As filed with the Securities and Exchange Commission
on May 31, 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
CHARLES & COLVARD, LTD.
(Exact name of registrant as specified in its
charter)
| North
Carolina |
56-1928817 |
| (State
or other jurisdiction of incorporation) |
(IRS Employer
Identification Number) |
170 Southport Drive
Morrisville, NC 27560
(919) 468-0399
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Don O’Connell
President and Chief Executive Officer
Charles & Colvard, Ltd.
170 Southport Drive
Morrisville, NC 27560
(919) 468-0399
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Please send copies of all communications to:
Julie F. Rizzo
K&L Gates LLP
301 Hillsborough Street
Suite 1200
Raleigh, North Carolina 27603
(919) 743-7330
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement
as determined by market conditions.
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. 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 if the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large
accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company”
in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ |
Accelerated filer ¨ |
| Non-accelerated filer x |
Smaller reporting company x |
| |
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.
Subject
to completion, dated May 31, 2024
Charles & Colvard, Ltd.
Prospectus
$25,000,000
Common Stock
Preferred Stock
Warrants
Units
This prospectus relates to common stock, preferred stock, warrants
and units that Charles & Colvard, Ltd. may sell from time to time in one or more offerings on terms to be determined at the time
of sale. We will provide specific terms of these securities in supplements to this prospectus. You should read this prospectus and any
supplement carefully before you invest. This prospectus may not be used to offer and sell securities unless accompanied by a prospectus
supplement for those securities.
These securities may be sold directly by us, through dealers or agents
designated from time to time, to or through underwriters or through a combination of these methods. See “Plan of Distribution”
in this prospectus. We may also describe the plan of distribution for any particular offering of these securities in any applicable prospectus
supplement. If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is
being delivered, we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The net proceeds
we expect to receive from any such sale will also be included in a prospectus supplement.
Our common stock trades on the Nasdaq Capital Market under the symbol
“CTHR.” On May 24, 2024, the last reported sale price for our Common Stock was $2.37 per share. Our principal executive offices
are located at 170 Southport Drive, Morrisville, NC 27560.
As of
the date of this prospectus, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was
approximately $5,940,533, which was calculated based on 3,118,273 shares of outstanding common stock, of which 2,506,554
shares were held by non-affiliates, and the last reported sale price of our common stock of $2.37 per share on May 24, 2024.
Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities in a public primary offering with a value
exceeding one-third of our public float in any 12-month period, so long as our public float remains below $75 million. During the 12
calendar months prior to and including the date of this prospectus, we have not offered or sold any securities pursuant to General
Instruction I.B.6 of Form S-3.
INVESTING
IN OUR SECURITIES INVOLVES RISKS. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING “RISK FACTORS”
CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS, AND UNDER SIMILAR HEADINGS IN OTHER DOCUMENTS
THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS OR ANY SUCH PROSPECTUS SUPPLEMENT. SEE “RISK FACTORS” ON PAGE 4
OF THIS PROSPECTUS.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation
to the contrary is a criminal offense.
The date of this prospectus is , 2024.
Table of Contents
Page
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that
we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process. Under this shelf
process, we may from time to time sell any combination of securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities under this shelf registration process, we will provide a prospectus supplement that will contain
specific information about the terms of the securities being offered. That prospectus supplement may include a discussion of any risk
factors or other special consideration that apply to those securities. The prospectus supplement may also add, update or change information
contained in this prospectus. If there is any inconsistency between the information in this prospectus and a prospectus supplement, you
should rely on the information in that prospectus supplement. You should read both this prospectus and any applicable prospectus supplement
together with additional information described below under the headings “Where You Can Find More Information” and
“Incorporation by Reference.”
In deciding whether or not to invest in our securities, you should
rely on the information provided in this prospectus and the prospectus supplement, including the information incorporated by reference.
Neither we, nor any underwriters or agents, have authorized anyone to provide you with different information. We are not offering the
securities in any state where such an offer is prohibited. You should not assume that the information in this prospectus, any prospectus
supplement, or any document incorporated by reference, is truthful or complete at any date other than the date mentioned on the cover
page of those documents. You should also carefully review the section entitled “Risk Factors”, which highlights certain
risks associated with an investment in our securities, to determine whether an investment in our securities is appropriate for you.
Unless otherwise stated or the context requires otherwise, references
to “Charles & Colvard,” the “Company,” “we,” “us” or “our” are to Charles
& Colvard, Ltd. and its subsidiaries.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain information set forth in this prospectus or incorporated by
reference in this prospectus may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended (the “Securities Act”), and Section 21E of the Exchange Act of 1934 (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,” “estimate,” “goal,” “anticipate,”
“project” or other comparable terms. All statements other than statements of historical facts included in this prospectus
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 our control. Our actual results and financial condition may differ materially from those 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:
Related to our Operations
| · | Our
business and our results of operations could be materially adversely affected as a result
of general economic and market conditions; |
| · | Our
future financial performance depends upon increased consumer acceptance, growth of sales
of our products, and operational execution of our strategic initiatives; |
| · | We
face intense competition in the worldwide gemstone and jewelry industry; |
| · | We
have historically been dependent on a single supplier for substantially all of our silicon
carbide, or SiC crystals, the raw materials we use to produce moissanite jewels; if our supply
of high quality SiC crystals is interrupted, our business may be materially harmed; |
| · | Constantly
evolving privacy regulatory regimes are creating new legal compliance challenges; |
| · | Our
information technology, or IT, infrastructure, and our network has been and may be impacted
by a cyber-attack or other security incident as a result of the rise of cybersecurity events; |
| · | We
are subject to certain risks due to our international operations, distribution channels and
vendors; |
| · | Our
business and our results of operations could be materially adversely affected as a result
of our inability to fulfill orders on a timely basis; |
| · | We
are currently dependent on a limited number of distributor and retail partners in our Traditional
segment for the sale of our products; |
| · | We
may experience quality control challenges from time to time that can result in lost revenue
and harm to our brands and reputation; |
| · | Seasonality
of our business may adversely affect our net sales and operating income; |
| · | Our
operations could be disrupted by natural disasters; |
| · | Sales
of moissanite and lab grown diamond jewelry could be dependent upon the pricing of precious
metals, which is beyond our control; |
| · | Our
current customers may potentially perceive us as a competitor in the finished jewelry business; |
| · | If
the e-commerce opportunity changes dramatically or if e-commerce technology or providers
change their models, our results of operations may be adversely affected; |
| · | Governmental
regulation and oversight might adversely impact our operations; |
| · | The
effects of COVID-19 and other potential future public health crises, epidemics, pandemics
or similar events on our business, operating results, and cash flows are uncertain; |
Related to our Financial Position
| · | The execution of management’s plans as disclosed in our Form 10-Q filed May 6, 2024 could significantly impact our liquidity and ability to continue
as a going concern; |
| · | We
are subject to arbitration, litigation and demands, which could result in significant liability
and costs, and impact our resources and reputation; |
| · | The
financial difficulties or insolvency of one or more of our major customers or their lack
of willingness and ability to market our products could adversely affect results; |
| · | Negative
or inaccurate information on social media could adversely impact our brand and reputation; |
| · | We
rely on assumptions, estimates, and data to calculate certain of our key metrics and real
or perceived inaccuracies in such metrics may harm our reputation and negatively affect our
business; |
| · | We
may not be able to adequately protect our intellectual property, which could harm the value
of our products and brands and adversely affect our business; |
| · | Environmental,
social, and governance matters may impact our business, reputation, financial condition,
and results of operations; |
| · | If
we fail to evaluate, implement, and integrate strategic acquisition or disposition opportunities
successfully, our business may suffer; |
Related to Ownership of our Common Stock
| · | Our
failure to maintain compliance with The Nasdaq Stock Market’s continued listing requirements
could result in the delisting of our common stock; |
| · | Some
anti-takeover provisions of our charter documents may delay or prevent a takeover of our
Company; and |
| · | We
cannot guarantee that our share repurchase program will be utilized to the full value approved,
or that it will enhance long-term stockholder value and repurchases we consummate could increase
the volatility of the price of our common stock and could have a negative impact on our available
cash balance. |
We urge you to consider those risks and uncertainties in evaluating
our forward-looking statements. All subsequent written and oral forward-looking statements attributable to us or to persons acting on
our behalf are expressly qualified in their entirety by the applicable cautionary statements. We further caution readers not to place
undue reliance upon any such forward-looking statements, which speak only as of the date made. Except as otherwise required by the federal
securities laws, 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.
Refer to the section titled “Risk Factors” in this
prospectus, any other risk factors set forth in the applicable prospectus supplement and in any information incorporated by reference
into this prospectus or the applicable prospectus supplement to better understand the risks and uncertainties inherent in our business
and underlying these forward-looking statements, as well as any other risk factors and cautionary statements described in the documents
we file from time to time with the SEC, including those discussed in our Annual Report on Form 10-K and subsequently filed Quarterly
Reports on Form 10-Q under the headings “Risk Factors,” “Legal Proceedings,” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”, which are incorporated by reference into this prospectus.
THE COMPANY
Charles &
Colvard, Ltd., a North Carolina corporation founded in 1995 (which may be referred to as Charles & Colvard, we, us, or our), is a
globally recognized fine jewelry company specializing in lab created gemstones. We have manufactured, marketed, and distributed Charles
& Colvard Created Moissanite® (which we refer to as moissanite or moissanite jewels) since introducing
created moissanite to the world nearly three decades ago. After years of perfecting the process, Charles & Colvard debuted the world’s
first colorless moissanite and its premium moissanite gemstone brand, Forever One™, in 2015. As an e-commerce and multi-channel
destination for fine jewelry featuring lab grown gemstones, we believe the addition of lab grown diamonds is a natural progression for
the Charles & Colvard brand. In September 2020, we announced our expansion into the lab grown diamond market with the launch of Caydia®,
our brand of premium lab grown diamonds.
We offer
gemstones and finished jewelry featuring our proprietary moissanite jewels, premium lab grown diamonds, and created color gemstones for
sale in the worldwide fine jewelry market through two operating segments: our Online Channels segment, which encompasses our digital
properties components, comprised of our charlesandcolvard.com, moissaniteoutlet.com, charlesandcolvarddirect.com, and madeshopping.com
websites, e-commerce outlets, including marketplaces, drop-ship customers, and other pure-play, exclusively e-commerce customers;
and our Traditional segment, which consists of domestic and international distributors and retail customers, including end-consumers
through our first Charles & Colvard Signature Showroom, which opened in October 2022. We report segment information based
on the “management” approach. This segment reporting approach designates the internal reporting used by management for making
operating decisions and assessing performance as the source of our operating and reportable segments. We operate in an e-commerce
environment characterized by both complexity in global markets and ongoing economic uncertainties in the U.S. and internationally. Our
strategy is to build a globally revered and accessible brand of gemstones and finished fine jewelry products set with moissanite and
lab grown diamonds. We believe our goods appeal to a broad consumer audience and leverage our advantage of being the original and leading
worldwide source of moissanite and purveyor of premium lab grown diamonds. We believe a direct relationship with consumers is an essential
component of this strategy, which entails delivering tailored educational content, engaging in an interactive dialogue with our audience,
and positioning our brand to meet the demands of today’s discerning consumer. A significant component of our strategy in this environment
is to focus on our core products, improving the quality and predictability of the delivery of our products and services and placing those
products quickly into the hands of our U.S. and international customers at affordable prices.
Moreover,
recognizing today that our customers and vendors are resource-constrained, we are endeavoring to develop and extend our portfolio of
products in a disciplined manner with a focus on domestic markets close to our core capabilities, and growing our global marketplace
sales. We continue to focus on affordability initiatives. We also expect to continue innovating and investing in lab created gemstone
technologies to fulfill evolving product requirements for our customers and investing in our people so that we have the technical and
production skills necessary to succeed without limiting our ability to build sound financial returns to our investors.
Corporate Information
We were incorporated under the laws of the State of North Carolina
in 1995. Our principal executive offices are located at 170 Southport Drive, Morrisville, North Carolina 27560, and our telephone number
is (919) 468-0399. Our Internet address is www.charlesandcolvard.com. The information on our website is not incorporated by reference
into this prospectus, and you should not consider it part of this prospectus.
RISK FACTORS
Investing in our securities involves a high degree of risk. You should
carefully consider the risk factors described in our Annual Report on Form 10-K for our most recent fiscal year (together with any material
changes thereto contained in subsequent filed Quarterly Reports on Form 10-Q) and those contained in our other filings with the SEC,
which are incorporated by reference in this prospectus and any accompanying prospectus supplement.
The prospectus supplement applicable to each type or series of securities
we offer may contain a discussion of risks applicable to the particular types of securities that we are offering under that prospectus
supplement. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed
under the caption “Risk Factors” in the applicable prospectus supplement, together with all of the other information
contained in the prospectus supplement or appearing or incorporated by reference in this prospectus. These risks could materially affect
our business, results of operations or financial condition and cause the value of our securities to decline. You could lose all or part
of your investment.
USE OF PROCEEDS
Except as described in any applicable prospectus supplement or in
any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds
from the sale of the securities offered by us hereunder, if any, for working capital and general corporate purposes, including, among
other things, capital expenditures.
The amounts and timing of our use of the net proceeds from this offering
will depend on a number of factors, such as the timing and progress of our strategic initiatives, technological advances and the competitive
environment for our products. As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the
net proceeds to us from the sale of the securities offered by us hereunder. As a result, our management will have broad discretion to
allocate the net proceeds, if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending
application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing
securities.
DESCRIPTION OF SECURITIES WE MAY OFFER
We may issue from time to time, in one or more offerings, the following
securities:
| · | shares of preferred
stock; |
| · | warrants for the purchase
of common stock or preferred stock; and |
| · | units consisting of
two or more of the foregoing. |
Set forth below is a description of the capital stock that may be
offered under this prospectus. We will set forth in the applicable prospectus supplement and/or free writing prospectus a description
of the warrants that may be offered under this prospectus. The terms of the offering of our common stock, preferred stock or any such
other securities, the initial offering price and the net proceeds to us will be contained in the prospectus supplement, and other offering
material, relating to such offer.
We may sell the securities being offered pursuant to this prospectus
directly to purchasers, to or through underwriters, through dealers or agents, or through a combination of such methods. The prospectus
supplement with respect to the securities being offered will set forth the terms of the offering of those securities, including the names
of any such underwriters, dealers or agents, the purchase price, the net proceeds to us, any underwriting discounts and other items constituting
underwriters’ compensation, the public offering price, any discounts or concessions allowed or reallowed or paid to dealers and
any securities exchanges on which such securities may be listed.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is based upon our Restated
Articles of Incorporation, as amended, which we will refer to hereafter as our Articles of Incorporation, our Amended and Restated Bylaws,
which we will refer to hereafter as our Bylaws, and applicable provisions of law. We have summarized certain portions of the Articles
of Incorporation and Bylaws below. The summary is not complete and is qualified in its entirety by reference to the Articles of Incorporation
and Bylaws, which are incorporated by reference as exhibits to the registration statement of which this prospectus forms a part. You
should read the Articles of Incorporation and Bylaws for the provisions that are important to you.
Our authorized capital stock consists of 50,000,000 shares of
common stock, no par value per share, and 10,000,000 shares of preferred stock in one or more series, no par value per share. As of
May 24, 2024, there were 3,118,273 shares of our common stock outstanding held of record by 215 shareholders. In addition, there are
outstanding options and rights to acquire up to an additional 282,073 shares of common stock. As of May 24, 2024, there were no
shares of preferred stock outstanding.
Common Stock
Holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of shareholders and do not have cumulative voting rights. An election of directors by our shareholders
shall be determined by a plurality of the votes cast by the shareholders entitled to vote on the election. Holders of common stock are
entitled to receive proportionately any dividends as may be declared and paid by our board of directors, subject to such funds being
legally available for the payment of dividends and any preferential dividend rights of any series of preferred stock that we may designate
and issue in the future.
In the event of our liquidation, dissolution or winding up, the holders
of common stock are entitled to receive proportionately our net assets available for distribution to shareholders after the payment of
all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders of common stock have no preemptive,
subscription, redemption or conversion rights. Our outstanding shares of common stock are, and the shares offered by us in this offering
will be, when issued and paid for, validly issued, fully paid and nonassessable.
The rights, preferences and privileges of holders of common stock
are subject to and may be adversely affected by the rights of the holders of shares of any series of preferred stock that we may designate
and issue in the future.
The transfer agent for our common stock is Equiniti Trust Company,
LLC. Our common stock is traded on the Nasdaq Capital Market and is quoted under the symbol CTHR.
Preferred Stock
Under the terms of our Articles of Incorporation, our board of directors
is authorized to provide for the issuance of shares of preferred stock in one or more series without shareholder approval. Our board
of directors has the discretion to determine the preferences, limitations and relative rights, including voting rights, dividend rights,
conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock. The preferred stock may have
voting or conversion rights that could have the effect of restricting dividends on our common stock, diluting the voting power of our
shares of common stock, impairing the rights of our common stock in the event of our dissolution, liquidation or winding-up or otherwise
adversely affecting the rights of holders of our common stock. The holders of preferred stock are not entitled to vote at any meeting
of shareholders, except as otherwise provided in the rights and restrictions attached to the shares by our board of directors.
We will fix the rights, preferences, privileges, qualifications and
restrictions of the preferred stock of each series that we sell under this prospectus and any applicable prospectus supplements in one
or more articles of amendment to our Articles of Incorporation relating to that series. We will incorporate by reference into the registration
statement of which this prospectus is a part the form of any articles of amendment to our Articles of Incorporation that describe the
terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. We urge you to read
the prospectus supplements (and any related free writing prospectus that we may authorize to be provided to you) related to the series
of preferred stock being offered, as well as the complete articles of amendment to our Articles of Incorporation that contain the terms
of the applicable series of preferred stock.
Anti-Takeover Effects of Our Articles of Incorporation and Bylaws
Our Articles of Incorporation and Bylaws contain provisions that will
make it more difficult for our existing shareholders to replace our board of directors as well as for another party to obtain control
of the Company by replacing our board of directors. Since our board of directors has the power to retain and discharge our officers,
these provisions could also make it more difficult for existing shareholders or another party to effect a change in management or could
otherwise impede the success of any attempt to change the control of the Company.
These provisions are intended to enhance the likelihood of continued
stability in the composition of our board of directors and its policies and to discourage certain types of transactions that may involve
an actual or threatened acquisition of the Company. These provisions are also designed to reduce our vulnerability to an unsolicited
acquisition proposal and to discourage certain tactics that may be used in proxy fights. However, these provisions could have the effect
of discouraging others from making tender offers for our shares and may have the effect of deterring hostile takeovers or delaying changes
in control of the Company or management. As a consequence, these provisions also may inhibit fluctuations in the market price of our
stock that could result from actual or rumored takeover attempts.
Authorized
but Unissued Stock. Our Articles of Incorporation authorize the issuance of a significant number of shares of common stock
and preferred stock. A large quantity of authorized but unissued shares may deter potential takeover attempts because of the ability
of our board of directors to authorize the issuance of some or all of these shares to a friendly party, or to the public, which would
make it more difficult for a potential acquirer to obtain control of the Company. This possibility may encourage persons seeking to acquire
control of the Company to negotiate first with our board of directors.
Our authorized but unissued shares of preferred stock could also have
anti-takeover effects. Under certain circumstances, any or all of the preferred stock could be used as a method of discouraging, delaying
or preventing a change in control or management of the Company. For example, our board of directors could designate and issue a series
of preferred stock in an amount that sufficiently increases the number of outstanding shares to overcome a vote by the holders of common
stock, or with rights and preferences that include special voting rights to veto a change in control. The preferred stock could also
be used in connection with the issuance of a shareholder rights plan, sometimes referred to as a “poison pill.” Our board
of directors is able to implement a shareholder rights plan without further action by our shareholders.
Use of our preferred stock in the foregoing manner could delay or
frustrate a merger, tender offer or proxy contest, the removal of incumbent directors or the assumption of control by shareholders, even
if these actions would be beneficial to our shareholders. In addition, the existence of authorized but unissued shares of preferred stock
could discourage bids for the Company even if such bid represents a premium over our then-existing trading price.
No Cumulative
Voting. Because our shareholders do not have cumulative voting rights, our shareholders holding a majority of the voting power
of our shares of common stock outstanding will be able to elect all of our directors.
Special
Meetings of Shareholders. Our Bylaws provide that special meetings of shareholders may be called only by our president or
by our board of directors. Shareholders are not permitted to call a special meeting of shareholders or to require that our president
or our board of directors request the calling of a special meeting of shareholders. These provisions may make a change in control of
the Company more difficult by delaying shareholder actions to elect directors until the next annual shareholder meeting.
Advance
Notice Requirement. Shareholder proposals to be brought before an annual meeting of our shareholders must comply with advance
notice procedures. These advance notice procedures require timely notice and apply in several situations, including shareholder proposals
relating to the nomination of persons for election to our board of directors. Generally, to be timely, notice must be delivered to or
mailed and received at our principal executive offices not less than 60 nor more than 90 days prior to the first anniversary of the notice
date in our proxy statement for the previous year’s annual meeting of shareholders. These provisions may have the effect of precluding
the conduct of certain business at a meeting if the proper procedures are not followed. These provisions may also discourage or deter
a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting
to obtain control of the Company.
Election
and Removal of Directors; Filling Vacancies. Our Bylaws permit vacancies in our board of directors to be filled by our board
of directors, or in the event that the remaining directors in office constitute fewer than a quorum of the board of directors, by the
affirmative vote of a majority of the remaining directors or by a plurality of the votes cast at a meeting of shareholders. Given that
a special shareholder meeting may only be called by our president or by our board of directors, effectively only the board of directors
may fill vacancies.
While we do not currently have a classified board, our Bylaws provide
that at any time that we have nine or more directors, the directors will be divided into three classes, as nearly equal in number as
possible. As a result, if we have nine or more directors, only one class of directors will be elected at each annual meeting of shareholders,
with the other classes continuing for the remainder of their respective three-year terms. The classification of our board of directors
and provisions described above may have the effect of delaying or preventing changes in our control or management.
Shareholder
Approval of Certain Business Combinations. Our Articles of Incorporation contain a supermajority vote provision requiring
approval of two-thirds in interest of our issued and outstanding voting shares for certain business combinations involving significant
beneficial owners, or Interested Shareholders, such as a merger, unless (i) the business combination has been approved by at least two-thirds
of the directors serving on the date the supermajority provisions of the articles of incorporation were adopted by our shareholders,
or directors who have been nominated by us to directly succeed such a director or to join the board of directors, or the Continuing Directors,
and, if deemed advisable by a majority of the Continuing Directors, the Board has obtained an opinion of a reputable investment banking
firm stating that the financial terms of such business combination are fair from a financial point of view to the holders of our voting
shares, or (ii) all of the following conditions are satisfied: (A) the consideration to be received by the shareholders is cash or in
the same form as previously paid by or on behalf of any Interested Shareholder in connection with its direct or indirect acquisition
of beneficial ownership of any shares of common stock, (B) the aggregate amount of the cash and the fair market value of consideration
other than cash to be received per share by holders of common stock in any business combination is at least equal to the greater of (1)
the fair market value per share of common stock on the date of the first public announcement of the proposal of a business combination,
or the Announcement Date, or on the date on which the Interested Shareholder became an Interested Shareholder, whichever is higher, multiplied
by the ratio of (a) the highest per share price paid by the Interested Shareholder for any shares of common stock acquired by it within
the two-year period immediately prior to the Announcement Date to (b) the fair market value per share of common stock on the first day
in such two-year period on which the Interested Shareholder acquired any shares of common stock, or (2) the highest per share price paid
by such Interested Shareholder in acquiring any of our common stock; and (C) after becoming an Interested Shareholder and prior to the
consummation of any business combination, (1) such Interested Shareholder must not have acquired any newly issued shares of capital stock,
directly or indirectly, from us (except upon conversion of convertible securities acquired by it prior to becoming an Interested Shareholder
or upon compliance with the supermajority provisions of the Articles of Incorporation or as a result of a pro rata stock dividend or
stock split) and (2) such Interested Shareholder must not have received the benefit, directly or indirectly (except proportionately as
a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or tax credits provided by us, or made any
significant changes in our business or equity capital structure.
DESCRIPTION OF WARRANTS WE MAY OFFER
We may issue warrants for the purchase of common stock or preferred
stock. Warrants may be issued independently or together with common stock or preferred stock and may be attached to or separate from
any offered securities. Any issue of warrants will be governed by the terms of the applicable form of warrant and any related warrant
agreement which we will file with the SEC and they will be incorporated by reference to the registration statement of which this prospectus
is a part on or before the time we issue any warrants.
The particular terms of any issue of warrants will be described in
the prospectus supplement relating to the issue. Those terms may include:
| · | the title of such
warrants; |
| · | the aggregate number
of such warrants; |
| · | the price or prices
at which such warrants will be issued; |
| · | the currency or currencies
(including composite currencies) in which the price of such warrants may be payable; |
| · | the terms of the securities
issuable upon exercise of such warrants and the procedures and conditions relating to the
exercise of such warrants; |
| · | the price at which
the securities issuable upon exercise of such warrants may be acquired; |
| · | the dates on which
the right to exercise such warrants will commence and expire; |
| · | any provisions for
adjustment of the number or amount of securities receivable upon exercise of the warrants
or the exercise price of the warrants; |
| · | if applicable, the
minimum or maximum amount of such warrants that may be exercised at any one time; |
| · | if applicable, the
designation and terms of the securities with which such warrants are issued and the number
of such warrants issued with each such security or principal amount of such security; |
| · | if applicable, the
date on and after which such warrants and the related securities will be separately transferable; |
| · | information with respect
to book-entry procedures, if any; and |
| · | any other terms of
such warrants, including terms, procedures and limitations relating to the exchange or exercise
of such warrants. |
The prospectus supplement relating to any warrants to purchase equity
securities may also include, if applicable, a discussion of certain U.S. federal income tax and ERISA considerations.
Warrants for the purchase of common stock and preferred stock will
be offered and exercisable for U.S. dollars only.
Each warrant will entitle its holder to purchase the number of shares
of common stock or preferred stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants
will become void. We will specify the place or places where, and the manner in which, warrants may be exercised in the applicable prospectus
supplement.
Prior to the exercise of any warrants to purchase common stock or
preferred stock, holders of the warrants will not have any of the rights of holders of the common stock or preferred stock purchasable
upon exercise.
DESCRIPTION OF UNITS WE MAY OFFER
We may issue units consisting of any combination of the other types
of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates that we
will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company
that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular
series of units.
The following description, together with the additional information
included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this prospectus.
We urge you to read the prospectus supplements (and any related free writing prospectus that we may authorize to be provided to you)
related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific unit
agreements will contain additional important terms and provisions and we will file as an exhibit to the registration statement of which
this prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement
relating to units offered under this prospectus.
If we offer any units, certain terms of that series of units will
be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
| · | the title of the series
of units; |
| · | identification and
description of the separate constituent securities comprised in the units; |
| · | the price or prices
at which the units will be issued; |
| · | the date, if any,
on and after which the constituent securities comprised in the units will be separately transferable; |
| · | a discussion of certain
U.S. federal income tax considerations applicable to the units; and |
| · | any other terms of
the units and their constituent securities. |
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus to one or more
underwriters or dealers for public offering, through agents, directly to purchasers or through a combination of any such methods of sale.
The name of any such underwriters, dealers or agents involved in the offer and sale of the securities, the amounts underwritten
and the nature of its obligation to take the securities will be specified in the applicable prospectus supplement. We have reserved
the right to sell the securities directly to investors on our own behalf in those jurisdictions where we are authorized to do so. The
sale of the securities may be effected in transactions (a) on any national or international securities exchange or quotation service
on which the securities may be listed or quoted at the time of sale, (b) in the over-the-counter market, (c) in transactions otherwise
than on such exchanges or in the over-the-counter market or (d) through the writing of options.
We and our agents and underwriters may offer and sell the securities
at a fixed price or prices that may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The securities may be offered on an exchange, which will be disclosed in the applicable
prospectus supplement. We may, from time to time, authorize dealers, acting as our agents, to offer and sell the securities upon
such terms and conditions as set forth in the applicable prospectus supplement. We may also sell the securities offered by any applicable
prospectus supplement in “at-the-market offerings” within the meaning of Rule 415 of the Securities Act, to or through a
market maker or into an existing trading market, on an exchange or otherwise.
If we use underwriters to sell securities, we will enter into an underwriting
agreement with them at the time of the sale to them. In connection with the sale of the securities, underwriters may receive compensation
from us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of the securities for whom
they may act as agent. Any underwriting compensation paid by us to underwriters or agents in connection with the offering of the
securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the
applicable prospectus supplement to the extent required by applicable law. Underwriters may sell the securities to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions (which
may be changed from time to time) from the purchasers for whom they may act as agents.
Dealers and agents participating in the distribution of the securities
may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the
securities may be deemed to be underwriting discounts and commissions under the Securities Act. Unless otherwise indicated in the applicable
prospectus supplement, an agent will be acting on a best efforts basis.
If so indicated in the prospectus supplement, we will authorize underwriters,
dealers or agents to solicit offers by certain specified institutions to purchase offered securities from us at the public offering price
set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date
in the future. Such contracts will be subject to any conditions set forth in the applicable prospectus supplement and the prospectus
supplement will set forth the commission payable for solicitation of such contracts. The underwriters and other persons soliciting
such contracts will have no responsibility for the validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled, under agreements
entered into with us, to indemnification against and contribution towards certain civil liabilities, including any liabilities under
the Securities Act.
To facilitate the offering of securities, certain persons participating
in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price of the securities. These may
include over-allotment, stabilization, syndicate short covering transactions and penalty bids. Over-allotment involves sales in
excess of the offering size, which creates a short position. Stabilizing transactions involve bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum. Syndicate short covering transactions involve purchases of securities
in the open market after the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the
underwriters to reclaim selling concessions from dealers when the securities originally sold by the dealers are purchased in covering
transactions to cover syndicate short positions. These transactions may cause the price of the securities sold in an offering to
be higher than it would otherwise be. These transactions, if commenced, may be discontinued by the underwriters at any time.
Any securities other than our common stock issued hereunder may be
new issues of securities with no established trading market. Any underwriters or agents to or through whom such securities are
sold for public offering and sale may make a market in such securities, but such underwriters or agents will not be obligated to do so
and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of the trading
market for any such securities. The amount of expenses expected to be incurred by us in connection with any issuance of securities
will be set forth in the applicable prospectus supplement. Certain of the underwriters, dealers or agents and their associates
may engage in transactions with, and perform services for, us and certain of our affiliates in the ordinary course of business.
During such time as we may be engaged in a distribution of the securities
covered by this prospectus we are required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions,
Regulation M precludes us, any affiliated purchasers, and any broker-dealer or other person who participates in such distribution from
bidding for or purchasing, or attempting to induce any person to bid for or purchase, any security which is the subject of the distribution
until the entire distribution is complete. Regulation M also restricts bids or purchases made in order to stabilize the price of
a security in connection with the distribution of that security. All of the foregoing may affect the marketability of our shares
of common stock.
LEGAL MATTERS
The validity and legality of the securities offered hereby and certain
other legal matters will be passed upon for the Company by K&L Gates LLP, Raleigh, North Carolina.
EXPERTS
The consolidated financial statements as of June 30, 2023 and 2022
and for the years then ended incorporated by reference in this Prospectus and in the Registration Statement have been so incorporated
in reliance on the report of BDO USA, P.C., an independent registered public accounting firm, incorporated herein by reference, given
on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current 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.
Copies of certain information filed by us with the SEC are also available on our website at www.charlesandcolvard.com. Our website is
not a part of this prospectus and is not incorporated by reference in this prospectus.
This prospectus is part of a registration statement we filed with
the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations.
You should review the information and exhibits in the registration statement for further information about us and our consolidated subsidiary
and the securities we are offering. Statements in this prospectus concerning any document we 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 by reference to these filings
and the exhibits attached thereto. You should review the complete document to evaluate these statements.
INCORPORATION 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:
| |
· |
Annual Report on Form 10-K for the fiscal year ended
June 30, 2023 filed with the SEC on October 12, 2023; |
| |
· |
Quarterly Reports on Form 10-Q for the period ended
September 30, 2023, filed with the SEC on November 13, 2023, for the period ended December 31, 2023, filed with the SEC on February 14, 2024, and for the period ended March 31, 2024, filed with the SEC on May 2, 2024; |
| |
· |
The information incorporated by reference into our
Annual Report on Form 10-K for the fiscal year ended June 30, 2023 from our Proxy Statement on Schedule 14A related to our 2023 Annual
Meeting of Stockholders, filed with the SEC on October 27, 2023; and |
| |
· |
The description of our common stock set forth in Exhibit 4.2 to our Annual Report on Form 10-K for the fiscal year ended June 30, 2021, including any amendments or reports filed for purposes
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 statement contained in a document incorporated
or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded for purposes of this prospectus
to the extent that a statement contained in this prospectus or in any other subsequently filed document which also is or is deemed to
be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement that is modified or superseded will
not constitute a part of this prospectus, except as modified or superseded.
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 Charles & Colvard, Ltd., 170 Southport Drive, Morrisville, North Carolina 27560; Telephone: (919) 468-0399. Copies
of the above reports may also be accessed from our web site at www.charlesandcolvard.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.
Charles & Colvard, Ltd.
$25,000,000
Common Stock
Preferred Stock
Warrants
Units
PROSPECTUS
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of expenses of the Company
in connection with the issuance and delivery of the securities being registered hereby, other than underwriting discounts and commissions.
| SEC registration fee | |
| | | |
$ | 2,943.24 | (1) |
| Printing Expenses | |
| | | |
| * | |
| NASDAQ Listing Fees | |
| | | |
| * | |
| Trustee Fees and Expenses | |
| | | |
| * | |
| Accounting Fees and Expenses | |
| | | |
| * | |
| Legal Fees and Expenses | |
| | | |
| * | |
| Miscellaneous | |
| | | |
| * | |
| Total | |
| $ | | |
| * | |
(1) In
accordance with Rule 415(a)(6) under the Securities Act, the filing fees previously paid in connection with the securities registered
under the Registration Statement on Form S-3 (File No. 333-256495), $25,000,000 worth of securities of which remain unsold, will continue
to be applied to the securities registered under this registration statement. Please see the registration fee table contained in Exhibit
107 to this registration statement for more information.
* These
fees will be dependent on the types of securities offered and number of offerings and, therefore, cannot be estimated at this time.
An estimate of the aggregate expenses in connection with the sale and distribution of securities being offered will be included in the
applicable prospectus supplement.
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 Restated Articles of Incorporation of Charles & Colvard, Ltd., a North
Carolina corporation.
Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation
Act, or the NCBCA, permit a corporation to indemnify its directors, officers, employees, or agents under either or both a statutory or
non-statutory scheme of indemnification. Under the statutory scheme, a corporation may, with certain exceptions, indemnify a director,
officer, employee, or agent of the corporation who was, is, or is threatened to be made, a party to any threatened, pending, or completed
legal action, suit, or proceeding, whether civil, criminal, administrative, or investigative, because such person is or was a director,
officer, agent, or employee of the corporation, or is or was serving at the request of such corporation as a director, officer, employee,
or agent of another corporation or enterprise. This indemnity may include the obligation to pay any judgment, settlement, penalty, fine
(including an excise tax assessed with respect to an employee benefit plan), and reasonable expenses incurred in connection with a proceeding
(including counsel fees), but no such indemnification may be granted unless such director, officer, agent or employee (i) conducted himself
in good faith, (ii) reasonably believed (A) that their or his or her conduct in their or his or her official capacity with the corporation
was in the best interests of the corporation or (B) that in all other cases their or his or her conduct at least was not opposed to the
corporation’s best interests, and (iii) in the case of any criminal proceeding, had no reasonable cause to believe their or his
or her conduct was unlawful. Whether a director, officer, employee or agent has met the requisite standard of conduct for the type of
indemnification set forth above is determined by the board of directors, a committee of directors, special legal counsel, or the shareholders
in accordance with Section 55-8-55. A corporation may not indemnify a director, officer, agent, or employee under the statutory scheme
in connection with a proceeding by or in the right of the corporation in which the director, officer, agent, or employee was adjudged
liable to the corporation or in connection with a proceeding in which a director, officer, agent, or employee was adjudged liable on
the basis of having received an improper personal benefit.
In addition to, and separate and apart from the indemnification described
above under the statutory scheme, Section 55-8-57 of the NCBCA permits a corporation to indemnify or agree to indemnify any of its directors,
officers, employees, or agents against liability and expenses (including counsel fees) in any proceeding (including proceedings brought
by or on behalf of the corporation) arising out of their status as such or their activities in any of such capacities; provided, however,
that a corporation may not indemnify or agree to indemnify a person against liability or expenses such person may incur on account of
activities that were, at the time taken, known or believed by the person to be clearly in conflict with the best interests of the corporation.
Our Bylaws provide for indemnification, to the fullest extent from
time to time permitted by law, of any person who at any time serves or has served as a director or officer of the Company, or, at our
request, is or was serving as a director or officer of another entity in the event such person is made, or is threatened to be made,
a party to any threatened, pending, or completed civil, criminal, administrative, or investigative action, suit, or proceeding, and any
appeal of such an action, whether or not brought by or on behalf of the Company, seeking to hold such person liable by reason of the
fact that he or she is or was acting in such capacity.
The rights of indemnification found in our Bylaws cover:
| |
· |
reasonable expenses, including without limitation all
attorneys’ fees actually incurred by such person in connection with any action, suit or proceeding; |
| |
· |
payments in satisfaction of any judgment, money decree,
fine, penalty or settlement; and |
| |
· |
all reasonable expenses incurred in enforcing such
person’s indemnification rights. |
Sections 55-8-52 and 55-8-56 of the NCBCA require a corporation, unless
limited by its articles of incorporation, to indemnify a director or officer who has been wholly successful, on the merits or otherwise,
in the defense of any proceeding to which such director or officer was a party because he or she is or was a director or officer of the
corporation against reasonable expenses incurred in connection with the proceeding. Unless a corporation’s articles of incorporation
provide otherwise, a director or officer also may apply for and obtain court-ordered indemnification if the court determines that such
director or officer is fairly and reasonably entitled to such indemnification as provided in Sections 55-8-54 and 55-8-56.
Finally, Section 55-8-57 of the NCBCA provides that a corporation
may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the corporation
against liability asserted against or incurred by such person, whether or not the corporation is otherwise authorized by the NCBCA to
indemnify such party. Our directors and officers are currently covered under directors’ and officers’ insurance policies
maintained by the Company. Our Articles of Incorporation do not limit the personal liability of directors for monetary damages for breaches
of duty as a director.
The limitations of liability and indemnification provisions in our
Articles of Incorporation and Bylaws may discourage shareholders from bringing a lawsuit against directors for breach of their fiduciary
duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even
though such an action, if successful, might otherwise benefit our stockholders and us. In addition, your investment may be adversely
affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification
provisions.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been
advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Item 16. Exhibits.
* To be filed, if necessary, with a Current Report on Form 8-K or
a Post-Effective Amendment to the registration statement.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities and Exchange Commission such indemnification by it
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.
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;
(ii) to
reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 this registration statement or
any material change to such information in this registration statement;
provided,
however, that subparagraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective
amendment by those subparagraphs 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 this 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, 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 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.
(5) 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.
(6) That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: the undersigned
registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other free writing
prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or
on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made by the undersigned registrant
to the purchaser.
(7) 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 this 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.
(8) That, for purposes of
determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was
declared effective.
(9) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(10) To file an application
for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
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 Town of Morrisville, State
of North Carolina, on this 31st day of May 2024.
| |
CHARLES & COLVARD, LTD. |
| |
|
| |
/s/ Don O’Connell |
| |
Don O’Connell |
| |
Director, President and Chief Executive Officer |
| |
(Principal Executive Officer) |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Don O’Connell and Clint J. Pete, and each of them, their or his or her true and lawful attorney-in-fact and agent, each with full
power of substitution and resubstitution, severally, for him and in their or 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 file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as s/he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them or their or his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof. This power of attorney may be executed in counterparts.
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.
| Dated:
May 31, 2024 | |
/s/
Don O’Connell |
| | |
Don O’Connell
Director, President and Chief Executive Officer
(Principal Executive Officer) |
| | |
|
| Dated:
May 31, 2024 | |
/s/ Clint
J. Pete |
| | |
Clint J. Pete
Chief Financial Officer
(Principal Financial Officer and
Chief Accounting Officer) |
| | |
|
| Dated:
May 31, 2024 | |
/s/ Neal
I. Goldman |
| | |
Neal I. Goldman, Chairman of the Board of Directors |
| | |
|
| Dated:
May 31, 2024 | |
/s/ Anne
M. Butler |
| | |
Anne M. Butler, Director |
| | |
|
| Dated:
May 31, 2024 | |
/s/ Benedetta
Casamento |
| | |
Benedetta Casamento, Director |
| | |
|
| Dated:
May 31, 2024 | |
/s/ Ollin
B. Sykes |
| | |
Ollin B.
Sykes, Director |
Exhibit 5.1
May
31, 2024
Charles & Colvard, Ltd.
170 Southport Drive
Morrisville, North Carolina 27560
Ladies and Gentlemen:
We have acted as special counsel to Charles &
Colvard, Ltd., a North Carolina corporation (the “Company”), in connection with the Registration Statement on Form
S-3 (the “Registration Statement”) filed on the date hereof by the Company with the Securities and Exchange Commission
(the “SEC”) under the Securities Act of 1933, as amended (the “1933 Act”). The Registration Statement
relates to, among other things, the issuance and sale from time to time pursuant to Rule 415 promulgated under the Securities Act of the
following securities:
| (i) | common stock, no par value per share, of the Company (the “Common Stock”); |
| (ii) | preferred stock, no par value per share, of the Company (the “Preferred Stock”); |
| (iii) | warrants to purchase Common Stock or Preferred Stock (the “Warrants”); and |
| (iv) | units composed of any combination of Common Stock, Preferred Stock or Warrants (the “Units”). |
The Common Stock, Preferred Stock, Warrants and
Units are collectively referred to herein as the “Securities.” The maximum public offering price of the Securities
being registered is $25,000,000.
This opinion letter is being delivered in accordance
with the requirements of Paragraph 29 of Schedule A of the 1933 Act and Item 601(b)(5)(i) of Regulation S-K.
In
connection with rendering the opinions set forth below, we have examined: (i) the Registration Statement, including the exhibits filed
therewith; (ii) the prospectus included in the Registration Statement; (iii) the Company’s Restated Articles of Incorporation,
as amended (the “Charter”); (iv) the Company’s Amended and Restated Bylaws (the “Bylaws”);
and (v) resolutions adopted by unanimous written consent signed by the Board of Directors of the Company (the “Board of Directors”)
on May 30, 2024 relating to the Registration Statement. We have also examined and relied upon certificates of public officials and, as
to certain matters of fact that are material to our opinion, we have also relied upon a certificate of an officer of the Company.
In rendering our opinion, we also have made the
assumptions that are customary in opinion letters of this kind. We have not verified any such assumptions.
K&L Gates LLP 301 Hillsborough St Suite 1200 Raleigh NC 27603 T +1 919 743 7300 F +1 919 743 7358 klgates.com |
Charles & Colvard, Ltd.
May 31, 2024
Page 2
Our opinions set forth below are limited to: (i)
the federal laws of the United States; (ii) solely in connection with the opinions given in numbered paragraphs 1, 2 and 5(a) below, the
laws of the State of North Carolina; and (iii) solely in connection with the opinions given in numbered paragraphs 3, 4 and 5(b) below,
the law of the State of New York. We are not opining on, and we assume no responsibility for, the applicability to or effect on any of
the matters covered herein of (i) any other laws; (ii) the laws of any other jurisdiction; or (iii) the law of any county, municipality
or other political subdivision or local governmental agency or authority. We express no opinion with respect to the Corporate Transparency
Act,
Based on and subject to the foregoing, and assuming
that (i) the Registration Statement and any required post-effective amendment thereto will be effective and will comply with all applicable
laws at the time the relevant Securities are offered or issued as contemplated by the Registration Statement or any such post-effective
amendment; (ii) a prospectus supplement will have been prepared and filed with the SEC describing the Securities offered thereby and will
comply with all applicable laws; (iii) all Securities will be issued and sold in compliance with applicable federal and state securities
laws and in the manner stated in the Registration Statement and the applicable prospectus supplement; (iv) the Board of Directors, and/or
any duly authorized committee thereof, shall not have rescinded or otherwise modified its authorization of any such issuance of Securities
or the establishment of the terms of any series of such Securities or any related matters; (v) the Company shall remain at all times a
corporation duly incorporated, validly existing and in good standing under the laws of the State of North Carolina; and (vi) the additional
qualifications and other matters set forth below, it is our opinion that:
| 1. | When (i) the terms of an issuance and sale of Common Stock have been duly authorized and approved by all necessary action of (A) the
Board of Directors, and/or or a duly authorized committee thereof, and (B) the Company’s stockholders, so as not to violate any
applicable law, rule or regulation, or result in a default under or a breach of any agreement or instrument binding upon the Company,
including, without limitation, the Charter, as it may be amended from time to time, hereafter and so as to comply with any applicable
requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (ii) certificates representing
the shares of the Common Stock have been duly executed, issued and delivered or such shares of Common Stock have been issued in uncertificated
form, in each case, to the extent contemplated by the Registration Statement and any prospectus supplement relating thereto and in accordance
with any agreement or instrument binding upon the Company and the laws of the State of North Carolina, and (iii) notation of the issuance
of the shares of Common Stock has been properly made in the Company’s stock ledger, upon payment of the consideration fixed therefor
in accordance with the applicable definitive purchase, underwriting or similar agreement which is enforceable against all parties thereto
in accordance with its terms, the Common Stock will be validly issued, fully paid and nonassessable. |
Charles & Colvard, Ltd.
May 31, 2024
Page 3
| 2. | Assuming the terms of such Preferred Stock have been duly established so as not to violate any applicable law, rule or regulation,
or result in a default under or breach of any agreement or instrument binding upon the Company, including, without limitation, the Charter,
as it may be amended from time to time, hereafter and so as to comply with any applicable requirement or restriction imposed by any court
or governmental body having jurisdiction over the Company, when (i) the preferences, limitations and relative rights of the Preferred
Stock have been duly established in conformity with the Charter, as it may be amended from time to time hereafter, and such preferences,
limitations and relative rights of the Preferred Stock and the issuance and sale thereof have been duly authorized and approved by all
necessary action of the Board of Directors, and/or a duly authorized committee thereof; (ii) an amendment to, or restatement of, the Charter,
as then in effect, fixing and determining the preferences, limitations and relative rights of the Preferred Stock has been duly authorized
by the Board of Directors and stockholders, if applicable, and filed with the Secretary of State of the State of North Carolina and become
effective; (iii) certificates representing the shares of the Preferred Stock have been duly executed, issued and delivered or such shares
of Preferred Stock have been issued in uncertificated form, in each case, to the extent contemplated by the Registration Statement and
any prospectus supplement relating thereto and in accordance with any agreement or instrument binding upon the Company and the laws of
the State of North Carolina, and (iv) notation of the issuance of the shares of Preferred Stock has been properly made in the Company’s
stock ledger, upon payment of the consideration fixed therefor in accordance with the applicable definitive purchase, underwriting or
similar agreement which is enforceable against the parties thereto in accordance with its terms, and/or a duly authorized committee thereof,
the Preferred Stock will be validly issued, fully paid and nonassessable. |
| 3. | Assuming the form and terms of such Warrants have been duly established in accordance with the applicable warrant agreement pursuant
to which the Warrants are to be issued (the “Warrant Agreement”) so as not to violate any applicable law, rule or regulation
or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any applicable
requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and assuming that the Warrants
and the Warrant Agreement are governed by the laws of the State of New York, when (i) the form, terms and the execution and delivery of
the Warrant Agreement relating to any Warrants and the terms of the Warrants, and of their issuance and sale, have been duly authorized
and approved by all necessary action of the Board of Directors, and/or a duly authorized committee thereof; (ii) the Warrant Agreement
relating to the Warrants has been duly executed and delivered by the Company and is enforceable against the parties thereto in accordance
with its terms; and (iii) the Warrants or certificates representing the Warrants, as the case may be, have been duly executed, authenticated
(if required), issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto and in
accordance with the terms of the applicable Warrant Agreement and any other agreement or instrument binding upon the Company and enforceable
against the parties thereto in accordance with its terms, upon payment of the consideration fixed therefor in accordance with the applicable
Warrant Agreement and the applicable definitive purchase, underwriting or similar agreement duly authorized by the Board of Directors,
and/or a duly authorized committee thereof and enforceable against the parties thereto in accordance with its terms, the Warrants will
constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subject to the
effect of bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium and other laws affecting the rights and
remedies of creditors or secured parties generally, and to the exercise of judicial discretion in accordance with general principles of
equity, whether applied by a court of law or equity). |
Charles & Colvard, Ltd.
May 31, 2024
Page 4
| 4. | Assuming that (A) the combination of the Securities of which such Units consist has been duly authorized and approved by all necessary
action of the Board of Directors, and/or a duly authorized committee thereof and of the stockholders, if applicable, and (B) the terms
of such Units have been duly established in accordance with the applicable agreement pursuant to which such Units are to be issued (the
“Unit Agreement”) so as not to violate any applicable law, rule or regulation or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply with any applicable requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, and assuming that the Units and the Units Agreement are governed
by the laws of the State of New York, when (i) the form, terms and the execution and delivery of the Unit Agreement relating to any Units
and the terms of the Units, and of their issuance and sale, have been duly authorized and approved by all necessary action of the Board
of Directors, and/or a duly authorized committee thereof; (ii) the Unit Agreement relating to the Units has been duly executed and delivered
by the Company and is enforceable against the parties thereto in accordance with its terms; and (iii) the Units or certificates representing
the Units, as the case may be, have been duly executed, authenticated (if required), issued and delivered as contemplated by the Registration
Statement and any prospectus supplement relating thereto and in accordance with the terms of the applicable Unit Agreement and any other
agreement or instrument binding upon the Company and enforceable against the parties thereto in accordance with its terms, upon payment
of the consideration fixed therefor in accordance with the applicable Unit Agreement and the applicable purchase, underwriting or similar
agreement duly authorized by the Board of Directors, and/or a duly authorized committee thereof, and enforceable against the parties thereto
in accordance with its terms, the Units will constitute valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms (subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium
and other laws affecting the rights and remedies of creditors or secured parties generally, and to the exercise of judicial discretion
in accordance with general principles of equity, whether applied by a court of law or equity). |
Charles & Colvard, Ltd.
May 31, 2024
Page 5
| 5. | If any Securities are issuable (the “Issuable Securities”) upon settlement, exercise, conversion or exchange of
any other Securities (the “Initial Securities”) pursuant to the terms thereof, when (i) the terms of the issuance
of the Issuable Securities have been duly authorized, approved and documented as provided in numbered paragraphs 1 through 4 above,
as the case may be and assuming that the Issuable Securities (other than the Common Stock and Preferred Stock) are governed by the laws
of the State of New York; and (ii) the Issuable Securities have been issued upon settlement, exercise, conversion or exchange, as
the case may be, of Initial Securities as contemplated by the Registration Statement and any prospectus supplement relating thereto, in
accordance with the terms of the applicable Initial Securities, the Issuable Securities and any agreement or instrument binding upon the
Company, and so as not to violate any applicable law, rule or regulation or result in a default under or a violation of any agreement
or instrument binding upon the Company, and so as to comply with any applicable requirement or restriction imposed by any court or governmental
authority having jurisdiction over the Company, upon such issuance, (a) to the extent the relevant Issuable Securities are Common Stock
or Preferred Stock, such Issuable Securities will be validly issued, fully paid and nonassessable and (b) to the extent the relevant Issuable
Securities are Warrants or Units, such Issuable Securities will constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms (subject to the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors or secured parties generally, and to the exercise of judicial
discretion in accordance with general principles of equity, whether applied by a court of law or equity). |
We note that the maximum number of shares of Common
Stock and Preferred Stock issuable under the Registration Statement is not specified, and we assume that, at the time of the issuance
of any share of Common Stock or Preferred Stock under the Registration Statement or upon the settlement, exercise, conversion or exchange
of any other Securities, the Company will have sufficient authorized and unissued, not otherwise committed to be issued, shares of Common
Stock or Preferred Stock, as the case may be, to provide for such issuance.
We hereby consent to the filing of this opinion
letter with the SEC as Exhibit 5.1 to the Registration Statement and to the reference to this firm under the heading “Legal Matters”
in the Prospectus forming a part thereof. In giving this consent, we do not thereby admit that we are experts with respect to any part
of the Registration Statement or Prospectus within the meaning of the term “expert” as used in Section 11 of the 1933 Act
or the rules and regulations promulgated thereunder by the SEC, nor do we admit that we are within the category of persons whose consent
is required under Section 7 of the 1933 Act or the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
| /s/ K&L Gates LLP |
|
| |
|
| K&L Gates LLP |
|
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We hereby consent
to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated October 12,
2023, relating to the consolidated financial statements of Charles & Colvard, Ltd. (the Company) appearing in the Company’s
Annual Report on Form 10-K for the year ended June 30, 2023.
We
also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/
BDO USA, P.C.
Raleigh,
North Carolina
May
31, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form
S-3
(Form Type)
Charles
& Colvard, Ltd.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
| |
Security
Type |
Security Class Title |
Fee
Calculation or
Carry
Forward Rule |
Amount
Registered (1) |
Proposed
Maximum
Offering
Price Per
Unit (1)(2) |
Maximum
Aggregate
Offering Price (2) |
Fee
Rate |
Amount of
Registration Fee (3) |
Carry Forward
Form Type |
Carry Forward
File Number |
Carry Forward
Initial Effective
Date |
Filing Fee
Previously Paid
In Connection
with Unsold
Securities to be
Carried
Forward |
| Newly Registered Securities |
|
Fees to Be
Paid |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
| Carry Forward Securities |
| Carry Forward Securities |
Equity |
Common Stock, no par value per share |
415(a)(6) |
- |
- |
- |
- |
- |
|
|
|
- |
| Carry Forward Securities |
Equity |
Preferred Stock, no par value per share |
415(a)(6) |
- |
- |
- |
- |
- |
|
|
|
- |
| Carry Forward Securities |
Other |
Warrants |
415(a)(6) |
- |
- |
- |
- |
- |
|
|
|
|
| Carry Forward Securities |
Other |
Units(1) |
415(a)(6) |
- |
- |
- |
- |
- |
|
|
|
- |
| Carry Forward Securities |
Unallocated (Universal) Shelf |
- |
415(a)(6) |
- |
- |
$25,000,000 (2)(3) |
- |
- |
S-3 |
333-256495 |
June 2,
2021 |
$2,943.24 |
| |
Total Offering Amounts |
|
$25,000,000 |
|
$0.00 |
|
|
|
|
| |
Total Fees Previously Paid |
|
|
|
$0.00 |
|
|
|
|
| |
Total Fee Offsets |
|
|
|
$0.00 |
|
|
|
|
| |
Net Fee Due |
|
|
|
$0.00 |
|
|
|
|
(1) There are being registered hereunder such indeterminate number
of shares of common stock, preferred stock, warrants and units to be sold by the Registrant from time to time at unspecified prices which
shall have a maximum aggregate offering price not to exceed $25,000,000. Any securities registered hereunder may be sold separately or
as units with other securities registered hereunder. The proposed maximum offering price per unit will be determined, from time to time,
by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder. This registration statement
also covers an indeterminate amount of securities that may be issued in exchange for, or upon conversion or exercise of, as the case may
be, the preferred stock or warrants registered hereunder, including under any applicable anti-dilution provisions. In addition, pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include
such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar transactions.
(2) The proposed maximum offering price per share will be determined,
from time to time, by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not
specified as to each class of security pursuant to Instruction 2.A.iii.b. to the Calculation of Filing Fee Tables and Related Disclosure
on Item 16(b) of Form S-3 under the Securities Act. The maximum aggregate offering price of all securities issued by the Registrant pursuant
to this registration statement shall not exceed $25,000,000. The proposed maximum aggregate offering price is estimated solely for the
purpose of computing the registration fee pursuant to Rule 457(o) under the Securities Act.
(3) Pursuant to Rule 415(a)(6) under the Securities Act, the securities
registered pursuant to this registration statement, and the filing fees previously paid in connection with these securities, represent
$25,000,000 of unsold securities (the “Unsold Securities”) previously registered by the Registrant on the Registrant’s
prior registration statements File No. 333-256495 (filed on May 26, 2021 and declared effective on June 2, 2021) (the “2021 Prior
Registration Statement”). The filing fee associated with the offering of the Unsold Securities is hereby carried forward to be applied
to the Unsold Securities registered hereunder and, as a result, no additional filing fee is due in respect of such Unsold Securities.
Pursuant to Rule 415(a)(6), the offering of securities registered under the 2021 Prior Registration Statement will be deemed terminated
as of the date of effectiveness of this registration statement.
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