As filed with the Securities and Exchange Commissionon November 21, 2024

Registration No. 333-       

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-1

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

BioVie Inc.

(Exact name of registrant as specified in itscharter)

 

Nevada		2834		46-2510769
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(I.R.S. Employer Identification No.)

 

680 W Nye Lane Suite 201

Carson City, NV 89703

(775) 888-3162

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

 

Cuong Do

Chief Executive Officer

c/o BioVie Inc.

680 W Nye Lane Suite 201

Carson City, NV 89703

(775) 888-3162

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

 

Copy to:

 

Michael S. Lee, Esq.

Mark G. Pedretti, Esq.

Reed Smith LLP

599 Lexington Avenue

New York, NY 10022

Tel: (212) 521-5400

Fax: (212) 521-5450

 

 

Approximate date of commencement of proposed saleto the public: From time to time after the effective date of this registration statement as determined by the selling securityholders.

 

If any of the securities being registered on thisForm are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933. ☒

 

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

 

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

 

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

 

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

 

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

 

If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accountingstandards 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 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, actingpursuant to said Section 8(a), may determine.

 

 

The information in this prospectus is not completeand may be changed. These securities may not be sold until the registration statement is effective. This prospectus is not an offer tosell these securities, and we are not soliciting offers to buy these securities, in any state or other jurisdiction where the offer orsale is not permitted.

 

SUBJECT TO COMPLETION, PRELIMINARY PROSPECTUSDATED November 21, 2024

 

 

 

Up to 7,711,613 Shares of Common Stock Offered by the Selling Stockholders

  

This prospectus relates to the offer and resale, from time to time,by the selling stockholders named under the heading “Selling Stockholders” in this prospectus (the “Selling Stockholders”),and their donees, pledgees, transferees or other successors-in-interest, of up to 7,711,613 shares (the “Shares”) of the ClassA common stock, par value $0.0001 per share (the “Common Stock”), of BioVie Inc. (the “Company”), consisting of(i) 4,443,000 shares of Common Stock issuable upon the exercise of the Private Placement I Warrants (as defined below), (ii) 2,667,000shares of Common Stock issuable upon the exercise of the Private Placement II Warrants (as defined below), (iii) 97,440 shares of CommonStock issuable upon the exercise of the Placement Agent I Warrants (as defined below), (iv) 91,373 shares of Common Stock issuable uponthe exercise of the Placement Agent II Warrants (as defined below), (v) 222,150 shares of Common Stock issuable upon the exercise of thePlacement Agent III Warrants (as defined below), (vi) 133,350 shares of Common Stock issuable upon the exercise of the Placement AgentIV Warrants (as defined below), and (vii) 57,300 shares of Common Stock issuable upon the exercise of the Placement Agent V Warrants (asdefined below) (together with the Private Placement I Warrants, the Private Placement II Warrants, the Placement Agent I Warrants, thePlacement Agent II Warrants, the Placement Agent III Warrants, the Placement Agent IV Warrants, and the Placement Agent V Warrants, the“Warrants”) held by the Selling Stockholders. We are registering the offer and sale of the Shares issuable upon exercise ofthe Warrants to satisfy the registration rights that the Company granted to the Selling Stockholders under the (a) Warrant to PurchaseCommon Stock, issued to certain institutional investors pursuant to that certain placement agent agreement (the “October 21, 2024PAA”) by and between us and ThinkEquity LLC as placement agent, dated October 21, 2024 (the “Private Placement I Warrants”),(b) Warrant to Purchase Common Stock, issued to certain institutional investors pursuant to that certain placement agent agreement (the“October 23, 2024 PAA”) by and between us and ThinkEquity LLC as placement agent, dated October 23, 2024 (“Private PlacementII Warrants”), (c) Warrant to Purchase Common Stock, issued to the placement agent pursuant to that certain placement agent agreement(“March 4, 2024 PAA”) by and between us and ThinkEquity LLC as placement agent, dated March 4, 2024 (the “PlacementAgent I Warrants”), (d) Warrant to Purchase Common Stock, issued to the placement agent pursuant to that certain placement agentagreement (“September 23, 2024 PAA”) by and between us and ThinkEquity LLC as placement agent, dated September 23, 2024 (the“Placement Agent II Warrants”), (e) Warrant to Purchase Common Stock, issued to the placement agent pursuant to the October21, 2024 PAA (the “Placement Agent III Warrants”), (f) Warrant to Purchase Common Stock, issued to the placement agent pursuantto the October 23, 2024 PAA (the “Placement Agent IV Warrants”), and (g) Warrant to Purchase Common Stock, issued pursuantto a placement agent agreement (“October 28, 2024 PAA”) by and between us and ThinkEquity LLC as placement agent, dated October28, 2024 (the “Placement Agent V Warrants”).

 

We will not receive any proceeds from the salesof Shares by the Selling Stockholders. Upon any exercise of the Warrants by payment of cash, we will receive the nominal cash exerciseprice paid by the holders of the Warrants. We intend to use those proceeds, if any, for working capital and general corporate purposes.

 

The Selling Stockholders may sell or otherwise dispose of the Sharescovered by this prospectus in a number of different ways and at varying prices. We provide more information on how the Selling Stockholdersmay sell or otherwise dispose of the Shares covered by this prospectus in the section entitled “Plan of Distribution” on page20. Discounts, concessions, commissions and similar selling expenses attributable to the sale of Shares covered by this prospectus willbe borne by the Selling Stockholders. We will pay all expenses (other than discounts, concessions, commissions and similar selling expenses)relating to the registration of the Shares with the Securities and Exchange Commission.

 

Our Common Stock is traded on The Nasdaq CapitalMarket under the symbol “BIVI.” On November 19, 2024, the closing price for our Common Stock, as reported on The Nasdaq CapitalMarket was $3.51 per share.

 

Investing in these securities involves certain risks. See “RiskFactors” on page 10 of this prospectus. See also “Risk Factors” in the documents incorporated by reference in this prospectusfor a discussion of the factors you should carefully consider before deciding to purchase these securities.

 

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

 

The date of this prospectus is                          ,2024

 

TABLE OF CONTENTS

 

ABOUT THIS PROSPECTUS	1
PROSPECTUS SUMMARY	2
THE OFFERING	8
RISK FACTORS	10
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS	10
USE OF PROCEEDS	11
DESCRIPTION OF SECURITIES WE ARE OFFERING	11
SELLING STOCKHOLDERS	15
PLAN OF DISTRIBUTION	20
LEGAL MATTERS	22
EXPERTS	22
WHERE YOU CAN FIND MORE INFORMATION	22
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE	22

 

ABOUT THIS PROSPECTUS

 

This prospectus is part of a registration statementon Form S-1, which we have filed with the Securities and Exchange Commission (the “SEC”), using a “shelf” registrationprocess. Under this shelf registration process, the Selling Stockholders may from time to time sell the Shares described in this prospectusin one or more offerings or otherwise as described under “Plan of Distribution.”

 

This prospectus may be supplemented from timeto time by one or more prospectus supplements. Such prospectus supplements may also add, update or change information contained in thisprospectus. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you mustrely on the information in the prospectus supplement. You should carefully read both this prospectus and any applicable prospectus supplementtogether with additional information described under the heading “Where You Can Find More Information” before deciding toinvest in the Shares being offered.

 

Neither we nor the Selling Stockholders have authorizedanyone to provide any information other than that contained or incorporated by reference in this prospectus or in any applicable prospectussupplement or any applicable free writing prospectus that we have authorized. We take no responsibility for and can provide no assuranceas to the reliability of, any other information that others may give you. The Shares are not being offered in any jurisdiction where theoffer is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus is accurateas of any date other than the respective dates of such document. Our business, financial condition, results of operations and prospectsmay have changed since those dates.

 

Unless the context otherwise indicates, referencesin this prospectus to, “BioVie,” “the Company,” “we,” “our,” or “us” meanBioVie, Inc., a Nevada corporation. The term “Selling Stockholders” refers, collectively, to the selling stockholders namedunder the heading “Selling Stockholders” in this prospectus and their donees, pledgees, transferees or other successors-in-interest.

 

Unless otherwise indicated, all share amountsand share prices disclosed herein are presented on a post-split basis, giving effect to the one-for-ten (1:10) reverse stock split (the“Reverse Stock Split”) of all of the outstanding shares of the Company’s issued and outstanding Common Stock on August6, 2024. As the financial statements incorporated by reference in this prospectus were filed prior to the Reverse Stock Split, the outstandingshares disclosed in such financial statements are presented on a pre-split basis. Future financial statements filed by the Company retrospectivelypresent the shares on a post-split basis.

 

 

 

 

 

 

 

RISK FACTORS

 

Investing in shares of our Common Stock involvesa high degree of risk. Before deciding whether to invest in shares of our Common Stock, you should consider carefully the risks and uncertaintiesdiscussed under the sections titled “Risk Factors” contained in our most recent Annual Report on Form 10-K and in our mostrecent Quarterly Report on Form 10-Q, as well as any amendments thereto reflected in our subsequent filings with the SEC, which are incorporatedby reference into this prospectus, together with other information in this prospectus, the documents incorporated by reference herein,and any prospectus supplement and any free writing prospectus that we may authorize. Please also read carefully the section titled “CautionaryNote Regarding Forward-Looking Statements.”

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus and the documents incorporatedby reference into this prospectus contain “forward-looking statements” within the meaning of Section 27A of the SecuritiesAct of 1933, as amended (“Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (“ExchangeAct”), that relate to future events or our future financial performance and involve known and unknown risks, uncertainties and otherfactors that may cause our actual results, levels of activity, performance or achievements to differ materially from any future results,levels of activity, performance or achievements expressed or implied by these forward-looking statements. Such forward-looking statementsconcern our anticipated results and progress of our operations in future periods, planned exploration and, if warranted, development ofour properties, plans related to our business and other matters that may occur in the future. These statements relate to analyses andother information that are based on forecasts of future results, estimates of amounts not yet determinable and assumptions of management.All statements contained herein that are not clearly historical in nature are forward-looking, and the words “anticipate,”“believe,” “expect,” “estimate,” “may,” “will,” “could,” “leading,”“intend,” “contemplate,” “shall” and similar expressions are generally intended to identify forward-lookingstatements. Forward-looking statements are subject to a variety of known and unknown risks, uncertainties and other factors which couldcause actual events or results to differ from those expressed or implied by the forward-looking statements. The section in this prospectusentitled “Risk Factors” and the sections in our periodic reports, including our Annual Report on Form 10-Q for the fiscalyear ended June 30, 2024 (the “2024 Form 10-K”) entitled “Business,” and in the 2024 Form 10-K and the QuarterlyReport on Form 10-Q for the fiscal quarter ended September 30, 2024 entitled “Management’s Discussion and Analysis of FinancialCondition and Results of Operations,” as well as other sections in this prospectus and the documents or reports incorporated byreference into this prospectus, discuss some of the factors that could contribute to these differences. Forward-looking statements inthis prospectus and the documents incorporated by reference herein include, but are not limited to, statements with respect to:

 

●

our limited operating history and experience in developing and manufacturing drugs;

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none of our products are approved for commercial sale;

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our substantial capital needs;

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product development risks;

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our lack of sales and marketing personnel;

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regulatory, competitive and contractual risks;

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no assurance that our product candidates will obtain regulatory approval or that the results of clinicalstudies will be favorable;

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risks related to our intellectual property rights;

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the volatility of the market price and trading volume in our common stock;

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the absence of liquidity in our common stock;

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the risk of substantial dilution from future issuances of our equity securities; and

●

the other risks set forth herein and in the documents incorporated by reference herein under the caption“Risk Factors.”

 

The foregoing does not represent an exhaustivelist of matters that may be covered by the forward-looking statements contained herein or risk factors that we are faced with. The factorsset forth above under “Risk Factors” and other cautionary statements made in this prospectus should be read and understoodas being applicable to all related forward-looking statements wherever they appear in this prospectus. The forward-looking statementscontained in this prospectus represent our judgment as of the date of this prospectus. We caution readers not to place undue relianceon such statements. You should read this prospectus and the documents that we have filed as exhibits to this prospectus and incorporatedby reference herein completely and with the understanding that our actual future results may be materially different from the plans, intentionsand expectations disclosed in the forward-looking statements we make. Except as required by law, we undertake no obligation to updatepublicly any forward-looking statements for any reason, even if new information becomes available or other events occur in the future.All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualifiedin their entirety by the cautionary statements contained above and throughout this prospectus.

 

USE OF PROCEEDS

 

We will not receive any proceeds from the salesof Shares by the Selling Stockholders.

 

Upon any exercise of the Warrants by payment ofcash, we will receive the nominal cash exercise price paid by the holders of the Warrants. We cannot assure you that any of the Warrantswill be exercised, or if exercised, of the quantity that will be exercised or the period in which such Warrants will be exercised. Weintend to use the proceeds, if any, for working capital and general corporate purposes.

 

DESCRIPTIONOF SECURITIES WE ARE OFFERING

 

The following description is a summary ofsome of the terms of our securities, our organizational documents and Nevada law. The descriptions in this prospectus of our securitiesand our organizational documents in this prospectus do not purport to be complete and are subject to, and qualified in their entiretyby reference to, our organizational documents, copies of which have been or will be filed or incorporated by reference as exhibits tothe registration statement of which this prospectus forms a part. 

 

Common Stock

 

Each holder of Common Stock is entitled to onevote for each share of Common Stock held on all matters submitted to a vote of the stockholders, including the election of directors.Our Articles of Incorporation and Bylaws do not provide for cumulative voting rights. Subject to preferences that may be applicable toany then outstanding preferred stock, the holders of our outstanding shares of Common Stock are entitled to receive dividends, if any,as may be declared from time to time by our board of directors out of legally available funds. In the event of our liquidation, dissolutionor winding up, holders of Common Stock will be entitled to share ratably in the net assets legally available for distribution to stockholdersafter the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted to theholders of any outstanding shares of preferred stock. Holders of our Common Stock have no preemptive, conversion or subscription rights,and there are no redemption or sinking fund provisions applicable to the Common Stock. The rights, preferences and privileges of the holdersof Common Stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of our preferred stockthat we may designate and issue in the future. All of our outstanding shares of Common Stock are fully paid and nonassessable.

 

On November 20, 2024, we had 17,768,174 sharesof our Common Stock issued and outstanding.

 

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

 

The transfer agent and registrar for our ClassA common stock is West Coast Stock Transfer, Inc., Encinitas, California.

 

Anti-Takeover Effects of Nevada Law

 

Business Combinations

 

The “business combination” provisionsof Sections 78.411 to 78.444, inclusive, of the Nevada Revised Statutes (“NRS”) generally prohibit a Nevada corporation withat least 200 stockholders from engaging in various “combination” transactions with any interested stockholder for a periodof two years after the date of the transaction in which the person became an interested stockholder, unless the transaction is approvedby the board of directors prior to the date the interested stockholder obtained such status or the combination is approved by the boardof directors and thereafter is approved at a meeting of the stockholders by the affirmative vote of stockholders representing at least60% of the outstanding voting power held by disinterested stockholders, such prohibition extends beyond the expiration of the two-yearperiod, unless:

 

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the combination was approved bythe board of directors prior to the person becoming an interested stockholder or the transaction by which the person first became aninterested stockholder was approved by the board of directors before the person became an interested stockholder or the combination islater approved by a majority of the voting power held by disinterested stockholders; or

 

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the combination meets specifiedstatutory requirements.

 

A “combination” is generally definedto include mergers or consolidations or any sale, lease exchange, mortgage, pledge, transfer, or other disposition, in one transactionor a series of transactions, with an “interested stockholder” having: (a) an aggregate market value equal to 5% or more ofthe aggregate market value of the assets of the corporation, (b) an aggregate market value equal to 5% or more of the aggregate marketvalue of all outstanding shares of the corporation, (c) 10% or more of the earning power or net income of the corporation, and (d) certainother transactions with an interested stockholder or an affiliate or associate of an interested stockholder.

 

In general, an “interested stockholder” is a person who,together with affiliates and associates, owns (or within two years, did own) 10% or more of a corporation’s voting stock. A corporationmay elect to not be governed by the business combinations provisions if its articles of incorporation so provide. Our articles of incorporationdo not contain an election to not be bound by these provisions. The statute could prohibit or delay mergers or other takeover or changein control attempts and, accordingly, may discourage attempts to acquire our Company even though such a transaction may offer our stockholdersthe opportunity to sell their stock at a price above the prevailing market price.

 

Control Share Acquisitions

 

The “control share” provisions ofSections 78.378 to 78.3793, inclusive, of the NRS apply to “issuing corporations” that are Nevada corporations with at least200 stockholders, including at least 100 stockholders of record who are Nevada residents, and that conduct business directly or indirectlyin Nevada. The control share statute prohibits an acquirer, under certain circumstances, from voting its shares of a target corporation’sstock after crossing certain ownership threshold percentages, unless the acquirer obtains approval of the target corporation’s disinterestedstockholders. The statute specifies three thresholds: one-fifth or more but less than one-third, one-third but less than a majority, anda majority or more, of the outstanding voting power. Generally, once an acquirer crosses one of the above thresholds, those shares inan offer or acquisition and acquired within 90 days thereof become “control shares” and such control shares are deprived ofthe right to vote until disinterested stockholders restore the right. These provisions also provide that if control shares are accordedfull voting rights and the acquiring person has acquired a majority or more of all voting power, all other stockholders who do not votein favor of authorizing voting rights to the control shares are entitled to demand payment for the fair value of their shares in accordancewith statutory procedures established for dissenters’ rights.

 

A corporation may elect to not be governed by,or “opt out” of, the control share provisions by making an election in its articles of incorporation or bylaws, provided thatthe opt-out election must be in place on the 10^th day following the date an acquiring person has acquired a controlling interest,that is, crossing any of the three thresholds described above. We have not opted out of the control share statutes, and will be subjectto these statutes if we are an “issuing corporation” as defined in such statutes.

 

The effect of the Nevada control share statutesis that the acquiring person, and those acting in association with the acquiring person, will obtain only such voting rights in the controlshares as are conferred by a resolution of the stockholders at an annual or special meeting. The Nevada control share law, if applicable,could have the effect of discouraging takeovers of our Company.

 

Anti-Takeover Effects of Our Articles of Incorporationand Bylaws

 

Our Articles of Incorporation and Bylaws containcertain provisions that may have anti-takeover effects, making it more difficult for or preventing a third party from acquiring controlof us or changing our board of directors and management. According to our Articles of Incorporation and Bylaws, neither the holders ofour Common Stock nor the holders of any preferred stock we may issue in the future have cumulative voting rights in the election of ourdirectors. The combination of the present ownership by a few stockholders of a significant portion of our issued and outstanding CommonStock and lack of cumulative voting makes it more difficult for other stockholders to replace our board of directors or for a third partyto obtain control of us by replacing our board of directors.

 

Indemnification of Directors and Officers

 

We are a Nevada corporation and generally governed by the Nevada PrivateCorporations Code, Title 78 of the NRS.

 

Section 78.138 of the NRS provides that, unlessthe corporation’s articles of incorporation provide otherwise, a director or officer will not be individually liable as a resultof any act or failure to act unless it is proven that (i) the director’s or officer’s acts or omissions constituted a breachof his or her fiduciary duties, and (ii) such breach involved intentional misconduct, fraud or a knowing violation of the law.

 

Section 78.7502 of the NRS permits a Nevada corporationto indemnify its directors and officers against expenses, judgments, fines, and amounts paid in settlement actually and reasonably incurredin connection with a threatened, pending, or completed action, suit, or proceeding, except an action by or on behalf of the corporation,if the officer or director (i) is not liable pursuant to NRS 78.138, or (ii) acted in good faith and in a manner the officer or directorreasonably believed to be in or not opposed to the best interests of the corporation and, if a criminal action or proceeding, had no reasonablecause to believe the conduct of the officer or director was unlawful. Section 78.7502 also provides that a corporation may not indemnifya director or officer under this section with respect to an action by or on behalf of the corporation if such person has been adjudgedto be liable to the corporation or for amounts paid to the corporation in settlement of such claim unless and only to the extent the courtdetermines in view of all circumstances of the case, the person is fairly and reasonably entitled to indemnification. Indemnificationunder NRS 78.7502 generally may be made by the corporation only if determined to be proper under the circumstances. Such determinationmust be made by the stockholders, directors not a party to the action, or legal counsel.

 

Section 78.751 of the NRS requires a corporationto indemnify its officers and directors if they have been successful on the merits or otherwise in defense of any claim, issue, or matterresulting from their service as a director or officer. Section 78.751 of the NRS allows a corporation to advance expenses as incurredupon receipt of an undertaking by or on behalf of the officer or director to repay the amount if it is ultimately determined by a courtof competent jurisdiction that such officer or director is not entitled to be indemnified by the corporation if so provided in the corporation’sarticles of incorporation, bylaws, or other agreement. Advancement of expenses as incurred may be required under corporation’s articlesof incorporation or bylaws or by agreement. Section 78.751 of the NRS further permits the corporation to grant its directors and officersadditional rights of indemnification under its articles of incorporation, bylaws or other agreement.

 

Section 78.752 of the NRS provides that a Nevadacorporation may purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director,officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employeeor agent of another company, partnership, joint venture, trust or other enterprise, for any liability asserted against him and liabilityand expenses incurred by him in his capacity as a director, officer, employee or agent, or arising out of his status as such, whetheror not the corporation has the authority to indemnify him against such liability and expenses.

 

Our Articles of Incorporation, as amended, andamended and restated bylaws implement the indemnification and insurance provisions permitted by Chapter 78 of the NRS by providing that:

 

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We shall indemnify our directors and officers to the fullest extent permitted by the NRS against expense,liability and loss reasonably incurred or suffered by them in connection with their service as an officer or director; and

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We may purchase and maintain insurance, or make other financial arrangements, on behalf of any personwho holds or who has held a position as a director, officer, or representative against liability, cost, payment, or expense incurred bysuch person.

 

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

 

SELLING STOCKHOLDERS

 

On March 4, 2024, we entered into the March 4,2024 PAA pursuant to which we issued to certain of the Selling Stockholders the Placement Agent I Warrants to purchase an aggregate of105,000 shares of Common Stock. On September 23, 2024, we entered into the September 23, 2024 PAA pursuant to which we issued to certainof the Selling Stockholders the Placement Agent II Warrants to purchase an aggregate of 98,040 shares of Common Stock. On October 21,2024, we entered into the October 21, 2024 PAA pursuant to which we issued to certain of the Selling Stockholders the Private PlacementI Warrants to purchase an aggregate of 4,443,000 and the Placement Agent III Warrants to purchase an aggregate of 222,150 shares of CommonStock. On October 23, 2024, we entered into the October 23, 2024 PAA pursuant to which we issued to certain of the Selling Stockholdersthe Private Placement II Warrants to purchase an aggregate of 2,667,000 and the Placement Agent IV Warrants to purchase an aggregate of133,350 shares of Common Stock. On October 28, 2024, we entered into the October 28, 2024 PAA pursuant to which we issued to certain ofthe Selling Stockholders the Placement Agent V Warrants to purchase an aggregate of 57,300 shares of Common Stock. This prospectus coversthe sale or other disposition by the Selling Stockholders and their respective donees, pledgees or other successors-in-interest of upto the total number of Shares registered on behalf of the Selling Stockholders in the manner contemplated under “Plan of Distribution”below. Throughout this prospectus, when we refer to the Shares being registered on behalf of the Selling Stockholders, we are referringto the Shares issuable upon the exercise of the Warrants issued to the Selling Stockholders in the Offering and the Loan, and when werefer to the Selling Stockholders in this prospectus, we are referring to those investors set forth in the table below.

 

In connection with private placement offeringsdescribed above, we granted certain registration rights to the Selling Stockholders. The March 4, 2024 PAA, the September 23, 2024 PAA,the October 21, 2024 PAA, the October 23, 2024 PAA, the October 28, 2024 PAA also provide, among other things, certain indemnificationrights and reimbursement by the Company of certain fees and expenses.

 

We have agreed with the Selling Stockholders tokeep the registration statement of which this prospectus constitutes a part effective for a period of at least twelve (12) months afterthe date that the Selling Stockholders are first given the opportunity to sell all of the Shares.

 

Except as otherwise disclosed herein and in thefootnotes below with respect to the Selling Stockholders, the Selling Stockholders do not, and within the past three years, have not had,any position, office or other material relationship with us. Except as otherwise indicated below, based on the information provided tous by the Selling Stockholders, and to the best of our knowledge, no Selling Stockholders is a broker-dealer or an affiliate of a broker-dealer.

 

The following table sets forth the name of theSelling Stockholders; the number of shares of Common Stock beneficially owned by the Selling Stockholders in the column “Sharesof Common Stock Beneficially Owned Prior To The Offering”, the number of Shares that may be offered under this prospectus in thecolumn “Maximum Number of Shares Being Offered”, and the number of shares of our Common Stock that will be owned by the SellingStockholders assuming all of the Shares covered hereby are sold in the column “Shares of Common Stock Beneficially Owned After TheOffering.” Pursuant to Rules 13d-3 and 13d-5 of the Exchange Act (“Rule 13(d)”), beneficial ownership includes all sharesof our Common Stock as to which a Selling Stockholder has sole or shared voting power or investment power and any shares of our CommonStock which the Selling Stockholder has the right to acquire within 60 days of November 20, 2024. In addition, for the purposes of presentingbeneficial ownership, we assume the exercise of the Warrants held by each Selling Stockholder on that date, without regard to any limitationson the exercise of the Warrants and without regard to the Beneficial Ownership Limitation included in the Warrants as described below.The actual beneficial ownership of certain Selling Stockholders (determined in accordance with Rule 13(d)) and as described in the immediatelypreceding sentence) does not necessarily correspond to the number of Shares reflected below in the column “Maximum Number of SharesBeing Offered.” The number of Shares in the column “Maximum Number of Shares Being Offered” represents all of the Sharesthat the Selling Stockholders may offer under this prospectus.

 

Notwithstanding the presentation of Share ownershipin the table below, pursuant to the terms of the Warrants, a holder of a Warrant does not have the right to exercise any portion of theWarrant held by such holder to the extent (but only to the extent) that after giving effect to such issuance after exercise, the holder(together with the holder’s affiliates, and any other persons acting as a group together with the holder or any of the holder’saffiliates), would beneficially own in excess of 4.99% or 9.99%, as applicable, of the number of shares of Common Stock outstanding immediatelyafter giving effect to the issuance of shares of Common Stock issued upon exercise of the Warrants (the “Beneficial Ownership Limitation”).The holder of a Warrant may, upon notice to the Company, increase or decrease the Beneficial Ownership Limitation of its Warrant, providedthat the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediatelyafter giving effect to the issuance of shares of Common Stock upon exercise of the Warrant held by the holder. Any increase in the BeneficialOwnership Limitation will not be effective until the 61^st day after such notice is delivered to the Company. No such increasenotice has been provided to the Company as of the date of this prospectus.

 

The information set forth in the table below is based upon informationobtained from the Selling Stockholders and upon information in our possession regarding the issuance of the Shares issuable upon the exerciseof the Warrants to the Selling Stockholders. The percentages of shares of Common Stock beneficially owned before this offering are basedon 17,768,174 shares of Common Stock outstanding as of November 20, 2024. The percentages of shares of our Common Stock owned after theoffering are based on 25,479,787 shares of our Common Stock outstanding after this offering, including the 17,768,174 shares of CommonStock outstanding as of November 20, 2024 plus 7,711,613 Shares issuable upon the exercise of the Warrants covered hereby.

 

The Shares covered hereby may be offered fromtime to time by the Selling Stockholders. The Selling Stockholders may sell some, all or none of their respective Shares. We do not knowhow long the Selling Stockholders will hold their Shares before selling them, and we currently have no agreements, arrangements or understandingswith the Selling Stockholders regarding the sale or other disposition of any of the Shares.

 

		Shares of Common Stock Beneficially Owned Prior To The				Maximum Number of Shares Being				Shares of Common Stock Beneficially Owned After The Offering(1)
Name of Selling Stockholder		Offering				Offered				Number				Percent
Richard Adams(2)			700				700	(3)			0				*
Armistice Capital, LLC (4)			1,900,000				1,900,000	(5)			0				*
Nelson Baquet(2)			1,847				1,847	(6)			0				*
William Baquet(2)			108,817				108,817	(7)			0				*
Chirag Choudhary(2)			35,210				28,070	(8)			7,140				*
CVI Investments, Inc.(9)			1,490,000				1,240,000	(10)			250,000				*
Empery Asset Master, Ltd(11)			1,155,502				1,006,219	(12)			149,283				*
Empery Tax Efficient, LP(13)			429,765				386,567	(14)			43,198				*
Empery Tax Efficient III, LP(15)			564,733				507,214	(16)			57,519				*
Robert Forster(17)			50,000				50,000	(18)			0				*
Charles Giordano(2)			8,192				8,192	(19)			0				*
Phyllis Henderson(2)			4,200				4,200	(20)			0				*
Ramnarain Jaigobind(2)			219,746				219,746	(21)			0				*
Eric Lord(2)			108,270				107,662	(22)			609				*
Kevin Mangan(2)			72,054				72,054	(23)			0				*
Rexford Capital LLC(24)			60,000				60,000	(25)			0				*
Maria Robles(2)			924				924	(26)			0				*
Jeffrey Singer(2)			15,575				1,847	(27)			13,728				*
Craig Skop(2)			31,717				31,717	(28)			0				*
Kolinda Tomasic(2)			840				840	(29)			0				*
Scott Rothbaum(2)			12,500				12,500	(30)			0				*
Warberg WF XII LP(31)			110,000				60,000	(32)			50,000				*
3i, LP(33)			2,619,198				1,900,000	(34)			719,198				2.82	%
Philip Quartuccio(2)			2,500				2,500	(35)			0				*

 

Percentages denoted by * are less than 1%.

 

(1)

Assumes that all Shares being registeredin this prospectus are resold to third parties and that the Selling Stockholders sell all Shares registered under this prospectus heldby them.

 

(2)	The Selling Stockholder is affiliated with ThinkEquity, LLC, a registered broker dealer with a registered address of c/o ThinkEquity LLC 17 State Street, 41st Floor New York, NY 10004, and has sole voting and dispositive power over the securities held. The number of shares to be sold in this offering consists of shares of common stock issuable upon exercise of each of the Placement Agent I Warrants, the Placement Agent II Warrants, the Placement Agent III Warrants, the Placement Agent IV Warrants and the Placement Agent V Warrants, as applicable, which were received as compensation for such offerings. The Selling Stockholder acquired each of the Placement Agent I Warrants, the Placement Agent II Warrants, the Placement Agent III Warrants, the Placement Agent IV Warrants and the Placement Agent V Warrants, as applicable,  in the ordinary course of business and, at the time such warrants were acquired, the Selling Stockholder had no agreement or understanding, directly or indirectly, with any person to distribute such securities.
(3)	Represents 700 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants.
(4)	The securities are directly held by Armistice Capital Master Fund Ltd.,a Cayman Islands exempted company (the “Master Fund”), and may be deemed to be beneficially owned by: (i) Armistice Capital,LLC (“Armistice Capital”), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of ArmisticeCapital.  The warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Stockholderfrom exercising that portion of the warrants that would result in the Selling Stockholder and its affiliates owning, after exercise, anumber of shares of Common Stock in excess of the Beneficial Ownership Limitation. The address of Armistice Capital Master Fund Ltd. isc/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022.
(5)	Represents 1,260,000 shares of Common Stock issuable upon exercise of the Private Placement I Warrants and 640,000 shares of Common Stock issuable upon exercise of the Private Placement II Warrants.
(6)	Represents 315 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 294 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 666 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 400 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 172 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(7)	Represents 17,644 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 17,504 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 39,675 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 23,796 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 10,198 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(8)	Represents 7,140 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 15,106 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 9,068 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 3,896 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(9)	Heights Capital Management, Inc., the authorized agent of CVI Investments, Inc. ("CVI"), has discretionary authority to vote and dispose of the shares held by CVI and may be deemed to be the beneficial owner of these shares. Martin Kobinger, in his capacity as President of Heights Capital Management, Inc., may also be deemed to have investment discretion and voting power over the shares held by CVI. Mr. Kobinger disclaims any such beneficial ownership of the shares. CVI is affiliated with one or more FINRA member, none of whom are currently expected to participate in the sale pursuant to the prospectus contained in this registration statement of Shares purchased by the investor in this offering. The business address for CVI is c/o Heights Capital Management, Inc., 101 California Street, Suite 3250, San Francisco, CA 94111.
(10)	Represents 600,000 shares of Common Stock issuable upon exercise of the Private Placement I Warrants and 640,000 shares of Common Stock issuable upon exercise of the Private Placement II Warrants.

 

(11)	Empery Asset Management LP, the authorized agent of Empery Asset Master Ltd ("EAM"), has discretionary authority to vote and dispose of the shares held by EAM and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by EAM. EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The business address for EAM is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020.
(12)	Represents 696,612 shares of Common Stock issuable upon exercise ofthe Private Placement I Warrants and 309,607 shares of Common Stock issuable upon exercise of the Private Placement II Warrants. All ofthe warrants owned by EAM have a Beneficial Ownership Limitation of 4.99%.
(13)	Empery Asset Management LP, the authorized agent of Empery Tax Efficient, LP ("ETE"), has discretionary authority to vote and dispose of the shares held by ETE and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE. ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The business address for ETE is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020.
(14)	Represents 230,346 shares of Common Stock issuable upon exercise of the Private Placement I Warrants and 156,221 shares of Common Stock issuable upon exercise of the Private Placement II Warrants.
(15)	Empery Asset Management LP, the authorized agent of Empery Tax Efficient III, LP ("ETE III"), has discretionary authority to vote and dispose of the shares held by ETE III and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power over the shares held by ETE III. ETE III, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The business address for ETE III is c/o Empery Asset Management, LP, One Rockefeller Plaza, Suite 1205, New York, NY 10020.
(16)	Represents 333,042 shares of Common Stock issuable upon exercise of the Private Placement I Warrants and 174,172 shares of Common Stock issuable upon exercise of the Private Placement II Warrants.
(17)	The business address for Robert Forster is 54 Deepdale Dr., Great Neck, New York 11021.
(18)	Represents 50,000 shares of Common Stock issuable upon exercise of the Private Placement II Warrants.
(19)	Represents 1,397 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 1,304 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 2,955 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 1,774 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 762 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(20)	Represents 700 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 700 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 1,500 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 900 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 400 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(21)	Represents 36,245 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 33,677 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 81,974 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 46,706 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 21,144 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.

 

(22)	Represents 17,135 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 15,833 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 41,542 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 22,436 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 10,716 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(23)	Represents 12,285 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 11,471 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 25,992 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 15,602 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 6,704 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(24)	C. Raymond Langston, III is the Manager of Rexford Capital LLC and in such capacity has the right to vote and dispose of the securities held by such entity. The business address of Rexford Capital LLC is 1680 Michigan Ave., Suite 700, Miami Beach, Florida 33139.
(25)	Represents 31,500 shares of Common Stock issuable upon exercise of the Private Placement I Warrants and 28,500 shares of Common Stock issuable upon exercise of the Private Placement II Warrants.
(26)	Represents 158 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 147 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 333 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 200 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 86 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(27)	Represents 315 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 294 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 666 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 400 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and 172 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(28)	Represents 5,408 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 5,049 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 11,441 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 6,868 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and  2,951 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(29)	Represents 140 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 100 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; 300 shares of Common Stock issuable upon exercise of the Placement Agent III Warrants; 200 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants; and  100 shares of Common Stock issuable upon exercise of the Placement Agent V Warrants.
(30)	Represents 2,500 shares of Common Stock issuable upon exercise of the Placement Agent I Warrants; 5,000 shares of Common Stock issuable upon exercise of the Placement Agent II Warrants; and 5,000 shares of Common Stock issuable upon exercise of the Placement Agent IV Warrants.
(31)	Warberg Asset Management LLC, the general partner of Warberg WF XII LP, has voting and investment control over the reported securities. Mr. Daniel Warsh has voting and investment control over Warberg Asset Management LLC. As a result, Mr. Warsh may be deemed to have beneficial ownership of the reported securities that are held by Warberg WF XII LP. The business address for Warberg LP is c/o Warberg Asset Management LLC, 716 Oak Street, Winnetka, IL 60093.
(32)	Represents 31,500 shares of Common Stock issuable upon exercise of the Private Placement I Warrants and 28,500 shares of Common Stock issuable upon exercise of the Private Placement II Warrants.

 

(33)	3i Management LLC is the general partner of 3i, LP, and Maier JoshuaTarlow is the manager of 3i Management LLC. As such, Mr. Tarlow exercises sole voting and investment discretion over securities beneficiallyowned directly or indirectly by 3i, LP and 3i Management LLC. Mr. Tarlow disclaims beneficial ownership of the securities beneficiallyowned directly by 3i, LP and indirectly by 3i Management LLC. The business address of each of the aforementioned parties is 2 WoosterStreet, 2nd Floor, New York, NY 10013. We have been advised that none of Mr. Tarlow, 3i Management LLC, or 3i, LP is a memberof the FINRA, or an independent broker-dealer, or an affiliate or associated person of a FINRA member or independent broker-dealer.
(34)	Represents 1,260,000 shares of Common Stock issuable upon exercise of the Private Placement I Warrants and 640,000 shares of Common Stock issuable upon exercise of the Private Placement II Warrants.
(35)	Represents 2,500 shares of Common Stock issuable upon exercise of thePlacement Agent I Warrants.

 

Relationships with Selling Stockholders

 

For information relating to the relationships between the Company andthe Selling Stockholders, see sections titled “Placement Agent I Warrants Issued in Connection with Offering on March 4, 2024,”“Placement Agent II Warrants Issued in Connection with Offering on September 23, 2024,” “Private PlacementI Warrants and Placement Agent III Warrants Issued in Connection with Offering on October 21, 2024,” “Private PlacementII Warrants and Placement Agent IV Warrants Issued in Connection with Offering October 23, 2024,” and “Placement AgentV Warrants Issued in Connection with Offering on October 28, 2024.”

 

PLAN OF DISTRIBUTION

 

We are registering the Shares issuable upon exerciseof the Warrants to permit the resale of these Shares by the holders thereof from time to time after the date of this prospectus. We willnot receive any of the proceeds, other than the nominal exercise price of the Warrants if paid in cash, from the sale by the Selling Stockholdersof the Shares. We will bear all fees and expenses incident to our obligation to register the Shares. Discounts, concessions, commissionsand similar selling expenses attributable to the sale of Shares covered by this prospectus will be borne by the Selling Stockholders.

 

The Selling Stockholders, which shall includedonees, pledgees, transferees or other successors-in-interest selling Shares or interests in Shares received after the date of this prospectusfrom a Selling Stockholder as a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer or otherwisedispose of any or all of their Shares or interests in Shares on any stock exchange, market or trading facility on which the shares ofCommon Stock of the Company are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market pricesat the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiatedprices.

 

The Selling Stockholders may use any one or moreof the following methods when disposing of shares or interests therein:

 

●

on any national securities exchange or quotation service on which the securities may be listed or quotedat the time of sale;

●

ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

●

block trades in which the broker-dealer will attempt to sell the Shares as agent, but may position andresell a portion of the block as principal to facilitate the transaction;

●

purchases by a broker-dealer as principal and resale by the broker-dealer for its own account;

●

an exchange distribution in accordance with the rules of the applicable exchange;

●

privately negotiated transactions;

●

short sales;

●

through the writing or settlement of options or other hedging transactions, whether through an optionsexchange or otherwise;

●

through agreements between broker-dealers and the Selling Stockholders to sell a specified number of suchShares at a stipulated price per share;

●

a combination of any such methods of sale; and

●

any other method permitted by applicable law.

 

The Selling Stockholders may, from time to time,pledge or grant a security interest in some or all of the Shares owned by them and, if they default in the performance of their securedobligations, the pledgees or secured parties may offer and sell the Shares, from time to time, under this prospectus, or under an amendmentto the registration statement of which this prospectus forms a part amending the list of Selling Stockholders to include the pledgee,transferee or other successors in interest as Selling Stockholders under this prospectus. The Selling Stockholders also may transfer theShares in other circumstances, in which case the pledgees, transferees or other successors in interest will be the selling beneficialowners for purposes of this prospectus.

 

In connection with the sale of the Shares or intereststherein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may inturn engage in short sales of the Common Stock in the course of hedging the positions they assume. The Selling Stockholders may also sellshares of our Common Stock short and deliver these securities to close out their short positions, or loan or pledge the Common Stock tobroker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into options or other transactions withbroker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to eachsuch broker-dealer or other financial institution of Shares offered by this prospectus, which Shares such broker-dealer or other financialinstitution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

 

The aggregate proceeds to the Selling Stockholdersfrom the sale of the Shares offered by them will be the purchase price of the Shares less discounts or commissions, if any. Each of theSelling Stockholders reserves the right to accept and, together with its agents from time to time, to reject, in whole or in part, anyproposed purchase of Shares to be made directly or through agents. We will not receive any of the proceeds from the sale of Shares bythe Selling Stockholders.

 

The Selling Stockholders also may resell all ora portion of the Shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided that they meet the criteriaand conform to the requirements of that rule.

 

There can be no assurance that any Selling Stockholderwill sell any or all of the Shares registered pursuant to the registration statement, of which this prospectus forms a part.

 

The Selling Stockholders and any underwriters,broker-dealers or agents that participate in the sale of the Shares or interests therein may be “underwriters” within themeaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the Sharesmay be underwriting discounts and commissions under the Securities Act. Selling Stockholders who are “underwriters” withinthe meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act.

 

To the extent required, the Shares to be sold,the names of the Selling Stockholders, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter,and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplementor, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.

 

In order to comply with the securities laws ofsome states, if applicable, the Shares may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition,in some states the Shares may not be sold unless they have been registered or qualified for sale or an exemption from registration orqualification requirements is available and is complied with.

 

To the extent applicable, we will make copiesof this prospectus (as it may be supplemented or amended from time to time) available to the Selling Stockholders for the purpose of satisfyingthe prospectus delivery requirements of the Securities Act. The Selling Stockholders may indemnify any broker-dealer that participatesin transactions involving the sale of the Shares against certain liabilities, including liabilities arising under the Securities Act.

 

We are required to pay all fees and expenses incidentto the registration of the Shares. We have agreed to indemnify the Selling Stockholders against liabilities, including liabilities underthe Securities Act and state securities laws, relating to the registration of the Shares offered by this prospectus. Once sold under theregistration statement, of which this prospectus forms a part, the Shares will be freely tradable in the hands of persons other than ouraffiliates.

 

We have agreed with the Selling Stockholders tokeep the registration statement of which this prospectus constitutes a part effective for a period of at least twelve (12) months afterthe date that the Selling Stockholders are first given the opportunity to sell all of the Shares.

 

LEGAL MATTERS

 

The validity of the Shares to be offered for resale by the SellingStockholder under this prospectus will be passed upon for us by Fennemore Craig, P.C.

 

EXPERTS

 

The balance sheets of BioVie Inc. as of June 30,2024 and 2023, and the related statements of operations and comprehensive loss, changes in stockholders’ equity, and cash flowsfor each of the years then ended, have been audited by EisnerAmper LLP, independent registered public accounting firm, as stated in theirreport which is incorporated by reference, which report includes an explanatory paragraph about the existence of substantial doubt concerningthe Company’s ability to continue as a going concern. Such financial statements have been incorporated by reference in relianceon the report of such firm given upon their authority as experts in accounting and auditing.

 

WHERE YOU CAN FIND MORE INFORMATION

 

This prospectus is part of the registration statementon Form S-1 we filed with the SEC under the Securities Act and does not contain all the information set forth in the registration statement.Whenever a reference is made in this prospectus to any of our contracts, agreements or other documents, the reference may not be completeand you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporatedby reference into this prospectus for a copy of such contract, agreement or other document. Because we are subject to the informationand reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy statements and other informationwith the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov.

 

You may also access our SEC filings at our websitehttps://bioviepharma.com/. Our website and the information contained on, or that can be accessed through, our website will notbe deemed to be incorporated by reference in, and are not considered part of, this prospectus. You should not rely on our website or anysuch information in making your decision whether to purchase our securities.

 

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

 

The SEC allows us to incorporate by referenceinto this prospectus the information contained in other documents we file with the SEC, which means that we can disclose important informationto you by referring you to those documents. Any statement contained in any document incorporated or deemed to be incorporated by referenceherein shall be deemed to be modified or superseded, for purposes of this prospectus, to the extent that a statement contained in or omittedfrom this prospectus, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifiesor supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, toconstitute a part of this prospectus. We incorporate by reference the documents listed below which have been filed by us:

 

●

Our Annual Report on Form 10-K for the year ended June 30, 2024, filed with the SEC on September 30, 2024;

 

●	Our Definitive Proxy Statement on Form DEF 14A, filed with the SEC on September 27, 2024 as supplemented on Form DEFA14A filed with the SEC on October 22, 2024;
●	Our Quarterly Report on Form 10-Q for the period ended September 30, 2024, filed with the SEC on November 13, 2024;

 

 

●

Our Current Reports on Form 8-K, filed with the SEC on July30, 2024, August 1, 2024,as amended on Form 8-K/A on August6, 2024, August 21, 2024,September 24, 2024, as amendedon form 8-K/A on September 25,2024 ,October 22, 2024, October 22, 2024, October24, 2024, October 24, 2024,October 29, 2024, October29, 2024, and November 8,2024 (in each case, other than information furnished pursuant to Item 2.02 or 7.01 of any such Current Report on Form 8-K); and

 

●	The description of our Common Stock contained in our registration on Form 8-A (File No. 001-39015) filed with the SEC on August 25, 2020, including any amendment or report filed for the purpose of updating such description.

 

All documents we file with the SEC pursuant toSections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except as to any portion of any report or documents that is not deemed filed undersuch provisions, (1) on or after the date of filing of the registration statement containing this prospectus and prior to the effectivenessof the registration statement and (2) on or after the date of this prospectus until the earlier of the date on which all of the securitiesregistered hereunder have been sold or the registration statement of which this prospectus is a part has been withdrawn, shall be deemedincorporated by reference in this prospectus and to be a part of this prospectus from the date of filing of those documents and will beautomatically updated and, to the extent described above, supersede information contained or incorporated by reference in this prospectusand previously filed documents that are incorporated by reference in this prospectus.

 

Nothing in this prospectus shall be deemed toincorporate information furnished but not filed with the SEC pursuant to Item 2.02, 7.01 or 9.01 of Form 8-K. Upon written or oral request,we will provide without charge to each person, including any beneficial owner, to whom a copy of the prospectus is delivered a copy ofany or all of the reports or documents incorporated by reference herein (other than exhibits to such documents, unless such exhibits arespecifically incorporated by reference herein). You may request a copy of these filings, at no cost, by writing or telephoning us at thefollowing address: BioVie Inc., 680 W Nye Lane, Suite 201, Carson City, NV 89703.

 

7,711,613 Shares

 

 

BioVie Inc.

 

 

Class A Common Stock

 

 

PROSPECTUS

 

 

                              ,2024

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 13. Other Expenses of Issuance and Distribution.

 

The following table sets forth various expenses being borne by theCompany in connection with the sale and distribution of the securities being registered. All of the amounts shown are estimates exceptfor the Securities and Exchange Commission Registration Fee.

 

Securities and Exchange Commission registration fee		$	3,730.85	(1)
Accountants’ fees and expenses		$	*
Legal fees and expenses		$	*
Miscellaneous		$	*
Total:		$	3,730.85

 

(1)

This amount does not reflect the SEC registration fee offset to Rule 457(b).

*

These fees are calculated based on the securities offered and the number of issuances andaccordingly cannot be determined at this time.

 

Discounts, concessions, commissions and similarselling expenses attributable to the sale of shares of common stock covered by this prospectus will be borne by the Selling Stockholders.We will pay all expenses (other than discounts, concessions, commissions and similar selling expenses) relating to the registration ofthe shares with the SEC, as estimated in the table above.

 

Item 14. Indemnification of Directors and Officers.

 

We are a Nevada corporation and generally governed by the Nevada PrivateCorporations Code, Title 78 of NRS.

 

Section 78.138 of the NRS provides that, unlessthe corporation’s articles of incorporation provide otherwise, a director or officer will not be individually liable as a resultof any act or failure to act unless it is proven that (i) the director’s or officer’s acts or omissions constituted a breachof his or her fiduciary duties, and (ii) such breach involved intentional misconduct, fraud or a knowing violation of the law.

 

Section 78.7502 of the NRS permits a Nevada corporationto indemnify its directors and officers against expenses, judgments, fines, and amounts paid in settlement actually and reasonably incurredin connection with a threatened, pending, or completed action, suit, or proceeding, except an action by or on behalf of the corporation,if the officer or director (i) is not liable pursuant to NRS 78.138, or (ii) acted in good faith and in a manner the officer or directorreasonably believed to be in or not opposed to the best interests of the corporation and, if a criminal action or proceeding, had no reasonablecause to believe the conduct of the officer or director was unlawful. Section 78.7502 also provides that a corporation may not indemnifya director or officer under this section with respect to an action by or on behalf of the corporation if such person has been adjudgedto be liable to the corporation or for amounts paid to the corporation in settlement of such claim unless and only to the extent the courtdetermines in view of all circumstances of the case, the person is fairly and reasonably entitled to indemnification. Indemnificationunder NRS 78.7502 generally may be made by the corporation only if determined to be proper under the circumstances. Such determinationmust be made by the stockholders, directors not a party to the action, or legal counsel.

 

Section 78.751 of the NRS requires a corporationto indemnify its officers and directors if they have been successful on the merits or otherwise in defense of any claim, issue, or matterresulting from their service as a director or officer. Section 78.751 of the NRS allows a corporation to advance expenses as incurredupon receipt of an undertaking by or on behalf of the officer or director to repay the amount if it is ultimately determined by a courtof competent jurisdiction that such officer or director is not entitled to be indemnified by the corporation if so provided in the corporation’sarticles of incorporation, bylaws, or other agreement. Advancement of expenses as incurred may be required under corporation’s articlesof incorporation or bylaws or by agreement. Section 78.751 of the NRS further permits the corporation to grant its directors and officersadditional rights of indemnification under its articles of incorporation, bylaws or other agreement.

 

Section 78.752 of the NRS provides that a Nevadacorporation may purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director,officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employeeor agent of another company, partnership, joint venture, trust or other enterprise, for any liability asserted against him and liabilityand expenses incurred by him in his capacity as a director, officer, employee or agent, or arising out of his status as such, whetheror not the corporation has the authority to indemnify him against such liability and expenses.

 

Our Articles of Incorporation, as amended, andamended and restated bylaws implement the indemnification and insurance provisions permitted by Chapter 78 of the NRS by providing that:

 

●

We shall indemnify our directorsand officers to the fullest extent permitted by the NRS against expense, liability and loss reasonably incurred or suffered by them inconnection with their service as an officer or director; and

 

●

We may purchase and maintain insurance,or make other financial arrangements, on behalf of any person who holds or who has held a position as a director, officer, or representativeagainst liability, cost, payment, or expense incurred by such person.

 

Item 15. Recent Sales of Unregistered Securities

 

The Company has not sold any securities withinthe past three years which were not registered under the Securities Act except as set forth below. The registrant believes that, unlessotherwise noted, all of the transactions described in Item 15 were exempt from registration under the Securities Act pursuant to Section4(a)(2) of the Securities Act and/or Rule 506 of Regulation D promulgated thereunder.

  

Convertible Debt and Warrants

 

On November 30, 2021 (the “Loan Closing Date”), the Companyentered into a Loan and Security Agreement and the Supplement to the Loan and Security Agreement (together, the “Loan Agreement”)with Avenue Venture Opportunities Fund II, L.P. (“AVOPII”) and Avenue Venture Opportunities Fund, L.P. (“AVOPI”and, together with AVOPII, the “Lenders,”) for growth capital loans in an aggregate principal amount of up to $20,000,000(the “Loan”), with (i) $15,000,000 funded on the Loan Closing Date (“Tranche 1”) and (ii) up to $5,000,000 tobe made available to the Company on or prior to September 15, 2022, subject to the Company’s achievement of certain milestones withrespect to certain of its ongoing clinical trials (“Tranche 2”). The Loan bears interest at an annual rate equal to the greaterof (a) the sum of 7.00% plus the prime rate as reported in The Wall Street Journal and (b) 10.75%. The Loan is secured by a lien uponand security interest in all of the Company’s assets, including intellectual property, subject to agreed exceptions. The maturitydate of the Loan is December 1, 2024. Up to $5,000,000 of the principal amount of the Loan outstanding may be converted, at the optionof the Lenders, into shares of the Company’s common stock at a conversion price of $69.84 per share. In connection with the Loan,pursuant to the funding of Tranche 1 on the Loan Closing Date, the Company issued to the Lenders warrants to purchase 36,101 shares ofcommon stock of the Company at an exercise price per share equal to $58.20 (the “Stock Purchase Price”). The warrants areexercisable until November 30, 2026.

 

Equity Transaction with Acuitas

 

On July 15, 2022, the Company entered into a securities purchase agreement(the “2022 Purchase Agreement”) with Acuitas Group Holdings, LLC (“Acuitas”), pursuant to which Acuitas agreedto purchase from the Company, in a private placement (the “2022 PIPE Transaction”), (i) an aggregate of 363,636 shares ofthe Company’s common stock at a price of $16.50 per share (the “PIPE Shares”), and (ii) a warrant to purchase 727,273shares of common stock (the “PIPE Warrant Shares” and, together with the PIPE Shares, the “PIPE Securities”),at an exercise price of $18.20, with a term of exercise of five years. The warrant has a down round feature that reduces the exerciseprice if the Company sells stock for lower price.

 

Placement Agent I Warrants Issued in Connectionwith Offering on March 4, 2024

 

On March 4, 2024, the Company entered into theMarch 4, 2024 PAA with ThinkEquity LLC, as the placement agent, in connection with the issuance and sale directly to the March 4 Investorof up to 2,100,000 shares of Common Stock, at a public offering price to the March 4 Investors of $10.00 per share of Common Stock and/orpre-funded warrants to purchase shares of Common Stock at a public offering price to the March 24 Investors of $9.999 per pre-funded warrant,together with warrants to purchase up to 1,050,000 shares of Common Stock.

 

In connection to the March 4 Offering, the Companyissued the Placement Agent I Warrants, exercisable to purchase 105,000 shares of Common Stock, representing 5% of the March 4 Securitiespurchased at the closing of the March 4 Offering, for an aggregate purchase price of $100.00, at an exercise price of $12.50 per share,which is equal to 125% of the March 4 Share Offering Price. The Placement Agent I Warrants are exercisable from 180 days following thedate of issuance in accordance with Rule 5110(g)(8)(A) of FINRA and will expire five years following the date of issuance.

 

The holders of the Placement Agent I Warrantsmay exercise the Placement Agent I Warrants by making a cash payment equal to the exercise price multiplied by the quantity of shares.The holders of the Placement Agent I Warrants may also exercise the Placement Agent I Warrants on a cashless or “net issuance”basis by receiving a net number of shares calculated pursuant to the formula set forth in the Placement Agent I Warrants. The PlacementAgent I Warrants are subject to anti-dilution adjustments for stock dividends, stock splits, and reverse stock splits. Pursuant to theterms of the Placement Agent I Warrants, the holders of the Placement Agent I Warrants are entitled to piggyback registration rights ifthe Company proposes to file a new registration statement under the Securities Act, subject to certain limitations.

 

Placement Agent II Warrants Issued in Connectionwith Offering on September 23, 2024

 

On September 23, 2024, the Company entered intothe September 23, 2024 PAA with ThinkEquity LLC, as the placement agent, in connection with the issuance and sale directly to the September23 Investors of up to 1,960,800 shares of Common Stock, at a public offering price to the September 23 Investors of $1.53 per share and/orpre-funded warrants to purchase shares of Common Stock, at a public offering price to the Investors of $1.5299 per pre-funded warrant,together with warrants (“Common Warrants”) to purchase up to 1,960,800 shares of Common Stock.

 

In connection to the September 23 Offering, theCompany issued the Placement Agent II Warrants, exercisable to purchase 98,040 shares of Common Stock, representing 5% of the September23 Securities purchased at the closing of the September 23 Offering, for an aggregate purchase price of $100.00, at an exercise priceof $1.9125 per share, which is equal to 125% of the September 23 Share Offering Price. The Placement Agent II Warrants are exercisablefrom 180 days following the date of issuance in accordance with the 5110(g)(8)(A) of FINRA and will expire five years following the dateof issuance.

 

The holders of the Placement Agent II Warrantsmay exercise the Placement Agent II Warrants by making a cash payment equal to the exercise price multiplied by the quantity of shares.The holders of the Placement Agent II Warrants may also exercise the Placement Agent II Warrants on a cashless or “net issuance”basis by receiving a net number of shares calculated pursuant to the formula set forth in the Placement Agent II Warrants. The PlacementAgent II Warrants are subject to anti-dilution adjustments for stock dividends, stock splits, and reverse stock splits. Pursuant to theterms of the Placement Agent II Warrants, the holders of the Placement Agent II Warrants are entitled to piggyback registration rightsif the Company proposes to file a new registration statement under the Securities Act, subject to certain limitations.

 

Private Placement I Warrants and PlacementAgent III Warrants Issued in Connection with Offering on October 21, 2024

 

On October 21, 2024, the Company entered intothe October 21, 2024 PAA with ThinkEquity LLC, as the placement agent, in connection with the issuance and sale directly to the October21 Investors of up to 4,443,000 shares of the Common Stock, at a public offering price to the October 21 Investors of $1.50 per share.

 

In a concurrent private placement, pursuant tothe October 21, 2024 PAA, to issue to the October 21 Investors the unregistered Private Placement I Warrants to purchase 4,443,000 sharesof Common Stock, with each Private Placement I Warrant exercisable for one share of Common Stock at an exercise price of $1.37 per share.Each Private Placement I Warrant will be exercisable beginning six months from the date of issuance and will expire five years followingthe initial exercise date.

 

The holders of the Private Placement I Warrantsmay exercise the Private Placement I Warrants by making a cash payment equal to the exercise price multiplied by the quantity of shares.The holders of the Private Placement I Warrants may also exercise the Private Placement I Warrants on a cashless or “net issuance”basis by receiving a net number of shares calculated pursuant to the formula set forth in the Private Placement I Warrants. The PrivatePlacement I Warrants are subject to anti-dilution adjustments for stock dividends, stock splits, and reverse stock splits. Pursuant tothe terms of the Private Placement I Warrants, the Company has the obligation to file a registration statement on Form S-1 providing forthe resale by the holders of the Private Placement I Warrants of the shares of Common Stock issued and issuable upon exercise of the PrivatePlacement I Warrants.

 

In connection with the October 21 Offering, theCompany issued the Placement Agent III Warrants, exercisable to purchase 222,150 shares of Common Stock, representing 5% of the October21 Shares purchased at the closing of the October 21 Offering, for an aggregate purchase price of $100.00, at an exercise price of $1.875per share, which is equal to 125% of the October 21 Share Offering Price.

 

The holders of the Placement Agent III Warrantsmay exercise the Placement Agent III Warrants by making a cash payment equal to the exercise price multiplied by the quantity of shares.The holders of the Placement Agent III Warrants may also exercise the Placement Agent III Warrants on a cashless or “net issuance”basis by receiving a net number of shares calculated pursuant to the formula set forth in the Placement Agent III Warrants. The PlacementAgent III Warrants are subject to anti-dilution adjustments for stock dividends, stock splits, and reverse stock splits. Pursuant to theterms of the Placement Agent III Warrants, the holders of the Placement Agent III Warrants are entitled to piggyback registration rightsif the Company proposes to file a new registration statement under the Securities Act, subject to certain limitations.

 

Private Placement II Warrants and PlacementAgent IV Warrants Issued in Connection with Offering October 23, 2024

 

On October 23, 2024, the Company entered intothe October 23, 2024 PAA with ThinkEquity LLC, as the placement agent, in connection with the issuance and sale directly to the October23 Investors of up to 2,667,000 shares of the Common Stock, at a public offering price to the October 23 Investors of $2.25 per share.

 

In a concurrent private placement, pursuant tothe October 23, 2024 PAA, the Company issued to the October 23 Investors unregistered Private Placement II Warrants to purchase 2,667,000shares of Common Stock, with each Private Placement II Warrant exercisable for one share of Common Stock at an exercise price of $2.12per share. Each Private Placement II Warrant will be exercisable beginning six months from the date of issuance and will expire five yearsfollowing the initial exercise date.

 

The holders of the Private Placement II Warrantsmay exercise the Private Placement II Warrants by making a cash payment equal to the exercise price multiplied by the quantity of shares.The holders of the Private Placement II Warrants may also exercise the Private Placement II Warrants on a cashless or “net issuance”basis by receiving a net number of shares calculated pursuant to the formula set forth in the Private Placement II Warrants. The PrivatePlacement II Warrants are subject to anti-dilution adjustments for stock dividends, stock splits, and reverse stock splits. Pursuant tothe terms of the Private Placement II Warrants, the Company has the obligation to file a registration statement on Form S-1 providingfor the resale by the holders of the Private Placement II Warrants of the shares of Common Stock issued and issuable upon exercise ofthe Private Placement II Warrants.

 

In connection with the October 23 Offering, theCompany issued the Placement Agent IV Warrants, exercisable to purchase 133,350 shares of Common Stock, representing 5% of the October23 Shares purchased at the closing of the October 23 Offering, for an aggregate purchase price of $100.00, at an exercise price of $2.8125per share, which is equal to 125% of the October 23 Share Offering Price.

 

The holders of the Placement Agent IV Warrantsmay exercise the Placement Agent IV Warrants by making a cash payment equal to the exercise price multiplied by the quantity of shares.The holders of the Placement Agent IV Warrants may also exercise the Placement Agent IV Warrants on a cashless or “net issuance”basis by receiving a net number of shares calculated pursuant to the formula set forth in the Placement Agent IV Warrants. The PlacementAgent IV Warrants are subject to anti-dilution adjustments for stock dividends, stock splits, and reverse stock splits. Pursuant to theterms of the Placement Agent IV Warrants, the holders of the Placement Agent IV Warrants are entitled to piggyback registration rightsif the Company proposes to file a new registration statement under the Securities Act, subject to certain limitations.

 

Placement Agent V Warrants Issued in Connectionwith Offering on October 28, 2024

 

On October 28, 2024, the Company entered intothe October 28, 2024 PAA with ThinkEquity LLC, as the placement agent, in connection with the issuance and sale directly to various investorsthe October 28 Investors of up to 1,146,000 shares of the Common Stock, at a public offering price to the October 28 Investors of $2.83per share.

 

In connection with the October 28 Offering, theCompany issued the Placement Agent V Warrants, exercisable to purchase 57,300 shares of Common Stock, representing 5% of the October 28Shares purchased at the closing of the October 28 Offering, for an aggregate purchase price of $100.00, at an exercise price of $3.5375per share, which is equal to 125% of the October 28 Share Offering Price.

 

The holders of the Placement Agent V Warrants may exercise the PlacementAgent V Warrants by making a cash payment equal to the exercise price multiplied by the quantity of shares. The holders of the PlacementAgent V Warrants may also exercise the Placement Agent V Warrants on a cashless or “net issuance” basis by receiving a netnumber of shares calculated pursuant to the formula set forth in the Placement Agent V Warrants. The Placement Agent V Warrants are subjectto anti-dilution adjustments for stock dividends, stock splits, and reverse stock splits. Pursuant to the terms of the Placement AgentV Warrants, the holders of the Placement Agent V Warrants are entitled to piggyback registration rights if the Company proposes to filea new registration statement under the Securities Act, subject to certain limitations.

 

Item 16. Exhibits.

 

A list of exhibits filed with this registration statement on Form S-1is set forth on the Exhibit Index and is incorporated herein by reference.

 

Exhibit Number		Description of Document
2.1		Agreement and Plan of Merger, dated April 11, 2016, among the Company, LAT Acquisition Corp and LAT Pharma, LLC (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on April 15, 2016).
3.1		Articles of Incorporation of the Company as filed with the Secretary of State of Nevada (incorporated by reference to Exhibit 3.1 to the Company’s registration statement on Form S-1 filed on August 15, 2013, File No. 333-190635).
3.2		Certificate of Amendment to Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on July 22, 2016).
3.3		Certificate of Amendment to Articles of Incorporation (incorporated by reference to Appendix A to the Company’s Information Statement on Schedule 14C filed on July 13, 2018).
3.4		Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on July 3, 2018).
3.5		Certificate of Amendment to Articles of Incorporation (incorporated by reference to Exhibit 3.6 to the Company’s registration statement on Form S-1 filed on November 22, 2019, File No. 333-231136).
3.6		Certificate of Change (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on August 1, 2024)
3.7		Termination of Amendment/Certificate (incorporated by reference to Exhibit 3.1 to the Company’s Current Report, as amended, on Form 8-K/A filed on August 6, 2024)
3.8		Certificate of Amendment (incorporated by reference to Exhibit 3.1 to the Company’s Current Report, as amended, on Form 8-K/A filed on August 6, 2024)
3.9		Amended and Restated Bylaws of the Company, dated June 16, 2020 (incorporated by reference to Exhibit 3.5 to the Company’s Quarterly Report on Form 10-Q filed on November 10, 2021).
3.10		First Amendment to the Amended and Restated Bylaws of the Company, dated March 12, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on March 13, 2023).
4.1		Specimen Certificate representing shares of Class A Common Stock (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 filed on April 26, 2019).
4.2		Form of Placement Agent’s Warrant Agreement (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed on March 4, 2024).
4.3		Form of Placement Agent’s Warrant Agreement (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed on September 24, 2024).
4.4		Form of Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on October 22, 2024).
4.5		Form of Placement Agent’s Warrant Agreement (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on October 22, 2024).
4.6		Form of Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on October 24, 2024).
4.7		Form of Placement Agent’s Warrant Agreement (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on October 24, 2024).
4.8		Form of Placement Agent’s Warrant Agreement (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on October 24, 2024).
5.1*		Opinion of Fennemore Craig LLP
23.1*		Consent of EisnerAmper LLP
23.2*		Consent of Fennemore Craig LLP (included in the opinion filed as Exhibit 5.1)
24.1*		Power of Attorney (see signature page to this registration statement)
107*		Filing Fee Table

 

* Filed herewith.

 

Item 17. Undertakings. 

 

The Company hereby undertakes:

 

(a) (1) To file, during any period in which offersor sales are being made, a post-effective amendment to this Registration Statement:

 

(i) To include any prospectus required by section10(a)(3) of the Securities Act;

 

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

 

(iii) To include any material information withrespect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such informationin the Registration Statement;

 

provided, however, that paragraphs a(i),a(ii) and a(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is containedin reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporatedby reference in the registration statement.

 

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

 

(3) To remove from registration by means of apost-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4) That, for the purpose of determining liabilityunder the Securities Act to any purchaser:

 

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

 

(ii) Each prospectus required to be filed pursuantto Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuantto Rule 415(a)(l)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shallbe deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first usedafter effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided inRule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be anew effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates,and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, thatno statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporatedor deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, asto a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registrationstatement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;

 

(b) The undersigned registrant hereby undertakesthat, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuantto Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual reportpursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be anew registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemedto be the initial bona fide offering thereof.

 

(c) Insofar as indemnification for liabilitiesarising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoingprovisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against publicpolicy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against suchliabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of theregistrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person inconnection 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 whether such indemnification by it is against publicpolicy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

(d) The undersigned registrant hereby undertakesthat: (1) for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filedas part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuantto Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the timeit was declared effective; and (2) for the purpose of determining any liability under the Securities Act, each post-effective amendmentthat contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, andthe offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

SIGNATURES

 

Pursuant to the requirements of the SecuritiesAct of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on FormS-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in CarsonCity, State of Nevada, on the 21st day of November, 2024.

 

	BIOVIE INC.
	By:	/s/ Cuong Do
		Cuong Do
		Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each personwhose signature appears below constitutes and appoints each of Cuong Do and Joanne Wendy Kim, and each of them singly, as his or her trueand lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him or her and in his or her name, place,and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and otherdocuments in connection therewith) to this registration statement and any subsequent registration statement filed by the registrant pursuantto Rule 462(b) of the Securities Act of 1933, as amended, which relates to this registration statement, and to file the same, with allexhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-factand agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith,as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-factand agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the SecuritiesAct of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Person		Capacity		Date
/s/ Cuong Do		Chief Executive Officer		November 21, 2024
Cuong Do		(Principal Executive Officer)
/s/ Joanne Wendy Kim		Chief Financial Officer		November 21, 2024
Joanne Wendy Kim		(Principal Financial and Accounting Officer)
/s/ Jim Lang		Chairman		November 21, 2024
Jim Lang
/s/ Michael Sherman		Director		November 21, 2024
Michael Sherman
/s/ Richard J. Berman		Director		November 21, 2024
Richard J. Berman
/s/ Robert Hariri		Director		November 21, 2024
Robert Hariri
/s/ Sigmund Rogich		Director		November 21, 2024
Sigmund Rogich