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Cyngn Inc

Date Filed : Apr 12, 2024

S-11ea0202041-s1_cyngninc.htmREGISTRATION STATEMENT

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-1

 

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

 

CYNGN INC.

(Exact name of registrant as specifiedin its charter)

 

Delaware   7371   46-2007094
(State or other jurisdiction of
incorporation or organization)
 

(Primary Standard Industrial

Classification Code Number)

  (I.R.S. Employer
Identification No.)

 

1015 O’Brien Dr.

Menlo Park, CA 94025

(650) 924-5905

(Address, including zip code, and telephone number,

including area code, of registrant’s principalexecutive offices)

 

Lior Tal

Chief Executive Officer

1015 O’Brien Dr.

Menlo Park, CA 94025

(650) 924-9505

(Name, address, including zip code, and telephonenumber,

including area code, of agent for service)

 

Copies to:

 

Gregory Sichenzia, Esq.

Marcelle S. Balcombe, Esq.

Sichenzia Ross Ference Carmel LLP

1185 Avenue of the Americas, 31st Floor

New York, New York 10036

Tel: (212) 930-9700

 

Anthony W. Basch, Esq.

Alexander W. Powell, Esq.

Benming Zhang. Esq.

Kaufman & Canoles, P.C.

1021 E. Cary St.

Richmond, Virginia 23219

Tel: (804) 771-5700

 

As soon as practicable after the effective dateof this registration statement

(Approximate date of commencement of proposed saleto the public)

 

If any of the securities beingregistered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 checkthe following box. ☒

 

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

 

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

 

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

 

Indicate by check mark whetherthe registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerginggrowth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reportingcompany,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

  Large accelerated filer Accelerated filer
  Non-accelerated filer Smaller reporting company
      Emerging growth company

 

If an emerging growth company,indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financialaccounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

The Registrant hereby amends this RegistrationStatement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment whichspecifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the SecuritiesAct of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission,acting pursuant to Section 8(a), may determine.

 

 

 

 

 

 

The information inthis preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filedwith the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offerto buy these securities in any state or other jurisdiction where the offer or sale is not permitted.

 

PRELIMINARY PROSPECTUS SUBJECT TO COMPLETION

DATED APRIL 12, 2024

 

 

  

Up to 52,015,605 shares of Common Stock

Pre-funded Warrants to Purchase up to 52,015,605Shares of Common Stock

Up to 52,015,605 shares of Common Stock underlyingthe Pre-funded Warrants

 

We are offering, on a firmcommitment basis, up to $8 million of shares of our common stock, par value $0.00001 per share at an assumed public offering price of$0.1538 per share, based on the last reported sale price of our common stock on The Nasdaq Capital Market, or Nasdaq, on April 9, 2024.

 

We are also offering pre-fundedwarrants (the “Pre-funded Warrants”) to purchase up to 52,015,605 shares of common stock to those purchasers whose purchaseof shares of common stock in this offering would result in the purchaser, together with its affiliates and certain related parties, beneficiallyowning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock immediately following the consummationof this offering, in lieu of shares of common stock that would result in beneficial ownership in excess of 4.99% (or, at the electionof the purchaser, 9.99%) of our outstanding common stock. Each Pre-funded Warrant is exercisable for one share of our common stock andhas an exercise price of $0.00001 per share. For each Pre-funded Warrant that we sell, the number of shares of common stock we are offeringwill be reduced on a one-for-one basis.

  

Pursuant to this prospectus,we are also offering the shares of common stock issuable upon the exercise of the Pre-funded Warrants offered hereby.

 

Our common stock is listedon The Nasdaq Capital Market (“Nasdaq”), under the symbol “CYN.” On April 9, 2024, the last reported sale priceof our common stock was $0.1538 per share. We do not intend to list the Pre-funded Warrants offered pursuant to this prospectus on anynational securities exchange or other nationally recognized trading system.

 

Thefinal public offering price of the shares of our common stock or Pre-funded Warrants will be determined through negotiation between usand the underwriter, based upon a number of factors, including our history and our prospects, the industry in which we operate, our pastand present operating results, the previous experience of our executive officers and the general condition of the securities markets atthe time of this offering.

 

We havegranted Aegis Capital Corp., as “Underwriter”, an option, exercisable for 45 days from the closing date of this offering,to purchase up to           additional shares of common stock, representing 15% of theshares of common stock and/or Pre-funded Warrants sold in the offering.

 

Investing in our securitiesinvolves a high degree of risk. See “Risk Factors” beginning on page 7 of this prospectus to read about factorsyou should consider before investing in our securities.

 

Neither the Securitiesand Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacyor accuracy of this prospectus. Any representation to the contrary is a criminal offense.

 

   Per Share   Per Pre-
funded
Warrant
   Total 
Public offering price  $                    $        
Underwriter discounts and commissions(1)  $        $ 
Proceeds to us, before expenses(2)  $        $ 

 

(1)

Does not include certain expenses of the Underwriter. See “Underwriting”beginning on page 18 of this prospectus for additional information regarding compensation to be received by the Underwriter.

(2) The amount of proceeds, before expenses, to us does not give effect to any exercise of the Pre-funded Warrants.

  

Delivery of the shares ofour common stock and Pre-funded Warrants is expected to be made on or about             ,2024.

 

Sole Underwriter

 

AEGISCAPITAL CORP.

 

The date of this prospectus is                ,2024

 

 

 

 

TABLE OF CONTENTS

 

ABOUT THIS PROSPECTUS ii
PROSPECTUS SUMMARY 1
THE OFFERING 6
RISK FACTORS 7
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS 10
USE OF PROCEEDS 11
CAPITALIZATION 11
DESCRIPTION OF CAPITAL STOCK 12
UNDERWRITING 18
LEGAL MATTERS 21
EXPERTS 21
INFORMATION INCORPORATED BY REFERENCE 22
WHERE YOU CAN FIND MORE INFORMATION 22

 

You should rely only on theinformation contained in or incorporated by reference in this prospectus and the information belowunder the captions “Information Incorporated By Reference” and “Where You Can Find More Information” before makingan investment decision. Neither we nor the Underwriter have authorized anyone to provide you with information different from,or in addition to, that contained in or incorporated by reference in this prospectus. If anyone provides you with different or inconsistentinformation, you should not rely on it. We can provide no assurance as to the reliability of any other information that others may giveyou. Neither we nor the Underwriter is making an offer to sell or seeking offers to buy these securities in any jurisdiction where orto any person to whom the offer or sale is not permitted. The information in this prospectus is accurate only as of the date on the frontcover of this prospectus, and the information in any free writing prospectus that we may provide you in connection with this offeringis accurate only as of the date of such free writing prospectus. Our business, financial condition, results of operations and prospectsmay have changed since those dates.

 

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ABOUT THIS PROSPECTUS

 

We incorporate by referenceimportant information into this prospectus. You may obtain the information incorporated by reference without charge by following the instructionsunder “Where You Can Find More Information.” You should carefully read this prospectus as well as additional information describedunder “Information Incorporated By Reference,” before deciding to invest in our securities.

 

Neither we nor Aegis haveauthorized anyone to provide you with information different from or inconsistent with the information contained in or incorporated byreference in this prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other informationthat others may give you. You should assume that the information appearing in this prospectus and the documents incorporated by referencein this prospectus is accurate only as of the date of those respective documents, regardless of the time of delivery of those respectivedocuments. Our business, financial condition, results of operations and prospects may have changed since those dates. 

 

The information incorporatedby reference or provided in this prospectus contains statistical data and estimates, including those relating to market size and competitiveposition of the markets in which we participate, that we obtained from our own internal estimates and research, as well as from industryand general publications and research, surveys and studies conducted by third parties. Industry publications, studies and surveys generallystate that they have been obtained from sources believed to be reliable. While we believe our internal company research is reliable andthe definitions of our market and industry are appropriate, neither this research nor these definitions have been verified by any independentsource.

 

We further note that the representations,warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference intothis prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocatingrisk among the parties to such agreement, and should not be deemed to be a representation, warranty or covenant to you. Moreover, suchrepresentations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties andcovenants should not be relied on as accurately representing the current state of our affairs.

 

We are offering to sell, andseeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The distribution of thisprospectus and the offering of our common stock in certain jurisdictions may be restricted by law. Persons outside the United States whocome into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of our commonstock and the distribution of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connectionwith, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus by any person in any jurisdictionin which it is unlawful for such person to make such an offer or solicitation.

 

CYNGN Inc. and its consolidatedsubsidiaries are referred to herein as “Cyngn,” “the Company,” “we,” “us” and “our,”unless the context indicates otherwise.

 

This prospectus contains,or incorporates by reference, trademarks, tradenames, service marks and service names of CYNGN Inc. and its subsidiaries. 

 

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PROSPECTUS SUMMARY

 

This summary highlights selected informationincluded elsewhere in or incorporated by reference in this prospectus and does not contain all the information that you should considerbefore investing in our securities. You should read the entire prospectus carefully, especially “Risk Factors” and the financialstatements and related notes and other information incorporated by reference into this prospectus, before deciding whether to participatein the offering described in this prospectus.

 

Overview1

 

Weare an autonomous vehicle (“AV”) technology company that is focused on addressing industrial uses for autonomous vehicles.We believe that technological innovation is needed to enable adoption of autonomous industrial vehicles that will address the substantialindustry challenges that exist today. These challenges include labor shortages, high labor costs and work safety.

 

Weintegrate our full-stack autonomous driving software, DriveMod, onto vehicles manufactured by Original Equipment Manufacturers (“OEM”)either via retrofit of existing vehicles or by integration directly into vehicle assembly. We design the Enterprise Autonomy Suite (“EAS”)to be compatible with sensors and components from leading hardware technology providers and integrate our proprietary AV software to producedifferentiated autonomous vehicles.

 

Autonomousdriving has common technological building blocks that remain similar across vehicles and applications. By tapping into these buildingblocks, DriveMod is designed to deliver autonomy to new vehicles via streamlined hardware/software integration. This vehicle-agnostic approachenables DriveMod to expand to new vehicles and novel operational design domains (“ODD”). In short, nearly every industrialvehicle, regardless of use case, can move autonomously using our technology.

 

Ourapproach accomplishes several primary value propositions:

 

1.Provideautonomous capabilities to industrial vehicles built by established manufacturers that are already trusted by customers.

 

2.Generatecontinual customer value by leveraging the synergistic relationship of autonomous vehicles and data.

 

3.Developconsistent autonomous vehicle operation and user interfaces for diverse vehicle fleets.

 

4.Complementthe core competencies of existing industry players by introducing the leading-edge technologies like Artificial Intelligence (“AI”)and Machine Learning (“ML”), cloud/connectivity, sensor fusion, high-definition mapping, and real-time dynamicpath planning and decision making.

 

Webelieve our market positioning as a technology partner to vehicle manufacturers creates a synergy with incumbent suppliers that alreadyhave established sales, distribution, and service/maintenance channels. By focusing on industrial use cases and partnering with the incumbentOEMs in these markets, we believe we can source and execute revenue-generating opportunities more quickly.

 

Ourlong-term vision is for EAS to become a universal autonomous driving solution with minimal marginal cost for companies to adopt newvehicles and expand their autonomous fleets across new deployments. We have already deployed DriveMod software on more than ten differentvehicle form factors that range from stockchasers and stand-on floor scrubbers to 14-seat shuttles and electric forklifts aspart of prototypes and proof of concept projects, demonstrating the extensibility of our AV building blocks.

 

 

1Please review. We pulled some sections from the 10-K insteadof including a full blown business discussion. This S-1 incorporates the 10-K by reference.

 

 

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Ourrecent progress contributes to the validation of EAS with OEM partners and end customers. We also continue to build upon our ability toscale our products and generate novel technological developments. The DriveMod Stockchaser became commercially available in early 2023starting with the deployment from our partner-customer US Continental, a California-based leading manufacturer of quality leather andfabric care products. We also launched the DriveMod Forklift and the DriveMod Tugger as we expand our vehicle-type portfolio fleet throughour OEM partnership with BYD and Motrec, respectively.

 

Wesecured paid projects with leading global customers like Arauco, along with additional projects from big brands in the Global 500 andthe Fortune 100. Our patent portfolio expanded with 16 new U.S. patent grants in 2023, bringing the total grants to 19.

 

 

 

Our Products

 

EASis a suite of technology and tools that consists of three complementary categories: DriveMod, Cyngn Insight, and Cyngn Evolve.

 

DriveMod: IndustrialAutonomous Vehicle System

 

Webuilt DriveMod as a modular software product that is compatible with various sensor and computer hardware components that are widely usedthroughout the autonomous vehicle industry. Our software combined with sensors and components from industry leading technology providerscovers the end-to-end requirements that enable vehicles to operate autonomously with leading-edge technology. The modularityof DriveMod allows our AV technology to be compatible across vehicle platforms as well as indoor and outdoor environments. DriveMod canbe retrofitted to existing vehicle assets or integrated into a manufacturing partner’s vehicles at assembly, providing accessibleoptions for our customers to integrate leading-edge technology whether their AV adoption strategies are evolutionary or revolutionary.

 

Thecore vehicle-agnostic DriveMod software stack is targeted and deployed to different vehicles through DriveMod Kits, whichare the AV hardware systems that take into account the specific needs of operating the DriveMod software on a specific target vehicle.Then, after prototyping and productization, DriveMod kits streamline the integration AV hardware and software integration onto vehiclesat scale. The DriveMod Kit for Columbia Stockchasers is commercially released and available at scale. Subsequently, we expect to createdifferent instances of DriveMod Kits to support the commercial release of new vehicles on the EAS platform, such as the electric forkliftsand other industrial vehicles.

 

 

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Figure 1: Overviewof Cyngn’s autonomous vehicle technology (DriveMod)

 

DriveMod’sflexibility combines with our network of manufacturing and service partners to support customers at different stages of autonomous technologyintegration. This allows customers to grow the complexity and scope of their industrial autonomy deployments as their business transformswhile continually capturing returns throughout their transition to full autonomy. EAS will also grant customers access to over-the-air softwareupgrades, ad hoc customer support, and flexible consumption based on usage and scale of operations. By lessening both the commercial andtechnical burdens of traditional vehicle automation and industrial robotics investments, industrial AVs can become universally availableto the market, even reaching small and medium-sized businesses that may otherwise struggle to adopt Industry 4.0 and 5.0 technology.

 

Cyngn Insight: IntelligentControl Center

 

CyngnInsight is the customer-facing tool suite for managing AV fleets and aggregating data to extract business insights. Analytics dashboardssurface data about the system’s status, vehicle telemetry, and performance metrics. Cyngn Insight also provides tools to switchbetween autonomous, manual, and remote operation when required. This flexibility allows customers to use the autonomous capabilities ofthe system in a way that is tailored to their own operational environment. Customers can choose when to operate their DriveMod-powered vehiclesautonomously and when to have human operators operate the vehicles manually or remotely based on their own business needs. When combined,these capabilities and tools make up the Cyngn Insight intelligent control center that enables flexible fleet management from any location.

  

CyngnInsight’s tool suite includes configurable cloud dashboards that aggregate diverse data streams at several levels of granularity(i.e., site, fleet, vehicle, module, and component). We can collect data during “open loop” vehicle operation, meaning thatthe vehicles can be operated manually while still collecting the rich data enabled by the advanced on-vehicle sensors and computers.Data can be used for predictive maintenance, operational improvements, educating employees on digital transformation and more.  

 

Cyngn Evolve: DataOptimization Tools

 

CyngnEvolve is our internal tool suite that underpins the relationship between AVs and data. Through a unifying cloud-based data infrastructure,our proprietary data tools strengthen the positive network effects derived from the valuable new data created by AVs. Cyngn Evolve andits data pipelines facilitate AI/ML training and deployment, manage data sets, and support driving simulation and grading to test andvalidate new DriveMod releases, using both real-world and simulated data.

 

 

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Figure 2: The Cyngn“AnyDrive” simulation is part of the Cyngn Evolve toolchain. The simulation environment creates a digital version of the physicalworld. This allows for customer data sets to be leveraged and augmented to achieve testing and validation prior to releasing new AV features.

 

AsAV technology expertise matures globally, there may be opportunities to monetize the sophisticated AV-centric tools of Cyngn Evolve.Currently, we believe that AV development is confined to small groups of experts. Therefore, Cyngn Evolve is currently an internal EAStool that we use to advance DriveMod and Cyngn Insight, our customer-facing EAS products.

 

 Intellectual Property Portfolio

 

Ourability to drive impact and growth within the autonomous industrial vehicle market largely depends on our ability to obtain, maintain,and protect our intellectual property and all other property rights related to our products and technology. To accomplish this, we utilizea combination of patents, trademarks, copyrights, and trade secrets as well as employee and third-party non-disclosure agreements,licenses, and other contractual obligations. In addition to protecting our intellectual property and other assets, our success also dependson our ability to develop our technology and operate without infringing, misappropriating, or otherwise violating the intellectual propertyand property rights of third parties, customers, and partners.

 

Oursoftware stack has over 30 subsystems, including those designed for perception, mapping & localization, decision making, planning,and control. As of February 29, 2024, we have 19 granted U.S. patents and submitted 6 pending U.S. patent and 20 international patentapplications and expect to continue to file additional patent applications with respect to our technology in the future.

 

Our Corporate Information

 

TheCompany was originally incorporated in the State of Delaware on February 1, 2013, under the name Cyanogen, Inc. or Cyanogen. The Companystarted as a venture funded company with offices in Seattle and Palo Alto, aimed at commercializing CyanogenMod, direct to consumer andthrough collaborations with mobile phone manufacturers. CyanogenMod was an open-source operating system for mobile devices, basedon the Android mobile platform. Cyanogen released multiple versions of its mobile operating system and collaborated with an ecosystemof companies including mobile phone OEMs, content providers and leading technology partners from 2013 to 2015.

 

 

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In2016 the Company’s management and board of directors, determined to pivot its product focus and commercial direction from the mobiledevice and telecom space to industrial and commercial autonomous driving with the hiring of Lior Tal in June 2016 to serve as the company’schief operating officer. Mr. Tal, a seasoned executive of startup firms where prior to joining the company, co-founded Snaptu which laterwas acquired by Facebook (currently known as Meta Platforms, Inc.), as well as held various leadership roles at Actimize, DiskSites andOdigo; all of these companies which were also later acquired. Mr. Tal was promoted to chief executive officer in October 2016 and continuesto serve in this role along with chairman of the board. In May 2017, the Company changed its name to CYNGN Inc.

 

Available Information

  

Ourprincipal business address is 1015 O’Brien Dr., Menlo Park, CA 94025, and our telephone number is (650) 924-5905. We maintain ourcorporate website at https://cyngn.com (this website address is not intended to function as a hyperlink and theinformation contained on our website is not intended to be a part of this prospectus). Information on our website does not constitutea part of, nor is it incorporated in any way, into this prospectus and should not be relied upon in connection with making an investmentdecision. We make available free of charge on https://investors.cyngn.com/ our annual, quarterly, and current reports, and amendmentsto those reports if any, as soon as reasonably practical after we electronically file such material with, or furnish it to, the SEC. Wemay from time to time provide important disclosures to investors by posting them in the Investor Relations section of our website.

 

Ourcommon stock is quoted on the Nasdaq under the symbol “CYN”. We file annual, quarterly, and current reports, proxy statementsand other information with the U.S. Securities Exchange Commission (the “SEC”) and are subject to the requirements of theSecurities and Exchange Act of 1934, as amended (the Exchange Act). These filings are available to the public on the Internet at the SEC’swebsite at http://www.sec.gov.

 

 

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THE OFFERING

  

Securities offered  

Up to 52,015,605 shares of common stock or Pre-funded warrants to purchaseup to an aggregate of 52,015,605 shares of common stock. We are also registering the shares of our common stock issuable upon exerciseof the Pre-funded Warrants.

     
Pre-funded Warrants we are offering  

We are also offering to those purchasers whose purchase of common stockin this offering would otherwise result in the purchaser, together with its affiliates and certain related parties, beneficially owningmore than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock immediately following the closing of thisoffering, in lieu of purchasing common stock, Pre-funded Warrants to purchase up to an aggregate of 52,015,605 shares of our common stock.Each Pre-funded Warrant is exercisable for one share of our common stock. The purchase price of each Pre-funded Warrant is equal to theprice at which a share of common stock is being sold to the public in this offering, minus $0.00001, and the exercise price of each Pre-fundedWarrant is $0.00001 per share. The Pre-funded Warrants are exercisable immediately and may be exercised at any time until all of the Pre-fundedWarrants are exercised in full. This offering also relates to the shares of common stock issuable upon exercise of any Pre-funded Warrantssold in this offering. For each Pre-funded Warrant that we sell, the number of shares of common stock that we are offering will be reducedon a one-for-one basis.

     
Common stock outstanding immediately before this offering  

89,325,727 shares of common stock.

     
Common stock to be outstanding after this offering  

141,341,332 shares of common stock.

     
Over-allotment option   The underwriter has a 45-day option to purchase additional shares of commonstock up to 15% of the total number of shares of common stock and/or Pre-funded Warrants sold in the offering.
     
Use of proceeds  

We estimate that the net proceeds ofthis offering will be approximately $7.2 million (or approximately $8.3 million if the underwriter exercises in full its over-allotmentoption), after deducting the estimated underwriting discounts and commissions and estimated offering costs payable by us.

 

We intend to use the net proceeds of this offering for general corporatepurposes, including working capital. See “Use of Proceeds.”

     
Risk factors   Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 7 of this prospectus for a discussion of factors to consider carefully before deciding to invest in shares of our common stock.
     
Nasdaq symbol   Our common stock is listed on Nasdaq under the symbol “CYN.”

    

Unless otherwise indicated,all information contained in this prospectus assumes the sale of all of the shares offered hereby at an assumed public offering priceof $0.1538 per share and no sale of any Pre-funded Warrants. The number of shares of our common stock that are and will be outstandingimmediately before and after this offering as shown above is based on 89,325,727 shares outstanding as of April 9, 2024. The number ofshares outstanding as of April 9, 2024, as used throughout this prospectus, unless otherwise indicated, excludes, as of that date:

 

  17,117,399 sharesof common stock issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $1.02 per share;

 

  160,992 shares of commonstock issuable upon vesting of restricted stock unit awards with a weighted-average exercise price of $0.00 per share;

 

  8,547,134 shares ofcommon stock reserved for future issuance under our 2021 Equity Incentive Plan; and

 

  7,236,776 shares of common stock issuable upon exercise of warrants to purchase common stock with a weighted-average exercise price of $2.82 per share.

 

 

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RISK FACTORS

 

An investment in our securitiesinvolves a high degree of risk. You should carefully consider the following risks and all of the other information contained or incorporatedby reference in this prospectus before deciding whether to invest in our securities , including the risks and uncertaintiesdescribed below and under the caption “Risk Factors” in our most recently filed Annual Report on Form 10-K and Quarterly Reporton Form 10-Q filed with the SEC, in each case as these risk factors are amended or supplemented by subsequent Annual Reports on Form 10-Kor Quarterly Reports on Form 10-Q. Our business, financial condition, results of operations and future prospects may be adversely affectedas a result of such risks. In such an event, the market price of our common stock could decline, and you could lose part or all of yourinvestment.

 

Risks Relating to this Offering and Ownershipof Our Securities

 

Our management has concluded there is substantialdoubt as to our ability to continue as a going concern if we are not able to raise sufficient capital.

 

Weincurred net losses of $22.8 million and $19.2 million for the years ended December 31, 2023, and 2022, respectively.As of December 31, 2023, we had $3.6 million of cash. Based on cash flow projections from operating and financing activities and the existingbalance of cash and short-term investments, management is of the opinion that the Company has insufficient funds for sustainable operations,and it may not be able to meet its payment obligations from operations and related commitments, if the Company is not able to raise sufficientcapital or to allow the Company to continue as a going concern, for the next year. Our consolidated financial statements do not includeany adjustments to reflect the possible future effects on the recoverability and classification of assets and liabilities that may resultin the Company not being able to continue as a going concern.

 

The Company’s abilityto continue as a going concern is dependent on management’s ability to successfully execute its business plan, which includes increasingrevenue while controlling operating costs and expenses to generate positive operating cash flows and obtaining funds from outside sourcesof financing to generate positive financing cash flows.

 

There can be no assurance that any such measures will be successful.We currently do not generate substantial revenue from product sales. Accordingly, we expect to rely primarily on equity and/or debt financingsto fund our continued operations. Our ability to raise additional funds will depend, in part, on the success of our product developmentactivities, and other events or conditions that may affect our value or prospects, as well as factors related to financial, economic andmarket conditions, many of which are beyond our control. There can be no assurances that sufficient funds will be available to uswhen required or on acceptable terms, if at all. Even if successful in raising new capital, we could be limited in the amount ofcapital we raise due to investor demand restrictions placed on the amount of capital we raise or other reasons. For example, if we seekto raise funds utilizing our effective Registration Statement on Form S-3, we are subject to the limitations set forth in InstructionI.B.6 of Form S-3), which limits the amount we can raise to one-third of our public float, less shares sold in the prior twelve monthsunder I.B.6. Accordingly, management has concluded that these plans do not alleviate substantial doubt about the Company’s abilityto continue as a going concern.

 

Ifwe are not successful in improving our liquidity position, we may be required to significantly delay, scale back, or discontinue thedevelopment or commercialization of our product candidates, pursue the sale of our company to a third party at a price that may resultin a loss on investment for our stockholders, or file for bankruptcy or cease operations altogether. Any of these events could have amaterial adverse effect on our business, operating results and prospects.

 

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The Pre-funded Warrants will not be listedor quoted on any exchange.

 

There is no established publictrading market for the Pre-funded Warrants being offered in this offering, and we do not expect a market to develop. In addition, we donot intend to apply to list the Pre-funded Warrants on any national securities exchange or other nationally recognized trading system,including Nasdaq. Without an active market, the liquidity of the Pre-funded Warrants will be limited.

 

Except as otherwise provided in the Pre-fundedWarrants, holders of Pre-funded Warrants purchased in this offering will have no rights as stockholders until such holders exercise theirPre-funded Warrants and acquire our common stock.

 

Except as otherwise providedin the Pre-funded Warrants, until holders of Pre-funded Warrants acquire our common stock upon exercise of the Pre-funded Warrants, holdersof Pre-funded Warrants will have no rights with respect to our common stock underlying such Pre-funded Warrants. Upon exercise of thePre-funded Warrants, the holders will be entitled to exercise the rights of a holder of our common stock only as to matters for whichthe record date occurs after the exercise date.

 

The Pre-funded Warrants arespeculative in nature.

 

The Pre-funded Warrantsoffered hereby do not confer any rights of ownership of our shares of common stock on their holders, such as voting rights or the rightto receive dividends, but rather merely represent the right to acquire shares of common stock at a fixed price. Specifically, commencingon the date of issuance, holders of the Pre-funded Warrants may acquire shares of common stock issuable upon exercise of suchwarrants at an exercise price of $0.0001 per share of common stock. Moreover, following this offering, the market value of the Pre-funded Warrantsis uncertain, and there can be no assurance that the market value of the Pre-funded Warrants will equal or exceed their publicoffering price.

 

We are not in compliance with The NASDAQCapital Market $1.00 minimum bid price requirement and failure to maintain compliance with this standard could result in delisting andadversely affect the market price and liquidity of our common stock.

 

Ourcommon stock is currently traded on The NASDAQ Capital Market under the symbol “CYN”. If we fail to meet any of the continuedlisting standards of The NASDAQ Capital Market, our common stock will be delisted from The NASDAQ Capital Market. These continued listingstandards include specifically enumerated criteria, such as a $1.00 minimum closing bid price. On August 24, 2023, we received a letterfrom The NASDAQ Stock Market advising that the Company did not meet the minimum $1.00 per share bid price requirement for continued inclusionon The NASDAQ Capital Market pursuant to NASDAQ Marketplace Listing Rule 5550(a)(2). To demonstrate compliance with this requirement,the closing bid price of our common stock needs to be at least $1.00 per share for a minimum of 10 consecutive business days before February20, 2024. On February 21, 2024, Nasdaq granted the Company an additional 180-day extension to continueits listing on the Nasdaq Capital Market. The Company was given until August 19, 2024 to regain compliance with Nasdaq’s $1 minimumbid price per share requirement.

 

Whilewe intend to regain compliance with the minimum bid price rule, there can be no assurance that we will be able to maintain continued compliancewith this rule or the other listing requirements of The NASDAQ Capital Market. If we were unable to meet these requirements, we wouldreceive another delisting notice from the Nasdaq Capital Market for failure to comply with one or more of the continued listing requirements.If our common stock were to be delisted from The NASDAQ Capital Market, trading of our common stock most likely will be conducted in theover-the-counter market on an electronic bulletin board established for unlisted securities such as the OTC Markets or in the “pinksheets.” Such a downgrading in our listing market may limit our ability to make a market in our common stock and which may impactpurchases or sales of our securities.

 

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Our management will have broad discretionover the use of the net proceeds from this offering.

 

We currently intend to usethe net proceeds from the sale of our securities under this offering for general corporate purposes, including working capital. We havenot reserved or allocated specific amounts for any of these purposes and we cannot specify with certainty how we will use the net proceeds(see “Use of Proceeds”). Accordingly, our management will have considerable discretion in the application of the net proceeds,and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately.We may use the net proceeds for corporate purposes that do not increase our operating results or market value.

 

Future sales of our common stock could lowerour stock price and dilute existing stockholders.

 

We may, in the future, selladditional shares of common stock in subsequent public or private offerings. We cannot predict the size or terms of future issuances ofour common stock or the effect, if any, that future sales and issuances of shares of our common stock will have on the market price ofour common stock. Sales of substantial amounts of our common stock, or the perception that such sales could occur, may adversely affectprevailing market prices for our common stock. In addition, these sales may be dilutive to existing stockholders.

 

We have not paid cash dividends in the pastand do not expect to pay dividends in the future. Any return on investment may be limited to the value of our common stock, which maydecrease in value.

 

We have never paid cash dividendson our common stock and do not anticipate doing so in the foreseeable future. On September 29, 2023, our Board of Directors declared aone-time special dividend of 10% on our issued and outstanding shares of our common stock to holders of record on October 23, 2023. Thepayment of dividends on our common stock will depend on earnings, financial condition and other business and economic factors affectingus at such time as our board of directors may consider relevant. If we do not pay dividends, our common stock may be less valuable becausea return on your investment will only occur if our stock price appreciates.

 

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CAUTIONARY NOTE REGARDINGFORWARD-LOOKING STATEMENTS

 

All statements in this prospectusand the documents incorporated by reference that are not historical facts should be considered “Forward Looking Statements”within the meaning of the “Safe Harbor” provisions of the Private Securities Litigation Reform Act of 1995. Such statementsinvolve known and unknown risks, uncertainties and other factors that may cause actual results, performance or achievements of the Companyto be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements.Some of the forward-looking statements can be identified by the use words such as “believe,” “expect,” “may,”“estimates,” “should,” “seek,” “approximately,” “intend,” “plan,”“estimate,” “project,” “continue” or “anticipates” or similar expressions or words, orthe negatives of those expressions or words. These statements may be made directly in this prospectus and they may also be incorporatedby reference in this prospectus from other documents filed with the SEC, and include, but are not limited to, statements about futurefinancial and operating results and performance, statements about our plans, objectives, expectations and intentions with respect to futureoperations, products and services, and other statements that are not historical facts. These forward-looking statements are based uponthe current beliefs and expectations of our management and are inherently subject to significant business, economic and competitive uncertaintiesand contingencies, many of which are difficult to predict and generally beyond our control. In addition, these forward-looking statementsare subject to assumptions with respect to future business strategies and decisions that are subject to change. Actual results may differmaterially from the anticipated results discussed in these forward-looking statements.

 

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USE OF PROCEEDS

 

Weestimate that the net proceeds from the sale of the securities we are offering will be approximately $7.2 million (or approximately $8.3million if the underwriter exercises in full its over-allotment option), after deducting the estimated underwriting discounts and commissionsand estimated offering costs payable by us. We intend to use the net proceeds we receive from this offering for general corporatepurposes, including working capital.

    

As of the date of this prospectus,we cannot specify with certainty all of the particular uses for the net proceeds to us from this offering. Accordingly, our managementwill have broad discretion in the timing and application of these proceeds.

 

CAPITALIZATION

 

The following table sets forthour cash, as well as our capitalization, as of December 31, 2023, as follows:

 

  on an actual basis; and
     
 

on an as adjusted basis, giving effect to the assumed sale by us of52,015,605 shares of common stock in this offering at an assumed public offering price of $0.1538 per share, after underwriting discountsand commissions and other estimated offering expenses payable by us.

 

You should read this tablein conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and ouraudited financial statements for the year ended December 31, 2023, and the related notes thereto, included in our annual report on Form10-K for the year ended December 31, 2023 and incorporated by reference in this prospectus.

 

   Actual   As Adjusted 
Cash  $3,591,623   $10,755,442 
Total liabilities  $2,398,167   $2,398,167 
Stockholders’ equity:          
Preferred stock, 10,000,000 authorized shares; $0.00001 par value: 0 shares issued and outstanding  $-   $- 
Common stock, 200,000,000 authorized shares; $0.00001 par value; 64,773,756 shares issued and outstanding, actual, 116,789,361 shares issued and outstanding, as adjusted  $648   $1,168 
Additional paid-in capital  $170,652,160   $177,835,459 
Accumulated deficit  $(160,017,619)  $(160,017,619)
Total stockholders’ equity  $10,635,189   $17,819,008 

    

The number of shares to beoutstanding immediately after giving effect to this offering as shown above is based on 64,773,756 shares outstanding as of December 31,2023, and excludes, as of such date:

 

17,503,253shares of common stock issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $1.04 pershare;

 

177,294 sharesof common stock issuable upon vesting of restricted stock unit awards with a weighted-average exercise price of $0.00 per share;

 

661,280 sharesof common stock reserved for future issuance under our 2021 Equity Incentive Plan; and

 

7,236,776 sharesof common stock issuable upon exercise of warrants to purchase common stock with a weighted-average exercise price of $2.82 pershare.

 

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DESCRIPTION OF CAPITAL STOCK

 

We are authorized to issueup to 200,000,000 shares of common stock, par value $0.00001 per share, and 10,000,000 shares of preferred stock, par value $0.00001per share.

 

The following is a summaryof the material terms of our capital stock and certain provisions of our certificate of incorporation and bylaws. Since the terms of ourcertificate of incorporation and bylaws, and Delaware law, are more detailed than the general information provided below, you should onlyrely on the actual provisions of those documents and Delaware law. If you would like to read those documents, they are on file with theSEC, as described under the heading “Where You Can Find More Information” below. The summary below is also qualified by provisionsof applicable law.

 

Common Stock

 

Ourcertificate of incorporation, as amended and restated (“Certificate of Incorporation”) authorize us to issue up to 200,000,000shares of common stock, $0.00001 par value. Each holder of our common stock is entitled to one (1) vote for each share held of recordon all voting matters we present for a vote of stockholders, including the election of directors. Holders of common stock have no cumulativevoting rights or preemptive rights to purchase or subscribe for any stock or other securities, and there are no conversion rights or redemptionor sinking fund provisions with respect to our common stock. All shares of our common stock are entitled to share equally in dividendsfrom sources legally available when, and if, declared by our Board of Directors.

 

OurBoard of Directors is authorized to issue additional shares of common stock not to exceed the amount authorized by the Certificate ofIncorporation, on such terms and conditions and for such consideration as the Board may deem appropriate without further stockholder action.

 

In the event of our liquidationor dissolution, all shares of our common stock are entitled to share equally in our assets available for distribution to stockholders.However, the rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, therights of the holders of shares of preferred stock that have been issued or shares of preferred stock that our Board of Directors maydecide to issue in the future.

 

Pre-funded Warrants to be issued in this offering

 

The following summary of certainterms and conditions of the Pre-funded Warrants is not complete and is subject to, and qualified in its entirety by, the provisions ofPre-funded Warrant, the form of which is filed as an exhibit to the registration statement of which this prospectus forms a part. Prospectiveinvestors should carefully review the terms and provisions of the form of Pre-funded Warrant for a complete description of the terms andconditions of the Pre-funded Warrants.

 

General

 

The term “pre-funded”refers to the fact that the purchase price of the Pre-funded Warrants in this offering includes almost the entire exercise price thatwill be paid under the Pre-funded Warrants, except for a nominal remaining exercise price of $0.00001. The purpose of the Pre-funded Warrantsis to enable investors that may have restrictions on their ability to beneficially own more than 4.99% (or, at the election of the holder,9.99%) of our outstanding common stock following the consummation of this offering the opportunity to invest capital into the Companywithout triggering their ownership restrictions, by receiving Pre-funded Warrants in lieu of shares of our common stock which would resultin such ownership of more than 4.99% (or, at the election of the holder, 9.99%), and receiving the ability to exercise their option topurchase the shares underlying the Pre-funded Warrants at a nominal price at a later date.

 

Form

 

The Pre-funded Warrants willbe issued as individual warrant agreements to the investors. You should review the form of Pre-funded Warrant, filed as an exhibit tothe registration statement of which this prospectus forms a part, for a complete description of the terms and conditions applicable tothe Pre-funded Warrants.

  

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Exercisability

 

The Pre-funded Warrants areexercisable at any time after their original issuance. The Pre-funded Warrants will be exercisable, at the option of each holder, in wholeor in part, by delivering to us a duly executed exercise notice accompanied by payment in full in immediately available funds for thenumber of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as described below). A holder(together with its affiliates) may not exercise any portion of the Pre-funded Warrant to the extent that the holder would own more than4.99% (or, at the election of the holder, 9.99%) of the outstanding common stock immediately after exercise, except that upon at least61 days’ prior notice from the holder to us, the holder may increase the amount of ownership of outstanding stock after exercisingthe holder’s Pre-funded Warrants up to 9.99% of the number of shares of our common stock outstanding immediately after giving effectto the exercise, as such percentage ownership is determined in accordance with the terms of the Pre-funded Warrants.

 

Duration and Exercise Price

 

The exercise price per wholeshare of our common stock purchasable upon the exercise of the Pre-funded Warrants is $0.00001 per share of common stock. The Pre-fundedWarrants will be immediately exercisable and may be exercised at any time until the Pre-funded Warrants are exercised in full.

 

Cashless Exercise

 

At any time after the issuanceof the Pre-funded Warrants, in lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment ofthe aggregate exercise price, the holder may instead receive upon such exercise (either in whole or in part) only the net number of sharesof common stock determined according to a formula set forth in the Pre-funded Warrants. Notwithstanding anything to the contrary, in theevent we do not have or maintain an effective registration statement, there are no circumstances that would require us to make any cashpayments or net cash settle the Pre-funded Warrants to the holders.

 

Transferability

 

Subject to applicable laws,the Pre-funded Warrants may be offered for sale, sold, transferred or assigned at the option of the holder upon surrender of the Pre-fundedWarrants to us together with the appropriate instruments of transfer.

 

Exchange Listing

 

There is no established tradingmarket for the Pre-funded Warrants and we do not plan on applying to list the Pre-funded Warrants on The Nasdaq Capital Market any othernational securities exchange or any other nationally recognized trading system.

 

Fundamental Transactions

 

If, at any time while thePre-funded Warrants are outstanding, (1) we consolidate or merge with or into another corporation whether or not the Company is the survivingcorporation, (2) we sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of our assets, orany of our significant subsidiaries, (3) any purchase offer, tender offer or exchange offer (whether by us or another individual or entity)is completed pursuant to which holders of our common stock are permitted to sell, tender or exchange their shares for other securities,cash or property and has been accepted by the holders of 50% or more of our common stock, (4) we consummate a securities purchase agreementor other business combination with another person or entity whereby such other person or entity acquires more than 50% of our outstandingcommon stock, or (5) we effect any reclassification or recapitalization of our common stock or any compulsory exchange pursuant to whichour common stock is converted into or exchanged for other securities, cash or property, or each, a “Fundamental Transaction,”then upon any subsequent exercise of Pre-funded Warrants, the holders thereof will have the right to receive the same amount and kindof securities, cash or property as they would have been entitled to receive upon the occurrence of such Fundamental Transaction if theyhad been, immediately prior to such Fundamental Transaction, the holder of the number of shares of common stock then issuable upon exerciseof those Pre-funded Warrants, and any additional consideration payable as part of the Fundamental Transaction.

 

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Rights as a Stockholder

 

Except by virtue of such holder’sownership of shares of our common stock or as otherwise set forth in the Pre-funded Warrants, the holder of a Pre-funded Warrant doesnot have the rights or privileges of a holder of our common stock, including any voting rights, until the holder exercises the Pre-fundedWarrant.

 

Preferred Stock

 

OurCertificate of Incorporation authorize us to issue up to 10,000,000 shares of preferred stock, $0.00001 par value. Our Board of Directorsis authorized, without further action by the stockholders, to issue shares of preferred stock and to fix the designations, number, rights,preferences, privileges, and restrictions thereof, including dividend rights, conversion rights, voting rights, terms of redemption, liquidationpreferences and sinking fund terms. We believe that the Board of Directors’ power to set the terms of, and our ability to issuepreferred stock, will provide flexibility in connection with possible financing or acquisition transactions in the future. The issuanceof preferred stock, however, could adversely affect the voting power of holders of common stock and decrease the amount of any liquidationdistribution to such holders. The presence of outstanding preferred stock could also have the effect of delaying, deterring, or preventinga change in control of our Company.

 

Outstanding Warrants

 

Asof April 9, 2024, we had 7,236,776 outstanding warrants with a weighted average exercise price of $2.82 per share, with a weighted averageremaining life of 5 years.

 

Outstanding Options

  

As of April 9, 2024, wehave 17,117,399 outstanding options with a weighted average exercise price of $1.02 per share, with a weighted average remaining contractuallife of 7.1 years.

 

Restricted Stock Units (RSU)

  

As of April 9, 2024, wehave 160,992 outstanding RSUs.

 

Registration Rights

 

Weare parties to that certain second amended and restated investors’ rights agreement dated December 24, 2014. At any time afterthe 180 days following the effectiveness of the registration statement in connection with our initial public offering, the holders ofregistrable securities, as described in the second amended and restated investors’ rights agreement are entitled to rights withrespect to the registration of their shares under the Securities Act. These rights are provided under the terms of the second amendedand restated investors’ rights agreement, and include demand registration rights, short-form registration rights and piggyback registrationrights. All fees, costs and expenses of underwritten registrations will be borne by us and all selling expenses, including underwritingdiscounts and selling commissions, will be borne by the holders of the shares being registered, except for certain expense of counselwhich shall be borne by the Company.

 

Atany time after the 180 days following the effectiveness of the registration statement in connection with our initial public offering,the holders of at least a majority of the registrable securities then outstanding, may make a written request that we register all ora portion of such registrable securities, subject to certain specified conditions and exceptions. Such request for registration must coverat least 40% of the registrable securities then outstanding.

 

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Atany time we are eligible to file a registration statement on Form S-3 the holders of at least 30% of the registrable securities then outstandingmay make a written request that we that we prepare and file a registration statement on Form S-3 under the Securities Act with respectto registrable securities of such holders having an anticipated aggregate offering price, net of selling expenses, of at least $10 million,the Company, subject to certain specified conditions and exceptions.

 

Ifwe propose to register any of our securities under the Securities Act in connection with the public offering of such securities solelyfor cash, the holders of our registrable securities, subject to certain exceptions, be entitled to include their shares in our registrationstatement. These registration rights are subject to specified conditions and limitations, including, but not limited to, the right ofthe underwriters to limit the number of shares included in any such offering under certain circumstances, but not below 30% of the totalamount of securities included in such offering.

 

Oursecond amended and restated investors’ rights agreement contains customary cross-indemnification provisions, under which we areobligated to indemnify holders of registrable securities in the event of material misstatements or omissions in the registration statementattributable to us, and they are obligated to indemnify us for material misstatements or omissions attributable to them.

 

Theregistration rights granted under the second amended and restated investor rights agreement will terminate on the earlier of the closingof a deemed liquidation event as defined in our second amended and restated certificate of incorporation, such time as Rule 144 isavailable for the sale of all of the holders’ shares without limitation during a three-month period and the fifth anniversary ofthe completion of this offering.

 

OnMay 31, 2023, we filed a registration statement on Form S-3 which included an aggregate of 7,721,781 shares of our common stock held bythe parties to the second amended and restated investor rights agreement.

 

Anti-Takeover Provisions

 

Certificate ofIncorporation and Bylaw Provisions

 

Ouramended and restated certificate of incorporation and our amended and restated bylaws will include a number of provisions that may havethe effect of deterring hostile takeovers or delaying or preventing changes in control of our management team, including the following:

 

ClassifiedBoard. Our fifth amended and restated certificate of incorporation and amended and restated bylaws provide that our boardof directors will be classified into three classes of directors, each of which will hold office for a three-year term. In addition, directorsmay only be removed from the board of directors for cause and only by the approval of two-thirds of the combined vote of our then outstandingshares of common stock. A third party may be discouraged from making a tender offer or otherwise attempting to obtain control of us asit is more difficult and time consuming for stockholders to replace a majority of the directors on a classified board of directors.

 

SupermajorityApprovals. Our amended and restated bylaws require the approval of two-thirds of the combined vote of our then-outstandingshares of our common stock to amend our bylaws. This will have the effect of making it more difficult to amend our amended and restatedbylaws to remove or modify certain provisions.

 

AdvanceNotice Requirements for Stockholder Proposals and Director Nominations. Our amended and restated bylaws provide advance noticeprocedures for stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for electionas directors at any meeting of stockholders. Our amended and restated bylaws will also specify certain requirements regarding the formand content of a stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our annual meetingof stockholders or from making nominations for directors at our meetings of stockholders.

 

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Issuanceof Undesignated Preferred Stock. Our board of directors has the authority, without further action by the holders of our commonstock, to issue up to 10,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designatedfrom time to time by the board of directors. The existence of authorized but unissued shares of preferred stock will enable our boardof directors to render more difficult or discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest,or otherwise.

 

Issuanceof Unissued Stock. Our shares of unissued common stock are available for future issuance without stockholder approval, subjectto certain protections afforded to our preferred stock pursuant to our certificate of incorporation, as amended and restated. We may utilizethese additional shares for a variety of corporate purposes, including future public offerings to raise additional capital, to facilitatecorporate acquisitions, payment as a dividend on the capital stock or as equity compensation to our service providers under our equitycompensation plans. The existence of unissued and unreserved common stock may enable our board of directors to issue shares to personsfriendly to current management thereby protecting the continuity of our management. Also, if we issue additional shares of our authorized,but unissued, common stock, these issuances will dilute the voting power and distribution rights of our existing common stockholders.

 

Delaware Law

 

Weare governed by the provisions of Section 203 of the DGCL. In general, Section 203 prohibits a public Delaware corporation fromengaging in a “business combination” with an “interested stockholder” for a period of three years after the dateof the transaction in which the person became an interested stockholder, unless:

 

thebusiness combination or transaction which resulted in the stockholder becoming an interested stockholder was approved by the board ofdirectors prior to the time that the stockholder became an interested stockholder;

 

uponconsummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder ownedat least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding shares owned by directorswho are also officers of the corporation and shares owned by employee stock plans in which employee participants do not have the rightto determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

 

ator subsequent to the time the stockholder became an interested stockholder, the business combination was approved by the board of directorsand authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least two-thirdsof the outstanding voting stock which is not owned by the interested stockholder.

 

Ingeneral, Section 203 defines a “business combination” to include mergers, asset sales and other transactions resultingin financial benefit to a stockholder and an “interested stockholder” as a person who, together with affiliates and associates,owns, or within three years did own, 15% or more of the corporation’s outstanding voting stock. These provisions may have the effectof delaying, deferring or preventing changes in control of our company.

 

Choice of Forum

 

Ouramended and restated certificate of incorporation provide that unless the Company consents in writing to the selection of an alternativeforum, the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on ourbehalf; any action asserting a breach of fiduciary duty by any of our directors, officers or other employees to us or our stockholders;any action asserting a claim against the Company, our directors or officer or employees directors arising pursuant to any provision ofthe DGCL, our amended and restated certificate of incorporation or amended and restated bylaws or any other action asserting a claim againstus our directors or officers or employees that is governed by the internal affairs doctrine. This choice of forum provision does not applyto actions brought to enforce a duty or liability created by the Exchange Act or any other claim for which federal courts have exclusivejurisdiction.

 

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Furthermore,unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States shall be the exclusiveforum for the resolution of any complaint asserting a cause of action arising under the Securities Act. We intend for this provision toapply to any complaints asserting a cause of action under the Securities Act despite the fact that Section 22 of the Securities Actcreates concurrent jurisdiction for the federal and state courts over all actions brought to enforce any duty or liability created bythe Securities Act or the rules and regulations promulgated thereunder. The enforceability of similar choice of forum provisions in othercompanies’ certificates of incorporation has been challenged in legal proceedings, and it is possible that a court could find thesetypes of provisions in our certificate of incorporation to be inapplicable or unenforceable.

 

Limitations of Liabilityand Indemnification

 

OurCertificate of Incorporation limits the liability of directors to the maximum extent permitted by the DGCL. The DGCL provides that directorsof a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors.

 

Ourbylaws, as amended, provide that we will indemnify our directors and officers to the fullest extent permitted by law, and may indemnifyemployees and other agents. Our bylaws also provide that we are obligated to advance expenses incurred by a director or officer in advanceof the final disposition of any action or proceeding.

 

Ourbylaws, as amended, subject to the provisions of the DGCL, contain provisions which allow the corporation to indemnify any person againstliabilities and other expenses incurred as the result of defending or administering any pending or anticipated legal issue in connectionwith service to us if it is determined that person acted in good faith and in a manner which he or she reasonably believed was in thebest interest of the corporation. Insofar as indemnification for liabilities arising under the Securities Act of 1933 as amended, or theSecurities Act, may be permitted to our directors, officers and controlling persons, we have been advised that in the opinion of the Securitiesand Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.

 

Thelimitation of liability and indemnification provisions in our bylaws may discourage stockholders from bringing a lawsuit against directorsfor breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, eventhough an action, if successful, might provide a benefit to us and our stockholders. Our results of operations and financial conditionmay be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnificationprovisions.

 

Atpresent, there is no pending litigation or proceeding involving any of our directors or officers as to which indemnification is requiredor permitted, and we are not aware of any threatened litigation or proceeding that may result in a claim for indemnification.

 

Transfer Agent andRegistrar

 

Thetransfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company. Its fax number is (801) 274-1099.Investors may reach our transfer agent at info@actionstocktransfer.com.

 

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UNDERWRITING

 

Aegis has agreed to act asour exclusive underwriter in connection with this offering. Under the terms of an underwriting agreement, which is filed as an exhibitto the registration statement, we have agreed to sell to the Underwriter and the Underwriter has agreed to purchase, at the public offeringprice less the underwriting discounts and commissions set forth on the cover page of this prospectus supplement, the following numberof shares of common stock and Pre-funded Warrants:

 

Underwriter  

Number of

Shares

 

Number of

Pre-funded Warrants

Aegis Capital Corp.        

 

The underwriting agreementprovides that the Underwriter’s obligation to purchase shares of common stock and Pre-funded Warrants depends on the satisfactionof the conditions contained in the underwriting agreement including:

 

therepresentations and warranties made by us to the underwriter are true;

 

thereis no material change in our business or the financial markets; and

 

wedeliver customary closing documents to the underwriter.

 

The Underwriter has agreedto purchase all of the shares of common stock and Pre-funded Warrants offered by this prospectus (other than those covered by the over-allotmentoption described below), if any are purchased under the underwriting agreement.

 

The Underwriter is offeringthe shares of common stock and Pre-funded Warrants subject to various conditions and may reject all or part of any order. The Underwriterhas advised us that it proposes to offer the shares of common stock and Pre-funded Warrants directly to the public at the public offeringprice per share and Pre-funded Warrant, as applicable, that appears on the cover page of this prospectus supplement. In addition, theUnderwriter may offer some of the common shares to other securities dealers at such price less a concession of $ per share. Afterthe shares of common stock are released for sale to the public, the Underwriter may change the offering price and other selling termsat various times.

 

Over-Allotment Option

 

We have granted the Underwriteran over-allotment option. This option, which is exercisable for up to forty-five (45) days after the closing of the offering, permitsthe Underwriter to purchase a maximum of additional shares of common stock (i.e., up to 15% of the shares of common stock and/or Pre-fundedWarrants sold in this offering) from us to cover over-allotments, if any. The purchase price to be paid per additional share of commonstock will be equal to the public offering price per share of common stock, less the underwriting discount. We will be obligated, pursuantto the option, to sell these additional shares of common stock to the underwriter to the extent the option is exercised. If any additionalshares of common stock are purchased, the Underwriter will offer the additional shares on the same terms as those on which the other sharesof common stock are being offered hereunder.

 

Underwriting Discounts and Expenses

 

The following table showsthe per share and total underwriting discounts we will pay to Aegis. These amounts are shown assuming both no exercise and full exerciseof the underwriter’s option to purchase additional securities.

 

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Underwriter Discounts and Expenses

 

We have engaged Aegis as ourexclusive underwriter and book running manager in connection with this offering. Under the terms of an underwriting agreement, which isfiled as an exhibit to the registration statement, we have agreed to sell to the Underwriter and the Underwriter has agreed to purchase,at the public offering price less the underwriting discounts and commissions set forth on the cover page of this prospectus, the followingnumber of shares of common stock and Pre-funded Warrants:

 

   Per Share of Common Stock   Per Pre-Funded Warrant   Total with no Over-Allotment   Total with Over-Allotment 
Public offering price  $            $          $                $                  
Underwriting discounts and commissions (7.0%)(1)  $   $   $   $ 
Proceeds, before expenses, to us  $   $   $   $ 

 

(1)We have agreed to pay up to $75,000 of the Underwriter’saccountable expenses relating to the offering, including for road show, diligence, and legal expenses. We estimate the total expensespayable by us for this offering, excluding the Underwriter fees and expenses, will be approximately $[ ].

 

Stabilization

 

In accordance with RegulationM under the Exchange Act, the Underwriter may engage in activities that stabilize, maintain or otherwise affect the price of our commonstock, including short sales and purchases to cover positions created by short positions, stabilizing transactions, syndicate coveringtransactions, penalty bids and passive market making.

 

Short positions involve sales by the underwriter of sharesof common stock in excess of the number of shares the underwriter is obligated to purchase, which creates a syndicate short position.The short position may be either a covered short position or a naked short position. In a covered short position, the number of sharesinvolved in the sales made by the underwriter in excess of the number of shares they are obligated to purchase is not greater than thenumber of shares that they may purchase by exercising their option to purchase additional shares. In a naked short position, the numberof shares involved is greater than the number of shares in their option to purchase additional shares. The underwriter may close outany short position by either exercising their option to purchase additional shares or purchasing shares in the open market.

 

Stabilizing transactions permit bids to purchase the underlyingsecurity as long as the stabilizing bids do not exceed a specific maximum price.

 

Syndicate covering transactions involve purchases of our sharesof common stock in the open market after the distribution has been completed to cover syndicate short positions. In determining the sourceof shares to close out the short position, the underwriter will consider, among other things, the price of shares available for purchasein the open market as compared to the price at which they may purchase shares through the underwriter’s option to purchase additionalshares. If the underwriter sells more shares than could be covered by the underwriter’s option to purchase additional shares, therebycreating a naked short position, the position can only be closed out by buying shares in the open market. A naked short position is morelikely to be created if the underwriter is concerned that there could be downward pressure on the price of the shares in the open marketafter pricing that could adversely affect investors who purchase in the offering.

 

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Penalty bids permit the representative to reclaim a sellingconcession from a syndicate member when the shares of common stock originally sold by the syndicate member is purchased in a stabilizingor syndicate covering transaction to cover syndicate short positions.

 

In passive market making, market makers in our common stockwho are underwriters or prospective underwriters may, subject to limitations, make bids for or purchase our common stock until the time,if any, at which a stabilizing bid is made.

 

These activities may havethe effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price ofour common stock. As a result of these activities, the price of our common stock may be higher than the price that might otherwise existin the open market. These transactions may be effected on NASDAQ or otherwise and, if commenced, may be discontinued at any time.

 

Neither we nor the Underwritermakes any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have onthe price of our common stock. In addition, neither we nor the underwriter makes any representation that Aegis will engage in these stabilizingtransactions or that any transaction, once commenced, will not be discontinued without notice.

 

Listing

 

Our common stock is listedon The Nasdaq Capital Market under the trading symbol “CYN.” We do not plan to list the Pre-funded Warrants on the NasdaqCapital Market or any other securities exchange or trading market.

 

Lock-UpAgreements

 

Pursuant to “lock-up” agreements, our executive officersand directors have agreed, subject to limited exceptions, not to directly or indirectly offer to sell, sell, pledge or otherwise transferor dispose of any of shares of (or enter into any transaction or device that is designed to, or could be expected to, result in the transferor disposition by any person at any time in the future of) our common stock, enter into any swap or other derivatives transaction thattransfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of our common stock, make anydemand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to theregistration of any shares of common stock or securities convertible into or exercisable or exchangeable for common stock or any of ourother securities or publicly disclose the intention to do any of the foregoing, subject to customary exceptions, for a period of ninety(90) days from the closing date of this offering. The lock-up shall not apply to transactions under any Rule 10b5-1 sales plan or transactionsunder or modifications to any Rule 10b5-1 sales plan by the Company’s officers and directors.

 

SecuritiesIssuance Standstill

 

In addition, we have agreed that for a period of ninety (90) days fromthe closing date of the offering, without the prior written consent of the Underwriter, we will not (a) offer, sell, issue, or otherwisetransfer or dispose of, directly or indirectly, any equity of the Company or any securities convertible into or exercisable or exchangeablefor equity of the Company; (b) file or caused to be filed any registration statement with the Securities and Exchange Commission relatingto the offering of any equity of the Company or any securities convertible into or exercisable or exchangeable for equity of the Company;or (c) enter into any agreement or announce the intention to effect any of the actions described in subsections (a) or (b) hereof (allof such matters, the “Standstill”). So long as none of such equity securities shall be saleable in the public market untilthe expiration of the ninety (90) day period described above, the following matters shall not be prohibited by the Standstill: (i) theadoption of an equity incentive plan and the grant of awards or equity pursuant to any equity incentive plan, and the filing of a registrationstatement on Form S-8; and (ii) the issuance of equity securities in connection with an acquisition or a strategic relationship, whichmay include the sale of equity securities. The Standstill shall not apply to the sale of common stock under the ATM Sales Agreement byand between the Company and Virtu Americas LLC, dated May 31, 2023 Agreement (or any amendment of such agreement) if such sales are consummatedat a price that is 10% in excess of the public offering price of the common stock sold in this offering at such time when the daily tradingvolume of the Company's common stock equals or exceeds 25 million shares.

 

Discretionary Accounts

 

The Underwriter does not intend to confirm sales of the securitiesoffered hereby to any accounts over which it has discretionary authority.

 

Passive Market Making

 

In connection with this offering, the Underwriter may engage in passivemarket making transactions in our common stock on the Nasdaq Stock Market in accordance with Rule 103 of Regulation M promulgated underthe Exchange Act during a period before the commencement of offers or sales of shares of our common stock and extending through the completionof the distribution.

 

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Indemnification

 

We have agreed to indemnify the Underwriter against certain liabilities,including liabilities under the Securities Act, and liabilities arising from breaches of representations and warranties contained in theunderwriting agreement, or to contribute to payments that the Underwriter may be required to make in respect of those liabilities.

 

Electronic Distribution

 

This prospectus may be made available in electronic format on websitesor through other online services maintained by the Underwriter or by an affiliate. Other than this prospectus, the information on theUnderwriter’s website and any information contained in any other website maintained by the Underwriter is not part of this prospectusor the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or the Underwriter, andshould not be relied upon by investors.

 

Transfer Agent and Registrar

 

Continental Stock Transfer& Trust Company serves as the transfer agent and registrar for our common stock.

 

Other Activities and Relationships

 

The Underwriter and certain of its affiliates are full service financialinstitutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory,investment management, investment research, principal investment, hedging, financing and brokerage activities. The Underwriter and certainof its affiliates have, from time to time, performed, and may in the future perform, various commercial and investment banking and financialadvisory services for us and our affiliates, for which they received or will receive customary fees and expenses.

 

In the ordinary course of their various business activities, the Underwriterand certain of its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or relatedderivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers,and such investment and securities activities may involve securities and/or instruments issued by us and our affiliates. If the Underwriteror its affiliates have a lending relationship with us, they routinely hedge their credit exposure to us consistent with their customaryrisk management policies. The Underwriter and its affiliates may hedge such exposure by entering into transactions that consist of eitherthe purchase of credit default swaps or the creation of short positions in our securities or the securities of our affiliates, includingpotentially the common stock offered hereby. Any such short positions could adversely affect future trading prices of the common stockoffered hereby. The Underwriter and certain of its affiliates may also communicate independent investment recommendations, market coloror trading ideas and/or publish or express independent research views in respect of such securities or instruments and may at any timehold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.

 

The Underwriter served asthe sole underwriter for the Company for a best-efforts offering which closed December 12, 2023 and served as the placement agent fora placement that closed April 29, 2022.

 

The foregoing does not purport to be a complete statement of the termsand conditions of the underwriting agreement, copies of which are attached to the registration statement of which this prospectus is apart. See “Where You Can Find More Information.”

 

Offer Restrictions Outside the United States

 

Other than in the United States,no action has been taken by us or the Underwriter that would permit a public offering of the securities offered by this prospectus inany jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directlyor indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any suchsecurities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicablerules and regulations of that jurisdiction. Persons who come into possession of this prospectus are advised to inform themselves aboutand to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitutean offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offeror a solicitation is unlawful.

 

LEGAL MATTERS

 

We are being represented by Sichenzia Ross Ference Carmel LLP, NewYork, New York, with respect to certain legal matters as to United States federal securities and New York state law. The enforceabilityof the Pre-funded Warrants will be passed upon for us by Sichenzia Ross Ference Carmel LLP, New York, New York. The Underwriter is beingrepresented by Kaufman & Canoles, P.C, Richmond, VA in connection with this offering.

 

EXPERTS

 

The consolidated balance sheetsof the Company as of December 31, 2023 and 2022, the related consolidated statements of operations, stockholders’ equity and cashflows for each of the two years in the period ended December 31, 2023 and the related notes, have been audited by Marcum LLP, independentregistered public accounting firm, as stated in their report, which includes an explanatory paragraph as to the Company’s abilityto continue as a going concern, which is incorporated herein by reference. Such financial statements have been incorporated herein byreference in reliance on the report of such firm given upon their authority as experts in accounting and auditing.

 

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INFORMATION INCORPORATED BY REFERENCE

 

The SEC allows us to “incorporateby reference” information that we file with them. Incorporation by reference allows us to disclose important information to youby referring you to those other documents. The information incorporated by reference is an important part of this prospectus, and informationthat we file later with the SEC will automatically update and supersede this information. We filed a registration statement on Form S-1under the Securities Act with the SEC with respect to the securities being offered pursuant to this prospectus. This prospectus omitscertain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement,including the exhibits and schedules attached to the registration statement and the information incorporated by reference, for furtherinformation about us and the securities being offered pursuant to this prospectus. Statements in this prospectus regarding the provisionsof certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete, and each statementis qualified in all respects by that reference. Copies of all or any part of the registration statement, including the documents incorporatedby reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed below in “WhereYou Can Find More Information.” The documents we are incorporating by reference into this prospectus are:

 

  Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 7, 2024;
     
  Our Current Report on Form 8-K filed on February 21, 2024; and
     
  The description of our common stock contained in our Registration Statement on Form 8-A, registering our common stock under Section 12(b) under the Exchange Act, filed with the SEC on October 19, 2021.

    

All documents subsequentlyfiled by us with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than current reports on Form 8-K furnishedpursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information, unless otherwise indicated therein)prior to the termination or completion of the offering made pursuant to this prospectus are also incorporated herein by reference andwill automatically update and supersede information contained or incorporated by reference in this prospectus.

 

You may request a copy ofthese filings, at no cost, by writing or telephoning us at the following address: Cyngn Inc., Attention: Corporate Secretary, 1015O’Brien Dr., Menlo Park, CA 94025, phone number (650) 924-5905.

  

WHERE YOU CAN FIND MORE INFORMATION

 

We have filed with the SECa registration statement on Form S-1 under the Securities Act with respect to the securities offered hereby. This prospectus, which constitutesa part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibitsand schedules filed therewith. For further information about us and our securities offered hereby, we refer you to the registration statementand the exhibits and schedules filed therewith. Statements contained in this prospectus regarding the contents of any contract or anyother document that is filed as an exhibit to the registration statement are not necessarily complete, and each such statement is qualifiedin all respects by reference to the full text of such contract or other document filed as an exhibit to the registration statement. TheSEC maintains a website that contains reports, proxy and information statements and other information regarding registrants that fileelectronically with the SEC. The address is http://www.sec.gov.

 

We are subject to the reportingrequirements of the Exchange Act, and file annual, quarterly and current reports, proxy statements and other information with the SEC.You can read our SEC filings, including the registration statement, over the Internet at the SEC’s websiteWe alsomaintain a website at http://www.cyngn.com, at which you may access these materials free of charge as soon as reasonably practicableafter they are electronically filed with, or furnished to, the SEC. The information contained in, or that can be accessed through, ourwebsite is not part of this prospectus. You may also request a copy of these filings, at no cost, by writing or telephoning us at: 1015O’Brien Dr., Menlo Park, CA 94025, phone number (650) 924-5905.

 

22

 

 

Prospectus

 

 

 

Up to 52,015,605 shares of Common Stock

Pre-funded Warrants to Purchase up to 52,015,605Shares of Common Stock

Up to 52,015,605 shares of Common Stock underlyingthe Pre-funded Warrants

 

Sole Underwriter

 

 

 

AEGIS CAPITAL CORP.

  

 

 

 

 

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 13. Other Expenses of Issuance and Distribution

 

The following table sets forth all costs and expenses, other than theUnderwriter fees, expected to be incurred by us in connection with the sale of the common stock being registered. All amounts shown areestimates except for the SEC registration fee.

  

   Amount
Paid or
to be Paid
 
SEC registration fee  $1,181 
Legal fees and expenses  $225,000 
Accounting fees and expenses  $20,000 
Miscellaneous fees and expenses  $10,000 
Total  $256,181 

     

Item 14. Indemnification of Directors and Officers

 

Indemnification Agreements

 

OnOctober 29, 2021, the Board of Directors entered into indemnification agreements with each of its directors and executive officers(the “D&O Indemnification Agreements”). The D&O Indemnification Agreements provide that the Corporation will indemnifyeach of its directors, executive officers, and such other key employees against any and all expenses incurred by that director or executiveofficer because of his or her status as one of the Corporation’s directors or executive officers, to the fullest extent permittedby Delaware law and the Corporation’s amended and restated certificate of incorporation. In addition, the D&O IndemnificationAgreements provide that, to the fullest extent permitted by Delaware law, the Corporation will advance all expenses incurred by its directors,executive officers, and other key employees in connection with a legal proceeding involving his or her status as a director, executiveofficer, or key employee.

 

Limitation of Liabilityand Indemnification of Officers and Directors

 

Ourcertificate of incorporation, as amended and restated, limits the liability of directors to the maximum extent permitted by Delaware GeneralCorporation Law (the “DGCL”). The DGCL provides that directors of a corporation will not be personally liable for monetarydamages for breach of their fiduciary duties as directors.

 

Ourbylaws provide that we will indemnify our directors and officers to the fullest extent permitted by law and may indemnify employees andother agents. Our bylaws also provide that we are obligated to advance expenses incurred by a director or officer in advance of the finaldisposition of any action or proceeding.

 

Ourbylaws, subject to the provisions of the DGCL contain provisions which allow the corporation to indemnify any person against liabilitiesand other expenses incurred as the result of defending or administering any pending or anticipated legal issue in connection with serviceto us if it is determined that person acted in good faith and in a manner which he or she reasonably believed was in the best interestof the corporation. Insofar as indemnification for liabilities arising under the Securities Act of 1933 as amended, or the SecuritiesAct, may be permitted to our directors, officers and controlling persons, we have been advised that in the opinion of the Securities andExchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.

 

II-1

 

 

Thelimitation of liability and indemnification provisions in our bylaws may discourage stockholders from bringing a lawsuit against directorsfor breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, eventhough an action, if successful, might provide a benefit to us and our stockholders. Our results of operations and financial conditionmay be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnificationprovisions.

 

At present, there is no pendinglitigation or proceeding involving any of our directors or officers as to which indemnification is required or permitted, and we are notaware of any threatened litigation or proceeding that may result in a claim for indemnification.

 

Item 15. Recent Sales of Unregistered Securities

 

In the three years precedingthe filing of this registration statement, the Registrant has sold the following securities that were not registered under the SecuritiesAct:

 

OnApril 28, 2022 pursuant to a securities purchase agreement with several institutional and accredited investors we sold an aggregateof (i) 3,790,322 shares of common stock, (ii) pre-funded warrants to purchase up to an aggregate of 2,661,291 shares of common stock,and (iii) warrants to purchase up to an aggregate of 6,451,613 shares of common stock for gross proceeds to the Company of approximately$20,000,000. The combined purchase price for one share of common stock and a warrant to purchase one share of common stock was $3.10 andthe combined purchase price for one pre-funded warrant to purchase one share of common stock and a warrant to purchase one share of commonstock was $3.099. 

 

In connection with the foregoing,we relied upon the exemption from registration provided by Section 4(a)(2) under the Securities Act of 1933, as amended, for transactionsnot involving a public offering.

 

II-2

 

 

Item 16. Exhibits and Financial StatementSchedules.

 

(a) Exhibits.

 

Exhibit
Number
  Description
1.1*  

Form of Underwriting Agreement

3.1   Fourth Amended and Restated Certificate of Incorporation of Registrant incorporated by reference to Exhibit 3.1 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
3.2   Certificate of Amendment to the Fourth Amended and Restated Certificate of Incorporation of Registrant incorporated by reference to Exhibit 3.2 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
3.3   Second Certificate of Amendment to the Fourth Amended and Restated Certificate of Incorporation of Registrant incorporated by reference to Exhibit 3.3 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
3.4   Third Certificate of Amendment to the Fourth Amended and Restated Certificate of Incorporation of Registrant incorporated by reference to Exhibit 3.4 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
3.5   Fourth Certificate of Amendment to the Fourth Amended and Restated Certificate of Incorporation of Registrant incorporated by reference to Exhibit 3.5 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
3.6   Fifth Amended and Restated Certificate of Incorporation of Registrant incorporated by reference to Exhibit 3.6 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 19, 2021.
3.7   Amended and Restated Bylaws of Registrant, incorporated by reference to Exhibit 3.8 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
3.8   Certificate of Amendment to the Fifth Amended and Restated Certificate of Incorporation of Registrant incorporated by reference to Exhibit 3.8 to the Registration Statement on Form S-1 (No. 333-275530) filed with the SEC on November 28, 2023.
4.1   Description of Registrant’s Securities (filed as Exhibit 4.1 to the Company’s Annual Report on Form 10-K for year ended December 31, 2021)
5.1*   Opinion of Sichenzia Ross Ference Carmel LLP
10.1   Offer Letter between the Company and Ben Landen dated as of September 18, 2019 incorporated by reference to Exhibit 10.2 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
10.2   Offer Letter between the Company and Donald Alvarez dated as of May 28, 2021 incorporated by reference to Exhibit 10.3 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
10.3   2013 Equity Incentive Plan incorporated by reference to Exhibit 10.4 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
10.4   2021 Incentive Plan incorporated by reference to Exhibit 10.5 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
10.5   Amendment to 2021 Equity Incentive Plan incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-8 filed with the SEC on January 31, 2024.
10.6   Second Amended and Restated Investors’ Rights Agreement dated as of December 24, 2014 incorporated by reference to Exhibit 10.6 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
10.7   Form of Indemnification Agreement to be entered into with the Registrant and each of its officers and directors incorporated by reference to Exhibit 10.7 to the Company’s Amendment to the Registration Statement on Form S-1 (No. 333-259278) filed with the SEC on October 15, 2021.
10.8   Employment Agreement by and between Cyngn Inc. and Lior Tal dated as of January 1, 2022 incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on January 6, 2022.
10.9   Engagement Letter dated April 27, 2022 incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on April 29, 2022.

 

II-3

 

 

10.10   Form of Securities Purchase Agreement incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed with the SEC on April 29, 2022.
10.11   Form of Warrant incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed with the SEC on April 29, 2022.
10.12   Form of Registration Rights Agreement incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed with the SEC on April 29, 2022.
10.13   Form of Pre-Funded Warrants incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed with the SEC on April 29, 2022.
10.14   ATM Sales Agreement by and between the Company and Virtu Americas LLC, dated as of May 31, 2023 incorporated by reference to Exhibit 1.2 to the Company’s Registration Statement on Form S-3 filed with the SEC on May 31, 2023.
10.15   Form of Placement Agent Agreement between the Company and Aegis Capital Corp. incorporated by reference to Exhibit 10.14 to the Company’s Registration Statement on Form S-1 (No. 333-275530) filed with the SEC on November 28, 2023.
10.16   Form of Pre-funded Warrant incorporated by reference to Exhibit 10.15 to the Company’s Registration Statement on Form S-1 (No. 333-275530) filed with the SEC on November 28, 2023.
10.17   Form of Severance and Change of Control Agreement incorporated by reference to Exhibit 10.17 to the Company’s Annual Report on Form 10-K filed with the SEC on March 7, 2024.
10.18*   Form of Pre-funded Warrant
21.1   List of Subsidiaries of the Registrant incorporated by reference to Exhibit 21.1 to the Company’s Annual Report on Form 10-K filed with the SEC on March 7, 2024.
23.1   Consent of Marcum LLP (filed herewith)
23.2*  

Consent of Sichenzia Ross Ference Carmel LLP (included in Exhibit 5.1)

24.1   Power of Attorney (included on the signature page)
97   Cyngn Inc. Clawback Policy, effective November 7, 2023, incorporated by reference to Exhibit 97 to the Company’s Annual Report on Form 10-K filed with the SEC on March 7, 2024.
107   Filing Fee Table (filed herewith)

 

*

To be filed by Amendment

 

II-4

 

 

(b) Financial statement schedules

 

Schedules not listed abovehave been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements ornotes thereto.

 

Item 17. Undertakings

 

The undersigned registranthereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annualreport pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’sannual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registrationstatement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securitiesat that time shall be deemed to be the initial bona fide offering thereof.

 

The undersigned registranthereby undertakes that:

 

1.Forpurposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part ofthis registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declaredeffective.

 

2.Forthe purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shallbe deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at thattime shall be deemed to be the initial bona fide offering thereof.

 

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

 

II-5

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registranthas duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of MenloPark, State of California, on April 12, 2024.

 

  CYNGN INC.
   
  By: /s/ Lior Tal
  Name:  Lior Tal
  Title: Chief Executive Officer
    (Principal Executive Officer)

  

POWER OF ATTORNEY

 

KNOWALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Lior Tal and Donald Alvarez,and each one of them, as their true and lawful attorney-in-fact and agent with full power of substitution, for him/her in anyand all as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for them and intheir name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to thisregistration statement, and to sign any registration statement for the same offering covered by this registration statement that is tobe effective on filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post-effective amendments thereto,and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every actand thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as they might or could do inperson, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes,may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirementsof the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the datesindicated.

 

SIGNATURE   TITLE   DATE
         
/s/ Lior Tal   Chief Executive Officer, Chairman and Director   April 12,2024
Lior Tal        
         
/s/ Donald Alvarez   Chief Financial Officer and Director   April 12,2024
Donald Alvarez        
         
/s/ Karen Macleod   Director   April 12,2024
Karen Macleod        
         
/s/ Colleen Cunningham   Director   April 12,2024
Colleen Cunningham        
         
/s/ James McDonnell   Director   April 12,2024
James McDonnell        

 

II-6

 

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