As
filed with the Securities and Exchange Commission on July 29, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Vivos
Therapeutics, Inc.
(Exact
name of Registrant as specified in its charter)
Delaware |
|
81-3224056 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification Number) |
7921
Southpark Plaza, Suite 210
Littleton,
Colorado 80120
(844)
672-4357
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
R.
Kirk Huntsman
Chairman
of the Board and Chief Executive Officer
Vivos
Therapeutics, Inc.
7921
Southpark Plaza, Suite 210
Littleton,
Colorado 80120
(844)
672-4357
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Barry
I. Grossman, Esq.
Lawrence
A. Rosenbloom, Esq.
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas
New
York, NY 10105
Phone:
(212) 370-1300
Fax:
(212) 370-7889
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
on filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
|
|
Emerging
growth company |
☒ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 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 it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PROSPECTUS |
Subject
to Completion, dated July 29, 2024 |
![A close up of a number
Description automatically generated](https://www.sec.gov/Archives/edgar/data/1716166/000149315224029507/forms-3_001.jpg)
169,498
Shares of Common Stock
3,050,768
Shares of Common Stock Issuable Upon Exercise of Pre-Funded Warrant
3,220,266
Shares of Common Stock Issuable Upon Exercise of Common Stock Purchase Warrant
This
prospectus relates to the resale by the selling stockholder named herein, including its transferees, assigns, pledgees or donees, or
their respective successors, of up to (i) 169,498 shares (or the Shares) of our common stock, par value $0.0001 per share (which we refer
to as the common stock), (ii) a pre-funded warrant to purchase 3,050,768 shares of common stock (or the Pre-Funded Warrant, and with
the shares of common stock underlying the Pre-Funded Warrant being referred to as the PFW Shares), and (iii) a Common Stock Purchase
Warrant (or the Warrant) to purchase up to 3,220,266 shares of common stock (such shares being referred to as the Warrant Shares). The
selling stockholder was the investor in a private placement by our company which closed on June 10, 2024. For information, see “Selling
Stockholder.”
We
are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of common stock by the selling
stockholder, although we may receive funds upon the future exercise of Warrant held by the selling stockholder, if and when exercised
for cash. The selling stockholder may sell Shares, PFW Shares, and Warrant Shares (which we sometimes refer to herein collectively as
the Selling Stockholder Shares) from time to time in the principal markets on which our common stock is quoted at the prevailing market
price, at prices related to prevailing market prices or in negotiated transactions. The selling stockholder may sell the Selling Stockholder
Shares to or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions
from the selling stockholder, the purchasers of the Selling Stockholder Shares, or both. We are registering the offer and sale of the
Selling Stockholder Shares pursuant to certain registration rights granted to the selling stockholder. The timing and amount of any sale
of Selling Stockholder Shares is within the sole discretion of the selling stockholder. We do not know when or in what amount of Selling
Stockholder Shares the selling stockholder may offer for sale. We will pay the expenses of registering the Selling Stockholder Shares,
including legal and accounting fees. All selling and other expenses incurred by the selling stockholder will be borne by the selling
stockholder. See “Plan of Distribution” for additional information.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “VVOS.” On July 24, 2024, the last reported sale price
of our common stock on The Nasdaq Capital Market was $2.36 per share.
The
purchase of the common stock offered through this prospectus is speculative and involves a high degree of risk. You should carefully
consider the risk factors beginning on page 7 of this prospectus and those risk factors incorporated herein by reference before purchasing
any of the securities offered by this prospectus. You should read the entire prospectus and any amendments or supplements carefully before
you make your investment decision.
Neither
the Securities and Exchange Commission (“SEC”) 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.
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
The
information contained in this prospectus is not complete and may be changed. You should rely only on the information provided in or incorporated
by reference in this prospectus, in any prospectus supplement or in a related free writing prospectus, or documents to which we otherwise
refer you. We have not authorized anyone else to provide you with different information.
We
have not authorized any dealer, agent or other person to give any information or to make any representations other than those contained
or incorporated by reference in this prospectus and any accompanying prospectus supplement or any related free writing prospectus. You
must not rely upon any information or representation not contained or incorporated by reference in this prospectus or an accompanying
prospectus supplement or any related free writing prospectus. This prospectus and any accompanying prospectus supplement and any related
free writing prospectus, if any, do not constitute an offer to sell or the solicitation of an offer to buy any securities other than
the registered securities to which they relate, nor do this prospectus and any accompanying prospectus supplement and any related free
writing prospectus, if any, constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained
in this prospectus and any accompanying prospectus supplement and any related free writing prospectus, if any, is accurate on any date
subsequent to the date set forth on the front of such document or that any information we have incorporated by reference is correct on
any date subsequent to the date of the document incorporated by reference, even though this prospectus and any accompanying prospectus
supplement and any related free writing prospectus is delivered or securities are sold on a later date.
We
have not done anything that would permit this offering or possession or distribution of this prospectus or any free writing prospectus
in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourself about
and to observe any restrictions relating as to this offering and the distribution of this prospectus and any such free writing prospectus
outside the United States.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
We
own or have rights to trademarks or trade names that we use in connection with the operation of our business, including our corporate
names, logos and website names. In addition, we own or have the rights to copyrights, trade secrets and other proprietary rights that
protect the content of our products. This prospectus may also contain trademarks, service marks and trade names of other companies, which
are the property of their respective owners. Our use or display of third parties’ trademarks, service marks, trade names or products
in this prospectus is not intended to, and should not be read to, imply a relationship with or endorsement or sponsorship of us. Solely
for convenience, some of the copyrights, trade names and trademarks referred to in this prospectus are listed without their ©, ®
and ™ symbols, but we will assert, to the fullest extent under applicable law, our rights to our copyrights, trade names and trademarks.
All other trademarks are the property of their respective owners.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein contain forward-looking statements that reflect our current expectations
and views of future events. The forward-looking statements are contained principally in the sections included or incorporated by reference
entitled “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
Readers are cautioned that known and unknown risks, uncertainties and other factors, including those over which we may have no control
and others listed in the “Risk Factors” section of this prospectus, may cause our actual results, performance or achievements
to be materially different from those expressed or implied by the forward-looking statements.
You
can identify some of these forward-looking statements by words or phrases such as “may,” “will,” “expect,”
“anticipate,” “aim,” “estimate,” “intend,” “plan,” “believe,”
“is/are likely to,” “potential,” “continue” or other similar expressions. We have based these forward-looking
statements largely on our current expectations and projections about future events that we believe may affect our financial condition,
results of operations, business strategy and financial needs. These forward-looking statements include statements relating to:
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our
ability to continue to refine and execute our business plan, including the launch and advancement of our recently announced marketing
and distribution alliance, recruitment of dentists to enroll in our Vivos Integrated Practice (VIP) program and utilize The Vivos
Method; |
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the
understanding and adoption by dentists and other healthcare professionals of The Vivos Method, including our proprietary oral appliances,
as a treatment for dentofacial abnormalities and/or mild to severe OSA and snoring in adults; |
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our
expectations concerning the effectiveness of treatment using The Vivos Method and patient relapse after completion of treatment; |
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the
potential financial benefits to VIP dentists from treating patients with The Vivos Method; |
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our
potential profit margin from the enrollment of VIPs, VIP service fees, sales of The Vivos Method treatments and appliances and leases
of SleepImage® home sleep testing rings; |
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our
ability to properly train VIPs in the use of The Vivos Method inclusive of the services we offer independent dentist for use in treating
their patients in their dental practices; |
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our
ability to formulate, implement and modify as necessary effective sales, marketing and strategic initiatives to drive revenue growth
(including, for example, our recently announced marketing and distribution alliance, our Medical Integration Division, our SleepImage®
home sleep apnea test and our arrangements with durable medical equipment companies (“DMEs”)); |
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the
viability of our current intellectual property and intellectual property created in the future; |
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acceptance
by the marketplace of the products and services that we market; |
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government
regulations and our ability to obtain applicable regulatory approvals and comply with government regulations including under healthcare
laws and the rules and regulations of the U.S. Food and Drug Administration (“FDA”) and non-U.S. equivalent regulatory
bodies; |
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our
ability to retain key employees; |
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adverse
changes in general market conditions for medical devices and the products and services we offer; |
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our
ability to generate cash flow and profitability and continue as a going concern; |
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our
future financing plans; and |
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our
ability to adapt to changes in market conditions (including as a result of the COVID-19 pandemic, rising inflation and volatile capital
markets) which could impair our operations and financial performance. |
These
forward-looking statements involve numerous risks and uncertainties. Although we believe that our expectations expressed in these forward-looking
statements are reasonable, our expectations may later be found to be incorrect. Our actual results of operations or the results of other
matters that we anticipate could be materially different from our expectations. Important risks and factors that could cause our actual
results to be materially different from our expectations are generally set forth in “Risk Factors,” “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” “Business” and other sections included or
incorporated by reference in this prospectus. You should thoroughly read this prospectus and the documents incorporated herein by reference
with the understanding that our actual future results may be materially different from and worse than what we expect. We qualify all
of our forward-looking statements by these cautionary statements. We qualify all of our forward-looking statements by these cautionary
statements.
The
forward-looking statements made or incorporated by reference in this prospectus relate only to events or information as of the date on
which the statements are made in or incorporated by reference in this prospectus. Except as required by law, we undertake no obligation
to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, after
the date on which the statements are made or to reflect the occurrence of unanticipated events. You should read this prospectus, the
documents incorporated by reference into this prospectus and the documents we have filed as exhibits to the registration statement, of
which this prospectus forms a part, completely and with the understanding that our actual future results may be materially different
from what we expect.
PROSPECTUS
SUMMARY
The
following summary highlights information contained elsewhere in this prospectus. It does not contain all of the information you need
to consider in making your investment decision. Before making an investment decision, you should read this entire prospectus carefully
and you should consider, among other things, the matters set forth under “Risk Factors” and our financial statements and
related notes thereto appearing elsewhere in this prospectus.
This
summary highlights information contained elsewhere in this prospectus or incorporated by reference (see “Incorporation of Certain
Information by Reference”). It may not contain all of the information that you should consider before investing in our securities.
You should read this entire prospectus carefully, including the “Risk Factors,” “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” sections, and the financial statements and related notes included or
incorporated by reference herein. This prospectus contains forward-looking statements that involve risks and uncertainties. Our actual
results may differ significantly from future results contemplated in the forward-looking statements as a result of factors such as those
set forth in “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements.”
Unless
the context specifically requires otherwise, all share and per share figures appearing in this prospectus give effective to a 1-for-25
reverse stock split of our common stock which became effective on October 25, 2023.
In
this prospectus, unless the context indicates otherwise, the terms “the Company,” “Vivos,” “we,”
“our,” “ours” “us” or similar terminology refer to Vivos Therapeutics, Inc. and its consolidated
subsidiaries.
Overview
We
are a revenue stage medical technology company focused on the development and commercialization of a suite of innovative diagnostic and
multi-disciplinary treatment modalities for patients with dentofacial abnormalities and the wide array of medical conditions that may
result from them, including mild to severe obstructive sleep apnea (known as OSA) and snoring in adults. We believe our proprietary oral
appliances, diagnostic tools, myofunctional therapy, clinical treatments, continuing education, and practice solutions represent a powerful
and highly effective set of resources for healthcare providers of all disciplines who treat patients suffering from debilitating and
even life-threatening breathing and sleep disorders and their comorbidities.
To
date, our primary focus has been on expanding awareness of, and providing treatment options for OSA for and through the dental industry,
which we believe represents a large and relatively untapped market for OSA treatment. As our business has evolved, we have expanded our
marketing, provider outreach, and treatment programs to encompass a broader more multidisciplinary approach, with a greater emphasis
on working with medical doctors and other healthcare providers beyond dentists. Now that we have established a national network of Vivos-trained
dentists, we are pivoting our focus to the source of where we believe the vast majority of OSA patients are first diagnosed and treated—the
medical profession (including sleep centers and doctors and dentists who offer OSA treatment) as well durable medical equipment (DME)
companies who manufacture and distribute OSA therapies. See “New Marketing and Distribution Alliance Strategy” below for
more information.
In
this prospectus, we sometimes refer to doctors, dentists and other medical professionals who treat OSA as “providers” (including
our own Vivos-trained dentists).
Studies
have shown our comprehensive and multidisciplinary approach represents a significant improvement in the treatment of mild to severe OSA
in comparison to or when combined with other largely palliative treatments such as continuous positive airway pressure (or CPAP) or oral
myofunctional therapy. We call our solution The Vivos Method.
Our
Products and Services
Currently,
The Vivos Method comprises the following products and services:
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Vivos
Complete Airway Repositioning and/or Expansion (CARE) oral appliance therapy including our: |
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Daytime
Nighttime Appliance (or DNA appliance®) was granted 510(k) clearance from the U.S. Food & Drug Administration
(or FDA) as a Class II medical device in December 2022 for the treatment of snoring and mild to moderate OSA, jaw repositioning and
snoring in adults. It is the only oral appliance ever to receive FDA clearance to treat OSA without mandibular advancement as its
primary mechanism of action. In November 2023, our DNA appliance was cleared by the FDA to treat moderate and severe OSA in adults,
18 years of age and older along with positive airway pressure (PAP) and/or myofunctional therapy, as needed. |
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Mandibular
Repositioning Nighttime Appliance (or mRNA appliance®) has 510(k) clearance from the FDA as a Class II medical
device for the treatment of snoring and mild to moderate OSA in adults. In November 2023, our mRNA appliance was cleared by the FDA
to treat moderate and severe OSA in adults, 18 years of age and older along with positive airway pressure (PAP) and/or myofunctional
therapy, as needed. |
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Modified
Mandibular Repositioning Nighttime Appliance (or mmRNA appliance), for which we were granted FDA Class II market clearance
in August 2021 for treating mild to moderate OSA, jaw reposition and snoring in adults. In November 2023, our mmRNA appliance was
cleared by the FDA to treat moderate and severe OSA in adults, 18 years of age and older along with positive airway pressure (PAP)
and/or myofunctional therapy, as needed. |
The
November 2023 clearance of our CARE appliances for the indication described above represents the first time the FDA has ever granted
an oral appliance a clearance to treat severe OSA. We believe this unprecedented decision by the FDA will generate broader acceptance
throughout the medical community for our treatment options, leading to the potential for higher patient referrals and case starts as
well as collaboration with medical professionals. We also believe it will enhance our value proposition to third-party distribution partners
such as DME companies. This approval could also clear the way for greater reimbursement levels from medical insurance payors and Medicare.
For example, in April 2024 we received the required regulatory approvals to enable Medicare reimbursement for our CARE oral medical devices.
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Vivos
oral appliances and therapies outside of CARE system include: |
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Vivos
Guides are pre-formed, flexible, BPA-free, base polymer, monoblock intraoral guide and rescue appliances. The Guides are
FDA Class I registered product for orthodontic tooth positioning typically used by dentists in children to address malocclusions
and promote proper guided growth and development of the mouth and jaws. |
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Vivos
VersaTM is an FDA 510(k) cleared Class II device for treating mild to moderate OSA in adults. It is a comfortable,
easy-to-wear, medical grade nylon, 3D printed oral appliance featuring mandibular advancement as its mechanism of action. It is priced
to be very cost effective and offers Vivos providers and patients a comfortable and effective product at a much lower price point
for treatment. As with all other non-CARE oral appliances, the Vivos Versa must be worn nightly for life in order to remain clinically
effective. We believe many Vivos Versa patients will eventually migrate up to our proprietary Vivos CARE products. While we do not
own this product, we are a reseller of this product. |
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Vivos
MyoCorrect oral myofunctional therapy (OMT) services. Studies have shown OMT to be a clinically valuable adjunctive treatment
for patients with breathing and sleep disorders. When combined with Vivos’ CARE products and treatments, OMT can deliver an
enhanced effect in many patients using our appliances. MyoCorrect treatment services are cost-effective for providers and convenient
for patients. MyoCorrect is billable to medical insurance in most cases and constitutes an additional profit center for both Vivos
and providers. |
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Vivos
Vida ™ is an FDA cleared appliance as unspecified classification for the alleviation of TMD symptoms, and aids in treating
bruxism and TMJ Dysfunction. The Vivos Vida help to alleviate symptoms such as TMJ/TMD, headaches and facial muscle pain. The Vivos
Vida is worn during sleep, and serves to protect the teeth and restorations from destructive forces of bruxism. It is a custom fabricated
appliance, designed for patient comfort. |
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Vivos
Vida Sleep ™ is an FDA 510(k) cleared Class II for treating mild to moderate OSA in adults. It uses the Vivos Unilateral
BiteBlock Technology and is designed to advance the mandible incrementally to stabilize the patient’s oropharyngeal airway.
It is highly efficient and has a sleep design which promotes space for the tongue to sit in the roof of the palate. It’s novel
design decreases contact points between the maxillary and mandibular teeth that may help reduce clenching and overall bite forces
that occur during sleep. |
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VivoScore
(from SleepImage), Rhinomanometry (from GM Instruments), Cone Beam Computerized Tomography or CBCT (from multiple vendors), Joint
Vibration Analysis (from BioResearch) and other key diagnostic technologies play an essential role as part of The Vivos Method
in patient assessment, proper clinical diagnosis, treatment planning, progress measurement, and optimal outcome facilitation. We
believe the combination and integration of such diagnostic tools and equipment as particularly taught to and practiced by Vivos-trained
providers constitutes a key trade secret of our company. |
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Vivos
AireO2 is an Electronic Health Record (EHR) software program specifically designed for use as a full practice
management software program in a medical or dental practice environment where treating breathing and sleep disorders is performed.
The program is very well suited to handle both medical and dental billing and is integral in our Treatment Navigator program. |
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Adjunctive
Treatment from specialty chiropractors and other healthcare providers according to a very specific set of particular integrated
protocols has also proven to enhance and improve clinical outcomes using CARE and other Vivos devices. |
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Treatment
Navigator is our most recent program to assist a clinician’s patients who may have a breathing or sleep disorder to
get screened, diagnosed by a board-certified sleep specialist, obtain insurance verification of benefits and preauthorization (where
required), have their questions answered, and receive assistance with scheduling, financing, medical billing or any other concerns
regarding treatment options best suited to their individual situation. Dentists typically pay set fees to us for this service. |
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Vivos
Billing Intelligence Service (BIS) is our medical and dental billing service. It is both a subscription and fee for service
program for healthcare practitioners who wish to optimize their insurance reimbursement by leveraging both medical and dental benefits.
We are unaware of any other software platform or service on the market that offers the same set of features or capabilities. |
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Vivos
Airway Intelligence Service (AIS) is our technical support and advisory service that supports clinicians in their patient
data analysis, case selection, treatment planning and treatment implementation. AIS reports and services are priced into the cost
of appliances to providers. |
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The
Vivos Institute® (TVI) is widely regarded as one of the top educational and learning centers for dentofacial related
breathing and sleep disorders in North America. Opened in 2021, TVI is housed in a state-of-the-art 18,000 square foot facility near
the Denver International Airport where doctors from around the world come to receive instruction and advanced clinical training in
a wide range of topics delivered by leading national and international medical sleep specialists, cardiologists, pediatric sleep
specialists, dentists, orthodontists, specially trained chiropractors, nutritionists, key industry business leaders, and university-based
clinical researchers. |
These
products and services are used in a collaborative multidisciplinary treatment model comprising dentists, general practice physicians,
sleep specialist physicians, myofunctional therapists, nutritionists, chiropractors, physical therapists, and healthcare professionals.
Our subscription-based program to train dentists and offer them other value-added services is called the Vivos Integrated Practice
(VIP) program.
During
2023, we expanded our product portfolio by acquiring certain devices (now known as Vivos Vida, Vivos Versa
and Vivos Vida Sleep) from Advanced Facialdontics, LLC. During 2022, we commenced and grew our screening and home sleep
test (or HST) program (which we call our VivoScore Program) featuring SleepImage® technology,
a 510(k) cleared ring-based recorder and diagnostic platform for home sleep apnea testing. We market and distribute our SleepImage HST
in the U.S. and Canada pursuant to a licensing agreement with MyCardio LLC. Based on our direct experience with our Vivos-trained providers,
approximately 61,000 VivoScore HSTs were performed during 2023. Due to the volume of business that we have generated with MyCardio LLC,
we now receive pricing and terms for SleepImage® products and services that are well below their published retail prices.
We believe the rapid growth of our VivoScore program confirms our belief that the SleepImage® HST offers significant commercial
advantages over existing home sleep apnea products and technologies in the market and allows healthcare providers to more efficiently
screen, diagnose and initiate treatment for OSA in their patients.
We
have not yet seen a corresponding increase in patient enrollment in The Vivos Method treatment, however, and based on feedback from our
Vivos-trained providers, we believe this to be a function of staffing turnover and labor shortages that continue to plague the dental
workplace. Throughout 2023, we continued to address this by conducting additional regional dental team training sessions on integrating
Vivos products and treatments. In addition, we drastically reduced the number of Practice Advisors who had previously been dispatched
as “boots on the ground” to help facilitate case starts and provide Vivos-trained providers with support, and we replaced
them with a new service called Treatment Navigator which we piloted and rolled out in the late summer and fall of 2022.
Treatment
Navigators work effectively as extensions of the dental office, working directly with perspective patients to provide them information
on The Vivos Method, aiding in education, screening, insurance verification of benefits and preauthorization, coordination among various
professional practitioners, recordkeeping, problem solving, as well as, delivering a home sleep test and following up with scheduling
an appointment with a VIP in their area. Dental offices who wish to avail themselves of this service pay Vivos enrollment fees and per
case fees for the service, thus adding an important new revenue line and profit center to the business. Based on our evaluation of the
Treatment Navigator program, we have restructured the Treatment Navigator program into a monthly subscription-based model.
New
Marketing and Distribution Alliance Strategy
In
June 2024, we announced the execution of a strategic marketing and distribution alliance with Rebis Health Holdings, LLC (who we refer
to as Rebis), an operator of multiple sleep testing and treatment centers in Colorado. This alliance, which we hope will be the first
of a series of similar alliances across the country, marks an important pivot in our marketing and distribution model for our cutting
edge OSA appliances. Under the new alliance, we are collaborating with Rebis to offer OSA patients a full spectrum of evidence-based
treatments such as our own advanced, proprietary and FDA-cleared CARE oral medical devices, oral appliances and additional adjunctive
therapies and methods including CPAP machines. As of the date of this prospectus, the program has commenced in two of Rebis’ existing
sleep treatment centers in Colorado.
This
strategic alliance was announced alongside a $7.5 million equity private placement by us with an affiliate of New Seneca Partners, Inc.
(who we refer to as Seneca), which affiliate is the selling stockholder under this prospectus. See “Selling Stockholder”
for more information.
The
new marketing and distribution strategic alliance is based on a revenue-sharing model between us and Rebis. Subject to certain conditions,
Seneca will participate in our net cash flow allocation from the alliance up to an agreed-upon amount as partial consideration for the
management advisory services Seneca is providing to us.
Summary
of Risks Affecting Our Business
Investing
in our common stock is highly speculative and involves significant risks and uncertainties. In evaluating our company, our business
and any investment in our company, readers should carefully consider the risk factors described under the heading “Risk Factors”
in this prospectus and the risk factors incorporated by reference from Part I, Item 1A of our Annual Report on Form 10-K beginning on
Page 25, as filed with the SEC on March 28, 2024 (see “Incorporation of Certain Information by Reference”).
Emerging
Growth Company Under the JOBS Act
We
are an “emerging growth company,” or EGC, as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act.
We will remain an EGC until the earlier of: (i) the last day of the fiscal year in which we have total annual gross revenue of $1.235
billion or more; (ii) the last day of the fiscal year following the fifth anniversary of the date of the completion of our initial public
offering; (iii) the date on which we have issued more than $1 billion in nonconvertible debt during the previous three years; or (iv)
the date on which we are deemed to be a large accelerated filer under the rules of the SEC. For so long as we remain an EGC, we are permitted
and intend to rely on exemptions from certain disclosure requirements that are applicable to other public companies that are not emerging
growth companies. These exemptions include:
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not
being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, or Section 404; |
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not
being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory
audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial
statements; |
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being
permitted to provide only two years of audited financial statements, in addition to any required unaudited interim financial statements,
with correspondingly reduced “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
disclosure; |
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reduced
disclosure obligations regarding executive compensation; and |
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exemptions
from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute
payments not previously approved. |
We
may take advantage of these provisions until December 31, 2025 (the last day of the fiscal year following the fifth anniversary of our
initial public offering) if we continue to be an emerging growth company. We would cease to be an emerging growth company if we have
more than $1.235 billion in annual revenue, have more than $700 million in market value of our shares held by non-affiliates or issue
more than $1.0 billion of non-convertible debt over a three-year period. We may choose to take advantage of some but not all of these
reduced burdens. We have elected to provide two years of audited financial statements. Additionally, we have elected to take advantage
of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended, or the Securities Act, for
complying with new or revised accounting standards that have different effective dates for public and private companies until the earlier
of the date we (i) are no longer an emerging growth company or (ii) affirmatively and irrevocably opt out of the extended transition
period provided in Section 7(a)(2)(B) of the Securities Act.
Corporate
Information
Our
principal offices are located at 7921 Southpark Plaza, Suite 210, Littleton, Colorado 80120, and our telephone number is (844) 672-4357.
Our website is www.vivos.com. Our website and the information on or that can be accessed through such website are not part of
this prospectus.
Available
Information
We
maintain a website at www.vivos.com. You may access our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports
on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC free
of charge at our website as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC.
The reference to our website address does not constitute incorporation by reference of the information contained on our website, and
you should not consider the contents of our website in making an investment decision with respect to our common stock.
THE
OFFERING
Common
Stock to be offered: |
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169,498
Shares, 3,050,768 PFW Shares and 3,220,266 Warrant Shares held or acquirable by the selling stockholder. |
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Terms
of the Offering: |
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The
selling stockholder will determine when and how to sell the Selling Stockholder Shares offered in this prospectus, as described in
“Plan of Distribution.” |
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Use
of Proceeds: |
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We
will not receive any proceeds from the sale of Selling Stockholder Shares in this offering. However, we may receive proceeds from
the exercise of the Warrant by the selling stockholder to the extent they are exercised for cash. In the event we receive proceeds
from the cash exercise of the Warrant, we intend to use the aggregate net proceeds from such exercise for general corporate purposes,
including working capital. See the sections titled “Use of Proceeds” and “Selling Stockholder” for additional
information. |
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Listing
and Symbol: |
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Our
common stock is listed on The Nasdaq Capital Market under the symbol “VVOS”. |
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Risk
Factors: |
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Investing
in our securities is speculative and involves substantial risks. You should read the “Risk Factors” section of
this prospectus and in the documents incorporated by reference in this prospectus for a discussion of factors to consider before
deciding to purchase our securities. |
Shares
of our common stock that may be offered under this prospectus will be fully paid and non-assessable. Throughout this prospectus, when
we refer to the shares of our common stock being registered on behalf of the selling stockholder for offer and resale, we are referring
to the Shares that have been issued to the selling stockholder and the PFW Shares and Warrant Shares issuable upon exercise of Pre-Funded
Warrant and Warrant issued in our June 10, 2024 private placement.
When
we refer to the selling stockholder in this prospectus, we are referring to the selling stockholder identified in this prospectus and,
as applicable, their permitted transferees or other successors-in-interest that may be identified in a supplement to this prospectus
or, if required, a post-effective amendment to the registration statement of which this prospectus is a part.
RISK
FACTORS
Investing
in our securities is speculative and involves a high degree of risk. Before making a decision to invest in our securities, in
addition to carefully considering the Risk Factors noted below and the other information contained in this prospectus and incorporated
by reference herein, you should carefully consider the risks described under the caption “Risk Factors” contained in our
Annual Report on Form 10-K for our fiscal year ended December 31, 2023 and in our other filings with the Securities and Exchange Commission,
as well as any amendments thereto, which are incorporated by reference into this prospectus in their entirety. See “Where You Can
Find More Information” and “Incorporation of Certain Information by Reference.”
Risks
Relating to Our Business
We
are placing significant emphasis on our new provider-based marketing and distribution model to grow our revenues. This new model is unproven
and may not produce the benefits we anticipate. This makes it difficult to evaluate our future prospects and may increase the risk of
your investment.
In
June 2024, we announced the execution of a strategic marketing and distribution alliance with Rebis, an operator of multiple sleep testing
and treatment centers in Colorado. This alliance, which we hope will be the first of a series of similar alliances across the country,
marks an important pivot in our marketing and distribution model for our cutting edge OSA appliances. Under the new alliance, we are
collaborating with Rebis to offer OSA patients a full spectrum of evidence-based treatments such as CPAP machines, and our own advanced,
proprietary and FDA-cleared CARE oral medical devices, oral appliances and additional adjunctive therapies and methods. This new model
is differs from our current model which emphasizes a subscription-based relationship with our VIP dentists together with sales of our
OSA devices to VIPs and the provision of services to VIPs. The new marketing and distribution strategic alliance is based on a revenue-sharing
model between us and Rebis.
We
are placing significant emphasis on establishing and growing this new model as means of increasing our revenue. However, this new model
is unproven and we have no operating history associated with this new model. There is therefore a lack of information for you to evaluate
our future prospects utilizing this new model. Moreover, there is a material risk that this new model will not increase our revenues
or be additive to our stockholders’ equity in the manner we anticipate. Our inability to introduce and scale this marketing and
distribution model would materially harm our business and operating results and likely cause our stock price to suffer.
Risks
Relating to this Offering
We
issued a large number of shares of common stock and warrants to purchase common stock in connection with our recent financing activities.
Substantial future sales of such shares of our common stock could cause the market price of our common stock to decline or have other
adverse effects on our company.
In
connection with our private placement financing activities since November 2023, we issued a large number of shares and warrants to purchase
common stock. We registered such shares and shares underlying warrants totaling an aggregate of 2,941,179 including 130,000 shares of
common stock and 2,811,179 shares of common stock underlying warrants for public resale. While registered, these shares will be freely
tradable. Sales of a substantial number of these shares in the public market, or the perception that these sales might occur, could depress
the market price of our common stock or cause such market price to decline significantly. Such sales or the perception that such sales
might occur could also impair our ability to raise capital through the sale of additional equity securities. We are unable to predict
with any certainty the effect that such sales, or the perception that such sales may occur, may have on the prevailing market price of
our shares or other adverse impacts that this situation could have on our company.
USE
OF PROCEEDS
We
will not receive any proceeds from the sale of the Selling Stockholder Shares by the selling stockholder. However, we may receive proceeds
from the exercise of the Warrant by the selling stockholder to the extent they are exercised for cash. We estimate that the maximum proceeds
that we may receive from the exercise of the Warrant, assuming the Warrant is exercised for cash at an exercise price of $2.204, will
be approximately $7.1 million. We do not know, however, whether the Warrant will be exercised or, if the Warrants is exercised, when
it will be exercised. It is possible that the Warrant will expire and never be exercised. There are also circumstances under which the
Warrant may be exercised on a cashless basis. In these circumstances, even if the Warrant is exercised, we may not receive any proceeds,
or the proceeds that we do receive may be significantly less than what we might expect.
We
will retain broad discretion over the use of the net proceeds to us from the exercise of the Warrant. Unless otherwise provided in the
applicable prospectus supplement, we currently expect to use the aggregate net proceeds from the exercise of the Warrant for general
corporate purposes, including working capital. The expected use of net proceeds from the exercise of the Warrant represents our current
intentions based on our present plans and business conditions. We cannot specify with certainty all of the particular uses for the net
proceeds to be received from the exercise of the Warrant. Pending these uses, we plan to invest the net proceeds of any Warrant exercise
in short- and intermediate-term, interest-bearing obligations, investment-grade instruments, certificates of deposit or direct or guaranteed
obligations of the U.S. government. The actual allocation of proceeds realized from the exercises of the Warrant will depend upon the
amount and timing of such exercises, our operating revenues and cash position at such time and our working capital requirements.
The
selling stockholder will pay any expenses incurred by the selling stockholder for brokerage, accounting, tax or legal services or any
other expenses incurred by the selling stockholder in disposing of their Selling Stockholder Shares. We will bear all other costs, fees
and expenses incurred in effecting the registration of the Selling Stockholder Shares covered by this prospectus, including, without
limitation, all registration fees and fees and expenses of our counsel and our accountants.
SELLING
STOCKHOLDER
The
shares of common stock being offered by the selling stockholder listed below were issued in, or are underlying the Pre-Funded Warrant
and Warrant issued in connection with a private placement which closed on June 10, 2024. Other than the relationship between our company
and the selling stockholders as described below under “Summary of June 2024 Private Placement”, to our knowledge, no material
relationships exist between the selling stockholder and us nor have any such material relationships existed within the past three years.
As
used herein, the term “selling stockholder” means the selling stockholder listed below and the selling stockholder’s
donees, pledgees, transferees, or other successors-in-interest selling shares of common stock or warrant shares received after the date
of this prospectus from the selling stockholder as a gift, pledge, partnership distribution or other transfer.
Summary
of June 2024 Private Placement and Management Services Agreement with Seneca
June
2024 Private Placement with Seneca
On
June 10, 2024, we entered into a securities purchase agreement (the SPA) with V-CO Investors LLC, a Wyoming limited liability company
(or V-CO). V-CO, who is the selling stockholder hereunder, is an affiliate of Seneca, a leading independent private equity firm.
Pursuant
to the SPA, we sold to V-CO in a private placement offering: (i) 169,498 shares of our common stock, (ii) a pre-funded warrant (which
we refer to herein as the Pre-Funded Warrant) to purchase 3,050,768 shares of common stock (which we refer to herein as the Pre-Funded
Warrant Shares), and (iii) a Common Stock Purchase Warrant (which we refer to as the Warrant) to purchase up to 3,220,266 shares of common
stock (which we refer to herein as the Warrant Shares). V-CO paid a purchase price of $2.329 for each share and Pre-Funded Warrant Share
and associated Warrant, with such price being established for purposes of compliance with the listing rules of the Nasdaq Stock Market
LLC. The private placement closed on June 10, 2024. We received gross proceeds of $7,500,000 from the private placement. No placement
agent was used in connection with the private placement.
The
Warrant has a five-year term, an exercise price of $2.204 per share and became exercisable immediately as of the date of issuance. The
Pre-Funded Warrant has a term ending on the complete exercise of the Pre-Funded Warrant, an exercise price of $0.0001 per share and became
exercisable immediately as of the date of issuance. The Warrants also contain customary stock-based (but not price-based) anti-dilution
protection as well as beneficial ownership limitations that may be waived at the option of the holder upon 61 days’ notice to us.
The
SPA provides that for a period of three (3) years from the closing of the private placement, Seneca shall be entitled to (i) receive
notice of any regular or special meeting of our board of directors at the time such notice is provided to the members of our Board of
Directors, (ii) receive copies of any materials delivered to our directors in connection with such meetings and (iii) allow one Seneca
representative (who shall be an officer or employee of Seneca) to attend and participate (but not vote) in all such meetings of our Board
of Directors. The SPA also includes standard representations, warranties, indemnifications, and covenants of our company and V-CO.
The
terms of the SPA require us to file a registration statement on Form S-3 or other appropriate form registering the shares, the PFW Shares
and the Warrant Shares for resale no later than July 25, 2024 and to use commercially reasonable best efforts to cause such registration
statement to be effective by September 8, 2024. We must also use its commercially reasonable efforts to keep such registration statement
continuously effective (including by filing a post-effective amendment or a new registration statement if such registration statement
expires) for a period of three (3) years after the date of effectiveness of such registration statement, subject to certain limitations
specified in the SPA. We have filed the registration statement of which this prospectus forms a part to satisfy the foregoing obligations.
Management
Services Agreement with V-CO
Also
on June 10, 2024, our company, Airway Integrated Management Company, LLC, a Colorado limited liability company and a wholly owned subsidiary
of the Company (or AIM), and V-CO entered into a management services agreement (which we refer to herein as the MSA). Pursuant to the
MSA, V-CO will provide certain management, consulting, and advisory services to us related to our new strategic marketing and distribution
alliance with Rebis Health Partners, LLC (which we refer to as the strategic alliance).
The
term of the MSA commences on the effective date of the agreement and continues until the later of (i) June 10, 2027 or (ii) such time
as V-CO has received two (2) times its original investment in the private placement we closed with V-CO. The MSA will automatically renew
for additional terms of one (1) year unless any party sooner terminates the agreement in accordance with the terms of the MSA.
During
the term of the MSA, V-CO will provide to us and AIM oversight, management consulting and advisory services, including, without limitation:
(i) management of general and administrative expenses of the strategic alliance, (ii) advice on strategy of the strategic alliance with
a view towards maximizing the revenue and profit generated by the strategic alliance, (iii) searches for additional potential sleep center
operators to form strategic alliances with, (iv) making introductions to industry contacts of V-CO and its affiliates (including Seneca)
for purposes of expanding the business and opportunities of our company and the strategic alliance, and (v) performing other services
as may be reasonably requested from time to time by us and agreed to by V-CO, taking into account the level of compensation for services
and other engagements that V-CO and its affiliates may have.
As
consideration for such management services, AIM has agreed to pay to V-CO for three (3) years a management fee equal to $37,500 per quarter,
payable quarterly in arrears, with a minimum of $25,000 per quarter paid in cash and the remaining up to $12,500 per quarter paid in
the form of cash or restricted shares of our common stock, as decided by V-CO. The value of such restricted common stock, if any, paid
as part of the management fee will be calculated based upon the average 5-day closing price of the common stock ending as of the end
of each applicable quarter (or, if the common stock is not then publicly listed, as determined in good faith by our Board of Directors
using industry standard valuation metrics).
In
addition to the management fee, V-CO will also receive a quarterly cash participation payment from AIM equal to an agreed upon percentage
of the net positive cash flow (as determined in accordance with U.S. generally accepted accounting principles) generated by the operations
of the strategic alliance and received by VSI pursuant to the strategic alliance. Such participation payment shall accrue and not be
paid until our company on a consolidated basis is cash flow positive from operations, as reported in our Securities and Exchange Commission
filings. Such profit participation shall continue to be earned quarterly until the later of such time as (i) V-CO receives an amount
equal to two (2) times its investment in the June 2024 private placement; or (ii) or June 10, 2027.
The
MSA contains customary covenants regarding confidentiality and indemnification. Under the MSA, V-CO will also assign to AIM or its affiliates
V-CO’s entire right, title, and interest in any intellectual property it creates while working for or on behalf of AIM.
Selling
Stockholder Table
The
table below lists the selling stockholder and other information regarding the beneficial ownership of the shares of common stock by the
selling stockholder. The table below sets forth information as of the date of this prospectus, to our knowledge, about the beneficial
ownership of our common stock by the selling stockholder both before and immediately after this offering. Because the selling stockholder
may sell, transfer, or otherwise dispose of all, some, or none of its shares of common stock, we cannot determine the number of such
shares that will be sold, transferred or otherwise disposed of by the selling stockholder, or the amount or percentage of shares of our
common stock that will be held by the selling stockholder upon termination of any particular offering. See “Plan of Distribution.”
For
purposes of the table below: (i) we have not taken into account the effect of “blocker” provisions in the Pre-Funded Warrant
and the Warrant which preclude the selling stockholder from owning in excess of 4.99% of our common stock at any given time and (ii)
we assume that the selling stockholder will sell all of their shares of common stock registered hereunder.
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Shares
of Common Stock Beneficially Owned
Before Completion of the Offering (1) | | |
Sum
of Number of Shares of Common Stock | | |
Shares
of Common Stock Beneficially Owned After Completion of the Offering (3) | |
Name | |
Sum
of Number | | |
Percentage | | |
Offered
Hereby (2) | | |
Sum
of Number | | |
Percentage | |
V-CO
Investors LLC (4) | |
| 6,440,532 | | |
| 65.44 | % | |
| 6,440,532 | | |
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(1) |
Applicable
percentages based on 3,401,488 shares of common stock outstanding as of the date of this prospectus. Beneficial Ownership of the
selling stockholder prior to this offering includes the PFW Warrant Shares and Warrant Shares underlying the Pre-Funded Warrant and
the Warrant, each of which are exercisable within 60 days of the date of this prospectus. |
(2) |
Consists
of the Shares, PFW Warrant Shares and Warrant Shares. |
(3) |
Assumes
full exercise of the Pre-Funded Warrant and Warrant by the selling stockholder and the resale or other disposition of all Shares
and all PFW Warrant Shares and Warrant Shares by the selling stockholder. |
(4) |
The
selling stockholder is a Wyoming limited liability company and a special purpose investment vehicle formed by New Seneca Partners,
Inc., a Michigan corporation. The selling stockholder is managed by SP Manager, LLC, a Wyoming limited liability company, which is
a wholly-owned subsidiary of Seneca. Michael C. Skaff, the Managing Director of Seneca, is the individual with voting and dispositive
control over the securities held by the selling stockholder. |
PLAN
OF DISTRIBUTION
We
are registering the Selling Stockholder Shares on behalf of the selling stockholder to permit the resale of such shares by the selling
stockholder from time to time after the date of this prospectus. The Selling Stockholder Shares were purchased or are acquirable by the
selling stockholder, who participated in our private placement which closed on June 10, 2024. We will not receive any of the proceeds
from the sale by the selling stockholder of the shares of common stock. We will bear all fees and expenses incident to our obligation
to register the shares of common stock.
The
selling stockholder, which may include donees, pledgees, transferees or other successors-in-interest selling shares of common stock or
interests in shares of common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership
distribution or other transfer, may sell all or a portion of the shares of common stock beneficially owned by them and offered hereby
from time to time on any stock exchange, market or trading facility on which the shares are traded or in private transactions.
The
selling stockholder may use any one or more of the following methods when disposing of shares or interests therein:
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ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
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block
trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as
principal to facilitate the transaction; |
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account; |
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an
exchange distribution in accordance with the rules of the applicable exchange; |
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privately
negotiated transactions; |
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through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
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through
agreements between broker-dealers and the selling stockholder to sell a specified number of such shares at a stipulated price per
share; |
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a
combination of any such methods of sale; and |
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any
other method permitted by applicable law. |
The
selling stockholder may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by
them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares
of common stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b) or other applicable
provision of the Securities Act amending the list of selling stockholder to include the pledgee, transferee or other successors in interest
as selling stockholder under this prospectus. The selling stockholder also may transfer the shares of common stock in other circumstances,
in which case the pledgees, transferees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The
selling stockholder also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities
Act, as permitted by that rule, or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus; provided
that they meet the criteria and conform to the requirements of those provisions.
In
connection with the sale of our common stock or interests therein, the selling stockholder may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they
assume. The selling stockholder may also sell shares of our common stock short and deliver these securities to close out their short
positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholder may also
enter into options or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative
securities which require the delivery to each such broker-dealer or other financial institution of shares offered by this prospectus,
which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to
reflect such transaction).
The
aggregate proceeds to the selling stockholder from the sale of the common stock offered by them will be the purchase price of the common
stock less discounts or commissions, if any. The selling stockholder reserve the right to accept and, together with its agents from time
to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive
any of the proceeds from this offering.
The
selling stockholder and any underwriters, broker-dealers or agents that participate in the sale of the common stock or interests therein
may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions
or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. If the selling
stockholder is an “underwriter” within the meaning of Section 2(11) of the Securities Act, it will be subject to the prospectus
delivery requirements of the Securities Act.
To
the extent required, the shares of our common stock to be sold, the name of the selling stockholder, the respective purchase prices and
public offering prices, the names of any agents, dealer or underwriter, and any applicable commissions or discounts with respect to a
particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration
statement that includes this prospectus.
If
underwriters are used in the sale, the shares of common stock will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. In connection with any such underwritten sale of shares of common stock, underwriters may receive compensation
from the selling stockholder, for whom they may act as agents, in the form of discounts, concessions or commissions. If the selling stockholder
uses an underwriter or underwriters to effectuate the sale of shares of common stock, we and/or it will execute an underwriting agreement
with those underwriters at the time of sale of those shares of common stock.
To
the extent required by law, the names of the underwriters will be set forth in a prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes the prospectus supplement and the accompanying prospectus used by the underwriters
to sell those securities. The obligations of the underwriters to purchase those shares of common stock will be subject to certain conditions
precedent, and unless otherwise specified in a prospectus supplement, the underwriters will be obligated to purchase all the shares of
common stock offered by such prospectus supplement if any of such shares of common stock are purchased. Any public offering price and
any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
The
selling stockholder may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities Act.
Listing
Our
common stock is listed on The Nasdaq Capital Market under the trading symbol “VVOS.”
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Ellenoff Grossman & Schole LLP, New York,
New York.
EXPERTS
The
consolidated financial statements of Vivos Therapeutics, Inc. as of and for the year ended December 31, 2023 incorporated in this Registration
Statement on Form S-3 by reference from Vivos Therapeutics, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2023,
have been audited by Moss Adams LLP, an independent registered public accounting firm, as stated in their report (which report expresses
an unqualified opinion and includes an explanatory paragraph relating to a going concern uncertainty), which is incorporated herein by
reference. Such consolidated financial statements are incorporated by reference in reliance upon the report of such firm given their
authority as experts in accounting and auditing.
The
consolidated financial statements of Vivos Therapeutics, Inc. as of and for the year ended December 31, 2022 incorporated in this
Registration Statement on Form S-3 by reference from Vivos Therapeutics, Inc.’s Annual Report on Form 10-K and 10-K/A for the year
ended December 31, 2023, have been audited by Plante & Moran, PLLC, an independent registered public accounting firm, as stated in
their report, which is incorporated herein by reference. Such consolidated financial statements are incorporated by reference in reliance
upon the report of such firm given their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-3, of which this prospectus is a part, under the Securities Act, to register
the shares of common stock offered by this prospectus. However, this prospectus does not contain all of the information contained in
the Registration Statement. We have omitted from this prospectus some parts of the Registration Statement as permitted by the rules and
regulations of the SEC. Statements in this prospectus concerning any document we have filed as an exhibit to the Registration Statement
or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified in their entirety by reference to these
filings. In addition, 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 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.
Annual Reports 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 from our website at http://www.vivos.com. These filings will be available as soon as reasonably practicable after we electronically
file such material with, or furnish it to, the SEC. Information contained on our website is not part of this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose
important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede
that information. Any statement contained in a previously filed document incorporated by reference will be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained in this prospectus modifies or replaces that statement.
This
prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been
filed with the SEC:
|
● |
our
Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 28, 2024, as amended on July 29, 2024; |
|
● |
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 14, 2024; |
|
|
|
|
● |
our
Current Reports on Form 8-K, which were filed with the SEC on February 15, 2024, May 3, 2024, May 17, 2024, June 14, 2024, June 25, 2024 and July 10, 2024; and |
|
|
|
|
● |
the
description of our common stock set forth in our registration statement on Form 8-A, filed with the SEC on December 10, 2020, including
any amendments thereto or reports filed for the purposes of updating this description. |
Any
documents we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration
statement of which this prospectus forms a part and prior to effectiveness of the registration statement, as well as subsequent to the
effectiveness of the registration statement and prior to the termination of the offering of our securities to which this prospectus relates,
will automatically be deemed to be incorporated by reference into this prospectus and to be part hereof from the date of filing those
documents. We are not, however, incorporating by reference any documents or portions thereof that are not deemed “filed”
with the SEC, including any information furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K or related exhibits furnished pursuant
to Item 9.01 of Form 8-K. Any statements in any such future filings will automatically be deemed to modify and supersede any information
in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent
that statements in the later filed document modify or replace such earlier statements.
We
will 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 documents that are incorporated by reference into this prospectus but not delivered with the prospectus,
including exhibits which are specifically incorporated by reference into such documents. Requests should be directed to:
Vivos
Therapeutics, Inc.
Attn:
Chief Financial Officer
7921
Southpark Plaza, Suite 210
Littleton,
Colorado 80120
(844)
672-4357
![A close up of a number
Description automatically generated](https://www.sec.gov/Archives/edgar/data/1716166/000149315224029507/forms-3_002.jpg)
169,498
Shares of Common Stock
3,050,768
Shares of Common Stock Issuable Upon Exercise of Pre-Funded Warrant
3,220,266
Shares of Common Stock Issuable Upon Exercise of Common Stock Purchase Warrant
Offered
by the Selling Stockholder
PROSPECTUS
,
2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following is an estimate (other than the SEC registration fee) of the expenses (all of which are to be paid by the registrant) that we
may incur in connection with the securities being registered hereby.
| |
Amount to
be Paid | |
SEC registration fee | |
$ | 2,233.96 | |
Legal fees and expenses (including Blue Sky
fees) | |
| 50,000 | |
Accounting fees and expenses | |
| 28,000 | |
Transfer agent fees and expenses | |
| 5,000 | |
Miscellaneous | |
| 5,000 | |
Total | |
$ | 62,233.96 | |
Item
15. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award,
indemnity to officers, directors, and other corporate agents, provided that the person acted in good faith and in a manner the person
reasonably believed to be in the corporation’s best interests, and, with respect to any criminal action, had no reasonable cause
to believe the person’s actions were unlawful. A similar standard is applicable in the case of derivative actions, except that
indemnification extends only to expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such
action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been
found liable to the corporation. The Delaware General Corporation Law further provides that the indemnification permitted thereunder
shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws,
any agreement, a vote of stockholders or otherwise.
The
registrant’s Certificate of Incorporation, as amended (the “Certificate of Incorporation”) and Amended and Restated
Bylaws (the “Bylaws”) provide for indemnification of directors and officers to the fullest extent permitted by law, including
payment of expenses in advance of resolution of any such matter.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director
or officer of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director or officer, except (1) for any breach of the director’s or officer’s duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions by a director or officer not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) for payments of unlawful dividends or unlawful stock repurchases or redemptions made to a director,(4)
for any transaction from which the director or officer derived an improper personal benefit or (5) an officer in any action by or in
the right of the corporation. The Certificate of Incorporation of the registrant provides that the registrant’s directors shall
not be personally liable to it or its stockholders for monetary damages for breach of fiduciary duty as a director and that if the Delaware
General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors,
then the liability of the registrant’s directors shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Section
174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an
unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either
absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions
to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately
after such absent director receives notice of the unlawful acts.
The
registrant has obtained and maintains standard policies of insurance under which coverage is provided (a) to its directors and officers
against loss(es) rising from claims made by reason of breach of duty or other wrongful act, and (b) to it with respect to payments that
it may make to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law. The coverage
provided by these policies may apply whether or not the registrant would have the power to indemnify such person against such liability
under the provisions of the Delaware General Corporation Law.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the
registrant under the foregoing provisions, the registrant has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
See
also the undertakings set out in response to Item 17 herein.
Item
16. Exhibits
(a)
Exhibits
A
list of exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
a.
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
b.
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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
c.
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided,
however, that paragraphs (1)(a), (b) and (c) of this section 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 SEC by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.
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.
3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
a.
each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
b.
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
5)
That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
6)
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 SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication
of such issue.
EXHIBIT
INDEX
Exhibit
No. |
|
Exhibit
Description |
4.1 |
|
Form
of Stock Certificate. (1) |
|
|
|
4.2 |
|
Form
of Representative’s Warrant in connection with the Company’s initial public offering. (2) |
|
|
|
4.3 |
|
Form
of Representative’s Warrant in connection with the Company’s May 2021 follow-on offering. (3) |
|
|
|
4.4 |
|
Form
of Common Stock Warrant, dated January 9, 2023, issued to the investor in the January 2023 private placement (4) |
|
|
|
4.5 |
|
Form
of Pre-Funded Warrant, dated January 9, 2023, issued to the investor in the January 2023 private placement (4) |
|
|
|
4.6 |
|
Form
of Series A Common Stock Purchase Warrant, dated November 2, 2023, issued to the investor in the November 2023 private placement.(5) |
|
|
|
4.7 |
|
Form
of Series B Common Stock Purchase Warrant, dated November 2, 2023, issued to the investor in the November 2023 private placement.(5) |
|
|
|
4.8 |
|
January
2023 Warrant Amendment, dated November 2, 2023, issued to the investor in the November 2023 private placement.(5) |
|
|
|
4.9 |
|
Form
of Pre-Funded Warrant, dated November 2, 2023, issued to the investor in the November 2023 private placement.(5) |
|
|
|
4.10 |
|
Form
of Series B-1 Common Stock Purchase Warrant, issued to the investor in the February 2024 Inducement Transaction (6) |
|
|
|
4.11 |
|
Form
of Series B-2 Common Stock Purchase Warrant, issued to the investor in the February 2024 Inducement Transaction (6) |
|
|
|
4.12* |
|
Pre-Funded Warrant, dated June 10, 2024, issued to V-CO Investors LLC. |
|
|
|
4.13* |
|
Warrant, dated June 10, 2024, issued to V-CO Investors LLC. |
|
|
|
5.1* |
|
Opinion
of Ellenoff Grossman & Schole LLP |
|
|
|
23.1* |
|
Consent
of Moss Adams LLP, Independent Registered Public Accounting Firm. |
|
|
|
23.2* |
|
Consent
of Plante & Moran PLLC. |
|
|
|
23.3*
|
|
Consent
of Ellenoff Grossman & Schole LLP (contained in Exhibit 5.1) |
|
|
|
24.1* |
|
Power
of Attorney (included on the signature page of the initial filing of this Registration Statement) |
|
|
|
107* |
|
Filing
Fee Table |
*
|
|
Filed
herewith. |
(1) |
|
Incorporated
by reference to the Company’s Registration Statement on Form S-1, filed with the SEC on October 9, 2020. |
(2) |
|
Incorporated
by reference to the Company’s Registration Statement on Form S-1/A, filed with the SEC on November 19, 2020. |
(3) |
|
Incorporated
by reference to the Company’s Current Report on Form 8-K, filed with the SEC on May 12, 2021. |
(4) |
|
Incorporated
by refence to the Company’s Current Report on Form 8-K, filed with the SEC on January 9, 2023. |
(5) |
|
Incorporated
by refence to the Company’s Current Report on Form 8-K, filed with the SEC on November 2, 2023. |
(6) |
|
Incorporated
by refence to the Company’s Current Report on Form 8-K, filed with the SEC on February 15, 2024. |
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 Littleton, Colorado on July 29, 2024.
|
VIVOS
THERAPEUTICS, INC. |
|
|
|
|
By: |
/s/
R. Kirk Huntsman |
|
|
R.
Kirk Huntsman |
|
|
Chairman
of the Board and Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below hereby constitutes and appoints R. Kirk Huntsman and
Bradford Amman and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or
her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments,
to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that
is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933 increasing the number of shares for
which registration is sought, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents
in connection therewith, making such changes in this registration statement as such attorney-in-fact and agent so acting deem appropriate,
with the SEC, granting unto said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done with respect to the offering of securities contemplated by this registration statement,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agent or any of them, or his, her or their substitute or substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
indicated on July 29, 2024.
Name |
|
Title |
|
|
|
/s/
R. Kirk Huntsman |
|
Chairman
of the Board & Chief Executive Officer |
R.
Kirk Huntsman |
|
(Principal
Executive Officer) |
|
|
|
/s/
Bradford Amman |
|
Chief
Financial Officer, Secretary and Treasurer |
Bradford
Amman |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
/s/
Ralph E. Green |
|
Director |
Ralph
E. Green, DDS, MBA |
|
|
|
|
|
/s/
Anja Krammer |
|
Director |
Anja
Krammer |
|
|
|
|
|
/s/
Leonard J. Sokolow |
|
Director |
Leonard
J. Sokolow |
|
|
|
|
|
/s/
Matthew Thompson |
|
Director |
Matthew
Thompson, MD |
|
|
Exhibit
4.12
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
VIVOS
THERAPEUTICS, INC.
PRE-FUNDED
COMMON STOCK PURCHASE WARRANT
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, V-CO Investors, LLC or its
permitted 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) until this Warrant is exercised in full (the “Termination Date”) but not thereafter, to
subscribe for and purchase from Vivos Therapeutics, Inc., a Delaware corporation (the “Company”), up to 3,050,768
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).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain
Securities Purchase Agreement (the “Purchase Agreement”), dated June 10, 2024, between 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 facsimile
copy or 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.
b)
Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share,
was pre-funded to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the
nominal exercise price of $0.0001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise
of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise
price under any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to
the Termination Date. The remaining unpaid exercise price per share of Common Stock under this Warrant shall be $0.0001, subject to adjustment
hereunder (the “Exercise Price”).
c)
Cashless Exercise. This Warrant may also 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. (“Bloomberg”) 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; |
|
|
|
|
(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
|
|
|
|
(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 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. Notwithstanding
the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise
Date, which may be delivered at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver the Warrant
Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be
the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case
of a cashless exercise) is received by such Warrant Share Delivery Date.
ii.
Delivery of New Warrants Upon Exercise. 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. 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 one Trading Day 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% 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 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.
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), 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.
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, (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 its 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, (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 more than
50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (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. 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 and the other
Transaction Documents 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 and the other Transaction Documents 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 and the other Transaction Documents 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 facsimile or 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, any
sale or transfer of all or substantially all of its 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 facsimile or email to the Holder at
its last facsimile number or 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. 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 Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company 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).
e)
No Contravention. 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.
f)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined
in accordance with the provisions of the Purchase Agreement.
g)
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.
h)
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 or the Purchase Agreement, 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.
i)
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase Agreement.
j)
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.
k)
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.
l)
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.
m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and
the Holder.
n)
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.
o)
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.
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Pre-Funded Warrant to be executed by its officer thereunto duly authorized as of the date
first above indicated.
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VIVOS
THERAPEUTICS, INC. |
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By: |
/s/ R. Kirk Huntsman |
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Name: |
R. Kirk Huntsman |
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Title: |
Chief Executive Officer |
NOTICE
OF EXERCISE
TO:
VIVOS THERAPEUTICS,
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):
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[ ] in lawful money of the United States; or |
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[ ] [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:
_______________________________
_______________________________
_______________________________
Name
of Holder: _______________________________________________________________________
Signature
of Authorized Signatory of Holder:
___________________________________________________________________
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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Address:
____________________________ |
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Phone
Number: _______________________ |
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Email
Address: _______________________ |
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Dated:
_______________ __, ______ |
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Holder’s
Signature:________________________ |
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Holder’s
Address: ________________________ |
Exhibit
4.13
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
VIVOS
THERAPEUTICS, INC.
COMMON
STOCK PURCHASE WARRANT
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, V-CO Investors LLC
or its permitted 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 June 10, 2029 (the “Termination Date”) but not thereafter, to subscribe
for and purchase from Vivos Therapeutics, Inc., a Delaware corporation (the “Company”), up to 3,220,266 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).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain
Securities Purchase Agreement (the “Purchase Agreement”), dated June 10, 2024, between 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 facsimile
copy or 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.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $2.204, 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 resale of the Warrant Shares by the Holder, then this Warrant may also 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)
= |
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. (“Bloomberg”) 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 characteristics of the Warrants being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. 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 the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale
limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), 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 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. 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 one Trading Day 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% 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. If the Company, at any time while the Warrant is outstanding, shall issue rights, options or warrants
to all holders of Common Stock (and not to the Holder) entitling them to subscribe for or purchase shares of Common Stock at a price
per share less than the VWAP on the record date mentioned below, then the Exercise Price shall be multiplied by a fraction, of which
the denominator shall be the number of shares of the Common Stock outstanding on the date of issuance of such rights, options or warrants
plus the number of additional shares of Common Stock offered for subscription or purchase, and of which the numerator shall be the number
of shares of the Common Stock outstanding on the date of issuance of such rights, options or warrants plus the number of shares which
the aggregate offering price of the total number of shares so offered (assuming receipt by the Company in full of all consideration payable
upon exercise of such rights, options or warrants) would purchase at such VWAP. Such adjustment shall be made whenever such rights, options
or warrants are issued, and shall become effective immediately after the record date for the determination of stockholders entitled to
receive such rights, options or warrants.
d)
Pro Rata Distributions. If the Company, at any time while this Warrant is outstanding, shall distribute to all holders of Common
Stock (and not to the Holder) evidences of its indebtedness or assets (including cash and cash dividends) or rights or warrants to subscribe
for or purchase any security other than the Common Stock (which shall be subject to Section 3(b)), then in each such case the Exercise
Price shall be adjusted by multiplying the Exercise Price in effect immediately prior to the record date fixed for determination of stockholders
entitled to receive such distribution by a fraction of which the denominator shall be the VWAP determined as of the record date mentioned
above, and of which the numerator shall be such VWAP on such record date less the then per share fair market value at such record date
of the portion of such assets or evidence of indebtedness or rights or warrants so distributed applicable to one outstanding share of
the Common Stock as determined by the Board of Directors in good faith. In either case the adjustments shall be described in a statement
provided to the Holder of the portion of assets or evidences of indebtedness so distributed or such subscription rights applicable to
one share of Common Stock. Such adjustment shall be made whenever any such distribution is made and shall become effective immediately
after the record date mentioned above.
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, (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 its 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, (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 more than
50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (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. 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 and the other
Transaction Documents 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 and the other Transaction Documents 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 and the other Transaction Documents 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 facsimile or 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, any
sale or transfer of all or substantially all of its 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 facsimile or email to the Holder at
its last facsimile number or 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.
h)
Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during
the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board
of directors of the Company.
Section
4. Transfer of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof
and to the provisions of Section 4.1 of the Purchase Agreement, 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. 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 original 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 Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company 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.
d)
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer
of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under
applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public
information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or
transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
e)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
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).
e)
No Contravention. 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.
f)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined
in accordance with the provisions of the Purchase Agreement.
g)
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.
h)
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 or the Purchase Agreement, 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.
i)
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase Agreement.
j)
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.
k)
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.
l)
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.
m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and
the Holder.
n)
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.
o)
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.
[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.
|
VIVOS
THERAPEUTICS, INC. |
|
|
|
|
By: |
/s/ R. Kirk Huntsman |
|
Name: |
R. Kirk Huntsman |
|
Title:
|
Chief Executive Officer |
NOTICE
OF EXERCISE
TO:
VIVOS THERAPEUTICS, 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:
_______________________________
_______________________________
_______________________________
(4)
Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the
Securities Act of 1933, as amended.
Name
of Holder: _______________________________________________________________________
Signature of Authorized Signatory of Holder:
___________________________________________________________________
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:
_______________________________ |
|
|
Address:
______________________________ |
|
|
Phone
Number: ________________________ |
|
Email
Address: ________________________ |
|
Dated:
_______________ __, ______ |
|
Holder’s
Signature:____________________________ |
|
Holder’s
Address: _____________________________ |
Exhibit
5.1
ELLENOFF
GROSSMAN & SCHOLE LLP
1345
AVENUE OF THE AMERICAS
NEW
YORK, NEW YORK 10105
TELEPHONE:
(212) 370-1300
FACSIMILE:
(212) 370-7889
www.egsllp.com
July 29, 2024
Vivos
Therapeutics, Inc.
7921
Southpark Plaza, Suite 210
Littleton,
Colorado 80120
|
Re: |
Registration
Statement on Form S-3 |
Ladies
and Gentlemen:
We
have acted as counsel to Vivos Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the
preparation of a registration statement on Form S-3 (the “Registration Statement”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities
Act”). The Registration Statement relates to the resale by the selling stockholder listed in the prospectus included as a part
of the Registration Statement (the “Selling Stockholder”) of up to an aggregate of 6,440,532 shares of common stock,
par value $0.0001 per share, of the Company (the “Common Stock”), which is comprised of: (i) 169,498 shares of Common
Stock (the “Shares”) held by the Selling Stockholder, (ii) 3,050,768 shares (the “PFW Shares”)
issuable upon exercise of a pre-funded warrant (the “Pre-Funded Warrant”) held by one of the Selling Stockholder and
(iii) 3,220,266 shares of Common Stock (the “Warrant Shares”) issuable upon the exercise of a common stock purchase
warrant (the “Warrants”) held by the Selling Stockholder.
This
opinion letter is furnished to you at your request to enable you to fulfill the requirements, in connection with the Registration Statement,
of Item 601(b)(5) of Regulation S-K promulgated by the Commission.
We
have examined such documents and considered such legal matters as we have deemed necessary and relevant as the basis for the opinion
set forth below including, without limitation: (i) the Registration Statement; (ii) the Certificate of Incorporation and Bylaws of the
Company, each as amended to date; (iii) the Pre-Funded Warrant and the Warrant; and (iv) records of meetings and consents of the Board
of Directors of the Company provided to us by the Company. With respect to such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us
as reproduced or certified copies, and the authenticity of the originals of those latter documents. As to questions of fact material
to this opinion, we have, to the extent deemed appropriate, relied upon certain representations of certain officers of the Company.
Based
upon and subject to the foregoing, we are of the opinion that:
1.
The Shares are duly and validly issued, fully paid and non-assessable shares of Common Stock.
2.
Upon due exercise of the Pre-Funded Warrant and payment to the Company of the applicable aggregate exercise price in accordance with
the terms of the Pre-Funded Warrant, and when certificates or book-entry evidence of ownership for the PFW Shares have been duly executed
and countersigned and delivered in accordance with and pursuant to the terms of the Pre-Funded Warrant, the PFW Shares issuable upon
such exercise will be duly and validly issued, fully paid and non-assessable shares of Common Stock.
3.
Upon due exercise of the Warrant and payment to the Company of the applicable aggregate exercise price in accordance with the terms of
the Warrant, and when certificates or book-entry evidence of ownership for the Warrant Shares have been duly executed and countersigned
and delivered in accordance with and pursuant to the terms of the Warrant, the Warrant Shares issuable upon such exercise will be duly
and validly issued, fully paid and non-assessable shares of Common Stock.
The
opinions expressed herein are limited solely to the General Corporation Law of the State of Delaware, including the applicable provisions
of the Delaware Constitution and the reported judicial decisions interpreting such law, as currently in effect. We express no opinion
as to the effect of any other law of the State of Delaware or the laws, rules or regulations of any other jurisdiction.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the
caption “Legal Matters” in the prospectus constituting a part of the Registration Statement. In giving such consent, we do
not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission promulgated thereunder.
We
assume no obligation to update or supplement any of the opinion set forth herein to reflect any changes of law or fact that may occur
following the date hereof.
|
Yours
truly, |
|
|
|
/s/
Ellenoff Grossman & Schole LLP |
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of Vivos Therapeutics, Inc. (the “Company”)
of our report dated March 28, 2024, relating to the consolidated financial statements of the Company as of and for the year ended
December 31, 2023 (which report expresses an unqualified opinion and includes an explanatory paragraph relating to a going concern uncertainty),
appearing in the Annual Report on Form 10-K/A of the Company for the year ended December 31, 2023, filed with the Securities and
Exchange Commission. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/
Moss Adams LLP
Denver,
Colorado
July
29, 2024
Exhibit
23.2
Consent
of Independent Registered Public Accounting Firm
We
hereby consent to the incorporation by reference in this Registration Statement on Form S-3, of our report
dated March 30, 2023 (except for Note 8, which is dated November 22, 2023), with respect to the consolidated financial statements of
Vivos Therapeutics, Inc. and its Subsidiaries as of and for the fiscal year ended December 31, 2022. We also consent to the reference
to us under the heading “Experts” in such Registration Statement.
/s/
Plante & Moran, PLLC
Denver,
Colorado
July
29, 2024
Exhibit
107
Calculation
of Filing Fee Table
S-3
(Form
Type)
Vivos
Therapeutics, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| |
Security
Type | |
Security
Class Title | |
Fee
Calculation Rule | | |
Amount
Registered(1) | | |
Proposed
Maximum Offering Price Per Unit | | |
Maximum
Aggregate Offering Price | | |
Fee
Rate | | |
Amount
of Registration Fee | |
Fees to Be Paid | |
Equity | |
Common Stock | |
| 457 | (c) | |
| 6,440,532
| (2) | |
$ | 2.35 | (3) | |
$ | 15,135,250.20 | | |
| 0.00014760 | | |
$ | 2,233.96 | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total
Offering Amounts | | | |
| | | |
$ | 15,135,250.20 | | |
| | | |
| | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total
Fees Previously Paid | | | |
| | | |
| — | | |
| — | | |
| — | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total
Fee Offsets | | | |
| | | |
| — | | |
| — | | |
| — | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Net
Fee Due | | | |
| | | |
| | | |
| | | |
$ | 2,233.96 | |
|
(1) |
Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also
cover any additional shares of the common stock, par value $0.0001 per share (“Common Stock”) of Vivos Therapeutics,
Inc., in connection with any stock dividend, stock split, recapitalization or other similar transaction effected without receipt
of consideration that increases the number of outstanding shares of Common Stock. |
|
(2) |
Represents
shares of Common Stock offered by the selling stockholder issuable upon the exercise of the Pre-Funded Warrant and the Common
Stock Purchase Warrant. |
|
(3) |
With
respect to the shares of Common Stock offered by the selling stockholder, estimated at $2.35 per share, the average of the
high and low prices as reported on The Nasdaq Capital Market on July 24, 2024, for the purposes of calculating the registration
fee in accordance with Rule 457(c) under the Securities Act. |
Grafico Azioni Vivos Therapeutics (NASDAQ:VVOS)
Storico
Da Ago 2024 a Set 2024
Grafico Azioni Vivos Therapeutics (NASDAQ:VVOS)
Storico
Da Set 2023 a Set 2024