As
filed with the Securities and Exchange Commission on December 28,
2018
Registration
No. 333-214724
Registration No. 333-217788
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-1
ON FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
ENDRA LIFE SCIENCES INC.
(Exact name
of registrant as specified in its charter)
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Delaware
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26-0579295
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation or organization)
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Identification No.)
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ENDRA Life Sciences Inc.
3600 Green Court, Suite 350
Ann Arbor, MI 48105
(734) 335-0468
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Francois Michelon
Chief Executive Officer
ENDRA Life Sciences Inc.
3600 Green Court, Suite 350
Ann Arbor, MI 48105
(734) 335-0468
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copy
to:
Mark R.
Busch
K&L
Gates LLP
214
North Tryon Street, 47th Floor
Charlotte,
North Carolina 28202
(704)
331-7440
From time to time after the effective date of this registration
statement.
(Approximate date of
commencement of proposed sale to the public)
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 check the following box.
[X]
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 upon 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, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule
12b-2 of the Exchange Act (check one):
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Large
accelerated filer [ ]
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Accelerated
filer
[ ]
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Non-accelerated
filer [X]
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Smaller
reporting company [X]
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Emerging
growth company [X]
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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 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, as amended, or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This
Post-Effective Amendment No. 1 (“Post-Effective
Amendment”) to the Registration Statement on
Form S-1 and the Registration Statement on
Form S-
1MEF (Registration Nos.
333-214724 and 333-217788, respectively) (the
“Registration Statements”) of ENDRA Life Sciences Inc.
(the “Company”) is being filed pursuant to the
undertakings in the Registration Statements to update and
supplement the information contained in the Registration
Statements, which were previously declared effective by the
Securities and Exchange Commission (the “SEC”) or
became effective upon filing, as applicable, on May 8,
2017.
The
Registration Statements registered the offer and sale of 1,932,000
units at a public offering price of $5.00 per unit, each unit
consisting of one share of the Company’s common stock and a
warrant to purchase one share of common stock (“Public
Warrant”), including units sold to the underwriters to cover
over-allotments. The Registration Statements also registered on a
continuous basis the 1,932,000 shares of common stock underlying
the Warrants (the “Public Warrant Shares”).
Additionally, the Registration Statements registered 154,560 shares
of the Company’s common stock (“Underwriters’
Warrant Shares” and, together with the Public Warrant Shares,
the “Warrant Shares”) underlying warrants issued to the
underwriters of the offering of units (“Underwriters’
Warrants” and, together with the Public Warrants,
“Warrants”). As of the date of this Post-Effective
Amendment, no Warrants have been exercised and no Warrant Shares
have been issued. No additional securities are being registered
under this Post-Effective Amendment. All applicable registration
fees were paid at the times the Registration Statements were
originally filed.
This
Post-Effective Amendment is being filed to (i) update the contents
of the prospectus contained in the Registration Statements pursuant
to Section 10(a)(3) of the Securities Act of 1933, as amended (the
“Securities Act”), in respect of the continuous
offering pursuant to Rule 415 of up to 2,086,560 Warrant Shares
previously registered on the Registration Statements and (ii)
convert the Registration Statements on Form S-1 into a registration
statement on Form S-3.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PRELIMINARY PROSPECTUS IS NOT AN OFFER TO SELL
THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
Subject to completion, dated December 28, 2018
ENDRA Life Sciences Inc.
Prospectus
2,086,560 Shares of Common Stock Issuable Upon Exercise of
Outstanding Warrants
This
prospectus relates to an aggregate of 2,086,560 shares of our
common stock, par value $0.0001 per share (“Common
Stock”), which, as of the date of this prospectus, are
issuable upon exercise of 1,932,000 warrants (“Public
Warrants”) originally issued as part of the units sold in our
initial public offering, which closed on May 12, 2017 (the
“Initial Public Offering”), and upon exercise of
154,560 warrants (“Underwriters’ Warrants and, together
with the Public Warrants, the “Warrants”) issued to the
underwriters of the Initial Public Offering and their
designees.
As of
the date of this prospectus, the Warrants have an exercise price of
$6.25 per share of Common Stock and will expire on May 12, 2022,
with respect to the Public Warrants, and on May 8, 2022, with
respect to the Underwriters’ Warrants. If the Warrants are
exercised, we will receive the proceeds from such
exercise.
On
December 27, 2018, the last reported sale price for our Common
Stock was $1.78 per
share. Our Common Stock and the Public Warrants are traded on the
Nasdaq Capital Market under the symbols “NDRA” and
“NDRAW,” respectively.
We are
an “Emerging Growth Company” as defined in the
Jumpstart Our Business Startups Act of 2012 and, as such, have
elected to comply with certain reduced public company reporting
requirements for this prospectus and future filings. See
“Prospectus Summary − Implications of Being an Emerging
Growth Company.”
Our business and an investment in our Common Stock involve a high
degree of risk. Before making any investment in Common Stock, you
should read and carefully consider risks described in the
“Risk Factors” section on page 1 of
this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of the Common
Stock offered hereby or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal
offense.
This
prospectus is dated , 2019.
TABLE OF CONTENTS
Page
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PROSPECTUS SUMMARY
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2
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THE OFFERING
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5
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RISK FACTORS
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6
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
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7
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USE OF PROCEEDS
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8
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DILUTION
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9
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PLAN OF DISTRIBUTION
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10
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DESCRIPTION OF CAPITAL STOCK
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LEGAL MATTERS
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EXPERTS
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WHERE YOU CAN FIND MORE INFORMATION
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
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Unless
otherwise stated or the context otherwise requires, the terms
“ENDRA,” “we,” “us,”
“our” and the “Company” refer to ENDRA
Life Sciences Inc., a Delaware corporation.
You should rely only on the information contained in or
incorporated by reference into this prospectus and any related
prospectus supplement that we may provide to you in connection with
this offering. We have not authorized anyone to provide
you with additional or different information. If anyone
provides you with different or inconsistent information, you should
not rely on it. We are not making an offer to sell these securities
in any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus is
accurate only as of the date on the front cover of this prospectus,
regardless of time of delivery. Our business, financial condition,
results of operations and prospects may have changed since that
date.
For investors outside the United States: we have not done anything
that would permit this offering or possession or distribution of
this prospectus or any prospectus supplement we may provide to you
in connection with this offering in any jurisdiction where action
for that purpose is required, other than in the United States. You
are required to inform yourselves about and to observe any
restrictions relating to this offering and the distribution of this
prospectus and any such prospectus supplement outside of the United
States.
MARKET AND INDUSTRY DATA
Unless
otherwise indicated, information contained in this prospectus and
the documents we incorporate herein by reference concerning our
industry and the markets in which we operate is based on
information from independent industry and research organizations,
other third-party sources (including industry publications, surveys
and forecasts), and management estimates. Management estimates are
derived from publicly available information released by independent
industry analysts and third-party sources, as well as data from our
internal research, and are based on assumptions made by us
upon reviewing such data and our knowledge of such industry and
markets which we believe to be reasonable. Although we believe the
data from these third-party sources is reliable, we have not
independently verified any third-party information. In addition,
projections, assumptions and estimates of the future performance of
the industry in which we operate and our future performance are
necessarily subject to uncertainty and risk due to a variety of
factors, including those described in “Risk Factors”
and “Cautionary Note Regarding Forward-Looking
Statements.” These and other factors could cause results to
differ materially from those expressed in the estimates made by the
independent parties and by us.
TRADEMARKS
We
operate under a number of trademarks, including, among others,
“ENDRA” and “TAEUS,” all of which are
registered under applicable intellectual property laws. This
prospectus contains references to our trademarks and service marks
and to those belonging to other entities. Solely for convenience,
trademarks and trade names referred to in this prospectus may
appear without the ® or TM symbols, but
such references are not intended to indicate, in any way, that we
will not assert, to the fullest extent possible under applicable
law, our rights or the rights of the applicable licensor to these
trademarks and trade names. We do not intend our use or display of
other companies’ trade names, trademarks or service marks to
imply a relationship with, or endorsement or sponsorship of us by,
any other companies.
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PROSPECTUS SUMMARY
The following summary highlights selected information contained
elsewhere in or incorporated by reference in this prospectus. This
summary is not complete and does not contain all of the information
that should be considered before investing in our securities.
Potential investors should read the entire prospectus carefully,
including the more detailed information regarding our business
provided in our Annual Report on Form 10-K for the fiscal year
ended December 31, 2017 (the “Form 10-K”) incorporated
herein by reference, the risks of purchasing our Common Stock
discussed under the “Risk Factors” section of the Form
10-K, and our financial statements and the accompanying notes to
the financial statements incorporated herein by
reference.
Our Company
We are
leveraging experience with pre-clinical enhanced ultrasound devices
to develop technology for increasing the capabilities of clinical
diagnostic ultrasound, to broaden patient access to the safe
diagnosis and treatment of a number of significant medical
conditions in circumstances where expensive X-ray computed
tomography (“CT”) and magnetic resonance imaging
(“MRI”) technology is unavailable or
impractical.
In
2010, we began marketing and selling our Nexus 128 system, which
combined light-based thermoacoustics and ultrasound to address the
imaging needs of researchers studying disease models in
pre-clinical applications. Building on this expertise in
thermoacoustics, we have developed a next-generation technology
platform — Thermo Acoustic Enhanced Ultrasound, or TAEUS
— which is intended to enhance the capability of clinical
ultrasound technology and support the diagnosis and treatment of a
number of significant medical conditions that currently require the
use of expensive CT or MRI imaging or where imaging is not
practical using existing technology.
Unlike
the near-infrared light pulses used in our legacy Nexus 128 system,
our TAEUS technology uses radio frequency (“RF”) pulses
to stimulate tissues, using a small fraction of the energy that
would be transmitted into the body during an MRI scan. The use of
RF energy allows our TAEUS technology to penetrate deep into
tissue, enabling the imaging of human anatomy at depths equivalent
to those of conventional ultrasound. The RF pulses are absorbed by
tissue and converted into ultrasound signals, which are detected by
an external ultrasound receiver and a digital acquisition system
that is part of the TAEUS system. The detected ultrasound is
processed into images using our proprietary algorithms and
displayed to complement conventional gray-scale ultrasound
images.
Each of
our TAEUS platform applications will require regulatory approvals
before we are able to sell or license the application. Based on
certain factors, such as the installed base of ultrasound systems,
availability of other imaging technologies, such as CT and MRI,
economic strength and applicable regulatory requirements, we intend
to seek initial approval of our applications for sale in the
European Union, followed by the United States and
China.
In
April 2016, we entered into a Collaborative Research Agreement with
General Electric Company, acting through its GE Healthcare business
unit and the GE Global Research Center (collectively, “GE
Healthcare”). Under the terms of the agreement, GE Healthcare
has agreed to assist us in our efforts to commercialize our TAEUS
technology for use in a fatty liver application by, among other
things, providing equipment and technical advice, and facilitating
introductions to GE Healthcare clinical ultrasound customers. In
return for this assistance, we have agreed to afford GE Healthcare
certain rights of first offer with respect to manufacturing and
licensing rights for the target application. More specifically, we
have agreed that, prior to commercially releasing our non-alcoholic
fatty liver disease (“NAFLD”) TAEUS application, we
will offer to negotiate an exclusive ultrasound manufacturer
relationship with GE Healthcare for a period of at least one year
of commercial sales. The commercial sales would involve, within our
sole discretion, either our Company commercially selling GE
Healthcare ultrasound systems as the exclusive ultrasound system
with our TAEUS fatty liver application embedded, or GE Healthcare
being the exclusive ultrasound manufacturer to sell ultrasound
systems with our TAEUS fatty liver application embedded. The
agreement is subject to termination by either party upon not less
than 60 days’ notice. On January 30, 2018, we and GE
Healthcare entered into an amendment to our agreement, extending
its term by 21 months to January 22, 2020.
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In
November 2017 we engaged two firms that specialize in medical
device software development to commence productization of our TAEUS
device targeting NAFLD. The agreements call for these vendors to
provide us with the specialized engineering resources necessary to
translate our current prototype TAEUS device into a clinical
product meeting CE regulatory requirements required for commercial
launch in the European Union followed by FDA submission for the
U.S. market.
In
November 2017, we contracted with the Centre for Imaging Technology
Commercialization (CIMTEC) to initiate human studies with our TAEUS
device targeting NAFLD. In October 2018 we received approval from
Health Canada to initiate these studies which are expected to
provide key insights into clinical work flow and quantitative
methodologies for the device. These studies are now underway. We
provided an update on data collection and expansion of the study in
December 2018 and are aiming for preliminary study reporting in the
first quarter of 2019.
In June
2018, we reported that, in order to focus our resources on
developing our TAEUS technology for clinical use, we are exploring
strategic alternatives with respect to our pre-clinical business.
We now intend to discontinue our pre-clinical business and are
working with distributors and customers of our Nexus 128 system to
facilitate this process.
Risks Related to Our Business
An
investment in our securities involves a high degree of risk. You
should carefully consider the risks summarized below. These risks
are discussed more fully in the “Risk Factors” section
of our Form 10-K and our subsequently filed Quarterly Reports on
Form 10-Q incorporated herein by reference. These risks include,
but are not limited to, the following:
●
We have
a history of operating losses, and we may never achieve or maintain
profitability.
●
Our
efforts may never result in the successful development of
commercial applications based on our TAEUS technology.
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If we
fail to obtain and maintain necessary regulatory clearances or
approvals for our TAEUS applications, or if clearances or approvals
for future applications and indications are delayed or not issued,
our commercial operations will be harmed.
●
Our
limited commercial experience makes it difficult to evaluate our
current business, predict our future results or forecast our
financial performance and growth.
●
We are
depending on third parties to design, manufacture and seek
regulatory approval of our TAEUS applications. If any third party
fails to successfully design, manufacture and gain regulatory
approval of our TAEUS applications, our business will be materially
harmed.
●
We
cannot be certain that results from limited animal and human
studies of any of our TAEUS applications will be indicative of
future studies or that any of our TAEUS applications will be
successfully commercialized.
●
Competition
in the medical imaging market is intense and we may be unable to
successfully compete.
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If we
are unable to secure additional financing on favorable terms, or at
all, to meet our future capital needs, we will be unable to
complete fully our current business plan.
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We
intend to market our TAEUS applications, if approved, globally, in
which case we will be subject to the risks of doing business
outside of the United States.
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If we
are unable to protect our intellectual property, then our financial
condition, results of operations and the value of our technology
and products could be adversely affected.
Implications of Being an Emerging Growth Company
We are
an “emerging growth company,” as defined in the
Jumpstart Our Business Startups Act of 2012, or the JOBS Act, and,
for as long as we continue to be an “emerging growth
company,” we may choose to take advantage of exemptions from
various reporting requirements applicable to other public companies
but not to “emerging growth companies,” including, but
not limited to, not being required to comply with the auditor
attestation requirements of Section 404 of the Sarbanes-Oxley Act
of 2002, reduced disclosure obligations regarding executive
compensation in our periodic reports and proxy statements, and
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 could be an
“emerging growth company” until December 31, 2022, or
until the earliest of (i) the last day of the first fiscal year in
which our annual gross revenues exceed $1.07 billion, (ii) the date
that we become a “large accelerated filer” as defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended, which would occur if the market value of our common stock
that is held by non-affiliates exceeds $700 million as of the last
business day of our most recently completed second fiscal quarter,
or (iii) the date on which we have issued more than $1 billion in
non-convertible debt during the preceding three-year period. We are
choosing to “opt out” of the extended transition
periods available under the JOBS Act for complying with new or
revised accounting standards, but intend to take advantage of the
other exemptions discussed above.
We are
also currently considered a “smaller reporting
company,” which generally means that we have a public float
of less than $250 million. If we are still considered a
“smaller reporting company” at such time as we cease to
be an “emerging growth company,” we will be subject to
increased disclosure requirements. However, the disclosure
requirements will still be less than they would be if we were not
considered either an “emerging growth company” or a
“smaller reporting company.” Specifically, similar to
“emerging growth companies,” “smaller reporting
companies” are able to provide simplified executive
compensation disclosures in their filings; are exempt from the
provisions of Section 404(b) of the Sarbanes-Oxley Act requiring
that independent registered public accounting firms provide an
attestation report on the effectiveness of internal control over
financial reporting; and have certain other decreased disclosure
obligations in their SEC filings, including, among other things,
being required to provide only two years of audited financial
statements in annual reports.
Corporate Information
We were
incorporated in Delaware in July 2007 and have a wholly-owned
subsidiary, ENDRA Life Sciences Canada Inc. Our corporate
headquarters is located at 3600 Green Court, Suite 350, Ann Arbor,
Michigan 48105-1570. Our website can be accessed at
www.endrainc.com. The telephone number of our principal
executive office is (734)
335-0468. The information contained on, or that may be
obtained from, our website is not, and shall not be deemed to be, a
part of this prospectus.
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THE OFFERING
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Common
Stock currently outstanding
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7,422,642
shares. (1)
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Common
Stock offered by the Company
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2,086,560
shares issuable upon the exercise of Warrants, consisting of
1,932,000 Public Warrants issued as part of the units sold in our
Initial Public Offering and 154,560 Underwriters’ Warrants
issued to the underwriters of the Initial Public Offering and their
designees.
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Description
of Warrants
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Each
Warrant entitles the holder to purchase one share of Common Stock
at an initial exercise price of $6.25, subject to adjustment,
and expires at 5:00 p.m., New York City time on May 12, 2022, with
respect to the Public Warrants, and on May 8, 2022, with respect to
the Underwriters’ Warrants.
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Use of
proceeds
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The
gross proceeds if all the Warrant holders, as of the date of this
prospectus, exercise their Warrants will be approximately $13.0
million; however, we are unable to predict the timing or amount of
potential Warrant exercises. Accordingly, all such proceeds will be
used for working capital and other general corporate purposes. It
is possible that some, or all, of the Warrants may expire and never
be exercised.
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Nasdaq
symbols
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Our
Common Stock and the Public Warrants are listed on the Nasdaq
Capital Market under the symbols “NDRA” and
“NDRAW,” respectively.
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Risk
factors
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You
should carefully consider the information set forth in this
prospectus and, in particular, the specific factors set forth in
the “Risk Factors” section in the Form 10-K and
subsequently filed Quarterly Report on Form 10-Q incorporated
herein by reference before deciding whether or not to invest in
Common Stock.
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(1) As
of December 28, 2018. This number excludes:
●
489,273 shares of
Common Stock issuable upon the exercise of outstanding warrants
(other than the Warrants described herein) at a weighted average
exercise price of $7.03 per share;
●
1,206,617 shares of
Common Stock issuable upon the exercise of outstanding stock
options issued pursuant to our 2016 Omnibus Incentive Plan, or our
Incentive Plan, at a weighted average exercise price of $4.56 per
share; and
●
138,457 shares of
Common Stock reserved for future issuance under our Incentive
Plan.
See
“Description of Capital Stock” below.
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RISK FACTORS
An
investment in Common Stock involves a high degree of risk. You
should carefully consider the risks set forth under the section
captioned “Risk Factors” contained in our Annual Report
on Form 10-K for the year ended December 31, 2017 and our
subsequently filed Quarterly Reports on Form 10-Q, which are
incorporated by reference into this prospectus, and in the other
reports that we file with the SEC and incorporate by reference into
this prospectus, before deciding to invest in Common Stock. The
risks and uncertainties we have described are not the only ones we
face.
If any
of the events described in these risk factors actually occurs, or
if additional risks and uncertainties that are not presently known
to us or that we currently deem immaterial later materialize, then
our business, prospects, results of operations and financial
condition could be materially adversely affected. In
that event, the trading price of our securities could decline, and
you may lose all or part of your investment in our
securities. The risks discussed include forward-looking
statements, and our actual results may differ substantially from
those discussed in these forward-looking statements. See
“Cautionary Note Regarding Forward-Looking
Statements.”
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated herein by reference
contain “forward-looking statements” within the meaning
of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that are intended to be covered by the “safe
harbor” created by those sections. Forward-looking
statements, which are based on certain assumptions and describe our
future plans, strategies and expectations, can generally be
identified by the use of forward-looking terms such as
“believe,” “expect,” “may,”
“will,” “should,” “would,”
“could,” “seek,” “intend,”
“plan,” “goal,” “project,”
“estimate,” “anticipate,”
“strategy”, “future”, “likely”
or other comparable terms and references to future periods. All
statements other than statements of historical facts included in
this prospectus and the documents incorporated herein by reference
regarding our strategies, prospects, financial condition,
operations, costs, plans and objectives are forward-looking
statements. Examples of forward-looking statements include, among
others, statements we make regarding: expectations for revenues,
cash flows and financial performance, the anticipated results of
our development efforts and the timing for receipt of required
regulatory approvals and product launches.
Forward-looking
statements are neither historical facts nor assurances of future
performance. Instead, they are based only on our current beliefs,
expectations and assumptions regarding the future of our business,
future plans and strategies, projections, anticipated events and
trends, the economy and other future conditions. Because
forward-looking statements relate to the future, they are subject
to inherent uncertainties, risks and changes in circumstances that
are difficult to predict and many of which are outside of our
control. Our actual results and financial condition may differ
materially from those indicated in the forward-looking statements.
Therefore, you should not rely on any of these forward-looking
statements. Important factors that could cause our actual results
and financial condition to differ materially from those indicated
in the forward-looking statements include, among others, the
following:
●
our limited
commercial experience, limited cash and history of
losses;
●
our ability to
obtain adequate financing to fund our business operations in the
future;
●
our ability to
achieve profitability;
●
our ability to
develop a commercially feasible application based on our TAEUS
technology;
●
market acceptance
of our technology;
●
results of our
human studies, which may be negative or inconclusive;
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our ability to find
and maintain development partners;
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our reliance on
collaborations and strategic alliances and licensing
arrangements;
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the amount and
nature of competition in our industry;
●
our ability to
protect our intellectual property;
●
potential changes
in the healthcare industry or third-party reimbursement
practices;
●
delays and changes
in regulatory requirements, policy and guidelines including
potential delays in submitting required regulatory applications for
CE mark certification or U.S. Food and Drug Administration
(“FDA”) approval;
●
our ability to
obtain CE mark certification and secure required FDA and other
governmental approvals for our TAEUS applications;
●
our ability to
comply with regulation by various federal, state, local and foreign
governmental agencies and to maintain necessary regulatory
clearances or approvals; and
●
the other risks and
uncertainties described in the Risk Factors section of this
prospectus and those
risks and uncertainties described in the documents incorporated by
reference into this prospectus.
Any
forward-looking statement made by us in this prospectus is based
only on information currently available to us and speaks only as of
the date on which it is made. We undertake no obligation to
publicly update any forward-looking statement, whether written or
oral, that may be made from time to time, whether as a result of
new information, future developments or otherwise. We anticipate
that subsequent events and developments will cause our views to
change. You should read this prospectus and the documents
referenced in this prospectus and filed as exhibits to the
registration statement of which this prospectus is a part
completely and with the understanding that our actual future
results may be materially different from what we expect. Our
forward-looking statements do not reflect the potential impact of
any future acquisitions, merger, dispositions, joint ventures or
investments we may undertake. We qualify all of our forward-looking
statements by these cautionary statements.
USE OF PROCEEDS
The
gross proceeds if all the Warrant holders, as of the date of this
prospectus, exercise their Warrants will be approximately $13.0
million; however, we are unable to predict the timing or amount of
potential Warrant exercises. Accordingly, all such proceeds will be
used for working capital and general corporate purposes. It is
possible that some, or all, of the Warrants may expire and never be
exercised.
DILUTION
If you
purchase shares of Common Stock in this offering, you will
experience dilution to the extent of the difference between the
Warrants’ exercise price per share and our pro forma net
tangible book value per share immediately after this
offering.
Net
tangible book value per share represents total tangible assets less
total liabilities, divided by the number of shares of common stock
outstanding. Our historical net tangible book value as of September
30, 2018 was $(457,610), or $(0.12) per share of Common Stock. On a
pro forma basis after giving effect to our sale of 2,863,500 shares
of Common Stock in the underwritten public offerings we completed
in October and November 2018, and the issuance of 611,310 shares of
Common Stock up the conversion of convertible promissory notes in
connection therewith, and after deducting the underwriting discount
and estimated offering expenses payable by us in such offerings,
our net tangible book value as of September 30, 2018 would have
been $8,733,318 or $1.28 per share of Common Stock. After giving
effect to the sale of 2,086,560 shares of Common Stock upon
exercise of all of the Warrants covered by this prospectus at an
exercise price of $6.25 per share, our net tangible book value as
of September 30, 2018 would have been $21,774,318 or $2.45 per
share of Common Stock. This represents an immediate increase in net
tangible book value of $1.17 per share to existing stockholders and
an immediate dilution in net tangible book value of $3.80 per share
to investors in this offering. The following table illustrates this
dilution on a per share basis:
|
Public offering
price per share
|
|
$6.25
|
|
Pro forma net
tangible book value per share as of September 30, 2018
|
$1.28
|
|
|
Increase in net
tangible book value per share attributable to this
offering
|
$1.17
|
|
|
As adjusted
tangible book value per share, after giving effect to this
offering
|
|
$2.45
|
|
Dilution per share
to investors in this offering
|
|
$3.80
|
The
above discussion and table are based on 3,947,828 shares of Common
Stock outstanding as of September 30, 2018 and exclude the
following:
●
497,135
shares of Common Stock issuable upon the exercise of outstanding
warrants (other than the Warrants described herein), at a weighted
average exercise price of $6.93 per share;
●
987,911
shares of Common Stock issuable upon the exercise of outstanding
stock options issued pursuant to our 2016 Omnibus Incentive Plan,
or our Incentive Plan, at a weighted average exercise price of
$5.60 per share; and
●
357,163
shares of Common Stock reserved for future issuance under our
Incentive Plan.
To the
extent that any of these warrants or options are exercised, new
options are issued under our Incentive Plan or we issue additional
shares of Common Stock or other equity securities in the future,
there may be further dilution to investors participating in this
offering.
PLAN OF DISTRIBUTION
We will
deliver shares of Common Stock offered hereby upon exercise of the
Warrants we issued in connection with our Initial Public Offering.
As of the date of this prospectus, the Warrants were exercisable
for a total of up to 2,086,560 shares of Common Stock, which can be
adjusted pursuant to the terms of the Warrants. We will not issue
fractional shares upon exercise of the Warrants. Each of the
Warrants contains instructions for exercise. In order to exercise
any of the Warrants, the holder must deliver to Continental Stock
Transfer, Inc., as Warrant Agent, the information required in the
Warrants, along with payment for the exercise price of the shares
to be purchased. The Warrant Agent will then deliver shares of
Common Stock in the manner described in the applicable form of
Warrant, each of which is filed as an exhibit to the registration
statement of which this prospectus is a part.
DESCRIPTION OF CAPITAL STOCK
The
following is a brief description of our capital stock. This summary
does not purport to be complete in all respects. This description
is subject to and qualified entirely by the terms of our Fourth
Amended and Restated Certificate of Incorporation (the
“Certificate of Incorporation”), and our amended and
restated bylaws, copies of which have been filed with the SEC and
are also available upon request from us.
Authorized Capitalization
We have
60,000,000 shares of
capital stock authorized under our Certificate of Incorporation,
consisting of 50,000,000 shares of common stock with a par value of
$0.0001 per share
(“Common Stock”) and 10,000,000 shares of preferred
stock with a par value of $0.0001 per share (“Preferred
Stock”). As of the date of this prospectus, we had 7,422,642
shares of Common Stock issued and outstanding held of record by 32
stockholders, and no shares of Preferred Stock issued and
outstanding. Our authorized but unissued shares of Common Stock and
Preferred Stock are available for issuance without further action
by our stockholders, unless such action is required by applicable
law or the rules of any stock exchange or automated quotation
system on which our securities may be listed or
traded.
Common Stock
The
holders of outstanding shares of Common Stock are entitled to such
dividends as may be declared by our board of directors out of funds
legally available for such purpose. The shares of Common Stock are
neither redeemable nor convertible. Holders of Common Stock have no
preemptive or subscription rights to purchase any of our
securities.
Each
holder of our Common Stock is entitled to one vote for each such
share outstanding in the holder’s name. No holder
of Common Stock is entitled to cumulate votes in voting for
directors.
In the
event of our liquidation, dissolution or winding up, the holders of
our Common Stock are entitled to receive pro rata our assets, which
are legally available for distribution, after payments of all debts
and other liabilities. All of the outstanding shares of
our Common Stock are fully paid and
non-assessable.
Our
shares of Common Stock are listed on the Nasdaq Capital Market
under the symbol “NDRA.”
Preferred Stock
Our
board of directors has the authority, without further action by the
stockholders, to issue up to 10,000,000 shares of Preferred Stock
in one or more series and to fix the designations, powers, rights,
preferences, qualifications, limitations and restrictions thereof.
These designations, powers, rights and preferences could include
voting rights, dividend rights, dissolution rights, conversion
rights, exchange rights, redemption rights, liquidation
preferences, and the number of shares constituting any series or
the designation of such series, any or all of which may be greater
than the rights of Common Stock. The issuance of Preferred Stock
could adversely affect the voting power of holders of Common Stock
and the likelihood that such holders will receive dividend payments
and payments upon liquidation. In addition, the issuance of
Preferred Stock could have the effect of delaying, deferring or
preventing change in our control or other corporate action. No
shares of Preferred Stock are outstanding, and we have no present
plan to issue any shares of Preferred Stock.
Stock Options and Warrants
As of
December 28, 2018, we had reserved the following shares of Common
Stock for issuance pursuant to stock options, warrants and equity
plans:
●
2,575,833 shares of
Common Stock issuable upon the exercise of outstanding warrants,
including the Warrants, at a weighted average exercise price of
$6.40 per share;
●
1,206,617 shares of
Common Stock issuable upon the exercise of outstanding stock
options issued pursuant to our 2016 Omnibus Incentive Plan, or our
Incentive Plan, at a weighted average exercise price of $4.56 per
share; and
●
138,457
shares of our Common Stock
reserved for future issuance under our Incentive
Plan.
Other Convertible Securities
As of
the date hereof, other than the securities described above, the
Company does not have any outstanding convertible
securities.
GE Healthcare Right
In
April 2016, we entered into a Collaborative Research Agreement with
General Electric Company, acting through its GE Healthcare business
unit and the GE Global Research Center, or GE Healthcare. The
agreement provides that prior to selling any equity interests in
our company to a healthcare device manufacturer, we will first
offer to negotiate in good faith to sell such equity interests to
GE Healthcare.
Transfer Agent
The
transfer agent of our Common Stock offered hereby is Corporate
Stock Transfer, Inc., 3200 Cherry Creek Dr. South, Suite 430,
Denver, CO 80209. Its telephone number is (303)
282-4800.
Anti-Takeover Effects of Certain Provisions of Delaware Law and Our
Charter Documents
The
following is a summary of certain provisions of Delaware law, our
Certificate of Incorporation and our bylaws. This summary does not
purport to be complete and is qualified in its entirety by
reference to the corporate law of Delaware and our Certificate of
Incorporation and bylaws.
Effect of Delaware Anti-Takeover Statute. We are
subject to Section 203 of the Delaware General Corporation Law, an
anti-takeover law. In general, Section 203
prohibits a Delaware corporation from engaging in any business
combination (as defined below) with any interested stockholder (as
defined below) for a period of three years following the date that
the stockholder became an interested stockholder,
unless:
●
prior to that date,
the board of directors of the corporation approved either the
business combination or the transaction that resulted in the
stockholder becoming an interested stockholder;
●
upon consummation
of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time
the transaction commenced, excluding for purposes of determining
the number of shares of voting stock outstanding (but not the
voting stock owned by the interested stockholder) those shares
owned by persons who are directors and officers and by excluding
employee stock plans in which employee participants do not have the
right to determine whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
●
on or subsequent to
that date, the business combination is approved by the board of
directors of the corporation and authorized at an annual or special
meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding voting
stock that is not owned by the interested stockholder.
Section
203 defines “business combination” to include the
following:
●
any merger or
consolidation involving the corporation and the interested
stockholder;
●
any sale, transfer,
pledge or other disposition of 10% or more of the assets of the
corporation involving the interested stockholder;
●
subject to certain
exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
●
subject to limited
exceptions, any transaction involving the corporation that has the
effect of increasing the proportionate share of the stock of any
class or series of the corporation beneficially owned by the
interested stockholder; or
●
the receipt by the
interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or
through the corporation.
In
general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation, or who beneficially owns 15% or
more of the outstanding voting stock of the corporation at any time
within a three-year period immediately prior to the date of
determining whether such person is an interested stockholder, and
any entity or person affiliated with or controlling or controlled
by any of these entities or persons.
Our Charter Documents. Our charter documents
include provisions that may have the effect of discouraging,
delaying or preventing a change in control or an unsolicited
acquisition proposal that a stockholder might consider favorable,
including a proposal that might result in the payment of a premium
over the market price for the shares held by our
stockholders. Certain of these provisions are summarized
in the following paragraphs.
Effects of authorized but unissued Common
Stock. One of the effects of the existence of
authorized but unissued common stock may be to enable our board of
directors to make more difficult or to discourage an attempt to
obtain control of our Company by means of a merger, tender offer,
proxy contest or otherwise, and thereby to protect the continuity
of management. If, in the due exercise of its fiduciary
obligations, the board of directors were to determine that a
takeover proposal was not in our best interest, such shares could
be issued by the board of directors without stockholder approval in
one or more transactions that might prevent or render more
difficult or costly the completion of the takeover transaction by
diluting the voting or other rights of the proposed acquirer or
insurgent stockholder group, by putting a substantial voting block
in institutional or other hands that might undertake to support the
position of the incumbent board of directors, by effecting an
acquisition that might complicate or preclude the takeover, or
otherwise.
Cumulative Voting. Our Certificate of
Incorporation does not provide for cumulative voting in the
election of directors, which would allow holders of less than a
majority of the stock to elect some directors.
Vacancies. Our Certificate of
Incorporation provides
that all vacancies may be filled by the affirmative vote of a majority
of directors then in office, even if less than a
quorum.
Special Meeting of Stockholders. A special meeting of stockholders may
only be called by the Chairman of the board of directors, the
President, the Chief Executive Officer, or the board of directors
at any time and for any purpose or purposes as shall be stated in
the notice of the meeting, or by request of the holders of record
of at least 20% of the outstanding shares of common
stock. This provision could prevent stockholders from
calling a special meeting because, unless certain significant
stockholders were to join with them, they might not obtain the
percentage necessary to request the meeting. Therefore,
stockholders holding less than 20% of the issued and outstanding
common stock, without the assistance of management, may be unable
to propose a vote on any transaction that would delay, defer or
prevent a change of control, even if the transaction were in the
best interests of our stockholders.
LEGAL MATTERS
The
validity of the Common Stock offered hereby has been passed upon
for us by K&L Gates LLP, Charlotte, North
Carolina.
EXPERTS
The
financial statements of ENDRA
Life Sciences Inc. as of December 31, 2017 and December
31, 2016 included in the Annual Report on Form 10-K for the year
ended December 31, 2017 have been audited by RBSM LLP, independent
registered public accounting firm, as stated in its report, which
is incorporated herein by reference. We have incorporated these
financial statements by reference in reliance upon the report of
RBSM LLP, given upon their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have
filed with the SEC a Registration Statement on Form S-3 under the
Securities Act to register the Common Stock offered by this
prospectus. The term “registration statement” means the
original registration statement and any and all amendments thereto,
including the schedules and exhibits to the original registration
statement or any amendment. This prospectus is part of that
registration statement. This prospectus does not contain all of the
information set forth in the registration statement or the exhibits
to the registration statement. For further information with respect
to us and the Common Stock being offered pursuant to this
prospectus, you should refer to the registration statement and its
exhibits. Statements contained in this prospectus as to the
contents of any contract, agreement or other document referred to
are not necessarily complete, and you should refer to the copy of
that contract or other documents filed as an exhibit to the
registration statement.
We file
annual reports, quarterly reports, current reports, proxy
statements and other information with the SEC under the Exchange
Act. You can read our SEC filings, including the registration
statement, at the SEC’s website at www.sec.gov.
You may
read and copy this information at the SEC’s Public Reference
Room at 100 F Street, N.E., Washington D.C. 20549, at prescribed
rates. You may obtain information regarding the operation of the
public reference room by calling the SEC at
1-800-SEC-0330.
The SEC
also maintains a website (http://www.sec.gov) that contains
reports, proxy and information statements and other information
regarding issuers that file electronically with the
SEC.
Our
website can be accessed at http://www.endrainc.com. The information
contained on, or that may be obtained from, our website is not, and
shall not be deemed to be, a part of this prospectus.
The
representations, warranties and covenants made by us in any
agreement that is filed as an exhibit to the registration statement
of which this prospectus is a part 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 made as of an earlier date. Accordingly, such
representations, warranties and covenants should not be relied on
as accurately representing the current state of our
affairs.
This
prospectus includes statistical and other industry and market data
that we obtained from industry publications and research, surveys
and studies conducted by third parties. Industry publications and
third-party research, surveys and studies generally indicate that
they have gathered their information from sources they believe to
be reliable, although they do not guarantee the accuracy or
completeness of such information. While we believe that these
industry publications and third-party research, surveys and studies
are reliable, we have not independently verified such
data.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC
allows us to “incorporate by reference” information
from other documents that we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered
to be part of this prospectus. Information in this prospectus
supersedes information incorporated by reference that we filed with
the SEC prior to the date of this prospectus.
We
incorporate by reference into this prospectus and the registration
statement of which this prospectus is a part the information or
documents listed below that we have filed with the
SEC:
●
our annual report
on Form 10-K for the fiscal year ended December 31, 2017 filed with
the SEC on March 20, 2018 (as amended by Form 10-K/A filed with the
SEC on April 13, 2018);
●
our quarterly
reports on Form 10-Q for the fiscal quarter ended March 31, 2018
filed with the SEC on May 15, 2018, the fiscal quarter ended June
30, 2018 filed with the SEC on August 13, 2018 and the fiscal
quarter ended September 30, 2018 filed with the SEC on November 5,
2018;
●
our Current Reports
on Form 8-K filed with the SEC on February 5, 2018, March 29, 2018
(as amended by Form 8-K/A filed on April 13, 2018), June 15, 2018,
July 2, 2018, July 18, 2018, August 17, 2018, October 16, 2018 and
November 13, 2018;
●
our Definitive
Proxy Statement on Schedule 14A related to our 2018 Annual Meeting
of Stockholders, filed with the SEC on May 10, 2018;
and
●
the description of
our Common Stock contained in our Registration Statement on Form
8-A (File No. 001-37969) filed with the SEC on December 16, 2016,
including any amendment or reports filed for the purpose of
updating such description.
We also
incorporate by reference any future filings (other than current reports
furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items unless such Form
8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
including those made on or after the date of the initial filing of
the registration statement of which this prospectus is a part and
prior to effectiveness of such registration statement, until we
file a post-effective amendment that indicates the termination of
the offering of the Securities made by this prospectus and will
become a part of this prospectus from the date that such documents
are filed with the SEC. Information in such future filings updates
and supplements the information provided in this prospectus. Any
statements in any such future filings will automatically be deemed
to modify and supersede any information in any document we
previously filed with the SEC that is incorporated or deemed to be
incorporated herein by reference to the extent that statements in
the later filed document modify or replace such earlier
statements.
We will
furnish without charge to you, on written or oral request, a copy
of any or all of the documents incorporated by reference, including
exhibits to these documents. You should direct any requests for
documents to ENDRA Life Sciences Inc., 3600 Green Court, Suite 350,
Ann Arbor, Michigan 48105; Telephone: (734) 335-0468. Copies of the
above reports may also be accessed from our website at www.endrainc.com. We have authorized no
one to provide you with any information that differs from that
contained in this prospectus. Accordingly, you should not rely on
any information that is not contained in this prospectus. You
should not assume that the information in this prospectus is
accurate as of any date other than the date of the front cover of
this prospectus.
Any
statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus will be deemed
modified, superseded or replaced for purposes of this prospectus to
the extent that a statement contained in this prospectus modifies,
supersedes or replaces such statement.
ENDRA Life Sciences Inc.
Prospectus
2,086,560 Shares of Common Stock Issuable Upon Exercise of
Outstanding Warrants
,
2019
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set
forth below is an estimate (except for registration fees, which are
actual) of the approximate amount of the fees and expenses payable
by us in connection with the issuance and distribution of the
shares of our Common Stock described in this Post-Effective
Amendment No. 1.
|
SEC registration
fee
|
$1,682*
|
|
Accounting fees and
expenses
|
$5,000
|
|
Legal fees and
expenses
|
$20,000
|
|
Miscellaneous
|
$3,318
|
|
Total
|
$30,000
|
*
Previously paid.
Item 15. Indemnification of Directors and Officers.
The
following summary is qualified in its entirety by reference to the
complete text of any statutes referred to below and the Fourth
Amended and Restated Certificate of Incorporation of ENDRA Life Sciences Inc., a Delaware
corporation.
Section
145 of the General Corporation Law of the State of Delaware (the
“DGCL”) permits a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of
the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
the person’s conduct was unlawful.
In the
case of an action by or in the right of the corporation, Section
145 of the DGCL permits a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by reason of
the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees)
actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith
and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses that the Court of Chancery or such
other court shall deem proper.
Section
145 of the DGCL also permits a Delaware corporation to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under Section 145 of
the DGCL.
Article
NINTH of our Fourth Amended and Restated Certificate of
Incorporation states that our directors shall not be personally
liable to us or to our stockholders for monetary damages for any
breach of fiduciary duty as a director, notwithstanding any
provision of law imposing such liability. Under Section 102(b)(7)
of the DGCL, the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty can be limited or eliminated except (i) for any
breach of the director’s duty of loyalty to the corporation
or its stockholders; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the DGCL (relating to unlawful
payment of dividend or unlawful stock purchase or redemption); or
(iv) for any transaction from which the director derived an
improper personal benefit.
Article
EIGHTH of our Fourth Amended and Restated Certificate of
Incorporation provides that we shall indemnify (and advance
expenses to) our officers and directors to the full extent
permitted by the DGCL.
All of
the Company’s directors and officers are covered by insurance
policies maintained by the Company against specified liabilities
for actions taken in their capacities as such, including
liabilities under the Securities Act. Such insurance also insures
us against losses which we may incur in indemnifying our officers
and directors.
As
permitted by the DGCL, we have entered into indemnification
agreements with each of our directors and executive officers that
require us to indemnify them against various actions including, but
not limited to, third-party actions where such director or
executive officer, by reason of his or her corporate status, is a
party or is threatened to be made a party to an action, or by
reason of anything done or not done by such director in any such
capacity. We indemnify directors and executive officers against all
costs, judgments, penalties, fines, liabilities, amounts paid in
settlement by or on behalf of such directors or executive officers
and for any expenses actually and reasonably incurred by such
directors or executive officers in connection with such action, if
such directors or executive officers acted in good faith and in a
manner they reasonably believed to be in or not opposed to our best
interests, and with respect to any criminal proceeding, had no
reasonable cause to believe their conduct was unlawful. We also
intend to advance to our directors and executive officers expenses
(including attorney’s fees) incurred by or on behalf of such
directors and executive officers in advance of the final
disposition of any action after our receipt of a statement or
statements from directors or executive officers requesting such
payment or payments from time to time, provided that such statement
or statements are preceded or accompanied by a written undertaking,
by or on behalf of such directors or executive officers, to repay
such amount if it shall ultimately be determined that they are not
entitled to be indemnified against such expenses by
us.
The
indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification or
advancement of expenses, including, among others, provisions about
submitting a written request to us that includes such documentation
and information as is reasonably available to the director or
executive officer and is reasonably necessary to determine
entitlement to indemnification and provisions.
Item 16. Exhibits and Financial Statement Schedules.
|
|
|
|
Incorporated by Reference
|
|
Exhibit Number
|
Exhibit Description
|
Filed Herewith
|
Form
|
Exhibit
|
Filing Date
|
Registration/File No.
|
|
|
Specimen
Certificate representing shares of Common Stock of the
Registrant
|
|
S-1
|
4.1
|
11/21/16
|
333-214724
|
|
|
Form of
Warrant Agreement and Warrant
|
|
S-1
|
4.2
|
05/03/17
|
333-214724
|
|
|
Form of
Underwriters’ Warrant
|
|
S-1
|
4.3
|
11/21/16
|
333-214724
|
|
|
Opinion
of K&L Gates LLP
|
|
S-1
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5.1
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05/03/17
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333-214724
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Consent
of RBSM LLP, Independent Registered Public Accounting
Firm
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X
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Consent
of K&L Gates LLP (contained in Exhibit 5.1)
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S-1
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5.1
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05/03/17
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333-214724
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24.1
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Power
of Attorney (included on signature page)
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X
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101.INS
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XBRL
Instance Document
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X
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101.SCH
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XBRL
Taxonomy Schema
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X
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101.CAL
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XBRL
Taxonomy Extension Calculation Linkbase
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X
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101.DEF
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XBRL
Taxonomy Extension Definition Linkbase
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X
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101.LAB
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XBRL
Taxonomy Extension Label Linkbase
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X
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101.PRE
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XBRL
Taxonomy Extension Presentation Linkbase
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X
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Item 17. Undertakings.
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 provisions described
under Item 15 or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification by it is against public
policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final
adjudication of such issue.
(a)
The undersigned
registrant hereby undertakes:
1. To file, during any
period in which offers or sales are being made, a post-effective
amendment to this registration statement:
i. To include any
prospectus required by Section 10(a)(3) of the Securities Act of
1933;
ii. To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of a
prospectus filed with the SEC pursuant to Rule 424(b) under the
Securities Act if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement);
and
iii. To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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 (the "Exchange
Act") 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.
(b)
The undersigned
registrant hereby undertakes that, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser if the
registrant is relying on Rule 430B: (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 of 1933 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.
(c)
The undersigned
registrant hereby undertakes that, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser: if the
registrant is subject to Rule 430C, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B
or other than prospectuses filed in reliance on Rule 430A, shall be
deemed to be part of and included in the registration statement as
of the date it is first used after effectiveness; 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 first use, 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 date of first use.
(d)
The undersigned
registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Ann Arbor,
State of Michigan, on this 28th day of December 2018.
|
|
ENDRA
Life Sciences Inc.
/s/ Francois Michelon
Francois
Michelon
Chief
Executive Officer and Director
(Principal
Executive Officer)
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Pursuant
to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
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Dated:
December 28, 2018
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/s/ Francois Michelon
Francois
Michelon
Chief
Executive Officer and Director
(Principal
Executive Officer)
|
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Dated:
December 28, 2018
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/s/ David R. Wells
David
R. Wells
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
|
|
Dated:
December 28, 2018
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***
Anthony
DiGiandomenico, Director
|
|
Dated:
December 28, 2018
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***
Sanjiv
Gambhir, M.D., Ph.D., Director
|
|
Dated:
December 28, 2018
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***
Michael
Harsh, Director
|
|
Dated:
December 28, 2018
|
***
Alexander Tokman,
Director
|
*** By: /s/
Francois Michelon
Francois
Michelon
Attorney-in-fact
