serving at our request as a director, officer, member, manager or trustee of another corporation, or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee,
shall be indemnified and held harmless by us to the fullest extent authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits us to provide broader
indemnification rights than such law permitted us to provide prior to such amendment) against all expense, liability and loss (including
attorneys’ fees, judgments, fines, Employee Retirement Income Security Act excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith. These provisions limit the liability of our directors and
officers to the fullest extent permitted under Delaware law. A director will not receive indemnification if he or she is found not to
have acted in good faith.
Section
145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses
(including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with
any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if
such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful.
In a derivative action (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually
and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person
acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the court in which the action or suit was brought shall determine that such person is fairly and reasonably entitled
to indemnity for such expenses despite such adjudication of liability.
Pursuant
to Section 102(b)(7) of the Delaware General Corporation Law, Article Eighth of our Restated Certificate of Incorporation eliminates
the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except
for liabilities arising:
|
● |
from
any breach of the director’s duty of loyalty to us or our stockholders; |
|
|
|
|
● |
from
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
|
|
|
|
● |
under
Section 174 of the Delaware General Corporation Law; or |
|
|
|
|
● |
from
any transaction from which the director derived an improper personal benefit. |
We
carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors
and officers. We have entered into indemnification agreements with certain of our executive officers and directors. These agreements,
among other things, indemnify and advance expenses to our directors and officers for certain expenses, including attorney’s fees,
judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by us arising out
of such person’s services as our director or officer, or any other company or enterprise to which the person provides services
at our request. We believe that these provisions and agreements are necessary to attract and retain qualified persons as directors and
officers. We have entered into agreements to indemnify all of our directors and officers.
In
addition, the Registrant has entered into indemnification agreements with each of its current directors and executive officers. These
agreements will require the Registrant to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities
that may arise by reason of their service to the Registrant and to advance expenses incurred as a result of any proceeding against them
as to which they could be indemnified. The Registrant also intends to enter into indemnification agreements with its future directors
and executive officers.
Item
15. Recent Sales of Unregistered Securities.
Maxim
and Ascendiant October 2022 Warrants
In
connection with the October 2022 Rights Offering, the Company issued (i) to Maxim, as the dealer-manager in the October 2022 Rights Offering,
10,483 warrants to purchase shares of the Company’s common stock and (ii) to Ascendiant, as a financial advisor to the Company
in the October 2022 Rights Offering, 1,850 warrants to purchase shares of the Company’s common stock (collectively, the “Dealer
Manager Warrants”). The Dealer Manager Warrants are non-exercisable for 6 months from October 17, 2022 and will expire on September
23, 2027. The Dealer Manager Warrants will be exercisable at a price of $16.61 per share, subject to adjustment for stock dividends,
distributions, subdivisions, combinations, or reclassifications, and for certain dilutive issuances. The Company relied on the exemption
from registration available under Section 4(a)(2) of the Securities Act in connection with the issuance of the Dealer Manager Warrants
to Maxim and Ascendiant.
Item
16. Exhibits and Financial Statement Schedules.
(a)
Exhibits
The
following exhibits are being filed with this Registration Statement:
10.1 |
|
Centrepointe
Business Park Lease Agreement Net by and between the Registrant and Centrepointe Properties, LLC, dated as of April 21, 2009 |
|
|
|
Form
S-1 (Exhibit 10.10) |
|
11/8/13 |
|
333-192232 |
|
|
|
|
|
|
|
|
|
|
|
10.2 |
|
First
Addendum to Centrepointe Business Park Lease Agreement Net by and between the Registrant and Centrepointe Properties, LLC, dated
as of January 31, 2012 |
|
|
|
Form
S-1 (Exhibit 10.11) |
|
11/8/13 |
|
333-192232 |
|
|
|
|
|
|
|
|
|
|
|
10.3 |
|
Form
of Change of Control Agreement* |
|
|
|
Form
8-K (Exhibit 10.1) |
|
7/22/15 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.4 |
|
Form
of Indemnification Agreement by and between the Registrant and its officers and directors |
|
|
|
Amendment
No. 2
to
Form S-1 (Exhibit 10.14) |
|
12/20/13 |
|
333-192232 |
|
|
|
|
|
|
|
|
|
|
|
10.5 |
|
Exchange
Agreement dated April 4, 2016, by and among SINTX Corporation and Riverside Merchant Partners, LLC |
|
|
|
Form
8-K (Exhibit 10.2) |
|
5/05/16 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.6 |
|
Form
of Warrant Amendment Agreement |
|
|
|
Form
S-1 (Exhibit 10.26) |
|
4/26/18 |
|
333-223032 |
|
|
|
|
|
|
|
|
|
|
|
10.7 |
|
Amendment
to Centrepointe Business Park Lease Agreement, dated June 7, 2019, between SINTX Technologies, Inc. and Centrepointe Properties,
LLC. |
|
|
|
Form
8-K (Exhibit 10.1) |
|
6/10/19 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.8 |
|
Promissory
Note issued by CTL Corporation in favor of Amedica Corporation dated as of October 1, 2018. |
|
|
|
Form
8-K (Exhibit 10.1) |
|
10/5/18 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.9 |
|
Security
Agreement between Amedica Corporation and CTL Corporation dated as of October 1, 2018. |
|
|
|
Form
8-K (Exhibit 10.2) |
|
10/5/18 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.10 |
|
Guaranty
between Amedica Corporation and Daniel Chon dated as of October 1, 2018. |
|
|
|
Form
8-K (Exhibit 10.3) |
|
10/5/18 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.11 |
|
ROFN
Security Agreement between Amedica Corporation and CTL Corporation dated as of October 1, 2018. |
|
|
|
From
8-K (Exhibit 10.4) |
|
10/5/18 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.12 |
|
Promissory
Note, dated April 28, 2020 between SINTX Technologies, Inc. and First State Community Bank. |
|
|
|
Form
8-K (Exhibit 10.1) |
|
4/30/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.13 |
|
Form
of Share Purchase Agreement |
|
|
|
Form
8-K (Exhibit 99.1) |
|
6/29/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.14 |
|
Placement
Agency Agreement |
|
|
|
Form
8-K (Exhibit 99.2) |
|
6/29/20 |
|
001-33624 |
10.15 |
|
Form
of Share Purchase Agreement |
|
|
|
Form
8-K (Exhibit 99.1) |
|
7/20/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.16 |
|
Placement
Agency Agreement |
|
|
|
Form
8-K (Exhibit 99.2) |
|
7/20/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.17 |
|
Form
of Share Purchase Agreement |
|
|
|
Form
8-K (Exhibit 99.1) |
|
8/6/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.18 |
|
Placement
Agency Agreement |
|
|
|
Form
8-K (Exhibit 99.2) |
|
8/6/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.19 |
|
Form
of Indenture |
|
|
|
Form
S-3 (Exhibit 4.18) |
|
10/2/20 |
|
333-249267 |
|
|
|
|
|
|
|
|
|
|
|
10.20 |
|
Equity
Distribution Agreement, dated as of February 25, 2021, by and between SINTX Technologies, Inc. and Maxim Group LLC |
|
|
|
Form
8-K (Exhibit 10.1) |
|
2/26/20 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.21 |
|
2020
Equity Incentive Plan |
|
|
|
Defn
14a Proxy Statement |
|
7/10/2020 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.22 |
|
Form
of Warrant Agency Agreement between SINTX Technologies, Inc. and American Stock Transfer & Trust Company, LLC |
|
|
|
Form
8-K (Exhibit 10.1) |
|
10/17/22 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.23 |
|
Amendment
to Equity Distribution Agreement, dated as of January 10, 2023 by and between SINTX Technologies, Inc., and Maxim Group LLC |
|
|
|
Form
8-K (Exhibit 10.1) |
|
1/13/23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
10.24 |
|
Form
of Securities Purchase Agreement |
|
|
|
Form
8-K (Exhibit 10.1) |
|
2/9/23 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
10.25 |
|
Form
of Placement Agent Agreement |
|
|
|
Form
S-1 (Exhibit 10.25) |
|
2/6/23 |
|
333-269475 |
|
|
|
|
|
|
|
|
|
|
|
10.26 |
|
Form of Securities Purchase Agreement |
|
|
|
Form S-1/A
(Exhibit 10.26) |
|
11/2/23 |
|
333-275137 |
|
|
|
|
|
|
|
|
|
|
|
10.27 |
|
Form of Placement Agent Agreement |
|
|
|
Form
S-1/A (Exhibit 10.27) |
|
11/2/23 |
|
333-275137 |
|
|
|
|
|
|
|
|
|
|
|
21.1 |
|
List of Subsidiaries |
|
|
|
Form
10-K (Exhibit 21.1) |
|
3/29/23 |
|
001-33624 |
|
|
|
|
|
|
|
|
|
|
|
23.1 |
|
Consent of Independent Registered Public Accounting Firm, Tanner LLC |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23.2 |
|
Consent of Dorsey & Whitney LLP (included in Exhibit 5.1) |
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X |
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24.1 |
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Power of Attorney (Signature Block) |
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Form
S-1 (Exhibit 24.1) |
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10/23/23 |
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333-275137 |
101.INS |
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Inline
XBRL Instance Document. |
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X |
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101.CAL |
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Inline
XBRL Taxonomy Extension Calculation Linkbase Document. |
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X |
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101.SCH |
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Inline
XBRL Taxonomy Extension Schema Document. |
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X |
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101.DEF |
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Inline
XBRL Taxonomy Extension Definition Linkbase Document. |
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X |
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101.LAB |
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Inline
XBRL Taxonomy Extension Labels Linkbase Document. |
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X |
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101.PRE |
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Inline
XBRL Taxonomy Extension Presentation Linkbase Document. |
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X |
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104 |
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Cover
Page Interactive Data File (embedded within the Inline XBRL document). |
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X |
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107 |
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Filing
Fee Table |
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X |
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*
Indicates management contract or compensatory plan or arrangement.
+
Schedules and exhibits to this Exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish
supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
†
A portion of this Exhibit has been omitted as it contains information that (i) is not material and (ii) would be competitively harmful
if publicly disclosed.
(b)
Financial Statement Schedules
All
schedules have been omitted because either they are not required, are not applicable or the information is otherwise set forth in the
financial statements and related notes thereto.
Item
17. Undertakings
(a) |
The
undersigned registrant hereby undertakes: |
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(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
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(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
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(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement. |
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Provided,
however, that paragraphs (a)(1)(i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. |
(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
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(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
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(4) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
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(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
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(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
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(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue. |
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(c) |
The
undersigned registrant hereby undertakes that: |
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(1) |
For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective; and |
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(2) |
For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Salt Lake City, Utah on January 24, 2024.
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SINTX
TECHNOLOGIES, INC. |
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By: |
/s/
B. Sonny Bal |
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B.
Sonny Bal, M.D. |
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Chief
Executive Officer and President |
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated:
SIGNATURE |
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TITLE |
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DATE |
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/s/
B. Sonny Bal |
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January
24, 2024 |
B.
Sonny Bal, M.D. |
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Chief
Executive Officer and Director |
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(Principal
Executive Officer and Principal Financial Officer) |
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* |
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January
24, 2024 |
David
W. Truetzel |
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Director |
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* |
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January
24, 2024 |
Jeffrey
S. White |
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Director |
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* |
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January
24, 2024 |
Eric
A. Stookey |
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Director |
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* |
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January
24, 2024 |
Marc
Froimson |
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Director |
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*By: | /s/
B. Sonny Bal |
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| B. Sonny Bal, M.D. |
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| Attorney-in-Fact |
|
Exhibit
4.17
CLASS
E COMMON STOCK PURCHASE WARRANT
SINTX
TECHNOLOGIES, INC.
Warrant Shares:
_______ |
Initial Exercise
Date: _______, 2024 |
THIS
CLASS E COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns
(the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New
York City time) on _______, 2029 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Sintx
Technologies, Inc., a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder,
the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be
equal to the Exercise Price, as defined in Section 2(b). This Warrant shall initially be issued and maintained in the form of a security
held in book-entry form and the Depository Trust Company or its nominee (“DTC”) shall initially be the sole registered
holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of
the Warrant Agency Agreement, in which case this sentence shall not apply.
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meaning set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated _______, 2024, among the Company and the purchasers signatory
thereto:
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless
the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice
of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
Notwithstanding
the foregoing in this Section 2(a), a Holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $_____, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
|
(A)
= |
as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice
of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading
Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading
hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at
the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise
or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s
execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a
Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading
hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if
the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a)
hereof after the close of “regular trading hours” on such Trading Day; |
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(B)
= |
the Exercise Price of this Warrant, as adjusted hereunder; and |
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(X)
= |
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a
certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares
to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date
that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day
after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement
Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading
Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such
Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein,
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s
primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant is not held in global form through DTC (or any successor depositary) and
if this warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate,
at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. Except as set forth in Section 2(c), as to any fraction of a share which the Holder would otherwise be entitled to purchase
upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal
to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that
the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section
2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Reserved.
c)
Subsequent Rights Offerings. In addition to (but without duplication of) any adjustments pursuant to Section 3(a) above, if at
any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other
property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could
have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised
at the time of such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the
Holder has exercised this Warrant.
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person (other than a transaction solely
to change the domicile of the Company), (ii) the Company or any Subsidiary, directly or indirectly, effects any sale, lease, license,
assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s assets in one or a series of
related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities,
cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the outstanding
voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby
such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the outstanding voting power
of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this
Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e)
on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a
result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and
the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the
event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable
at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the
public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount
of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation
of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s
control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company
or any Successor Entity, as of the date of the consummation of such Fundamental Transaction, the same type or form of consideration (and
in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the
holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash,
stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms
of consideration in connection with the Fundamental Transaction. “Black Scholes Value” means the value of this Warrant
based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable contemplated Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100
day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day
immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share
used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of
any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning
on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation
of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section
3(e) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental
Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer
of immediately available funds (or such other consideration) within five Business Days of the Holder’s election (or, if later,
on the date of consummation of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction
in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the
Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance
reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and
shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by
a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares
of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon
exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and
with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from
and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer
instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the
Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party (other
than a transaction solely to change the domicile of the Company), any sale or transfer of all or substantially all of the Company’s
assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company
shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case,
the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register
of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided
or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying
the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance
with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a
new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants
issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except
as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Warrant Agent shall register this Warrant, upon records to be maintained by the Warrant Agent for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent
may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at 1885 West 2100 South, Salt Lake City, Utah, 84119, Attention: Chief Executive Officer,
email address: sbal@sintx.com, or such other email address or address as the Company may specify for such purposes by notice to the Holders.
Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally,
by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of
such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and
effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address
set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission,
if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading
Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent
by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to
be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company
or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder or the beneficial owner of this Warrant, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
o)
Warrant Agency Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued
subject to the Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant
Agency Agreement, the provisions of this Warrant shall govern and be controlling.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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SINTX
TECHNOLOGIES, INC. |
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By: |
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Name: |
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Title: |
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NOTICE
OF EXERCISE
To: |
SINTX
TECHNOLOGIES, INC. |
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ]
in lawful money of the United States; or
[ ]
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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___________________________________________ |
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(Please
Print) |
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Address: |
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___________________________________________ |
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(Please
Print)
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Phone
Number: |
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___________________________________________ |
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Email
Address: |
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___________________________________________ |
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Dated:
_______________ __, _________ |
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Holder’s
Signature:____________________________ |
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Holder’s
Address:____________________________ |
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Exhibit
4.18
CLASS
F COMMON STOCK PURCHASE WARRANT
SINTX
TECHNOLOGIES, INC.
Warrant Shares:
_______ |
Initial Exercise
Date: _______, 2024 |
THIS
CLASS F COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns
(the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter
set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New
York City time) on _______, 2025 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Sintx
Technologies, Inc., a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder,
the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be
equal to the Exercise Price, as defined in Section 2(b). This Warrant shall initially be issued and maintained in the form of a security
held in book-entry form and the Depository Trust Company or its nominee (“DTC”) shall initially be the sole registered
holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of
the Warrant Agency Agreement, in which case this sentence shall not apply.
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meaning set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated _______, 2024, among the Company and the purchasers signatory
thereto:
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless
the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which
the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the
total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records
showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice
of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
Notwithstanding
the foregoing in this Section 2(a), a Holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $_____, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
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(A)
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as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice
of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading
Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading
hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at
the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise
or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s
execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a
Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading
hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if
the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a)
hereof after the close of “regular trading hours” on such Trading Day; |
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(B)
= |
the Exercise Price of this Warrant, as adjusted hereunder; and |
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(X)
= |
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a
certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares
to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date
that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day
after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement
Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading
Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such
Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain
a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein,
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s
primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant is not held in global form through DTC (or any successor depositary) and
if this warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate,
at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon
such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B)
at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately
preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating
the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. Except as set forth in Section 2(c), as to any fraction of a share which the Holder would otherwise be entitled to purchase
upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal
to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on
the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of
a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date
as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder,
upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that
the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section
2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Reserved.
c)
Subsequent Rights Offerings. In addition to (but without duplication of) any adjustments pursuant to Section 3(a) above, if at
any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other
property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could
have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall
be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial
Ownership Limitation).
d)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised
at the time of such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the
Holder has exercised this Warrant.
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person (other than a transaction solely
to change the domicile of the Company), (ii) the Company or any Subsidiary, directly or indirectly, effects any sale, lease, license,
assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s assets in one or a series of
related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities,
cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the outstanding
voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common
Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby
such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the outstanding voting power
of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this
Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e)
on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if
it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a
result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and
the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the
event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable
at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the
public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount
of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation
of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s
control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company
or any Successor Entity, as of the date of the consummation of such Fundamental Transaction, the same type or form of consideration (and
in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the
holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash,
stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms
of consideration in connection with the Fundamental Transaction. “Black Scholes Value” means the value of this Warrant
based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable contemplated Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100
day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day
immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share
used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of
any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning
on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation
of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section
3(e) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental
Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer
of immediately available funds (or such other consideration) within five Business Days of the Holder’s election (or, if later,
on the date of consummation of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction
in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the
Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance
reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and
shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by
a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares
of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon
exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and
with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from
and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer
instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the
Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party (other
than a transaction solely to change the domicile of the Company), any sale or transfer of all or substantially all of the Company’s
assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company
shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case,
the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register
of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record
is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided
or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying
the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance
with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a
new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants
issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except
as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Warrant Agent shall register this Warrant, upon records to be maintained by the Warrant Agent for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent
may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at 1885 West 2100 South, Salt Lake City, Utah, 84119, Attention: Chief Executive Officer,
email address: sbal@sintx.com, or such other email address or address as the Company may specify for such purposes by notice to the Holders.
Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally,
by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of
such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and
effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address
set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission,
if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading
Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent
by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to
be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company
or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder or the beneficial owner of this Warrant, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
o)
Warrant Agency Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued
subject to the Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant
Agency Agreement, the provisions of this Warrant shall govern and be controlling.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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SINTX
TECHNOLOGIES, INC. |
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By: |
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Name: |
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Title: |
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NOTICE
OF EXERCISE
To: |
SINTX
TECHNOLOGIES, INC. |
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ]
in lawful money of the United States; or
[ ]
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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___________________________________________ |
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(Please
Print) |
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Address: |
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___________________________________________ |
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(Please
Print)
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Phone
Number: |
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___________________________________________ |
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Email
Address: |
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___________________________________________ |
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Dated:
_______________ __, _________ |
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Holder’s
Signature:____________________________ |
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Holder’s
Address:____________________________ |
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Exhibit
4.20
SINTX
TECHNOLOGIES, INC.
and
EQUINITI
TRUST COMPANY, LLC, as
Warrant
Agent
Warrant
Agency Agreement
Dated
as of ______, 2024
WARRANT
AGENCY AGREEMENT
WARRANT
AGENCY AGREEMENT, dated as of _______, 2024 (“Agreement”), between SINTX Technologies, Inc., a corporation organized
under the laws of the State of Delaware (the “Company”), and Equiniti Trust Company, LLC (the “Warrant Agent”).
W
I T N E S S E T H
WHEREAS,
pursuant to a registered offering by the Company of up to ______ Units (the “Offering”), with each Unit consisting
of (i) one share of the Company’s common stock, par value $0.01 per share (the “Common Stock”) (or one pre-funded
warrant (the “Pre-Funded Warrants”), (ii) one Class E warrant to purchase one share of our Common Stock (the “Class
E Warrants”) at a price of $_____ per share, and (iii) one Class F warrant to purchase one share of our Common Stock (the “Class
F Warrants” and together with the Class E Warrants the “Warrants”) at a price of $____ per share; and
WHEREAS,
upon the terms and subject to the conditions hereinafter set forth and pursuant to an effective registration statement on Form S-1, as
amended (File No. 333-275137) (the “Registration Statement”), and the terms and conditions of the Warrant Certificate,
the Company wishes to issue the Warrants in book entry form entitling the respective holders of the Warrants (the “Holders,”
which term shall include a Holder’s transferees, successors and assigns and “Holder” shall include, if the Warrants
are held in “street name,” a Participant (as defined below) or a designee appointed by such Participant) to purchase an aggregate
of up to ________ shares of Common Stock upon the terms and subject to the conditions hereinafter set forth; and
WHEREAS,
the shares of Common Stock (or Pre-Funded Warrants) and Warrants to be issued in connection with the Offering shall be issued separately,
but will be purchased together in the Offering; and
WHEREAS,
the Company wishes the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, transfer, exchange, exercise and replacement of the Warrants and, in the Warrant Agent’s capacity as
the Company’s transfer agent, the delivery of the Warrant Shares.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section
1. Certain Definitions. For purposes of this Agreement, all capitalized terms not herein defined shall have the meanings hereby
indicated:
(a)
“Affiliate” has the meaning ascribed to it in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
(b)
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United
States or any day on which the Nasdaq Stock Market is authorized or required by law or other governmental action to close.
(c)
“Close of Business” on any given date means 5:00 p.m., New York City time, on such date; provided, however,
that if such date is not a Business Day it means 5:00 p.m., New York City time, on the next succeeding Business Day.
(d)
“Person” means an individual, corporation, association, partnership, limited liability company, joint venture, trust,
unincorporated organization, government or political subdivision thereof or governmental agency or other entity.
(e)
“Warrant Certificate” means a certificate in substantially the form attached as Exhibit 1, Exhibit 2, or
Exhibit 3 hereto, as applicable, representing such number of Warrant Shares as is indicated therein, provided that any reference
to the delivery of a Warrant Certificate in this Agreement shall include delivery of a Definitive Certificate or a Global Warrant (each
as defined below).
All
other capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Warrant Certificate.
Section
2. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with
the terms and conditions hereof, and the Warrant Agent hereby accepts such appointment.
Section
3. Global Warrants.
(a)
The Warrants shall be registered securities and shall be evidenced by a Class E global warrant with respect to the Class E Warrants (the
“Class E Global Warrant”), a Class F global warrants with respect to the Class F Warrants (the “Class F Global
Warrant”), and by a pre-funded global warrant with respect to the Pre-Funded Warrants (the “Pre-Funded Global Warrant”,
together with the Class E Global Warrant and the Class F Global Warrant, the “Global Warrant”), in the form of the
Warrant Certificates, which shall be deposited with the Warrant Agent and registered in the name of Cede & Co., a nominee of The
Depository Trust Company (the “Depositary”), or as otherwise directed by the Depositary. Ownership of beneficial interests
in the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by (i) the Depositary
or its nominee for each Global Warrant or (ii) institutions that have accounts with the Depositary (such institution, with respect to
a Warrant in its account, a “Participant”).
(b)
If the Depositary subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the
Warrant Agent regarding other arrangements for book-entry settlement. In the event that the Warrants are not eligible for, or it is no
longer necessary to have the Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary
to deliver to the Warrant Agent for cancellation each Global Warrant, and the Company shall instruct the Warrant Agent to deliver to
each Holder a Warrant Certificate.
(c)
A Holder has the right to elect at any time or from time to time a Warrant Exchange (as defined below) pursuant to a Warrant Certificate
Request Notice (as defined below). Upon written notice by a Holder to the Company and the Warrant Agent for the exchange of some or all
of such Holder’s Global Warrants for a separate certificate in the form attached hereto as Exhibit 1, with respect to a
Holder of Class E Warrants, or Exhibit 2, with respect to a Holder of Class F Warrants, or Exhibit 3, with respect to a Holder
of Pre-Funded Warrants, as applicable (such separate certificate, a “Definitive Certificate”) evidencing the same
number of Warrants, which request shall be in the form attached hereto as Exhibit 4 (a “Warrant Certificate Request Notice”
and the date of delivery of such Warrant Certificate Request Notice by the Holder, the “Warrant Certificate Request Notice Date”
and the surrender by the Holder to the Warrant Agent of a number of Global Warrants for the same number of Warrants evidenced by a Warrant
Certificate, a “Warrant Exchange”), the Company and the Warrant Agent shall promptly effect the Warrant Exchange and
the Company shall promptly issue and deliver to the Holder a Definitive Certificate for such number of Warrants in the name set forth
in the Warrant Certificate Request Notice. Such Definitive Certificate shall be dated the original issue date of the Warrants, shall
be manually executed by an authorized signatory of the Company, shall be in the form attached hereto as Exhibit 1, Exhibit 2,
or Exhibit 3, as applicable, and shall be reasonably acceptable in all respects to such Holder. In connection with a Warrant Exchange,
the Company agrees to deliver the Definitive Certificate to the Holder within ten (10) Business Days of the Warrant Certificate Request
Notice pursuant to the delivery instructions in the Warrant Certificate Request Notice (“Warrant Certificate Delivery Date”).
If the Company fails for any reason to deliver to the Holder the Definitive Certificate subject to the Warrant Certificate Request Notice
by the Warrant Certificate Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for
each $1,000 of Warrant Shares evidenced by such Definitive Certificate (based on the VWAP (as defined in the Warrants) of the Common
Stock on the Warrant Certificate Request Notice Date), $10 per Business Day for each Business Day after such Warrant Certificate Delivery
Date until such Definitive Certificate is delivered or, prior to delivery of such Warrant Certificate, the Holder rescinds such Warrant
Exchange. The Company covenants and agrees that, upon the date of delivery of the Warrant Certificate Request Notice, the Holder shall
be deemed to be the holder of the Definitive Certificate and, notwithstanding anything to the contrary set forth herein, the Definitive
Certificate shall be deemed for all purposes to contain all of the terms and conditions of the Warrants evidenced by such Warrant Certificate
and the terms of this Agreement, other than Sections 3(c), 3(d) and 9 herein, shall not apply to the Warrants evidenced by the Definitive
Certificate. Notwithstanding anything herein to the contrary, the Company shall act as warrant agent with respect to any Definitive Certificate
requested and issued pursuant to this section. Notwithstanding anything to the contrary contained in this Agreement, in the event of
inconsistency between any provision in this Agreement and any provision in a Definitive Certificate, as it may from time to time be amended,
the terms of such Definitive Certificate shall control.
(d)
A Holder of a Definitive Certificate (pursuant to a Warrant Exchange or otherwise) has the right to elect at any time or from time to
time a Global Warrants Exchange (as defined below) pursuant to a Global Warrants Request Notice (as defined below). Upon written notice
by a Holder to the Company for the exchange of some or all of such Holder’s Warrants evidenced by a Definitive Certificate for
a beneficial interest in Global Warrants held in book-entry form through the Depositary evidencing the same number of Warrants, which
request shall be in the form attached hereto as Exhibit 4 (a “Global Warrants Request Notice” and the date
of delivery of such Global Warrants Request Notice by the Holder, the “Global Warrants Request Notice Date” and the
surrender upon delivery by the Holder of the Warrants evidenced by Definitive Certificates for the same number of Warrants evidenced
by a beneficial interest in Global Warrants held in book-entry form through the Depositary, a “Global Warrants Exchange”),
the Company shall promptly effect the Global Warrants Exchange and shall promptly direct the Warrant Agent to issue and deliver to the
Holder Global Warrants for such number of Warrants in the Global Warrants Request Notice, which beneficial interest in such Global Warrants
shall be delivered by the Depositary’s Deposit or Withdrawal at Custodian system to the Holder pursuant to the instructions in
the Global Warrants Request Notice. In connection with a Global Warrants Exchange, the Company shall direct the Warrant Agent to deliver
the beneficial interest in such Global Warrants to the Holder within ten (10) Business Days of the Global Warrants Request Notice pursuant
to the delivery instructions in the Global Warrant Request Notice (“Global Warrants Delivery Date”). If the Company
fails for any reason to deliver to the Holder Global Warrants subject to the Global Warrants Request Notice by the Global Warrants Delivery
Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares evidenced
by such Global Warrants (based on the VWAP (as defined in the Warrants) of the Common Stock on the Global Warrants Request Notice Date),
$10 per Business Day (increasing to $20 per Business Day on the fifth Business Day after such liquidated damages begin to accrue) for
each Business Day after such Global Warrants Delivery Date until such Global Warrants are delivered or, prior to delivery of such Global
Warrants, the Holder rescinds such Global Warrants Exchange. The Company covenants and agrees that, upon the date of delivery of the
Global Warrants Request Notice, the Holder shall be deemed to be the beneficial holder of such Global Warrants.
Section
4. Form of Warrant Certificates. The Warrant Certificate, together with the form of election to purchase Common Stock (“Notice
of Exercise”) and the form of assignment to be printed on the reverse thereof, shall be in the form of Exhibit 1, Exhibit
2, or Exhibit 3 hereto, as applicable.
Section
5. Countersignature and Registration. The Global Warrant shall be executed on behalf of the Company by its Chief Executive Officer,
Chief Financial Officer or Vice President, by facsimile signature, and have affixed thereto the Company’s seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant Secretary of the Company, by facsimile signature. The Global Warrant shall be
countersigned by the Warrant Agent by facsimile signature and shall not be valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Global Warrant shall cease to be such officer of the Company before countersignature
by the Warrant Agent and issuance and delivery by the Company, such Global Warrant, nevertheless, may be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the person who signed such Global Warrant had not ceased to be such
officer of the Company; and any Global Warrant may be signed on behalf of the Company by any person who, at the actual date of the execution
of such Global Warrant, shall be a proper officer of the Company to sign such Global Warrant, although at the date of the execution of
this Warrant Agreement any such person was not such an officer.
The
Warrant Agent will keep or cause to be kept, at one of its offices, or at the office of one of its agents, books for registration and
transfer of the Global Warrants issued hereunder. Such books shall show the names and addresses of the respective Holders of the Global
Warrant, the number of warrants evidenced on the face of each of such Global Warrant and the date of each of such Global Warrant. The
Warrant Agent will create a special account for the issuance of Global Warrants. The Company will keep or cause to be kept at one of
its offices, books for the registration and transfer of any Definitive Certificates issued hereunder and the Warrant Agent shall not
have any obligation to keep books and records with respect to any Definitive Warrants. Such Company books shall show the names and addresses
of the respective Holders of the Definitive Certificates, the number of warrants evidenced on the face of each such Definitive Certificate
and the date of each such Definitive Certificate.
Section
6. Transfer, Split Up, Combination and Exchange of Warrant Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
With respect to the Global Warrants, subject to the provisions of the Warrant Certificate and the last sentence of this first paragraph
of Section 6 and subject to applicable law, rules or regulations, or any “stop transfer” instructions the Company may give
to the Warrant Agent, at any time after the closing date of the Offering, and at or prior to the Close of Business on the Termination
Date (as such term is defined in the Warrant Certificate), any Global Warrant or Global Warrants may be transferred, split up, combined
or exchanged for another Global Warrant or Global Warrants, entitling the Holder to purchase a like number of shares of Common Stock
as the Global Warrant or Global Warrants surrendered then entitled such Holder to purchase. Any Holder desiring to transfer, split up,
combine or exchange any Global Warrant shall make such request in writing delivered to the Warrant Agent, and shall surrender the Global
Warrant to be transferred, split up, combined or exchanged at the principal office of the Warrant Agent. Any requested transfer of Warrants,
whether in book-entry form or certificate form, shall be accompanied by reasonable evidence of authority of the party making such request
that may be required by the Warrant Agent. Thereupon the Warrant Agent shall, subject to the last sentence of this first paragraph of
Section 6, countersign and deliver to the Person entitled thereto a Global Warrant or Global Warrants, as the case may be, as so requested.
The Company may require payment from the Holder of a sum sufficient to cover any tax or governmental charge that may be imposed in connection
with any transfer, split up, combination or exchange of Global Warrants. The Company shall compensate the Warrant Agent per the fee schedule
mutually agreed upon by the parties hereto and provided separately on the date hereof.
Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of a Warrant Certificate,
which evidence shall include an affidavit of loss, or in the case of mutilated certificates, the certificate or portion thereof remaining,
and, in case of loss, theft or destruction, of indemnity in customary form and amount, and satisfaction of any other reasonable requirements
established by Section 8-405 of the Uniform Commercial Code as in effect in the State of Delaware, and reimbursement to the Company and
the Warrant Agent of all reasonable expenses incidental thereto, and upon surrender to the Warrant Agent and cancellation of the Warrant
Certificate if mutilated, the Company will make and deliver a new Warrant Certificate of like tenor to the Warrant Agent for delivery
to the Holder in lieu of the Warrant Certificate so lost, stolen, destroyed or mutilated.
Section
7. Exercise of Warrants; Exercise Price; Termination Date.
(a)
The Class E Warrants and Class F Warrants shall be exercisable commencing on the Initial Exercise Date. The Warrants shall cease to be
exercisable and shall terminate and become void as set forth in the Warrant Certificate. Subject to the foregoing and to Section 7(b)
below, the Holder of a Warrant may exercise the Warrant in whole or in part upon surrender of the Warrant Certificate, if required, with
the executed Notice of Exercise and payment of the Exercise Price, which may be made, at the option of the Holder, by wire transfer or
by certified or official bank check in United States dollars, to the Warrant Agent at the principal office of the Warrant Agent or to
the office of one of its agents as may be designated by the Warrant Agent from time to time. In the case of the Holder of a Global Warrant,
the Holder shall deliver the executed Notice of Exercise and the payment of the Exercise Price as described herein. Notwithstanding any
other provision in this Agreement, a holder whose interest in a Global Warrant is a beneficial interest in a Global Warrant held in book-entry
form through the Depositary (or another established clearing corporation performing similar functions), shall effect exercises by delivering
to the Depositary (or such other clearing corporation, as applicable) the appropriate instruction form for exercise, complying with the
procedures to effect exercise that are required by the Depositary (or such other clearing corporation, as applicable). The Company acknowledges
that the bank accounts maintained by the Warrant Agent in connection with the services provided under this Agreement will be in its name
and that the Warrant Agent may receive investment earnings in connection with the investment at Warrant Agent risk and for its benefit
of funds held in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise
Price. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise be required, with the exception being that if the Warrant Shares are being issued and delivered to a party
other than the party exercising the Notice of Exercise, a medallion signature guarantee will be required. The Company hereby acknowledges
and agrees that, with respect to a holder whose interest in a Global Warrant is a beneficial interest in a Global Warrant held in book-entry
form through the Depositary (or another established clearing corporation performing similar functions), upon delivery of irrevocable
instructions to such holder’s Participant to exercise such warrants, that solely for purposes of Regulation SHO that such holder
shall be deemed to have exercised such warrants.
(b)
Upon receipt of a Notice of Exercise for a Cashless Exercise the Company will promptly calculate and transmit to the Warrant Agent the
number of Warrant Shares issuable in connection with such Cashless Exercise and deliver a copy of the Notice of Exercise to the Warrant
Agent, which shall issue such number of Warrant Shares in connection with such Cashless Exercise.
(c)
Upon the exercise of the Warrant Certificate pursuant to the terms of Section 2 of the Warrant Certificate, the Warrant Agent shall cause
the Warrant Shares underlying such Warrant Certificate or Global Warrant to be delivered to or upon the order of the Holder of such Warrant
Certificate or Global Warrant, registered in such name or names as may be designated by such Holder, no later than the Warrant Share
Delivery Date (as such term is defined in the Warrant Certificate). If the Company is then a participant in the DWAC system of the Depositary
and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) the Warrant is being exercised via Cashless Exercise, then the certificates for Warrant Shares shall be transmitted
by the Warrant Agent to the Holder by crediting the account of the Holder’s broker with the Depositary through its DWAC system.
For the avoidance of doubt, if the Company becomes obligated to pay any amounts to any Holders pursuant to Section 2(d)(i) or 2(d)(iv)
of the Warrant Certificate, such obligation shall be solely that of the Company and not that of the Warrant Agent. Notwithstanding anything
else to the contrary in this Agreement, except in the case of a Cashless Exercise, if any Holder fails to duly deliver payment to the
Warrant Agent of an amount equal to the aggregate Exercise Price of the Warrant Shares to be purchased upon exercise of such Holder’s
Warrant as set forth in Section 7(a) hereof by the Warrant Share Delivery Date, the Warrant Agent will not obligated to deliver such
Warrant Shares (via DWAC or otherwise) until following receipt of such payment, and the applicable Warrant Share Delivery Date shall
be deemed extended by one day for each day (or part thereof) until such payment is delivered to the Warrant Agent.
(d)
The Warrant Agent shall deposit all funds received by it in payment of the Exercise Price for all Warrants in the account of the Company
maintained with the Warrant Agent for such purpose (or to such other account as directed by the Company in writing) and shall advise
the Company via email at the end of each day on which notices of exercise are received or funds for the exercise of any Warrant are received
of the amount so deposited to its account.
Section
8. Cancellation and Destruction of Warrant Certificates. All Warrant Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Warrant Agent for
cancellation or in canceled form, or, if surrendered to the Warrant Agent, shall be canceled by it, and no Warrant Certificate shall
be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Company shall deliver to the
Warrant Agent for cancellation and retirement, and the Warrant Agent shall so cancel and retire, any other Warrant Certificate purchased
or acquired by the Company otherwise than upon the exercise thereof. The Warrant Agent shall deliver all canceled Warrant Certificates
to the Company, or shall, at the written request of the Company, destroy such canceled Warrant Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company, subject to any applicable law, rule or regulation requiring the Warrant Agent to
retain such canceled certificates.
Section
9. Certain Representations; Reservation and Availability of Shares of Common Stock or Cash.
(a)
This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery
hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance
with its terms, and the Warrants have been duly authorized, executed and issued by the Company and, assuming due authentication thereof
by the Warrant Agent pursuant hereto and payment therefor by the Holders as provided in the Registration Statement, constitute valid
and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits
hereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(b)
As of the date hereof, the authorized capital stock of the Company consists of (i) two hundred and fifty million (250,000,000) shares
of common stock, of which approximately ______ shares of Common Stock are issued and outstanding as of September 30, 2023, ______ shares of
Common Stock reserved for future issuance under our 2020 Equity Incentive Plan as of September 30, 2023, and ______ shares of common stock
reserved for future issuance under outstanding common stock warrants (not including the Warrants) as of September 30, 2023; and (ii) one hundred
and thirty million (130,000,000) shares of preferred stock, par value $0.01 per share, of which ______ shares of common stock are reserved
for issuance on conversion of ____ shares of the Series B Preferred Stock, _____ shares of common stock are reserved for issuance on
conversion of ___ shares of the Series C Preferred Stock, and ____ shares of common stock reserved for issuance on conversion of ___
shares of the Series D Preferred Stock, are issued and outstanding as of September 30, 2023. Except as disclosed in the Registration Statement,
there are no other outstanding obligations, warrants, options or other rights to subscribe for or purchase from the Company any class
of capital stock of the Company.
(c)
The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common
Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of
Common Stock that will be sufficient to permit the exercise in full of all outstanding Class E Warrants, Class F Warrants, and Pre-Funded
Warrants.
(d)
The Warrant Agent will create a special account for the issuance of Common Stock upon the exercise of Warrants.
(e)
The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the original issuance or delivery of the Warrant Certificates or certificates evidencing Common Stock
upon exercise of the Warrants. The Company shall not, however, be required to pay any tax or governmental charge which may be payable
in respect of any transfer involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for
Common Stock in a name other than that of the Holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue
or deliver any certificate for shares of Common Stock upon the exercise of any Warrants until any such tax or governmental charge shall
have been paid (any such tax or governmental charge being payable by the Holder of such Warrant Certificate at the time of surrender)
or until it has been established to the Company’s reasonable satisfaction that no such tax or governmental charge is due.
Section
10. Common Stock Record Date. Each Person in whose name any certificate for shares of Common Stock is issued (or to whose broker’s
account is credited shares of Common Stock through the DWAC system) upon the exercise of Warrants shall for all purposes be deemed to
have become the holder of record for the Common Stock represented thereby on, and such certificate shall be dated, the date on which
submission of the Notice of Exercise was made, provided that the Warrant Certificate evidencing such Warrant is duly surrendered (but
only if required herein) and payment of the Exercise Price (and any applicable transfer taxes) is received on or prior to the Warrant
Share Delivery Date; provided, however, that if the date of submission of the Notice of Exercise is a date upon which the
Common Stock transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares on,
and such certificate shall be dated, the next succeeding day on which the Common Stock transfer books of the Company are open.
Section
11. Adjustment of Exercise Price, Number of Shares of Common Stock or Number of the Company Warrants. The Exercise Price, the
number of shares covered by each Warrant and the number of Warrants outstanding are subject to adjustment from time to time as provided
in Section 3 of the Warrant Certificate. In the event that at any time, as a result of an adjustment made pursuant to Section 3 of the
Warrant Certificate, the Holder of any Warrant thereafter exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of Common Stock, thereafter the number of such other shares so receivable upon exercise of any Warrant shall
be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect
to the shares contained in Section 3 of the Warrant Certificate and the provisions of Sections 7, 11 and 12 of this Agreement with respect
to the shares of Common Stock shall apply on like terms to any such other shares. All Warrants originally issued by the Company subsequent
to any adjustment made to the Exercise Price pursuant to the Warrant Certificate shall evidence the right to purchase, at the adjusted
Exercise Price, the number of shares of Common Stock purchasable from time to time hereunder upon exercise of the Warrants, all subject
to further adjustment as provided herein.
Section
12. Certification of Adjusted Exercise Price or Number of Shares of Common Stock. Whenever the Exercise Price or the number of
shares of Common Stock issuable upon the exercise of each Warrant is adjusted as provided in Section 11 or 13, the Company shall (a)
promptly prepare a certificate setting forth the Exercise Price of each Warrant as so adjusted, and a brief statement of the facts accounting
for such adjustment, (b) promptly file with the Warrant Agent and with each transfer agent for the Common Stock a copy of such certificate
and (c) instruct the Warrant Agent to send a brief summary thereof to each Holder of a Warrant Certificate.
Section
13. Fractional Shares of Common Stock.
(a)
The Company shall not issue fractions of Warrants or distribute Warrant Certificates which evidence fractional Warrants. Whenever any
fractional Warrant would otherwise be required to be issued or distributed, the actual issuance or distribution shall reflect a rounding
of such fraction to the nearest whole Warrant (rounded down).
(b)
The Company shall not issue fractions of shares of Common Stock upon exercise of Warrants or distribute stock certificates which evidence
fractional shares of Common Stock. Whenever any fraction of a share of Common Stock would otherwise be required to be issued or distributed,
the actual issuance or distribution in respect thereof shall be made in accordance with Section 2(d)(v) of the Warrant Certificate.
Section
14. Conditions of the Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms
and conditions hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the Holders
from time to time of the Warrant Certificates shall be subject:
|
(a) |
Compensation
and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation detailed on Exhibit 5 hereto
for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without gross negligence or willful misconduct finally adjudicated to have been directly caused
by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify
the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, or willful
misconduct on the part of the Warrant Agent, finally adjudicated to have been directly caused by Warrant Agent hereunder, including
the reasonable costs and expenses of defending against any claim of such liability. The Warrant Agent shall be under no obligation
to institute or defend any action, suit, or legal proceeding in connection herewith or to take any other action likely to involve
the Warrant Agent in expense, unless first indemnified to the Warrant Agent’s satisfaction. The indemnities provided by this
paragraph shall survive the resignation or discharge of the Warrant Agent or the termination of this Agreement. Anything in this
Agreement to the contrary notwithstanding, in no event shall the Warrant Agent be liable under or in connection with the Agreement
for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited
to lost profits, whether or not foreseeable, even if the Warrant Agent has been advised of the possibility thereof and regardless
of the form of action in which such damages are sought, and the Warrant Agent’s aggregate liability to the Company, or any
of the Company’s representatives or agents, under this Section 14(a) or under any other term or provision of this Agreement,
whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one (1) year’s
fees received by the Warrant Agent as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed
to the Warrant Agent by the Company hereunder. |
|
(b) |
Agent
for the Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants. |
|
(c) |
Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel. |
|
(d) |
Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper parties. |
|
(e) |
Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on,
or as depositary, trustee or agent for, any committee or body of Holders of Warrant Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indenture to which the Company is a party. |
|
(f) |
No
Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates. |
|
(g) |
No
Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or the Warrant
Certificates (except as to the Warrant Agent’s countersignature thereon). |
|
(h) |
No
Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificate (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by
the Company. |
|
(i) |
No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against
the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company
of the proceeds of the Warrant Certificate. The Warrant Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt
of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality
of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law. |
Section
15. Purchase or Consolidation or Change of Name of Warrant Agent. Any corporation into which the Warrant Agent or any successor
Warrant Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which
the Warrant Agent or any successor Warrant Agent shall be party, or any corporation succeeding to the corporate trust business of the
Warrant Agent or any successor Warrant Agent, shall be the successor to the Warrant Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible
for appointment as a successor Warrant Agent under the provisions of Section 17. In case at the time such successor Warrant Agent shall
succeed to the agency created by this Agreement any of the Warrant Certificates shall have been countersigned but not delivered, any
such successor Warrant Agent may adopt the countersignature of the predecessor Warrant Agent and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor Warrant Agent
may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement.
In
case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent may adopt the countersignature under its prior name and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
Section
16. Duties of Warrant Agent. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company, by its acceptance hereof, shall be bound:
(a)
The Warrant Agent may consult with legal counsel reasonably acceptable to the Company (who may be legal counsel for the Company), and
the opinion of such counsel shall be full and complete authorization and protection to the Warrant Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.
(b)
Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed
by the Chief Executive Officer, Chief Financial Officer or Vice President of the Company; and such certificate shall be full authentication
to the Warrant Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c)
Subject to the limitation set forth in Section 14, the Warrant Agent shall be liable hereunder only for its own gross negligence or willful
misconduct, or for a breach by it of this Agreement.
(d)
The Warrant Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in
the Warrant Certificate (except its countersignature thereof) by the Company or be required to verify the same, but all such statements
and recitals are and shall be deemed to have been made by the Company only.
(e)
The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except
its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate; nor shall it be responsible for the adjustment of the Exercise Price or the making of any change
in the number of shares of Common Stock required under the provisions of Section 11 or 13 or responsible for the manner, method or amount
of any such change or the ascertaining of the existence of facts that would require any such adjustment or change (except with respect
to the exercise of Warrants evidenced by the Warrant Certificates after actual notice of any adjustment of the Exercise Price); nor shall
it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common
Stock to be issued pursuant to this Agreement or any Warrant Certificate or as to whether any shares of Common Stock will, when issued,
be duly authorized, validly issued, fully paid and nonassessable.
(f)
Each party hereto agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may reasonably be required by the other party hereto for the
carrying out or performing by any party of the provisions of this Agreement.
(g)
The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief
Executive Officer, Chief Financial Officer or Vice President of the Company, and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable and shall be indemnified and held harmless for any action taken or suffered
to be taken by it in good faith in accordance with instructions of any such officer, provided Warrant Agent carries out such instructions
without gross negligence or willful misconduct.
(h)
The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants
or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(i)
The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorney or agents, and the Warrant Agent shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued employment thereof.
Section
17. Change of Warrant Agent. The Warrant Agent may resign and be discharged from its duties under this Agreement upon 30 days’
notice in writing sent to the Company and to each transfer agent of the Common Stock, and to the Holders of the Warrant Certificates.
The Company may remove the Warrant Agent or any successor Warrant Agent upon 30 days’ notice in writing, sent to the Warrant Agent
or successor Warrant Agent, as the case may be, and to each transfer agent of the Common Stock, and to the Holders of the Warrant Certificates.
If the Warrant Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor
to the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after such removal or after it has
been notified in writing of such resignation or incapacity by the resigning or incapacitated Warrant Agent or by the Holder of a Warrant
Certificate (who shall, with such notice, submit his Warrant Certificate for inspection by the Company), then the Holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment of a new Warrant Agent, provided that, for purposes
of this Agreement, the Company shall be deemed to be the Warrant Agent until a new warrant agent is appointed. Any successor Warrant
Agent, whether appointed by the Company or by such a court, shall be a corporation organized and doing business under the laws of the
United States or of a state thereof, in good standing, which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state authority and which has at the time of its appointment as Warrant Agent a combined
capital and surplus of at least $50,000,000. After appointment, the successor Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the predecessor Warrant
Agent shall deliver and transfer to the successor Warrant Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment,
the Company shall file notice thereof in writing with the predecessor Warrant Agent and each transfer agent of the Common Stock, and
mail a notice thereof in writing to the Holders of the Warrant Certificates. However, failure to give any notice provided for in this
Section 17, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Warrant Agent or the
appointment of the successor Warrant Agent, as the case may be.
Section
18. Issuance of New Warrant Certificates. Notwithstanding any of the provisions of this Agreement or of the Warrants to the contrary,
the Company may, at its option, issue new Warrant Certificates evidencing Warrants in such form as may be approved by its Board of Directors
to reflect any adjustment or change in the Exercise Price per share and the number or kind or class of shares of stock or other securities
or property purchasable under the several Warrant Certificates made in accordance with the provisions of this Agreement.
Section
19. Notices. Notices or demands authorized by this Agreement to be given or made (i) by the Warrant Agent or by the Holder of
any Warrant Certificate to or on the Company, (ii) subject to the provisions of Section 17, by the Company or by the Holder of any Warrant
Certificate to or on the Warrant Agent or (iii) by the Company or the Warrant Agent to the Holder of any Warrant Certificate shall be
deemed given (a) on the date delivered, if delivered personally, (b) on the first Business Day following the deposit thereof with Federal
Express or another recognized overnight courier, if sent by Federal Express or another recognized overnight courier, (c) on the fourth
Business Day following the mailing thereof with postage prepaid, if mailed by registered or certified mail (return receipt requested),
and (d) the date of transmission, if such notice or communication is delivered via facsimile or email attachment at or prior to 5:30
p.m. (New York City time) on a Business Day and (e) the next Business Day after the date of transmission, if such notice or communication
is delivered via facsimile or email attachment on a day that is not a Business Day or later than 5:30 p.m. (New York City time) on any
Business Day, in each case to the parties at the following addresses (or at such other address for a party as shall be specified by like
notice):
|
(a) |
If
to the Company, to: |
|
|
|
|
|
SINTX
Technologies, Inc. |
|
|
1885
West 2100 South |
|
|
Salt
Lake City, UT, 84119 |
|
|
Facsimile:
855.839.3500 |
|
|
Attention:
Chief Executive Officer |
|
(b) |
If
to the Warrant Agent, to: |
|
|
|
|
|
Equiniti
Trust Company, LLC |
|
|
48
Wall Street, 22nd Floor |
|
|
New
York, NY 10005 |
|
|
Attention:
Corporate Actions – Warrants
|
|
|
Email:
ReorgWarrants@equiniti.com |
For
any notice delivered by email to be deemed given or made, such notice must be followed by notice sent by overnight courier service to
be delivered on the next business day following such email, unless the recipient of such email has acknowledged via return email receipt
of such email.
(c)
If to the Holder of any Warrant Certificate to the address of such Holder as shown on the registry books of the Company. Any notice required
to be delivered by the Company to the Holder of any Warrant may be given by the Warrant Agent on behalf of the Company. Notwithstanding
any other provision of this Agreement, where this Agreement provides for notice of any event to a Holder of any Warrant, such notice
shall be sufficiently given if given to the Depositary (or its designee) pursuant to the procedures of the Depositary or its designee.
Section
20. Supplements and Amendments.
(a)
The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any Holders of Global
Warrants in order to add to the covenants and agreements of the Company for the benefit of the Holders of the Global Warrants or to surrender
any rights or power reserved to or conferred upon the Company in this Agreement, provided that such addition or surrender shall not adversely
affect the interests of the Holders of the Global Warrants or Warrant Certificates in any material respect.
(b)
In addition to the foregoing, with the consent of Holders of Warrants entitled, upon exercise thereof, to receive not less than a majority
of the shares of Common Stock issuable thereunder, the Company and the Warrant Agent may modify this Agreement for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Warrant Agreement or modifying in any manner
the rights of the Holders of the Global Warrants; provided, however, that no modification of the terms (including but not
limited to the adjustments described in Section 11) upon which the Warrants are exercisable or the rights of holders of Warrants to receive
liquidated damages or other payments in cash from the Company or reducing the percentage required for consent to modification of this
Agreement may be made without the consent of the Holder of each outstanding Warrant Certificate affected thereby; provided further,
however, that no amendment hereunder shall affect any terms of any Warrant Certificate issued in a Warrant Exchange. As a condition
precedent to the Warrant Agent’s execution of any amendment, the Company shall deliver to the Warrant Agent a certificate from
a duly authorized officer of the Company that states that the proposed amendment complies with the terms of this Section 20.
Section
21. Successors. All covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns hereunder.
Section
22. Benefits of this Agreement. Nothing in this Agreement shall be construed to give any Person other than the Company, the Holders
of Warrant Certificates and the Warrant Agent any legal or equitable right, remedy or claim under this Agreement. This Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the Holders of the Warrant Certificates.
Section
23. Governing Law. This Agreement and each Warrant Certificate and Global Warrant issued hereunder shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to the conflicts of law principles thereof.
Section
24. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
Section
25. Captions. The captions of the sections of this Agreement have been inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
Section
26. Information. The Company agrees to promptly provide to the Holders of the Warrants any information it provides to the holders
of the Common Stock, except to the extent any such information is publicly available on the EDGAR system (or any successor thereof) of
the Securities and Exchange Commission.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
[Signature
Page to Follow]
|
SINTX
TECHNOLOGIES, INC. |
|
|
|
|
By: |
|
|
Name: |
Sonny
Bal |
|
Title: |
Chief
Executive Officer |
|
|
|
|
EQUINITI
trust Company, LLC |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
Exhibit
1
Form
of Class E Warrant Certificate
Exhibit
2
Form
of Class F Warrant Certificate
Exhibit
3
Form
of Pre-Funded Warrant Certificate
Exhibit
4
Form
of Warrant Certificate Request Notice
WARRANT
CERTIFICATE REQUEST NOTICE
To:
Equiniti Trust Company, LLC, as Warrant Agent for Sintx Technologies, Inc. (the “Company”)
The
undersigned Holder of Common Stock Purchase Warrants (“Warrants”) in the form of Global Warrants issued by the Company
hereby elects to receive a Warrant Certificate evidencing the Warrants held by the Holder as specified below:
1. |
Name
of Holder of Warrants in form of Global Warrants: _____________________________ |
|
|
2. |
Name
of Holder in Warrant Certificate (if different from name of Holder of Warrants in form of Global Warrants): ________________________________ |
|
|
3. |
Number
of Warrants in name of Holder in form of Global Warrants: ___________________ |
|
|
4. |
Number
of Warrants for which Warrant Certificate shall be issued: __________________ |
|
|
5. |
Number
of Warrants in name of Holder in form of Global Warrants after issuance of Warrant Certificate, if any: ___________ |
|
|
6. |
Warrant
Certificate shall be delivered to the following address: |
______________________________
______________________________
______________________________
______________________________
The
undersigned hereby acknowledges and agrees that, in connection with this Warrant Exchange and the issuance of the Warrant Certificate,
the Holder is deemed to have surrendered the number of Warrants in form of Global Warrants in the name of the Holder equal to the number
of Warrants evidenced by the Warrant Certificate.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ____________________________________________________
Signature
of Authorized Signatory of Investing Entity: ______________________________
Name
of Authorized Signatory: ________________________________________________
Title
of Authorized Signatory: _________________________________________________
Date:
_______________________________________________________________
Exhibit
4
Form
of Global Warrant Request Notice
GLOBAL
WARRANT REQUEST NOTICE
To:
Equiniti Trust Company, LLC, as Warrant Agent for Sintx Technologies, Inc. (the “Company”)
The
undersigned Holder of Common Stock Purchase Warrants (“Warrants”) in the form of Warrants Certificates issued by the
Company hereby elects to receive a Global Warrant evidencing the Warrants held by the Holder as specified below:
1. |
Name
of Holder of Warrants in form of Warrant Certificates: _____________________________ |
|
|
2. |
Name
of Holder in Global Warrant (if different from name of Holder of Warrants in form of Warrant Certificates): ________________________________ |
|
|
3. |
Number
of Warrants in name of Holder in form of Warrant Certificates: ___________________ |
|
|
4. |
Number
of Warrants for which Global Warrant shall be issued: __________________ |
|
|
5. |
Number
of Warrants in name of Holder in form of Warrant Certificates after issuance of Global Warrant, if any: ___________ |
|
|
6. |
Global
Warrant shall be delivered to the following address: |
______________________________
______________________________
______________________________
______________________________
The
undersigned hereby acknowledges and agrees that, in connection with this Global Warrant Exchange and the issuance of the Global Warrant,
the Holder is deemed to have surrendered the number of Warrants in form of Warrant Certificates in the name of the Holder equal to the
number of Warrants evidenced by the Global Warrant.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ____________________________________________________
Signature
of Authorized Signatory of Investing Entity: ______________________________
Name
of Authorized Signatory: ________________________________________________
Title
of Authorized Signatory: _________________________________________________
Date:
_______________________________________________________________
Exhibit
5
Warrant
Agent Fee Schedule1
Acceptance Fee
for Agreement review | |
$ | [5,000.00] |
|
Monthly Administration Fee:
Class E Warrant | |
$ | [400.00] |
|
Monthly Administration Fee:
Class F Warrant | |
$ | [400.00] |
|
Monthly Administration Fee:
Pre-Funded Warrant | |
$ | [400.00] |
|
Per Warrant Exercise | |
$ | [50.00] |
|
OUT-OF-POCKET
EXPENSES
Note
that all customary out-of-pocket expenses will be billed in addition to the fees listed above. These charges include, but are not limited
to: printing and stationery, freight and materials delivery, postage and handling.
The
fees quoted in this schedule apply to services ordinarily rendered by EQ and are subject to reasonable adjustment based on final review
of documents, or when EQ is called upon to undertake unusual duties or responsibilities, or as changes in law, procedures or the cost
of doing business demand. Furthermore, the fees quoted in this schedule are based upon information provided to EQ and are subject to
change upon modification or supplementation of such information resulting in the provision of additional services by EQ.
Services
in addition to and not contemplated in this proposal, including, but not limited to, corporate actions (redemptions, tenders, exchanges,
etc.), document amendments and revisions, calculations, notices and reports, legal fees and unanticipated transaction costs (including
charges for wire transfers, checks, internal transfers and securities transactions) will be billed as extraordinary expenses.
1
NTD: Warrant agent to confirm fee amounts
Exhibit
5.1
January
24, 2024
SINTX
Technologies, Inc.
1885
West 2100 South
Salt
Lake City, UT 84119
Re: |
Registration
Statement on Form S-1 (File No. 333-275137) |
Ladies
and Gentlemen:
We
have acted as counsel to SINTX Technologies, Inc., a Delaware corporation (the “Company”), in connection with a Registration
Statement on Form S-1 (as amended or supplemented, the “Registration Statement”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”), relating to the registration by the Company of up to 16,778,523 Units consisting of (a)(i) up to 16,778,523
shares (the “Unit Shares”) of the Company’s Common Stock, par value $0.01 per share (the “Common
Stock”), or (ii) up to 16,778,523 pre-funded warrants (the “Pre-Funded Warrants” and each share of
Common Stock underlying a Pre-Funded Warrant, a “Pre-Funded Warrant Share”) in lieu thereof to purchase up to 16,778,523
shares of Common Stock, (b) accompanying Common Stock purchase warrants to purchase up to 16,778,523 shares of Common Stock
(the “Class E Warrants”, and each share of Common Stock underlying a Class E Warrant, a “Class E Warrant
Share ”), and (c) accompanying Common Stock purchase warrants to purchase up to 16,778,523 shares of Common Stock
(the “Class F Warrants”, and each share of Common Stock underlying a Class F Warrant, a “Class F Warrant
Share”). The Registration Statement also relates to the issuance by the Company of (x) Common Stock purchase warrants issuable
to the placement agent to purchase up to 671,141 shares of Common Stock (the “Placement Agent Warrants” and,
together with the Pre-Funded Warrants, Class E Warrants, and Class F Warrants, the “Warrants” and each share
of Common Stock underlying a Placement Agent Warrant, a “Placement Agent Warrant Share” and, together with the Pre-Funded
Warrant Shares, Class E Warrant Shares, and Class F Warrant Shares, the “Warrant Shares”), and (y) an
aggregate of up to 51,006,710 Warrant Shares issuable upon exercise of the Warrants.
We
have examined such documents and have reviewed such questions of law as we have considered necessary or appropriate for the purposes
of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted
to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies.
We have also assumed the legal capacity for all purposes relevant hereto of all natural persons. As to questions of fact material to
our opinions, we have relied upon certificates or comparable documents of officers and other representatives of the Company and of public
officials.
Based
on the foregoing, we are of the opinion that:
1.
The Units, when issued, delivered and paid for as described in the Registration Statement, will be validly issued, fully paid and non-assessable.
2.
The Unit Shares, when issued, delivered and paid for as described in the Registration Statement, will be validly issued, fully paid and
non-assessable.
3.
The Pre-Funded Warrants and Warrants, when duly executed by the Company and duly delivered to the purchasers thereof against
payment therefor as described in the Registration Statement, will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
4.
The Placement Agent Warrants, when duly executed by the Company and duly delivered to the placement agent as described in the Registration
Statement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
5.
The Warrant Shares have been duly authorized and if, as, and when the Warrant Shares are issued and delivered by the Company upon exercise
of the Warrants in accordance with the terms thereof, including, without limitation, the payment in full of applicable consideration,
the Warrant Shares will be validly issued, fully paid and non-assessable.
(a)
Our opinions set forth in paragraphs 3 and 4 above are subject to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance
laws).
(b)
Our opinions set forth in paragraphs 3 and 4 above are subject to the effect of general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law.
(c)
Our opinions set forth in paragraphs 3 and 4 above are subject to limitations regarding the availability of indemnification and contribution
where such indemnification or contribution may be limited by applicable law or the application of principles of public policy.
(d)
We express no opinion as to the enforceability of (i) provisions that relate to choice of law, forum selection or submission to jurisdiction
(including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court
is an inconvenient forum) to the extent that the validity, binding effect or enforceability of any such provision is to be determined
by any court other than a state court of the State of New York, (ii) waivers by the Company of any statutory or constitutional rights
or remedies, (iii) terms which excuse any person or entity from liability for, or require the Company to indemnify such person or entity
against, such person’s or entity’s negligence or willful misconduct or (iv) obligations to pay any prepayment premium, default
interest rate, early termination fee or other form of liquidated damages, if the payment of such premium, interest rate, fee or damages
may be construed as unreasonable in relation to actual damages or disproportionate to actual damages suffered as a result of such prepayment,
default or termination.
(e)
We draw your attention to the fact that, under certain circumstances, the enforceability of terms to the effect that provisions may not
be waived or modified except in writing may be limited.
(f)
We have assumed that the per share exercise price of the Pre-Funded Warrants (inclusive of the pre-funded portion of such per share exercise
price) and the Warrants will at least equal the par value of the Common Stock.
Our
opinions expressed above are limited to the laws of the State of New York and the Delaware General Corporation Law.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to the reference to our firm under the
heading “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving this consent, we do
not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission thereunder.
|
Very
truly yours, |
|
|
|
/s/
Dorsey & Whitney LLP |
DFM/NST
Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
SINTX
Technologies, Inc.
Salt
Lake City, Utah
We
hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement of our report dated
March 29, 2023, relating to the consolidated financial statements of SINTX Technologies, Inc., and subsidiaries (collectively, the Company),
as of December 31, 2022 and 2021 and for each of the years then ended, incorporated by reference in this Registration Statement.
We
also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/
Tanner LLC
Lehi,
Utah
January
24, 2024
Exhibit 107
Calculation
of Filing Fee Tables
Form
S-1
(Form
Type)
SINTX
Technologies, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| |
Security Type | |
Security Class Title | |
Fee Calculation or Carry Forward Rule | | |
Amount Registered | | |
Proposed Maximum Offering Price Per Unit | | |
Maximum Aggregate Offering Price(1) | | |
Fee Rate | | |
Amount of Registration Fee | | |
Carry Forward Form Type | | |
Carry Forward File Number | | |
Carry Forward Initial Effective Date | | |
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | |
Newly Registered Securities | |
Fees to Be Paid | |
Other | |
Units, each consisting of:(2) | |
Other | | |
| — | | |
| — | | |
| — | | |
| — | | |
$ | 0 | | |
| — | | |
| — | | |
| — | | |
| — | |
| |
Equity | |
one share of common stock, par value $0.01 per share, or one pre-funded warrant to purchase one share of common stock(2)(4)(5) | |
457(o) | | |
| — | | |
| — | | |
$ | 5,000,000 | | |
| 0.0001476 | | |
$ | 738 | | |
| — | | |
| — | | |
| — | | |
| — | |
| |
Equity | |
One Class E Warrant to purchase of one share of common stock(3) | |
Other | | |
| — | | |
| — | | |
| — | | |
| — | | |
$ | 0 | | |
| — | | |
| — | | |
| — | | |
| — | |
| |
Equity | |
One Class F Warrant to purchase of one share of common stock(3) | |
Other | | |
| — | | |
| — | | |
| — | | |
| — | | |
$ | 0 | | |
| | | |
| | | |
| | | |
| | |
| |
Equity | |
Common Stock, par value $0.01 per share, underlying Class E Warrants(2) | |
Other | | |
| — | | |
| — | | |
$ | 6,000,000 | | |
| 0.0001476 | | |
$ | 886 | | |
| | | |
| | | |
| | | |
| | |
| |
Equity | |
Common Stock, par value $0.01 per share, underlying Class F Warrants(2) | |
Other | | |
| — | | |
| — | | |
$ | 6,000,000 | | |
| 0.0001476 | | |
$ | 886 | | |
| — | | |
| — | | |
| — | | |
| — | |
| |
Equity | |
Common Stock, par value $0.01 per share, underlying pre-funded warrants(2)(3)(4) | |
Other | | |
| — | | |
| — | | |
| — | | |
| — | | |
$ | 0 | | |
| — | | |
| — | | |
| — | | |
| — | |
| |
Equity | |
Placement Agent’s warrants(3) | |
Other | | |
| — | | |
| — | | |
| — | | |
| — | | |
$ | 0 | | |
| — | | |
| — | | |
| — | | |
| — | |
| |
Equity | |
Common Stock, par value $0.01 per share, underlying Placement Agent’s warrants(2)(6) | |
Other | | |
| — | | |
| — | | |
$ | 220,000 | | |
| 0.0001476 | | |
$ | 33 | | |
| — | | |
| — | | |
| — | | |
| — | |
Fees Previously Paid | |
— | |
— | |
— | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Carry Forward Securities | |
— | |
— | |
— | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | |
Total Offering Amounts | |
| | |
| | | |
| | | |
$ | 17,220,000 | | |
| | | |
$ | 2,543 | | |
| | | |
| | | |
| | | |
| | |
Total Fees Previously Paid | |
| | |
| | | |
| | | |
| | | |
| | | |
$ | 1,657 | | |
| | | |
| | | |
| | | |
| | |
Total Fee Offsets | |
| | |
| | | |
| | | |
| | | |
| | | |
$ | | | |
| | | |
| | | |
| | | |
| | |
Net Fee Due | |
| | |
| | | |
| | | |
| | | |
| | | |
$ | 886 | | |
| | | |
| | | |
| | | |
| | |
(1) |
Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the
“Securities Act”). |
(2) |
In
addition to the shares of common stock set forth in this table, pursuant to Rule 416 under the Securities Act, this registration
statement also registers such indeterminate number of shares of common stock as may become issuable after the date hereof as a result
of stock splits, stock dividends, or pursuant to the anti-dilution adjustment provisions of the warrants registered hereby. |
(3) |
No
fee pursuant to Rule 457(g) of the Securities Act. |
(4) |
The
proposed maximum aggregate offering price of the common stock proposed to be sold in the offering will be reduced on a dollar-for-dollar
basis based on the offering price of any pre-funded warrants offered and sold in the offering, and as such the proposed maximum offering
price of the common stock and pre-funded warrants (including the common stock issuable upon exercise of the pre-funded warrants)
if any, is $5,000,000. |
(5) |
The
registrant may issue pre-funded warrants to purchase shares of common stock in the offering. The purchase price of each pre-funded
warrant and accompanying Class E Warrant and Class F Warrant will equal the price per share at which Units comprising shares of common
stock and accompanying Class E Warrant and Class F Warrant are being sold to the public in this offering, minus the pre-funded portion
of the exercise price. |
(6) |
The
Placement Agent’s warrants are exercisable for a number of shares of common stock equal to up to 4% of the number of shares
of common stock and pre-funded warrants in the Units sold in this offering, at an exercise price equal to 110% of the public offering
price per Unit. |
Table
2: Fee Offset Claims and Sources
N/A
Table
3: Combined Prospectuses
N/A
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