LGMK LogicMark Inc

As filed with the U.S. Securities and Exchange Commission on December 13, 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

 

LogicMark, Inc.

(Exact name of registrant as specified in its charter)

 

Nevada		46-0678374
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

 

LogicMark, Inc.

2801 Diode Lane

Louisville, KY 40299

(502) 442-7911

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

Mark Archer
Chief Financial Officer
LogicMark, Inc.

2801 Diode Lane

Louisville, KY 40299

(502) 442-7911

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

With copies to:

 

David E. Danovitch, Esq.		M. Ali Panjwani, Esq.
Michael DeDonato, Esq. Hermione M. Krumm, Esq.		Pryor Cashman LLP 7 Times Square
Sullivan & Worcester LLP		New York, New York 10036
1251 Avenue of the Americas		(212) 421-4100
New York, NY 10020
(212) 660-3060

 

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. þ

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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	þ	Smaller reporting company	þ
		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 that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until this 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. These securities may not be sold 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.

 

PRELIMINARY PROSPECTUS

SUBJECT TO COMPLETION

DATED DECEMBER 13, 2024

 

Up to 524,000 Shares of Common Stock

Issuable Upon Conversion of Series H Preferred Stock

 

 

LogicMark, Inc.

 

This prospectus relates to the offer and resale of up to an aggregate of 524,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), of LogicMark, Inc. (the “Company”, “LogicMark”, “we”, “us” or “our”), as follows: 524,000 shares (the “Series H Conversion Shares”) of Common Stock issuable upon conversion of the Company’s Series H Convertible Non-Voting Preferred Stock, $0.0001 par value per share (the “Series H Preferred Stock”). On November 13, 2024, the Company entered into settlement and release agreements (the “Settlement Agreements”) with the current and former holders (the “Holders” or “Selling Stockholders”) of its Series B Common Stock purchase warrants (the “Series B Warrants”) exercisable for up to an aggregate of 386,800 shares of Common Stock issued, on August 5, 2024, pursuant to those certain securities purchase agreements, dated August 2, 2024, by and between the Company and the Holders. Pursuant to the Settlement Agreements, on November 13, 2024, all remaining Series B Warrants were exercised and the Holders waived and released the Company from certain claims in connection with the exercise thereof and in exchange the Company agreed to issue to the Holders: (i) an aggregate of 1,000 shares of Series H Preferred Stock, which will be convertible at the option of the Holder into shares of Common Stock at an initial conversion price of $11.64, and (ii) an aggregate of 1,000 shares of a newly-designated series of preferred stock of the Company to be known as the Series I Non-Convertible Voting Preferred Stock, $0.0001 par value per share (the “Series I Preferred Stock”, and together with the Series H Preferred Stock, the “Preferred Stock”), each share of which will entitle the holder thereof to two (2) votes on all matters submitted to a vote of the stockholders of the Company.

 

The shares of Series H Preferred Stock and the Series H Conversion Shares are also referred to herein as the “Securities”. For additional information regarding the issuance of the Securities, see “Settlement Agreements and Issuance of Preferred Stock” beginning on page 8.

  

This prospectus also covers any additional shares of Common Stock that may become issuable upon any standard adjustment pursuant to the terms of the Certificate of Designation of Preferences, Rights and Limitations of Series H Convertible Non-Voting Preferred Stock (the “Series H Certificate of Designation”) by reason of stock splits, stock dividends and other events described therein.

 

The Series H Conversion Shares will be resold from time to time by the Selling Stockholders listed in the section titled “Selling Stockholders” beginning on page 9.

 

 

The Selling Stockholders, or their respective transferees, pledgees, donees or other successors-in-interest, may sell the Series H Conversion Shares through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The Selling Stockholders may sell any, all or none of the Series H Conversion Shares offered by this prospectus, and we do not know when or in what amount the Selling Stockholders may sell their Series H Conversion Shares hereunder following the effective date of this registration statement. We provide more information about how Selling Stockholders may sell their Series H Conversion Shares in the section titled “Plan of Distribution” on page 17.

 

We are registering the Series H Conversion Shares on behalf of the Selling Stockholders, to be offered and sold by them from time to time. We will not receive any proceeds from the sale of our Common Stock by the Selling Stockholders in the offering described in this prospectus. We have agreed to bear all of the expenses incurred in connection with the registration of the Series H Conversion Shares. The Selling Stockholders will pay or assume discounts, commissions, fees of underwriters, selling brokers or dealer managers and similar expenses, if any, incurred for the sale of the Series H Conversion Shares.

 

Our Common Stock is listed on the Nasdaq Capital Market (“Nasdaq”) under the symbol “LGMK.” The last reported sales prices of our Common Stock on Nasdaq on December 12, 2024 was $1.76 per share.

 

Investing in our Common Stock involves a high degree of risk. See “Risk Factors” beginning on page 5 and in the documents which are incorporated by reference herein to read about factors you should consider before investing in our Common Stock.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

The date of this prospectus is             , 2024.

 

 

TABLE OF CONTENTS

 

ABOUT THIS PROSPECTUS		ii
PROSPECTUS SUMMARY		1
THE OFFERING		4
RISK FACTORS		5
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS		7
SETTLEMENT AGREEMENTS AND ISSUANCE OF PREFERRED STOCK		8
SELLING STOCKHOLDERS		9
USE OF PROCEEDS		12
PLAN OF DISTRIBUTION		17
LEGAL MATTERS		19
EXPERTS		19
WHERE YOU CAN FIND MORE INFORMATION		19
INCORPORATION BY REFERENCE		20

 

 

ABOUT THIS PROSPECTUS

 

This prospectus describes the general manner in which the Selling Stockholders may offer from time to time up to 524,000 shares of Common Stock. You should rely only on the information contained in this prospectus and the related exhibits, any prospectus supplement or amendment thereto and the documents incorporated by reference, or to which we have referred you, before making your investment decision. Neither we nor the Selling Stockholders have authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus, any prospectus supplement or amendments thereto do not constitute an offer to sell, or a solicitation of an offer to purchase, the shares of Common Stock offered by this prospectus, any prospectus supplement or amendments thereto in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. You should not assume that the information contained in this prospectus, any prospectus supplement or amendments thereto, as well as information we have previously filed with the U.S. Securities and Exchange Commission (the “SEC”), is accurate as of any date other than the date on the front cover of the applicable document.

 

If necessary, the specific manner in which the shares of Common Stock may be offered and sold will be described in a supplement to this prospectus, which supplement may also add, update or change any of the information contained in this prospectus. To the extent there is a conflict between the information contained in this prospectus and any prospectus supplement, you should rely on the information in such prospectus supplement, provided that if any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus or any prospectus supplement — the statement in the document having the later date modifies or supersedes the earlier statement.

 

Neither the delivery of this prospectus nor any distribution of shares of Common Stock pursuant to this prospectus shall, under any circumstances, create any implication that there has been no change in the information set forth or incorporated by reference into this prospectus or in our affairs since the date of this prospectus. Our business, financial condition, results of operations and prospects may have changed since such date.

 

When used herein, unless the context requires otherwise, references to the “LogicMark,” “Company,” “we,” “our” and “us” refer to LogicMark, Inc., a Nevada corporation with respect to the Company on or after June 1, 2023, and LogicMark, Inc., a Delaware corporation with respect to the Company prior to June 1, 2023.

 

On November 18, 2024, we effected a one-for-twenty-five reverse stock split (the “Common Stock Reverse Stock Split”) of all of our outstanding shares of Common Stock. Unless the context expressly indicates otherwise, all references to share and per share amounts referred to herein reflect the amounts after giving effect to the Common Stock Reverse Stock Split.

 

 

RISK FACTORS

 

Holding the shares of Common Stock offered under this prospectus involves a high degree of risk. You should carefully consider and evaluate all of the information contained in this prospectus, any prospectus supplement and in the documents that we incorporate by reference herein before you decide to invest in our Common Stock. In particular, you should carefully consider and evaluate the risks and uncertainties described under the heading “Risk Factors” in this prospectus, any prospectus supplement and our filings with the SEC, including our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 as well as of the documents incorporated by reference herein or therein. Investors are further advised that the risks described below may not be the only risks we face. Additional risks that we do not yet know of, or that we currently think are immaterial, may also negatively impact our business operations or financial results. Any of the risks and uncertainties set forth in this prospectus and in the documents incorporated by reference herein, as updated by annual, quarterly and other reports and documents that we file with the SEC and incorporate by reference into this prospectus, could materially and adversely affect our business, results of operations and financial condition, which in turn could materially and adversely affect the value of our Common Stock. 

 

Risks Related to the Resale of the Series H Conversion Shares and Ownership of Our Common Stock

 

The Selling Stockholders may choose to sell the Series H Conversion Shares at prices below the current market price.

 

The Selling Stockholders are not restricted as to the prices at which they may sell or otherwise dispose of the Series H Conversion Shares covered by this prospectus. Sales or other dispositions of the Series H Conversion Shares below the then-current market prices could adversely affect the market price of our Common Stock.

  

A large number of shares of Common Stock may be sold in the market following this offering and upon the SEC declaring this registration statement on Form S-3 effective, which may significantly depress the market price of our Common Stock.

 

The Series H Conversion Shares sold in the offering will be freely tradable without restriction or further registration under the Securities Act of 1933, as amended (the “Securities Act”) upon the SEC declaring this registration statement on Form S-3 effective. As a result, a substantial number of shares of our Common Stock may be sold in the public market following this offering and upon the SEC declaring this Registration Statement effective.

 

If there are significantly more shares of Common Stock offered for sale than buyers are willing to purchase, then the market price of our Common Stock may decline to a market price at which buyers are willing to purchase the offered Common Stock and sellers remain willing to sell our Common Stock. Sales of a substantial number of Series H Conversion Shares in the public market following the completion of this offering, or the perception that such sales might occur, could depress the market price of our Common Stock and could impair our ability to raise capital through the sale of our additional equity securities.

 

 

You may experience future dilution as a result of the issuance of the Series H Conversion Shares, future equity offerings by us and other issuances of our Common Stock or other securities. In addition, the issuance of the Series H Conversion Shares and future equity offerings and other issuances of our Common Stock or other securities may adversely affect our Common Stock price.

 

In order to raise additional capital, we may in the future offer additional shares of our Common Stock or other securities convertible into or exchangeable for our Common Stock at prices that may not be the same as the price per share as prior issuances of Common Stock. We may not be able to sell shares or other securities in any other offering at a price per share that is equal to or greater than the price per share previously paid by investors, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our Common Stock or securities convertible into Common Stock in future transactions may be higher or lower than the prices per share for previous issuances of Common Stock or securities convertible into Common Stock paid by certain investors. You will incur dilution upon exercise of any outstanding stock options or warrants or upon the issuance of shares of Common Stock in accordance with our equity incentive plans. In addition, the issuance of the Series H Conversion Shares and any future sales of a substantial number of shares of our Common Stock in the public market, or the perception that such sales may occur, could adversely affect the price of our Common Stock. We cannot predict the effect, if any, that market sales of those shares of Common Stock or the availability of such shares for sale will have on the market price of our Common Stock. 

 

Neither we nor the Selling Stockholders have authorized any other party to provide you with information concerning us or this offering.

 

You should carefully evaluate all of the information in this prospectus and the registration statement of which this prospectus forms a part, including the documents incorporated by reference herein. We may receive media coverage regarding our Company, including coverage that is not directly attributable to statements made by our officers, that incorrectly reports on statements made by our officers or employees, or that is misleading as a result of omitting information provided by us, our officers or employees. Neither we nor the Selling Stockholders have authorized any other party to provide you with information concerning us or this offering of Series H Conversion Shares, and such recipients should not rely on this information.

 

 

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus, any prospectus supplement and the documents we incorporate by reference herein or therein contain forward-looking statements within the meaning of Section 21(E) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 27A of the Securities Act. These forward-looking statements include, without limitation: statements regarding proposed new products or services; statements concerning litigation or other matters; statements concerning projections, predictions, expectations, estimates or forecasts for our business, financial and operating results and future economic performance; statements of our management’s goals and objectives; statements concerning our competitive environment, availability of resources and regulation; trends affecting our financial condition, results of operations or future prospects; our financing plans or growth strategies; and other similar expressions concerning matters that are not historical facts. Words such as “may”, “will”, “should”, “could”, “would”, “predicts”, “potential”, “continue”, “expects”, “anticipates”, “future”, “intends”, “plans”, “believes” and “estimates,” and variations of such terms or similar expressions, are intended to identify such forward-looking statements.

 

Forward-looking statements should not be read as a guarantee of future performance or results and will not necessarily be accurate indications of the times at, or by which, that performance or those results will be achieved. Forward-looking statements are based on information available at the time they are made and/or our management’s good faith belief as of that time with respect to future events and are subject to risks and uncertainties that could cause actual performance or results to differ materially from what is expressed in or suggested by the forward-looking statements.

 

Forward-looking statements speak only as of the date they are made. You should not put undue reliance on any forward-looking statements. We assume no obligation to update forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting forward-looking information, except to the extent required by applicable securities laws. If we do update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements. You should review our subsequent reports filed with the SEC described in the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation of Documents by Reference,” all of which are accessible on the SEC’s website at www.sec.gov.

 

INDUSTRY AND MARKET DATA

 

Unless otherwise indicated, information contained in this prospectus concerning our industry and the market in which we operate, including our market position, market opportunity and market size, is based on information from various sources, on assumptions that we have made based on such data and other similar sources and on our knowledge of the markets for our products. These data sources involve a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates.

 

We have not independently verified any third-party information. While we believe the market position, market opportunity and market size information included in this prospectus is generally reliable, such information is inherently imprecise. In addition, projections, assumptions and estimates of our future performance and the future performance of the industry in which we operate is necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the section titled “Risk Factors” and elsewhere in this prospectus. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.

 

 

SETTLEMENT AGREEMENTS AND ISSUANCE OF PREFERRED STOCK

 

On November 13, 2024, the Company entered into Settlement Agreements with the Selling Stockholders. In connection with the Settlement Agreements, on November 13, 2024, the Company filed with the Secretary of State of the State of Nevada (the “Nevada Secretary of State”): (i) a Series H Certificate of Designation to designate 1,000 shares of the Company’s authorized and unissued preferred stock as Series H Preferred Stock; and (ii) a Certificate of Designation of Preferences, Rights and Limitations of Series I Non-Convertible Voting Preferred Stock (the “Series I Certificate of Designation”) to designate 1,000 shares of the Company’s authorized and unissued preferred stock as Series I Preferred Stock. Each of the Series H Certificate of Designation and the Series I Certificate of Designation became effective upon its filing with the Nevada Secretary of State, and establishes the rights, preferences, privileges, qualifications, restrictions, and limitations relating to the applicable Preferred Stock.

 

Pursuant to the Settlement Agreements, in consideration for the Selling Stockholders’ agreement to exercise any outstanding Series B Warrants on or before the date of the issuance of the Preferred Stock and waive any and all claims or demands that the Selling Stockholders may receive upon exercise of the Series B Warrants pursuant to Sections 2.3 and 3.8 of the Series B Warrants on or after the effective time of the Company’s then next reverse stock split of its outstanding Common Stock a number of shares of Common Stock in excess of four (4) times the number of shares of Common Stock that was initially issuable upon exercise of the Series B Warrants as of the date of their issuance, the Company issued to the Selling Stockholders, on November 14, 2024, (i) an aggregate of 1,000 shares of Series H Preferred Stock, which are convertible at the option of the holder thereof into Series H Conversion Shares at an initial conversion price of $11.64, and (ii) an aggregate of 1,000 shares of Series I Preferred Stock, each share of which entitles the holder thereof to two (2) votes on all matters submitted to a vote of the stockholders of the Company. The Series I Preferred Stock will be automatically redeemed for no consideration upon the redemption, conversion or sale of shares of Series H Preferred Stock on a one for one basis. The shares of Series H Preferred Stock have a stated value of $1,000.

 

Pursuant to Section 6(c) of the Series H Certificate of Designation, following the Common Stock Reverse Stock Split, the conversion price of the Series H Preferred Stock was reset at $1.91 per share. The Series H Conversion Shares are subject to a 4.99%/9.99% beneficial ownership limitation. In an event of liquidation, each holder of Series H Preferred Stock is entitled to the greater of (a) the aggregate stated value of the shares of Series H Preferred Stock, and (b) the amount the holder’s shares of Series H Preferred Stock would be entitled to receive if their shares of Series H Preferred Stock were fully converted.

 

Also pursuant to the Settlement Agreements, on the issuance date of the Preferred Stock, the Company entered into registration rights agreements with the Selling Stockholders (pursuant to which the Company agreed to register the resale of the Series H Conversion Shares). The Company is required to prepare and file the resale registration statement with the SEC no later than the 30th calendar day following the issuance of the Preferred Stock and to use its best efforts to have such registration statement declared effective within 60 calendar days after such date, subject to certain exceptions. In order to satisfy such obligations, the Company is filing this registration statement to register for resale all of the Series H Conversion Shares issuable upon conversion of the Series H Preferred Stock issued to the Selling Stockholders.

 

 

SELLING STOCKHOLDERS

 

The shares of Common Stock being offered by the Selling Stockholders consist of the Series H Conversion Shares issuable upon conversion of Series H Preferred Stock. For additional information regarding the issuance of these securities, see “Settlement Agreements and Issuance of Preferred Stock” beginning on page 8 of this prospectus. We are registering the Series H Conversion Shares in order to permit the Selling Stockholders to offer such shares of Common Stock for resale from time to time. Except for the Settlement Agreements described in the section entitled “Settlement Agreements and Issuance of Preferred Stock”, and as disclosed in this section under “Material Relationships with Selling Stockholders,” the Selling Stockholders have not had any material relationship with us or our affiliates within the past three years.

 

The following table sets forth certain information with respect to each Selling Stockholder, including (i) the shares of Common Stock beneficially owned by the Selling Stockholder prior to this offering, (ii) the number of Series H Conversion Shares being offered by the Selling Stockholder pursuant to this prospectus and (iii) the Selling Stockholders’ beneficial and percentage ownership of our outstanding shares of Common Stock after completion of this offering. The registration of the Series H Conversion Shares issuable to the Selling Stockholders upon conversion of the Series H Preferred Stock does not necessarily mean that the Selling Stockholders will sell all or any of such Series H Conversion Shares, but the number of shares of Common Stock and percentages set forth in the final two columns below assume that all Series H Conversion Shares being offered by the Selling Stockholders are sold. The final two columns also assume, as of December 12, 2024, the full conversion of the Series H Preferred Stock, without regard to any limitations on conversion. See “Plan of Distribution.”

 

The table is based on information supplied to us by the Selling Stockholders, with beneficial ownership and percentage ownership determined in accordance with the rules and regulations of the SEC, and includes voting or investment power with respect to shares of Common Stock. This information does not necessarily indicate beneficial ownership for any other purpose. In computing the number of shares of Common Stock beneficially owned by a Selling Stockholder and the percentage ownership of that Selling Stockholder, shares of Common Stock subject to securities held by that Selling Stockholder that are exercisable for or convertible into shares of Common Stock within 60 days after December 12, 2024, are deemed outstanding. Such shares of Common Stock, however, are not deemed outstanding for the purposes of computing the percentage ownership of any other stockholder.

 

		Number of Shares of Common Stock Beneficially Owned Prior to Offering (1)				Maximum Number of Series H Conversion Shares to be Sold Pursuant to this Prospectus (2)				Number of Shares of Common Stock Beneficially Owned After Offering (1)(3)				Percentage Beneficially Owned After Offering (1)(3)
Altium Growth Fund, LP (4)			106,935				131,000				127,747				4.99	%
Entities affiliated with Anson Investments Master Fund LP (5)			106,935				131,000				127,747				4.99	%
Hudson Bay Master Fund Ltd. (6)			106,935				131,000				127,747				4.99	%
Sabby Volatility Warrant Fund, LLC (7)			106,935				131,000				127,747				4.99	%
TOTAL			427,740				524,000				510,988				19.96	%

 

*

Less than 1%

 

(1)

The number of shares owned and the percentage of beneficial ownership prior to and after this offering set forth in these columns are based on 2,036,051 shares of Common Stock outstanding on December 12, 2024. Conversions of the Series H Preferred Stock and exercises of other securities held by the Selling Stockholders are subject to certain beneficial ownership limitations, which provide that a holder of the Series H Preferred Stock will not have the right to conversion of any portion of such Series H Preferred Stock if such holder, together with such holder’s affiliates, would beneficially own in excess of 4.99% or 9.99%, as applicable, of the number of shares of Common Stock outstanding immediately after giving effect to such conversion, provided that upon at least 61 days’ prior notice to the Company, a holder may increase or decrease such limitation up to a maximum of 9.99% of the number of shares of Common Stock outstanding (each such limitation, a “Beneficial Ownership Limitation”). As a result, the number of shares of Common Stock reflected in these columns as beneficially owned by each Selling Stockholder includes (a) any outstanding shares of Common Stock held by such Selling Stockholder, and (b) if any, the number of Series H Conversion Shares offered hereby and any other securities convertible into or exercisable for shares of Common Stock that may be held by such Selling Stockholder, in each case which such Selling Stockholder has the right to acquire as of December 12, 2024 and without such holder or any of such holder’s affiliates beneficially owning more than 4.99% or 9.99%, as applicable, of the number of outstanding shares of Common Stock as of December 12, 2024.

 

 

(2)

Represents all Series H Conversion Shares offered hereby upon full conversion of the Series H Preferred Stock owned by the Selling Stockholders, without regard to the Beneficial Ownership Limitations that apply thereto.

 

(3)

The number of shares owned and the percentage of beneficial ownership after this offering set forth in these columns assumes full conversion of the Series H Preferred Stock for an aggregate of 524,000 Series H Conversion Shares offered hereby and the subsequent sale of all such Series H Conversion Shares.

 

(4)

Shares of Common Stock beneficially owned prior to the offering include 633,911 shares of Common Stock issuable upon exercise of the Series A Warrants (as defined below), of which 526,976 shares are not exercisable due to a 4.99% Beneficial Ownership Limitation, and does not include 125,000 Series H Conversion Shares upon conversion of the Series H Preferred Stock, none of which are exercisable due to a 4.99% Beneficial Ownership Limitation.   Altium Capital Management, LP, the investment manager of Altium Growth Fund, LP, has voting and investment power over these securities. Jacob Gottlieb is the managing member of Altium Capital Growth GP, LLC, which is the general partner of Altium Growth Fund, LP. Each of Altium Growth Fund, LP and Jacob Gottlieb disclaims beneficial ownership over these securities. The principal address of Altium Capital Management, LP is 152 West 57th Street, 20th Floor, New York, NY 10019.

 

(5)

Shares of Common Stock beneficially owned prior to the offering include (i) 8,988 shares of Common Stock issuable upon exercise of certain common stock purchase warrants, and (ii) 633,911 shares of Common Stock issuable upon exercise of the Series A Warrants, of which 535,964 are not exercisable due to a 4.99% Beneficial Ownership Limitation, and does not include 125,000 Series H Conversion Shares upon conversion of the Series H Preferred Stock, none of which are exercisable due to a 4.99% Beneficial Ownership Limitation.   The securities are directly held as of December 12, 2024, by (i) Anson East Master Fund LP (“Anson East”) and (ii) Anson Investments Master Fund LP (“Anson Investments”, and, collectively with Anson East, the “Anson Master Funds”). Anson Advisors Inc and Anson Funds Management LP, the Co-Investment Advisers of the Anson Master Funds, hold voting and dispositive power over the shares of Common Stock held by the Anson Master Funds. Tony Moore is the managing member of Anson Management GP LLC, which is the general partner of Anson Funds Management LP. Moez Kassam and Amin Nathoo are directors of Anson Advisors Inc. Mr. Moore, Mr. Kassam and Mr. Nathoo each disclaim beneficial ownership of these shares of Common Stock except to the extent of their pecuniary interest therein. The principal business address of the Anson Master Funds is Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.

 

(6)

Shares of Common Stock beneficially owned prior to the offering include (i) 1,255 shares of Common Stock issuable upon exercise of certain common stock purchase warrants, and (ii) 607,335 shares of Common Stock issuable upon exercise of the Series A Warrants, of which 501,655 are not exercisable due to a 4.99% Beneficial Ownership Limitation, and does not include 125,000 Series H Conversion Shares upon conversion of the Series H Preferred Stock, none of which are exercisable due to a 4.99% Beneficial Ownership Limitation.

 

The securities are directly held as of December 12, 2024 by Hudson Bay Master Fund Ltd, a Cayman Islands exempted company (“Hudson Bay”). Hudson Bay Capital Management LP, the investment manager of Hudson Bay, has sole voting and dispositive control of the shares reported herein. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of Hudson Bay and Sander Gerber disclaims beneficial ownership of the shares reported herein. The address of Hudson Bay is c/o Hudson Bay Capital Management LP, 28 Havemeyer Place, 2nd Floor, Greenwich, CT, 06830.

 

(7)

Shares of Common Stock beneficially owned prior to the offering include 581,436 shares of Common Stock issuable upon exercise of the Series A Warrants (as defined below), of which 474,501 shares are not exercisable due to a 4.99%  Beneficial Ownership Limitation, and does not include 125,000 Series H Conversion Shares upon conversion of the Series H Preferred Stock, none of which are exercisable due to a 4.99%  Beneficial Ownership Limitation.

 

The securities are directly held as of December 12, 2024, by Sabby Volatility Warrant Master Fund, Ltd. (“Sabby”). Sabby Management, LLC is the investment manager of Sabby and shares voting and investment power with respect to these shares in this capacity. As manager of Sabby Management, LLC, Hal Mintz also shares voting and investment power on behalf of Sabby. Each of Sabby Management, LLC and Hal Mintz disclaims beneficial ownership over the securities listed except to the extent of their pecuniary interest therein. The address of Sabby is Captiva (Cayman) Ltd, Governors Square, Bldg 4, 2nd Floor, 23 Lime Tree Bay Avenue, P.O. Box 32315, Grand Cayman KY1-1209, Cayman Islands.

 

 

Material Relationships with Selling Stockholders

 

No material relationships exist between any of the Selling Stockholders and us, nor have any such material relationships existed within the past three years, except, in either case, as identified below or otherwise disclosed herein. 

 

January 2023 Offering

 

On January 25, 2023, the Company closed a firm commitment registered public offering (the “January 2023 Offering”) pursuant to which the Company issued to certain holders of Common Stock, including two of the Selling Stockholders, Anson Investments and Hudson Bay (i) 21,170 shares of Common Stock and common stock purchase warrants (exercisable for 31,755 shares of Common Stock at a purchase price of $63.00 per share), subject to certain adjustments, (ii) pre-funded common stock purchase warrants which were exercised for 6,880 shares of Common Stock at a purchase price of $0.50 per share, subject to certain adjustments, (iii) warrants to purchase up to an aggregate of 10,320 shares of Common Stock at $63.00 per share and (iv) additional warrants to purchase up to 2,446 shares of Common Stock at $63.00 per share, which additional warrants were issued upon the partial exercise by the underwriters of their over-allotment option, pursuant to an underwriting agreement, dated as of January 23, 2023 between the Company and Maxim Group LLC, as representative of the underwriters. The January 2023 Offering resulted in gross proceeds to the Company of approximately $5.2 million, before deducting underwriting discounts and commissions of 7% of the gross proceeds (3.5% of the gross proceeds in the case of certain identified investors) and estimated January Offering expenses.

 

November 2023 Warrant Inducement Transactions

 

On November 21, 2023, the Company entered into warrant inducement agreements (the “2021 Inducement Agreements”) with certain holders of the Company’s Series A Common Stock purchase warrants (the “Series A Warrants”) issued pursuant to a firm commitment public offering by the Company that closed on September 15, 2021 (the “Existing September 2021 Warrants”) and the Series B Warrants (together with the Series A Warrants, the “Warrants”) were issued pursuant to warrant inducement agreements (the “2023 Inducement Agreements” and together with the 2021 Inducement Agreements, the “Inducement Agreements”) with certain holders of the Company’s common stock purchase warrants issued pursuant to a firm commitment public offering by the Company that closed on January 25, 2023 (the “Existing January 2023 Warrants” and together with the Existing September 2021 Warrants, the “Existing Warrants”). The holders participating in the Inducement Agreements included two of the Selling Stockholders, Anson Investments and Hudson Bay. Pursuant to the Inducement Agreements, the Company induced such warrant holders to exercise for cash their Existing Warrants to purchase up to approximately 36,363 shares of Common Stock, at a lower exercise price of (x) $50.00 per share for the Existing September 2021 Warrants and (y) $50.00 per one and one-half share for the Existing January 2023 Warrants, during the period from the date of the Inducement Agreements until December 20, 2023. Additionally, the Company agreed to issue to such holders new (A) Series A Warrants to purchase a number of shares of Common Stock issuable upon the exercise of Series A Warrants (the “Series A Warrant Shares”) equal to 200% of the number of shares of Common Stock issued upon exercise of the Existing September 2021 Warrants to holders of Existing September 2021 Warrants, at an exercise price of $50.00 per Series A Warrant Share, and (B) Series B Warrants to purchase a number of shares of Common Stock issuable upon the exercise of Series B Warrants (the “Series B Warrant Shares”) equal to 200% of the number of shares of Common Stock issued upon exercise of the Existing January 2023 Warrants to holders of Existing January 2023 Warrants, at an exercise price of $50.00 per one and one-half Series B Warrant Share.

 

August 2024 Public Offering

 

On August 5, 2024 (the “August 2024 Offering Closing Date”), the Company, in connection with a best efforts public offering (the “August 2024 Offering”), sold to certain purchasers (x) units of the Company (the “Units”) at an offering price of $11.64 per Unit, consisting of (i) 57,997 shares of the Company’s Common Stock, and (ii) the Company’s Series A warrants to purchase Common Stock, exercisable for up to 57,997 shares of Common Stock at an exercise price of $11.64 per share (the “August Series A Warrants”), and (iii) the Company’s Series B warrants to purchase Common Stock at an exercise price of $11.64 per share, exercisable for up to 57,996 shares of Common Stock (the “August Series B Warrants”); and (y) pre-funded units of the Company (the “Pre-Funded Units”) at an offering price $0.47 per Pre-Funded Unit, consisting of (i)  pre-funded common stock purchase warrants exercisable for up to 328,804 shares of Common Stock at $0.03 per share, (the “August Pre-Funded Warrants”), (ii) August Series A Warrants exercisable for up to 9,670,000 shares of Common Stock and (iii) August Series B Warrants exercisable for up to 9,670,000 shares of Common Stock, pursuant to the Company’s Form S-1 registration statement, as amended (File No. 333-279133), declared effective by the SEC on August 1, 2024 and securities purchase agreements, dated August 2, 2024, between the Company and each of the purchasers signatory thereto, which included each of the Selling Stockholders. The August Series B Warrants can be exercised on an alternate cashless basis which would result in holders receiving four (4) times the number of common stock if such election is made. On the August 2024 Offering Closing Date, the Company received gross proceeds of approximately $4.5 million, before deducting placement agent commissions and estimated August 2024 Offering expenses. The Company has begun to use the net proceeds from the August 2024 Offering for continued new product development, working capital and other general corporate purposes.

 

In addition, as of September 30, 2024, the Selling Stockholders exercised their August Pre-Funded Warrants for an aggregate of 328,804 shares of Common Stock. As of September 30, 2024, the exercise price of the August Series A Warrants were subject to a one-time reset adjustment, which resulted in a new exercise price of $3.98 per warrant share.

 

 

USE OF PROCEEDS

 

The Selling Stockholders will receive all of the proceeds from the sale of the Series H Conversion Shares under this prospectus and we will not receive any of such proceeds. The Selling Stockholders will pay any agent’s commissions and expenses they incur for brokerage, accounting, tax or legal services or any other expenses that they incur in disposing of the shares of Common Stock. We will bear all other costs, fees and expenses incurred in effecting the registration of the shares of Common Stock covered by this prospectus and any prospectus supplement. These may include, without limitation, all registration and filing fees, SEC filing fees and expenses of compliance with state securities or “blue sky” laws. We cannot predict when or if the Series H Preferred Stock will be converted, and it is possible that the Series H Preferred Stock may never be converted.

 

See “Plan of Distribution” elsewhere in this prospectus for more information.

 

 

DESCRIPTION OF SECURITIES THAT THE SELLING STOCKHOLDERS ARE OFFERING

 

The Selling Stockholders are offering for resale up to an aggregate of 524,000 shares of Common Stock issuable upon full conversion of the Series H Preferred Stock. The following description of our Common Stock, Series H Preferred Stock, certain provisions of our Articles of Incorporation, the Company’s Bylaws (the “Bylaws”), the Series H Certificate of Designation and Nevada law are summaries. You should also refer to our Articles of Incorporation and our Bylaws, which are listed as exhibits to the registration statement of which this prospectus is part. For a further description of the Series H Preferred Stock, see the section entitled “Settlement Agreements and Issuance of Preferred Stock.” For a complete description of the terms and conditions of the Settlement Agreements and the Series H Preferred Stock, please refer to our Quarterly Report on Form 10-Q for the period ended September 30, 2024, filed with the SEC on November 14, 2024 the forms of the Settlement Agreements and the Series H Certificate of Designation filed as exhibits thereto.

 

General

 

The Company is authorized to issue 110,000,000 shares of its capital stock consisting of (a) 100,000,000 shares of Common Stock and (b) 10,000,000 shares of “blank check” preferred stock, par value $0.0001 per share, (i) 2,000 shares of which are designated as Series C Preferred Stock, 1 share of which is outstanding; (ii) 1,333,333 shares of which are designated as Series F Preferred Stock, 106,333 shares of which are outstanding; (iii) 1,000,000 shares of which are designated as Series G Non-Convertible Voting Preferred Stock, par value $0.0001 per share, none of which are currently outstanding, (iv) 1,000 shares of Series H Preferred Stock, all of which are currently outstanding, and (v) 1,000 shares of Series I Preferred Stock. All of which are currently outstanding.

 

As of December 12, 2024, 2,036,051 shares of our Common Stock were issued and outstanding, held by 89 stockholders of record (which do not include shares of Common Stock held in street name), which number excludes the following as of such date: (i) the exercise of outstanding warrants to purchase up to an aggregate of 2,599,270 shares of Common Stock with an approximate weighted average exercise price and remaining life in years of $626.23 and 3.18, respectively, and (ii) the exercise of outstanding options to purchase up to an aggregate of 19,050 shares of Common Stock at a weighted average exercise price of $73.62 per share. In addition, as of December 12, 2024, 1 share of our Series C Preferred Stock was issued and outstanding, held by one stockholder of record, 106,333 shares of Series F Preferred Stock were issued and outstanding, held by one stockholder of record, 1,000 shares of Series H Preferred Stock were issued and outstanding, held by four holders of record, and 1,000 shares of Series I Preferred Stock were issued and outstanding, held by four holders of record. The Series C Preferred Stock ranks senior to the Common Stock, the Series F Preferred Stock and the Series H Preferred Stock with respect to dividends and redemption rights and rights upon liquidation, dissolution or winding up of the Company, the Series F Preferred Stock ranks senior to the Common Stock and the Series H Preferred Stock with respect to dividends and redemption rights and rights upon liquidation, dissolution or winding up of the Company, and the Series I Preferred Stock shall be junior to all the Series C Preferred Stock, the Series F Preferred Stock, the Series G Preferred Stock, and the Series H Preferred Stock, as to the distribution of assets.

 

Common Stock

 

Each share of Common Stock entitles the holder to one vote, either in person or by proxy, at meetings of stockholders. Generally, all matters to be voted on by stockholders must be approved by a majority (or, in the case of election of directors, by a plurality) of the votes entitled to be cast by all shares of common stock that are present in person or represented by proxy. Our Articles of Incorporation do not provide for cumulative voting in the election of directors.

 

Holders of Common Stock are entitled to receive ratably such dividends, if any, as may be declared by the Company’s Board of Directors (the “Board”) out of funds legally available. We have not paid any dividends since our inception, and we presently anticipate that all earnings, if any, will be retained for development of our business. Any future disposition of dividends will be at the discretion of our Board and will depend upon, among other things, our future earnings, operating and financial condition, capital requirements, and other factors.

 

Holders of our Common Stock have no preemptive rights or other subscription rights, conversion rights, registration rights, redemption or sinking fund provisions by virtue of only holding such shares. Upon our liquidation, dissolution or winding up, the holders of our Common Stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities.

 

Series H Preferred Stock

 

Stated Value. Each share of Series H Preferred Stock has a stated value of $1,000.

 

Voting. Holders of the shares of Series H Preferred Stock are not entitled to vote on matters on which the holders of shares of Common Stock are entitled to vote until and unless such holder has converted such shares of Series H Preferred Stock into Series H Conversion Shares. Notwithstanding the foregoing, so long as any shares of Series H Preferred Stock are outstanding, the Company cannot, without the affirmative vote of the holders of a majority of the then-outstanding shares of Series H Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Series H Preferred Stock or alter or amend the Series H Certificate of Designation, (b) amend the Articles of Incorporation or any other charter documents of the Company in any manner that adversely affects any rights of the Holders or (c) enter into any agreement with respect to any of the foregoing.

 

 

Ranking. The Series H Preferred Stock, with respect to the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Company, are junior in rank only to the Company’s Series F Preferred Stock, the Series C Preferred Stock, and any capital stock a majority of holders of the Series H Preferred Stock consent to the creation of.

 

Conversion. At any time from and after the first date of issuance of any Series H Preferred Stock, a holder of Series H Preferred Stock may convert all, or any part, of the outstanding Series H Preferred Stock, at any time at such holder’s option, into Series H Conversion Shares at an initial conversion price of $11.64, which is subject to proportional adjustment upon the occurrence of any stock split, stock dividend, stock combination and/or similar transactions. Subject to the rules and regulations of Nasdaq, the Company has the right to, at any time, with the written consent of a majority of the holders of outstanding Series H Preferred Stock, lower the conversion price to any amount. In addition, the conversion price of the Series H Preferred Stock reset on the fifth trading day following the effective date of the Company’s next reverse stock split of its outstanding Common Stock to the greater of (i) the lowest volume weighted average price of the Common Stock on the Nasdaq Stock Market LLC during the five trading days immediately preceding the reset date and (ii) a floor price of $0.1785. Following the Common Stock Reverse Stock Split, the conversion price of the Series H Preferred Stock was reset at $1.91 per share.

 

Each holder of Series H Preferred Stock is prohibited from converting their shares of Series H Preferred Stock if, after giving effect to the issuance of such Series H Conversion Shares, such holder together with its affiliates would beneficially own more than 4.99% of the outstanding Common Stock. A holder of Series H Preferred Stock may increase such Beneficial Ownership Limitation to 9.99% upon notice to the Company.

 

Pro Rata Distributions. During such time as the Series H Preferred Stock is outstanding, if the Company declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction), other than dividends or issuances of rights pursuant to the Company’s existing rights agreement to holders of Common Stock or Common Stock Equivalents (a “Distribution”), at any time after the issuance of the Series H Preferred Stock, then, in each such case, the holder will be entitled to participate in such Distribution to the same extent that the holder would have participated therein if the holder had held the number of shares of Common Stock acquirable upon complete conversion of the Series H Preferred Stock (without regard to any limitations on conversion hereof, including without limitation, the beneficial ownership limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the holder’s right to participate in any such Distribution would result in the holder exceeding such limitation, then the holder will not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the holder until such time, if ever, as its right thereto would not result in the holder exceeding the beneficial ownership limitation). 

 

Redemption. The shares Series H Preferred Stock are not redeemable.

 

Liquidation. In the event of any liquidation, dissolution or winding up of the Company, the Series H Preferred Stock holders are entitled to the greater of (a) the aggregate stated value of the shares of Series H Preferred Stock and (b) such amount the holders of shares of Series H Preferred Stock would be entitled to receive if their shares of Series H Preferred Stock were fully converted.

 

Anti-Takeover Provisions

 

Some features of the Nevada Revised Statutes (“NRS”), which are further described below, may have the effect of deterring third parties from making takeover bids for control of us or may be used to hinder or delay a takeover bid. This would decrease the chance that our stockholders would realize a premium over market price for their shares of Common Stock as a result of a takeover bid.

 

 

Acquisition of Controlling Interest

 

The NRS contain provisions governing acquisition of a controlling interest of a Nevada corporation. These provisions provide generally that any person or entity that acquires a certain percentage of the outstanding voting shares of a Nevada corporation may be denied voting rights with respect to the acquired shares, unless certain criteria are satisfied. On November 1, 2024, the Company entered into a rights agreement with Nevada Agency and Transfer Company (the “Rights Agreement”). Pursuant to the Rights Agreement, in the event that a person or entity or group thereof becomes the Beneficial Owner (as defined in the Rights Agreement) of at least fifteen percent (15%) of the outstanding shares of Common Stock (an “Acquiring Person”), each holder of Common Stock as of the close of business on November 1, 2024 (the “Record Date”) will be entitled to receive a dividend of one right for each share of Common Stock owned by such holder (each, a “Right”), with each Right exercisable for one one-hundredth of a share of the Company’s Series G Non-Convertible Voting Preferred Stock, at a price of $0.05 per one-hundredth of a share (the “Purchase Price”), subject to adjustment as set forth in the Rights Agreement.

 

Combination with Interested Stockholder

 

The NRS contain provisions governing combinations of a Nevada corporation that has 200 or more stockholders of record with an “interested stockholder.” These provisions only apply to a Nevada corporation that, at the time the potential acquirer became an interested stockholder, has a class or series of voting shares listed on a national securities exchange, or has a class or series of voting shares traded in an “organized market” and satisfies certain specified public float and stockholder levels. As we do not now meet those requirements, we do not believe that these provisions are currently applicable to us. However, to the extent they become applicable to us in the future, they may have the effect of delaying or making it more difficult to affect a change in control of the Company in the future.

 

A corporation affected by these provisions may not engage in a combination within two years after the interested stockholder acquires his, her or its shares unless the combination or purchase is approved by the board of directors before the interested stockholder acquired such shares. Generally, if approval is not obtained, then after the expiration of the two-year period, the business combination may be consummated with the approval of the board of directors before the person became an interested stockholder or a majority of the voting power held by disinterested stockholders, or if the consideration to be received per share by disinterested stockholders is at least equal to the highest of:

 

●

the highest price per share paid by the interested stockholder within the three years immediately preceding the date of the announcement of the combination or within three years immediately before, or in, the transaction in which he, she or it became an interested stockholder, whichever is higher;

 

●

the market value per share on the date of announcement of the combination or the date the person became an interested stockholder, whichever is higher; or

 

●

if higher for the holders of preferred stock, the highest liquidation value of the preferred stock, if any.

 

Generally, these provisions define an interested stockholder as a person who is the beneficial owner, directly or indirectly of 10% or more of the voting power of the outstanding voting shares of a corporation, and define combination to include any merger or consolidation with an interested stockholder, or any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction or a series of transactions with an interested stockholder of assets of the corporation:

 

●

having an aggregate market value equal to 5% or more of the aggregate market value of the assets of the corporation;

 

●

having an aggregate market value equal to 5% or more of the aggregate market value of all outstanding shares of the corporation; or

 

●

representing 10% or more of the earning power or net income of the corporation.

 

 

Anti-Takeover Effects of Certain Provisions of our Bylaws

 

Our Bylaws provide that directors may be removed by the stockholders with or without cause upon the vote of a plurality of the votes cast at a meeting of stockholders. Furthermore, the authorized number of directors may be changed only by resolution of the Board, and vacancies may only be filled by a majority vote of the directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders. Except as otherwise provided in the Bylaws and the Articles of Incorporation any vacancies or newly created directorships on the Board resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum.

 

Our Bylaws also provide that only a director, chief executive officer, chief financial officer, president, vice president or corporate secretary may call a special meeting of stockholders.

 

The combination of these provisions makes it more difficult for our existing stockholders to replace our Board as well as for another party to obtain control of us by replacing our Board. Since our Board has the power to retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect a change in management. In addition, the authorization of undesignated preferred stock makes it possible for our Board to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change our control.

 

These provisions are intended to enhance the likelihood of continued stability in the composition of our Board and its policies and to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to reduce our vulnerability to hostile takeovers and to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for our shares and may have the effect of delaying changes in our control or management. As a consequence, these provisions may also inhibit fluctuations in the market price of our Common Stock that could result from actual or rumored takeover attempts. We believe that the benefits of these provisions, including increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure our Company, outweigh the disadvantages of discouraging takeover proposals, because negotiation of takeover proposals could result in an improvement of their terms.

 

Registration Rights

 

Pursuant to each of the Settlement Agreements, the Company was obligated to file a registration statement on Form S-3 with the SEC covering the resale of the Series H Conversion Shares issuable upon conversion of the Series H Preferred Stock and to ensure such registration statement is declared effective. In order to satisfy such obligations, the Company is filing this registration statement to register for resale all of the Series H Conversion Shares issuable upon conversion of the Series H Preferred Stock issued to the Selling Stockholders pursuant to the Settlement Agreements.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our Common Stock is Nevada Agency and Transfer Company, which is located at 50 West Liberty Street, Suite 880, Reno, NV 89501 and its telephone number is (775) 322-5623.

 

Nasdaq Listing

 

Our Common Stock is listed on Nasdaq under the symbol “LGMK.”

 

 

PLAN OF DISTRIBUTION

 

Each Selling Stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on the principal trading market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may use any one or more of the following methods when selling securities:

 

	●	ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
	●	block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
	●	purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
	●	an exchange distribution in accordance with the rules of the applicable exchange;
	●	privately negotiated transactions;
	●	settlement of short sales;
	●	in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security;
	●	through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
	●	a combination of any such methods of sale; or
	●	any other method permitted pursuant to applicable law.

 

The Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this prospectus.

 

Broker-dealers engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440 and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.

 

In connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

 

 

The Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.

 

The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.

  

We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.

 

Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Common Stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).

 

 

DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITY

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable

 

LEGAL MATTERS

 

The validity of the issuance of the shares of Common Stock offered hereby will be passed upon for us by Sullivan &Worcester LLP of New York, New York.

 

EXPERTS

 

The consolidated financial statements of LogicMark, Inc. as of December 31, 2023 and 2022 and for each of the two years in the period ended December 31, 2023, incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated in reliance on the report of BPM LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

WHERE YOU CAN FIND MORE INFORMATION

 

This prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain all the information that is included in the registration statement. You will find additional information about us in the registration statement and its exhibits. Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter.

 

You can read our electronic SEC filings, including such registration statement, on the internet at the SEC’s website at www.sec.gov. We are subject to the information reporting requirements of the Exchange Act, and we file reports, proxy statements and other information with the SEC. These reports, proxy statements and other information will be available at the website of the SEC referred to above. We also maintain a website at www.logicmark.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. However, the information contained in or accessible through our website is not part of this prospectus or the registration statement of which this prospectus forms a part, and investors should not rely on such information in making a decision to purchase shares of our Common Stock in this offering.

 

 

INCORPORATION BY REFERENCE

 

We incorporate by reference the filed documents listed below (excluding those portions of any Current Report on Form 8-K that are not deemed “filed” pursuant to the General Instructions of Form 8-K), except as superseded, supplemented or modified by this prospectus or any subsequently filed document incorporated by reference herein as described below:

 

●

our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 16, 2024;

 

●

our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024, filed with the SEC on May 15, 2024;

 

●

our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2024, filed with the SEC on August 14, 2024;

 

●

our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2024, filed with the SEC on November 14, 2024;

 

●

our Definitive Proxy Statement on Schedule 14A for our annual meeting of stockholders held on May 22, 2024, filed with the SEC on April 26, 2024;

 

●

our Definitive Proxy Statement on Schedule 14A for our special meeting of stockholders held on October 1, 2024, filed with the SEC on August 21, 2024;

 

●

our Current Reports on Forms 8-K and 8-K/A filed with the SEC on January 26, 2024, April 17, 2024, May 10, 2024, May 24, 2024, August 5, 2024, August 14, 2024, October 1, 2024, November 1, 2024, November 12, 2024, November 13, 2024, November 14, 2024, and November 18, 2024;

 

●

our registration statement on Form 8-A filed with the SEC on September 9, 2014, including any amendments or reports filed for the purpose of updating such description (including our Current Report on Form 8-K filed with the SEC on June 2, 2023) and (ii) Exhibit 4.1 — Description of Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934, to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 16, 2024.

 

We also incorporate by reference into this prospectus additional documents we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act: (i) 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 the registration statement, and (ii) on or after the date of this prospectus but before the completion or termination of this offering (excluding any information not deemed “filed” with the SEC). Any statement contained in a previously filed document is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in a subsequently filed document incorporated by reference herein modifies or supersedes the statement, and any statement contained in this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in a subsequently filed document incorporated by reference herein modifies or supersedes the statement.

 

We will provide, without charge, to each person to whom a copy of this prospectus is delivered, including any beneficial owner, upon the written or oral request of such person, a copy of any or all of the documents incorporated by reference herein, but not delivered with such prospectus. Requests should be directed to:

 

LogicMark, Inc.

2801 Diode Lane

Louisville, KY 40299

(502) 442-7911

legal@LogicMark.com 

 

Copies of these filings are also available on our website at www.logicmark.com. For other ways to obtain a copy of these filings, please refer to “Where You Can Find More Information” above.

 

 

 

 

 

 

 

 

 

Up to 524,000 Shares of Common Stock

Issuable Upon Conversion of Series H Preferred Stock

 

 

 

LOGICMARK, INC.

 

 

PROSPECTUS

 

 

 

 

 

 

The date of this prospectus is          , 2024.

 

 

 

 

 

 

 

 

 

PART II – INFORMATION NOT REQUIRED IN THE PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution.

 

The following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being registered hereby, all of which shall be borne by the registrant (except any underwriting discounts and commissions and expenses incurred by the selling stockholders for brokerage, accounting, tax or legal services or any other expenses incurred by the selling stockholders in disposing of the shares of Common Stock). All of such fees and expenses, except for the SEC registration fee, are estimated:

 

SEC registration fee		$	144.41
Transfer agent and registrar fees and expenses		$	4,500
Legal fees and expenses		$	40,000
Printing fees and expenses		$	7,000
Accounting fees and expenses		$	10,000
Miscellaneous fees and expenses		$	3,500
Total		$	65,144.41

 

Item 15. Indemnification of Directors and Officers.

 

Section 78.138 of the NRS provides that, subject to certain exceptions under Nevada law, unless the articles of incorporation or an amendment thereto provides for greater individual liability, a director or officer is not individually liable to the Company or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless it is proven that (i) the director’s or officer’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer and (ii) the breach of those duties involved intentional misconduct, fraud or a knowing violation of law. The Company’s articles of incorporation further provide that the personal liability of the directors of the Company is eliminated to the fullest extent permitted by the NRS.

 

Section 78.7502 of the NRS provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.

 

NRS Section 78.7502 also provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit if the person acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation; provided, however, that indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.

 

 

Any indemnification pursuant to the above provisions may be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. The determination must be made: (a) by the stockholders; (b) by the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; (c) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion; or (d) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion. The Company’s articles of incorporation and bylaws comply with Nevada law as set forth above.

 

As permitted by Section 78.138 of the NRS, Article VII of the Company’s articles of incorporation provides:

 

“To the full extent permitted by the ACT and any other applicable law currently or hereafter in effect, no director or officer of the Company will be personally liable to the Company or its stockholders for or with respect to any breach of fiduciary duty or other act or omission as a director.”

 

Pursuant to an employment agreement, entered into on November 2, 2022 and effective as of June 14, 2022, with Chia-Lin Simmons, the Company’s Chief Executive Officer (the “Employment Agreement”), and which the Company has assumed as successor to its predecessor Delaware corporation, the Company has agreed to defend, indemnify, and hold Ms. Simmons harmless from and against any and all claims, damages, penalties or expenses arising from or in connection with the performance of Ms. Simmons’ job duties thereunder to the fullest extent required by law. Pursuant to an agreement, effective July 15, 2021, entered into with FLG Partners, LLC, as amended in February 2022 (the “FLG Agreement”), of which Mark Archer, the Company’s Chief Financial Officer, is a partner, the Company, as successor to its predecessor Delaware corporation, has agreed to indemnify Mr. Archer and FLG Partners, LLC in connection with Mr. Archer’s services to the Company. The foregoing descriptions of the Employment Agreement and FLG Agreement are not complete and are qualified in their entirety by reference to the full text of the Employment Agreement and FLG Agreement, which are attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on November 4, 2022 (with respect to the Employment Agreement), and Exhibits 10.15 and 10.16 to the Company’s Annual Report on Form 10-K, filed with the SEC on April 15, 2022 (with respect to the FLG Agreement).

 

The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any bylaw provision, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such person.

 

The Company has entered into indemnification agreements with each of its directors and executive officers, pursuant to which the Company has agreed to indemnify such persons against all expenses and liabilities incurred or paid by such persons in connection with any proceeding arising from the fact that such persons are or were officers or directors of the Company, and to advance expenses as incurred by or on behalf of such persons in connection therewith.

 

In addition, in connection with the Company’s reincorporation from the State of Delaware to the State of Nevada effective as of June 1, 2023, the Company intends to continue to maintain general liability insurance policy that covers liabilities of its directors and officers arising out of claims based on acts or omissions in their respective capacities as such directors or officers.

 

See “Item 17. Undertakings” for a description of the SEC’s position regarding such indemnification provisions.

 

Item 16. Exhibits. 

 

The list of exhibits in the Exhibit Index to this registration statement is incorporated herein by reference.

 

 

 

Item 17. Undertakings.

 

The undersigned registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

i. To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

 

ii. To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

 

iii. To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

provided, however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, 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 this registration statement.

  

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(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, as amended, to any purchaser:

 

i. Each prospectus filed by the registrant pursuant to Rule 424 (b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement;

 

ii. 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, as amended, shall be deemed to be part of and included in the registration statement as of the earlier of the date such 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; and

 

 

iii. 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.

  

(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933, as amended, 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.

 

(6) That, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended (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, as amended) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Louisville, in the State of Kentucky on December 13, 2024.

 

	LOGICMARK, INC.
	By:	/s/ Mark Archer
		Mark Archer
		Chief Financial Officer

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mark Archer, his or her true and lawful attorney-in-fact and agent with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any or all amendments (including, without limitation, post-effective amendments) to this registration statement, any related registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and any or all pre- or post-effective amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that said attorney-in-fact and agent, or any substitute or substitutes for him, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, the following persons in the capacities and on the dates indicated have signed this registration statement below.

 

Signature		Title		Date
/s/ Chia-Lin Simmons		Chief Executive Officer and Director		December 13, 2024
Chia-Lin Simmons		(Principal Executive Officer)
/s/ Mark Archer		Chief Financial Officer		December 13, 2024
Mark Archer		(Principal Financial Officer and
		Principal Accounting Officer)
/s/ Carine Schneider		Director		December 13, 2024
Carine Schneider
/s/ John Pettitt		Director		December 13, 2024
John Pettitt
/s/ Barbara Gutierrez		Director		December 13, 2024
Barbara Gutierrez
/s/ Robert Curtis		Director		December 13, 2024
Robert Curtis

 

 

EXHIBIT INDEX

 

Exhibit No.		Description of Exhibit
2.1		Agreement and Plan of Merger, dated as of May 19, 2017, by and among the Company, Fit Merger Sub, Inc., Fit Pay, Inc. and Michael Orlando (3)
2.2		Agreement and Plan of Merger, dated as of June 1, 2023, by and between the Company and LogicMark, Inc., a Delaware corporation. (10)
3.1(i)(a)		Certificate of Incorporation, as amended (1)
3.1(i)(b)		Certificate of Amendment to Certificate of Incorporation (2)
3.1(i)(c)		Certificate of Amendment to Certificate of Incorporation (5)
3.1(i)(d)		Certificate of Amendment to Certificate of Incorporation (6)
3.1(i)(e)		Certificate of Designations for Series C Non-Convertible Preferred Stock (3)
3.1(i)(f)		Certificate of Amendment to the Certificate of Designations of Series C Non-Convertible Voting Preferred Stock (5)
3.1(i)(g)		Form of Certificate of Designations, Preferences and Rights of Series F Convertible Preferred Stock (4)
3.1(i)(h)		Certificate of Amendment to Certificate of Incorporation of LogicMark, Inc. (9)
3.1(i)(i)		Series C Certificate of Amendment to the Series C Certificate of Designations of LogicMark, Inc. (9)
3.1(i)(j)		Articles of Incorporation, filed with the Secretary of State of the State of Nevada on June 1, 2023 (10)
3.1(i)(k)		Certificate of Designations, Preferences and Rights of Series C Non-Convertible Voting Preferred Stock, filed with the Secretary of State of the State of Nevada on June 1, 2023 (10)
3.1(i)(l)		Certificate of Designation of Preferences, Rights and Limitations of Series F Convertible Preferred Stock, filed with the Secretary of State of the State of Nevada on June 1, 2023 (10)
3.1(i)(m)		Certificate of Designation, Preferences and Rights of Series G Non-Convertible Voting Preferred Stock, filed with the Secretary of State of the State of Nevada on November 1, 2024 (11)
3.1(i)(n)		Certificate of Designation, Preferences, Rights and Limitations of Series H Convertible Non-Voting Preferred Stock, filed with the Secretary of State of the State of Nevada on November 13, 2024 (12)
3.1(i)(o)		Certificate of Designation, Preferences, Rights and Limitations of Series I Non-Convertible Voting Preferred Stock, filed with the Secretary of State of the State of Nevada on November 13, 2024 (12)
3.1(i)(p)		Series C Certificate of Amendment to the Series C Certificate of Designations of LogicMark, Inc. (13)
3.1(i)(q)		Certificate of Change to Articles of Incorporation of LogicMark, Inc. (13)
3.1(ii)		Bylaws (10)
4.1		Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 (7)
4.2		Form of Warrant for January 2023 Public Offering (8)
4.3		Form of Pre-Funded Warrant for January 2023 Public Offering (8)
4.4		Form of Series A-1 Warrant (15)
4.5		Form of Series A-2 Warrant (15)
4.6		Form of Series B-1 Warrant (15)
4.7		Form of Series B-2 Warrant (15)
4.8		Form of Series A Warrant (16)
4.9		Form of Series B Warrant (16)
4.10		Form of Pre-Funded Warrant (16)
4.11		Form of Placement Agent Warrant (16)
4.12		Form of Series A Warrant for August 2024 Offering (17)
4.13		Form of Series B Warrant for August 2024 Offering (17)
4.14		Form of Pre-Funded Warrant for August 2024 Offering (17)
4.15		Rights Agreement, dated as of November 1, 2024, between LogicMark, Inc. and Nevada Agency and Transfer Company (11)
5.1*		Opinion of Sullivan & Worcester LLP

 

 

Exhibit No.		Description of Exhibit
10.1		Form of Voting Agreement, dated January 25, 2023, by and between the Company and certain investors in the January 2023 Public Offering (8)
10.2		Form of Warrant Agency Agreement, dated January 25, 2023, by and between the Company and Nevada Agency and Transfer Company (8)
10.3		Form of Indemnification Agreement (10)
10.4†		LogicMark, Inc. 2023 Stock Incentive Plan (14)
10.5†		Form of Restricted Stock Award Agreement for LogicMark, Inc. 2023 Stock Incentive Plan (14)
10.6†		Form of Stock Option Agreement for LogicMark, Inc. 2023 Stock Incentive Plan (14)
10.7		Form of 2021 Inducement Agreement by and between the Company and each holder (18)
10.8		Form of 2023 Inducement Agreement by and between the Company and each holder (18)
10.9		Form of Securities Purchase Agreement for August 2024 Offering (17)
10.10		Form of Warrant Agency Agreement for August 2024 Offering (17)
10.11		Form of Settlement Agreement and Release, by and among the Company and the signatories thereto (19)
10.12		Form of Registration Rights Agreement, by and among the Company and the signatories thereto (19)
23.1*		Consent of BPM LLP, Independent Registered Public Accounting Firm
23.2*		Consent of Sullivan & Worcester LLP (included in Exhibit 5.1)
24.1*		Power of Attorney (included on the signature page of this registration statement)
107*		Filing Fee Table

 

*	Filed herewith.
†	Management contract or compensatory plan or arrangement.
(1)	Filed as an Exhibit to the Company’s Registration Statement on Form S-1 (File No. 333-186331) with the SEC on January 31, 2013.
(2)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on September 12, 2016.
(3)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on May 30, 2017.
(4)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on August 17, 2021.
(5)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on October 15, 2021.
(6)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on March 2, 2022.
(7)	Filed as an Exhibit to the Company’s Annual Report on Form 10-K with the SEC on April 15, 2022.
(8)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on January 26, 2023.
(9)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on April 27, 2023.
(10)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on June 2, 2023.
(11)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on November 1, 2024.
(12)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on November 14, 2024
(13)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on November 18, 2024.
(14)	Filed as an Exhibit to the Company’s Quarterly Report on Form 10-Q with the SEC on August 11, 2023.
(15)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on November 21, 2023.
(16)	Filed as an Exhibit to the Company’s Registration Statement on Form S-1/A (File No. 333-279133) with the SEC on June 20, 2024
(17)	Filed as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on August 5, 2024.
(18)	Filed as an Exhibit to the Company’s Current Report on Form 8-K/A with the SEC on November 21, 2023.
(19)	Filed as an Exhibit to the Company’s Quarterly Report on Form 10-Q with the SEC on November 14, 2024.

 

 

II-7

 

Exhibit 5.1

 

 

December 13, 2024

 

LogicMark, Inc.

2801 Diode Lane

Louisville, KY 40299

 

Ladies and Gentlemen:

 

We have acted as special counsel to LogicMark, Inc., a Nevada corporation (the “Company”), in connection with a Registration Statement on Form S-3 (the “Registration Statement”) filed on December 13, 2024 by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), for the proposed resale from time to time by the Selling Stockholders (as defined below) of an aggregate of up to 524,000 shares (the “Series H Conversion Shares”) of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) issuable upon conversion of the Company’s Series H Convertible Non-Voting Preferred Stock, $0.0001 par value per share (the “Series H Preferred Stock”) issued by the Company, pursuant to certain settlement and release agreements (the “Settlement Agreements”) by and among the Company and certain holders of the Company’s Series B common stock purchase warrants issued on August 5, 2024, pursuant to those certain securities purchase agreements, dated August 2, 2024, by and among the Company and the Holders. The holders of the Series H Conversion Shares are collectively referred to herein as the “Selling Stockholders.”

 

In connection with this opinion, we have examined and relied upon the originals or copies certified or otherwise identified to our satisfaction of the following: (i) the Registration Statement, including the exhibits filed therewith, (ii) the Settlement Agreements and all exhibits and schedules attached thereto, (iii) the Certificate of Designations for the Series H Preferred Stock (the “Certificate of Designation”), (iv) the minutes of meetings and resolutions of the board of directors of the Company or pricing committee thereof as provided to us by the Company, (v) the articles of incorporation and bylaws of the Company, each as restated and/or amended to date, and (vi) such other documents as we have deemed necessary for purposes of rendering the opinion hereinafter set forth.

 

In addition to the foregoing, we have relied as to matters of fact upon the representations made by the Company and its representatives and upon representations made by the Selling Stockholders. We also have assumed the genuineness of all signatures on original documents, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents and the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents. Other than our examination of the documents indicated above, we have made no other examination in connection with this opinion.

 

We are members of the Bar of the State of New York. We do not hold ourselves out as being conversant with, or expressing any opinion with respect to, the laws of any jurisdiction other than the laws of the State of New York and the laws of Chapter 78 of the Nevada Revised Statutes. Accordingly, the opinions expressed herein are expressly limited to the laws of the State of New York and the Chapter 78 of the Nevada Revised Statutes. Our opinion is based on these laws as in effect on the date hereof. We express no opinion as to whether the laws of any other jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.

 

 

 

Based upon the foregoing and in reliance thereon, and subject to the qualifications, limitations, exceptions and assumptions set forth herein, we are of the opinion that the Series H Conversion Shares have been duly authorized for issuance by the Company, and provided that the shares of Series H Preferred Stock have been duly executed and delivered by the Company to the Selling Stockholders against payment therefor pursuant to the Settlement Agreements, such Series H Conversion Shares, when issued, delivered and paid for in accordance with the terms of the Settlement Agreement and/or in the manner described in the Registration Statement and the Certificate of Designation, and assuming a sufficient number of authorized but unissued shares of Common Stock is available for issuance when the Series H Preferred Stock is converted,, will be validly issued, fully paid and non-assessable shares of Common Stock.

 

This opinion letter speaks only as of the date hereof and we assume no obligation to update or supplement this opinion letter if any applicable laws change after the date of this opinion letter or if we become aware after the date of this opinion letter of any facts, whether existing before or arising after the date hereof, that might change the opinions expressed above.

 

This opinion is furnished in connection with the filing of the Registration Statement and may not be relied upon for any other purpose without our prior written consent in each instance. Further, no portion of this opinion may be quoted, circulated or referred to in any other document for any other purpose without our prior written consent.

 

We hereby consent to the filing of this opinion with the SEC as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the prospectus which forms part of the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.

 

	Very truly yours,
	/s/ Sullivan & Worcester LLP
	Sullivan & Worcester LLP

 

 

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated April 16, 2024, relating to the financial statements of LogicMark, Inc., which appears in the Annual Report on Form 10-K of LogicMark, Inc. for the year ended December 31, 2023. We also consent to the reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.

 

/s/ BPM LLP

 

BPM LLP

Walnut Creek, California

December 13, 2024

Exhibit 107

 

Calculation of Filing Fee Tables

 

Form S-3

(Form Type)

 

LogicMark, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1 – Newly Registered Securities and Carry Forward Securities

 

		Security Type		Security Class Title			Fee Calculation or Carry Forward Rule		Amount Registered(1)					Proposed Maximum Offering Price Per Unit (2)					Maximum Aggregate Offering Price			Fee Rate				Amount of Registration Fee
Newly Registered Securities
Fees to be paid		Equity		Common Stock, $0.0001 par value per share			457(c)			524,000	(3)	$		1.80	(2)		$		943,200			0.00015310		$		144.41
Fees previously paid
		Total Offering Amounts															$		943,200			0.00015310		$		144.41
		Total Fees Previously Paid																								--
		Total Fee Offsets																								--
		Net Fee Due																						$		144.41

 

(1)	Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), includes any additional shares of common stock, par value $0.0001 per share (the “Common Stock”), of LogicMark, Inc. (the “Registrant”) that may from time to time be offered or issued to prevent dilution from any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock.
(2)	Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) of the Securities Act, based upon the average of the high and low prices for a share of Common Stock as reported on the Nasdaq Capital Market on December 12, 2024, which date is a date within five business days of the filing of the registration statement filed by the Registrant for the registration of the shares of Common Stock listed in the table above (the “Registration Statement”).

 

(3)	Represents shares of Common Stock issuable upon conversion of the shares of Series H Convertible Non-Voting Preferred Stock, par value $0.0001 per share, that were issued by the Registrant on November 14, 2024 to the selling stockholders named in the Registration Statement.

 

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