As
filed with the U.S. Securities and Exchange Commission on December 28, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BioSig
Technologies, Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
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26-4333375 |
(State
or other jurisdiction of
incorporation
or organization) |
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(I.R.S.
Employer
Identification
Number) |
55
Greens Farms Road, 1st Floor
Westport,
CT 06880
(203)
409-5444
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Kenneth
Londoner
Chief
Executive Officer
BioSig
Technologies, Inc.
55
Greens Farms Road, 1st Floor
Westport,
CT 06880
(203)
409-5444
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all communications, including communications sent to agent for service, should be sent to:
Rick
A. Werner, Esq.
Jayun
Koo, Esq.
Haynes
and Boone, LLP
30
Rockefeller Plaza, 26th Floor
New
York, New York 10112
Tel.
(212) 659-7300
Fax
(212) 884-8234
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer |
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Accelerated
filer |
☐ |
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Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
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Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED DECEMBER 28, 2023
Prospectus
$75,000,000
Common
Stock
Preferred
Stock
Warrants
Units
We
may offer and sell from time to time, in one or more series or issuances and on terms that we will determine at the time of the offering,
any combination of the securities described in this prospectus, up to an aggregate amount of $75,000,000.
We
will provide specific terms of any offering in a supplement to this prospectus. Any prospectus supplement may also add, update, or change
information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement as well
as the documents incorporated or deemed to be incorporated by reference in this prospectus before you purchase any of the securities
offered hereby.
These
securities may be offered and sold in the same offering or in separate offerings; to or through underwriters, dealers, and agents; or
directly to purchasers. The names of any underwriters, dealers, or agents involved in the sale of our securities, their compensation
and any over-allotment options held by them will be described in the applicable prospectus supplement. See “Plan of Distribution.”
Our
common stock is listed on The Nasdaq Capital Market under the symbol “BSGM.” On December 27, 2023, the last reported sale
price of our common stock was $0.4883 per share as reported on The Nasdaq Capital Market. We recommend that you obtain current
market quotations for our common stock prior to making an investment decision. We will provide information in any applicable prospectus
supplement regarding any listing of securities other than shares of our common stock on any securities exchange.
You
should carefully read this prospectus, any prospectus supplement relating to any specific offering of securities, and all information
incorporated by reference herein and therein.
Investing
in our securities involves a high degree of risk. These risks are discussed in this prospectus under “Risk Factors” beginning
on page 5 and in the documents incorporated by reference in this prospectus.
Neither
the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is .
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the SEC using a “shelf” registration process.
Under this shelf process, we may, from time to time, sell any combination of the securities described in this prospectus in one or more
offerings up to a total amount of $75,000,000.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add to, update
or change information contained in the prospectus and, accordingly, to the extent inconsistent, information in this prospectus is superseded
by the information in the prospectus supplement.
The
prospectus supplement to be attached to the front of this prospectus may describe, as applicable: the terms of the securities offered;
the public offering price; the price paid for the securities; net proceeds; and the other specific terms related to the offering of the
securities.
You
should only rely on the information contained or incorporated by reference in this prospectus and any prospectus supplement or issuer
free writing prospectus relating to a particular offering. No person has been authorized to give any information or make any representations
in connection with this offering other than those contained or incorporated by reference in this prospectus, any accompanying prospectus
supplement and any related issuer free writing prospectus in connection with the offering described herein and therein, and, if given
or made, such information or representations must not be relied upon as having been authorized by us. Neither this prospectus nor any
prospectus supplement nor any related issuer free writing prospectus shall constitute an offer to sell or a solicitation of an offer
to buy offered securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation. This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits.
You
should read the entire prospectus and any prospectus supplement and any related issuer free writing prospectus, as well as the documents
incorporated by reference into this prospectus or any prospectus supplement or any related issuer free writing prospectus, before making
an investment decision. Neither the delivery of this prospectus or any prospectus supplement or any issuer free writing prospectus nor
any sale made hereunder shall under any circumstances imply that the information contained or incorporated by reference herein or in
any prospectus supplement or issuer free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus
supplement or issuer free writing prospectus, as applicable. You should assume that the information appearing in this prospectus, any
prospectus supplement or any document incorporated by reference is accurate only as of the date of the applicable documents, regardless
of the time of delivery of this prospectus or any sale of securities. Our business, financial condition, results of operations and prospects
may have changed since that date.
All
references in this prospectus to “BioSig,” the “Company,” “we,” “us,” “our,”
or similar terms refer to BioSig Technologies, Inc. and its subsidiaries taken as a whole, except where the context otherwise requires
or as otherwise indicated.
CAUTIONARY
STATEMENT REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein contain forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). Any statements about our expectations, beliefs, plans, objectives, assumptions or future events
or performance are not historical facts and may be forward-looking. These statements are often, but are not always, made through the
use of words or phrases such as “anticipate,” “believe,” “contemplate,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,”
“project,” “seek,” “should,” “target,” “will,” and “would,” or
the negative of these terms, or similar expressions. Such forward-looking statements are subject to certain risks, uncertainties and
assumptions relating to factors that could cause actual results to differ materially from those anticipated in such statements, including,
without limitation, the following:
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our
history of recurring losses and negative cash flows from operating activities and the uncertainty regarding the adequacy of our liquidity
to pursue or complete our business objectives, and substantial doubt regarding our ability to continue as a going concern; |
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the
results of ongoing and future clinical studies; |
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our
inability to successfully develop or commercialize our product candidates; |
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market
acceptance of existing and new products; |
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our
inability to carry out research, development and commercialization plans; |
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delays
in any phase of the preclinical or clinical development of a product, including during its research and development; |
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our
inability to complete preclinical testing and clinical trials as anticipated; |
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changes
in our relationship with key collaborators; |
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our
ability to adequately protect and enforce rights to intellectual property; |
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our
need to raise additional capital to meet our business requirements in the future and the difficulties in obtaining financing on commercially
reasonable terms, or at all; |
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intense
competition in our industry, with competitors having substantially greater financial, technological, research and development, regulatory
and clinical, manufacturing, marketing and sales, distribution and personnel resources than we do; |
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our
inability to manufacture our PURE EP product on a commercial scale on our own or in collaborations with third parties |
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entry
of new competitors and products and potential technological obsolescence of our products; |
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effect
of healthcare legislation or reform measures that may substantially change the market for medical care or healthcare coverage in
the U.S.; |
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the
ongoing effects of COVID-19 endemic; |
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our
failure to obtain regulatory approvals; |
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adverse
market and economic conditions; |
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our
ability to regain and maintain the listing of our common stock on The Nasdaq Capital Market; |
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loss
of one or more key executives; |
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difficulties
in securing and retaining regulatory approval to market our product and product candidates; and |
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depth
of the trading market in our common stock. |
You
should read this prospectus, the applicable prospectus supplement and any related free-writing prospectus and the documents incorporated
by reference in this prospectus with the understanding that our actual future results, levels of activity, performance and events and
circumstances may be materially different from what we expect. The forward-looking statements contained or incorporated by reference
in this prospectus or any prospectus supplement are expressly qualified in their entirety by this cautionary statement. We do not undertake
any obligation to publicly update any forward-looking statement to reflect events or circumstances after the date on which any such statement
is made or to reflect the occurrence of unanticipated events.
PROSPECTUS
SUMMARY
This
summary provides an overview of selected information contained elsewhere or incorporated by reference in this prospectus and does not
contain all of the information you should consider before investing in our securities. You should carefully read the prospectus, the
information incorporated by reference and the registration statement of which this prospectus is a part in their entirety before investing
in our securities, including the information discussed under “Risk Factors” in this prospectus and the documents incorporated
by reference and our financial statements and notes thereto that are incorporated by reference in this prospectus. Some of the statements
in this prospectus and the documents incorporated by reference herein constitute forward-looking statements that involve risks and uncertainties.
See information set forth under the section “Cautionary Statement Regarding Forward-Looking Statements.”
Overview
BioSig
Technologies, Inc.
We
are a medical technology company focused on deciphering the body’s electrical signals, starting with heart rhythms. By leveraging
a unique combination of hardware and software, we are committed to delivering unprecedented cardiac signal clarity, helping to end the
reliance on ‘mixed signals’ and ‘reading between the lines.’ Our platform technology aims to address some of
healthcare’s biggest challenges—saving time, saving costs, and saving lives.
Our
first product, the PURE EP™ Platform, an FDA 510(k) cleared non-invasive class II device, provides superior, real-time signal visualization
allowing physicians to perform highly targeted cardiac ablation procedures with increased procedural efficiency and efficacy.
The
PURE EP™ Platform helps to serve physicians by enabling the real-time acquisition of raw cardiac signal data—absent of unnecessary
noise or interference inherent in traditional approaches. By leveraging a first-of-its-kind combination of hardware and software, the
PURE EP™ Platform is designed to deliver unprecedented intracardiac signal purity that pushes the boundaries of cardiac arrhythmia
identification, diagnosis, and treatment.
ViralClear
Pharmaceuticals, Inc.
ViralClear
Pharmaceuticals, Inc. (“ViralClear”) is a majority-owned subsidiary of the Company originally known as NeuroClear Technologies,
Inc. As of the date of this prospectus, the Company has a majority interest in ViralClear of 69.08%.
Currently,
ViralClear is an early-stage medical device company that is developing N-SENSE™, a novel sensing technology platform for high-speed
electroneurogram (ENG) recordings. The specifications for this new product were based on the core competencies of the PURE EP™
signal processing technology, such as broad dynamic range of recorded signals and low signal-to-noise ratio and adapted to address disorders
of the autonomic nervous systems through recordings and analysis of action potentials, the impulses along the membrane of a muscle cell
or a nerve cell. These impulses are considered to carry valuable clinical information but may be difficult to detect through conventional
recording platforms.
BioSig
AI Sciences, Inc.
On
July 2, 2020, we formed an additional subsidiary, NeuroClear Technologies, Inc., a Delaware corporation, which was renamed to BioSig
AI Sciences, Inc. (“BioSig AI”) on May 31, 2023, to pursue clinical needs of cardiac and neurological disorders through recordings
and analyses of action potential. BioSig AI intends to join BioSig’s technology team with external partners and collaborators to
advance the research and development of an artificial intelligence (“AI”) medical device platform. As of the date of this
prospectus, the Company has a majority interest in BioSig AI of 84.48%.
Corporate
Information
We
were formed as BioSig Technologies, Inc., a Nevada corporation, in February 2009. In April 2011, we merged with our wholly-owned subsidiary,
BioSig Technologies Inc., a Delaware corporation, with the Delaware corporation continuing as the surviving entity. Our principal executive
offices are located at 55 Greens Farms Road, 1st Floor, Westport, Connecticut 06880, and our telephone number is (203) 409-5444. Our
website address is www.biosig.com. Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and
all amendments to those reports, are available to you free of charge through the “Investors” section of our web site as soon
as reasonably practicable after such materials have been electronically filed with, or furnished to, the SEC. Information contained on
our website does not form a part of this prospectus.
The
Securities We May Offer
We
may offer up to $75,000,000 of common stock, preferred stock, warrants and/or units in one or more offerings and in any combination.
This prospectus provides you with a general description of the securities we may offer. A prospectus supplement, which we will provide
each time we offer securities, will describe the specific amounts, prices and terms of these securities.
Common
Stock
We
may issue shares of our common stock from time to time. Holders of our common stock are entitled to receive ratably dividends as may
be declared by the board of directors out of funds legally available for that purpose. We have never paid cash dividends on our common
stock and do not anticipate paying any cash dividends in the foreseeable future but intend to retain our capital resources for reinvestment
in our business. Any future disposition of dividends will be at the discretion of our board of directors and will depend upon, among
other things, our future earnings, operating and financial condition, capital requirements, and other factors.
Each
share of common stock entitles the holder to one vote, either in person or by proxy, at meetings of stockholders. The holders are not
permitted to vote their shares cumulatively. Accordingly, the stockholders of our common stock who hold, in the aggregate, more than
fifty percent of the total voting rights can elect all of our directors and, in such event, the holders of the remaining minority shares
will not be able to elect any of such directors. The affirmative vote of the holders of a majority in voting power of the votes cast
(excluding abstentions and broker non-votes) on any matter other than the election of directors that is presented to stockholders at
a duly called or convened meeting at which a quorum is present is sufficient to authorize, affirm, ratify or consent to such act or action,
except as otherwise provided by our certificate of incorporation, our bylaws, the rules or regulations of any stock exchange applicable
to us, or applicable law or pursuant to any regulation applicable to us or our securities.
Holders
of our common stock have no preemptive rights or other subscription rights, conversion rights, redemption or sinking fund provisions.
Subject to the rights of the holders of our preferred stock, upon our liquidation, dissolution or winding up, the holders of our common
stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all
of our debts and other liabilities. The rights, preferences and privileges of holders of our common stock are subject to, and may be
adversely affected by, the rights of the holders of any series of preferred stock, which may be designated solely by action of our board
of directors and issued in the future.
Preferred
Stock
We
may issue shares of our preferred stock from time to time, in one or more series. Our board of directors will determine the rights, preferences,
privileges and restrictions of the preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption,
liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of such series, without
any further vote or action by stockholders. Convertible preferred stock will be convertible into our common stock or exchangeable for
our other securities. Conversion may be mandatory or at your option or both and would be at prescribed conversion rates.
If
we sell any series of preferred stock under this prospectus and applicable prospectus supplements, we will fix the rights, preferences,
privileges and restrictions of the preferred stock of such series in the certificate of designation relating to that series. We will
file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that
we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering
before the issuance of the related series of preferred stock. We urge you to read the applicable prospectus supplement related to the
series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable
series of preferred stock.
Warrants
We
may issue warrants for the purchase of common stock or preferred stock in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may be attached to or separate from these securities. We will evidence
each series of warrants by warrant certificates that we will issue under a separate agreement. We may enter into warrant agreements with
a bank or trust company that we select to be our warrant agent. We will indicate the name and address of the warrant agent in the applicable
prospectus supplement relating to a particular series of warrants.
In
this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus
supplement related to the particular series of warrants being offered, as well as the warrant agreements and warrant certificates that
contain the terms of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, the form of warrant agreement or warrant certificate containing the
terms of the warrants we are offering before the issuance of the warrants.
Units
We
may issue units consisting of common stock, preferred stock and/or warrants for the purchase of common stock or preferred stock in one
or more series. In this prospectus, we have summarized certain general features of the units. We urge you, however, to read the applicable
prospectus supplement related to the series of units being offered, as well as the unit agreements that contain the terms of the units.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference reports that
we file with the SEC, the form of unit agreement and any supplemental agreements that describe the terms of the series of units we are
offering before the issuance of the related series of units.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider
carefully the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement, together
with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by
reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under Part I, Item 1A, “Risk
Factors,” in our most recent Annual Report on Form 10-K or any updates in our Quarterly Reports on Form 10-Q, which are incorporated
herein by reference, as updated or superseded by the risks and uncertainties described under similar headings in the other documents
that are filed after the date hereof and incorporated by reference into this prospectus and any prospectus supplement related to a particular
offering. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also affect our operations. Past financial performance may not be a reliable indicator
of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks
actually occurs, our business, business prospects, financial condition or results of operations could be seriously harmed. This could
cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully
the section above entitled “Cautionary Statement Regarding Forward-Looking Statements.”
USE
OF PROCEEDS
We
cannot assure you that we will receive any proceeds in connection with securities which may be offered pursuant to this prospectus. Unless
otherwise indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this
prospectus for our operations and for other general corporate purposes, including, but not limited to, general working capital and possible
future acquisitions. We have not determined the amounts we plan to spend on any of the areas listed above or the timing of these expenditures.
As a result, our management will have broad discretion to allocate the net proceeds, if any, we receive in connection with securities
offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as described above, we may initially invest
the net proceeds in investment-grade, interest-bearing securities such as money market funds, certificates of deposit, or direct or guaranteed
obligations of the U.S. government, hold as cash or apply them to the reduction of short-term indebtedness.
DESCRIPTION
OF CAPITAL STOCK
The
following description of common stock and preferred stock summarizes the material terms and provisions of the common stock and preferred
stock that we may offer under this prospectus, but is not complete. For the complete terms of our common stock and preferred stock, please
refer to our amended and restated certificate of incorporation, as amended, any certificates of designation for our preferred stock,
and our amended and restated bylaws, as amended. While the terms we have summarized below will apply generally to any future common stock
or preferred stock that we may offer, we will describe the specific terms of any series of preferred stock in more detail in the applicable
prospectus supplement. If we so indicate in a prospectus supplement, the terms of any preferred stock we offer under that prospectus
supplement may differ from the terms we describe below.
We
have authorized 201,000,000 shares of capital stock, par value $0.001 per share, of which 200,000,000 are shares of common stock and
1,000,000 are shares of “blank check” preferred stock, of which 200 are authorized as Series A Preferred Stock, 600 are authorized
as Series B Preferred Stock, 4,200 are authorized as Series C Preferred Stock, 1,400 are authorized as Series D Preferred Stock, 1,000
are authorized as Series E Preferred Stock and 200,000 are authorized as Series F Junior Participating Preferred Stock. As of December
27, 2023, there were 89,819,765 shares of common stock issued and outstanding, 105 shares of Series C Preferred Stock issued and outstanding
and no shares of our Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series D Convertible Preferred Stock,
Series E Convertible Preferred Stock or Series F Junior Participating Preferred Stock issued and outstanding. The authorized and unissued
shares of common stock and the authorized and undesignated shares of preferred stock are available for issuance without further action
by our stockholders, unless such action is required by applicable law or the rules of any stock exchange on which our securities may
be listed. Unless approval of our stockholders is so required, our board of directors does not intend to seek stockholder approval for
the issuance and sale of our common stock or preferred stock.
Common
Stock
The
holders of common stock are entitled to one vote per share on all matters to be voted upon by stockholders. Holders of our common stock
are entitled to receive ratably dividends as may be declared by the board of directors out of funds legally available for that purpose.
We have never paid cash dividends on our common stock and do not anticipate paying any cash dividends in the foreseeable future but intend
to retain our capital resources for reinvestment in our business. Any future disposition of dividends will be at the discretion of our
board of directors and will depend upon, among other things, our future earnings, operating and financial condition, capital requirements,
and other factors.
Each
share of common stock entitles the holder to one vote, either in person or by proxy, at meetings of stockholders. The holders are not
permitted to vote their shares cumulatively. Accordingly, the stockholders of our common stock who hold, in the aggregate, more than
fifty percent of the total voting rights can elect all of our directors and, in such event, the holders of the remaining minority shares
will not be able to elect any of such directors. The affirmative vote of the holders of a majority in voting power of the votes cast
(excluding abstentions and broker non-votes) on any matter other than the election of directors that is presented to stockholders at
a duly called or convened meeting at which a quorum is present is sufficient to authorize, affirm, ratify or consent to such act or action,
except as otherwise provided by our certificate of incorporation, our bylaws, the rules or regulations of any stock exchange applicable
to us, or applicable law or pursuant to any regulation applicable to us or our securities.
Holders
of our common stock have no preemptive rights or other subscription rights, conversion rights, redemption or sinking fund provisions.
Subject to the rights of the holders of our preferred stock, upon our liquidation, dissolution or winding up, the holders of our common
stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all
of our debts and other liabilities.
The
transfer agent and registrar for our common stock is Securities Transfer Corporation. The transfer agent’s address is 2901 N. Dallas
Parkway, Suite 380, Plano, TX 75093. Our common stock is listed on the Nasdaq Capital Market under the symbol “BSGM.”
Preferred
Stock
The
board of directors is authorized, subject to any limitations prescribed by law, without further vote or action by the stockholders, to
issue from time to time shares of preferred stock in one or more series. Each such series of preferred stock shall have such number of
shares, designations, preferences, voting powers, qualifications, and special or relative rights or privileges as shall be determined
by the board of directors, which may include, among others, dividend rights, voting rights, liquidation preferences, conversion rights
and preemptive rights. Issuance of preferred stock by our board of directors may result in such shares having dividend and/or liquidation
preferences senior to the rights of the holders of our common stock and could dilute the voting rights of the holders of our common stock.
Prior
to the issuance of shares of each series of preferred stock, the board of directors is required by the Delaware General Corporation Law
(the “DGCL”) and our certificate of incorporation to adopt resolutions and file a certificate of designation with the Secretary
of State of the State of Delaware. The certificate of designation fixes for each class or series the designations, powers, preferences,
rights, qualifications, limitations and restrictions, including, but not limited to, some or all of the following:
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the
number of shares constituting that series and the distinctive designation of that series, which number may be increased or decreased
(but not below the number of shares then outstanding) from time to time by action of the board of directors; |
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the
dividend rate and the manner and frequency of payment of dividends on the shares of that series, whether dividends will be cumulative,
and, if so, from which date; |
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whether
that series will have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights; |
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whether
that series will have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment
of the conversion rate in such events as the board of directors may determine; |
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whether
or not the shares of that series will be redeemable, and, if so, the terms and conditions of such redemption; |
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whether
that series will have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of
such sinking fund; |
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whether
or not the shares of the series will have priority over or be on a parity with or be junior to the shares of any other series or
class in any respect; |
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the
rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation,
and the relative rights or priority, if any, of payment of shares of that series; and |
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any
other relative rights, preferences and limitations of that series. |
Once
designated by our board of directors, each series of preferred stock may have specific financial and other terms that will be described
in a prospectus supplement. The description of the preferred stock that is set forth in any prospectus supplement is not complete without
reference to the documents that govern the preferred stock. These include our certificate of incorporation and any certificates of designation
that our board of directors may adopt.
All
shares of preferred stock offered hereby will, when issued, be fully paid and nonassessable, including shares of preferred stock issued
upon the exercise of preferred stock warrants or subscription rights, if any.
Although
our board of directors has no intention at the present time of doing so, it could authorize the issuance of a series of preferred stock
that could, depending on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt.
Anti-Takeover
Effects of Certain Provisions of Delaware Law, our Certificate of Incorporation and Bylaws
Delaware
Law
We
are subject to Section 203 of the DGCL. Section 203 generally prohibits a public Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a period of three years after the date of the transaction in which
the person became an interested stockholder, unless:
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prior
to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder; |
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the
interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares outstanding (but not the outstanding voting stock owned by the interested
stockholder) (i) shares owned by persons who are directors and also officers and (ii) shares owned by employee stock plans in which
employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered
in a tender or exchange offer; or |
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on
or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock
which is not owned by the interested stockholder. |
Section
203 defines a business combination to include:
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any
merger or consolidation involving the corporation and the interested stockholder; |
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any
sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation; |
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subject
to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the
interested stockholder; or |
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the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided
by or through the corporation. |
In
general, Section 203 defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated with, or controlling, or controlled by, the entity or person. The
term “owner” is broadly defined to include any person that, individually, with or through that person’s affiliates
or associates, among other things, beneficially owns the stock, or has the right to acquire the stock, whether or not the right is immediately
exercisable, under any agreement or understanding or upon the exercise of warrants or options or otherwise or has the right to vote the
stock under any agreement or understanding, or has an agreement or understanding with the beneficial owner of the stock for the purpose
of acquiring, holding, voting or disposing of the stock.
The
restrictions in Section 203 do not apply to corporations that have elected, in the manner provided in Section 203, not to be subject
to Section 203 of the DGCL or, with certain exceptions, which do not have a class of voting stock that is listed on a national securities
exchange or held of record by more than 2,000 stockholders. Our certificate of incorporation and bylaws do not opt out of Section 203.
Section
203 could delay or prohibit mergers or other takeover or change in control attempts with respect to us and, accordingly, may discourage
attempts to acquire us even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above
the prevailing market price.
Certificate
of Incorporation and Bylaws
Provisions
of our certificate of incorporation and bylaws may delay or discourage transactions involving an actual or potential change in our control
or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions
that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price
of our common stock. Among other things, our certificate of incorporation and bylaws:
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permit
our board of directors to issue up to 1,000,000 shares of preferred stock, without further action by the stockholders, with any rights,
preferences and privileges as they may designate, including the right to approve an acquisition or other change in control; |
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provide
that the authorized number of directors may be changed only by a resolution adopted by a majority of the total number of authorized
directors; |
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do
not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to
vote in any election of directors to elect all of the directors standing for election, if they should so choose); and |
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provide
advance notice provisions with which a stockholder who wishes to nominate a director or propose other business to be considered at
a stockholder meeting must comply. |
DESCRIPTION
OF WARRANTS
As
of December 27, 2023, there were outstanding warrants to purchase 27,483,022 shares of common stock.
We
may issue warrants for the purchase of common stock or preferred stock in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may be attached to or separate from these securities.
We
will evidence each series of warrants by warrant certificates that we may issue under a separate agreement. We may enter into a warrant
agreement with a warrant agent. Each warrant agent may be a bank that we select which has its principal office in the United States.
We may also choose to act as our own warrant agent. We will indicate the name and address of any such warrant agent in the applicable
prospectus supplement relating to a particular series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
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the
offering price and aggregate number of warrants offered; |
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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in
the case of warrants to purchase common stock or preferred stock, the number or amount of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which and currency in which these shares may be
purchased upon such exercise; |
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the
manner of exercise of the warrants, including any cashless exercise rights; |
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the
warrant agreement under which the warrants will be issued; |
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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anti-dilution
provisions of the warrants, if any; |
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the
terms of any rights to redeem or call the warrants; |
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the
dates on which the right to exercise the warrants will commence and expire or, if the warrants are not continuously exercisable during
that period, the specific date or dates on which the warrants will be exercisable; |
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the
manner in which the warrant agreement and warrants may be modified; |
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the
identities of the warrant agent and any calculation or other agent for the warrants; |
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federal
income tax consequences of holding or exercising the warrants; |
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the
terms of the securities issuable upon exercise of the warrants; |
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any
securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be
listed or quoted; and |
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including, in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon
our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to 5:00 P.M. Eastern Time, the close of business, on the expiration date that
we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with
specified information, and paying the required exercise price by the methods provided in the applicable prospectus supplement. We will
set forth on the reverse side of the warrant certificate, and in the applicable prospectus supplement, the information that the holder
of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants.
Enforceability
of Rights by Holders of Warrants
Any
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
the holder’s right to exercise, and receive the securities purchasable upon exercise of, its warrants in accordance with their
terms.
Warrant
Agreement Will Not Be Qualified Under Trust Indenture Act
No
warrant agreement will be qualified as an indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture
Act of 1939. Therefore, holders of warrants issued under a warrant agreement will not have the protection of the Trust Indenture Act
of 1939 with respect to their warrants.
Governing
Law
Unless
we provide otherwise in the applicable prospectus supplement, each warrant agreement and any warrants issued under the warrant agreements
will be governed by New York law.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus or any prospectus supplement in any combination.
Each unit will be issued so that the holder of the unit is also the holder, with the rights and obligations of a holder, of each security
included in the unit. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be
held or transferred separately, at any time or at any times before a specified date or upon the occurrence of a specified event or occurrence.
The
applicable prospectus supplement will describe:
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the
designation and the terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately; |
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any
unit agreement under which the units will be issued; |
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
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whether
the units will be issued in fully registered or global form. |
PLAN
OF DISTRIBUTION
We
may sell the securities offered pursuant to this prospectus from time to time in one or more transactions, including, without limitation:
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to
or through underwriters; |
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through
broker-dealers (acting as agent or principal); |
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through
agents; |
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directly
by us to one or more purchasers (including our affiliates and stockholders), through a specific bidding or auction process, a rights
offering or otherwise; |
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through
a combination of any such methods of sale; or |
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through
any other methods described in a prospectus supplement or free writing prospectus. |
The
distribution of securities may be effected, from time to time, in one or more transactions, including:
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block
transactions (which may involve crosses) and transactions on The Nasdaq Capital Market or any other organized market where the securities
may be traded; |
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement or free writing
prospectus; |
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ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
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sales
“at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; and |
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sales
in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
The
applicable prospectus supplement or free writing prospectus will describe the terms of the offering of the securities, including:
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the
name or names of any underwriters, if, and if required, any dealers or agents; |
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the
purchase price of the securities and the proceeds we will receive from the sale; |
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any
underwriting discounts and other items constituting underwriters’ compensation; |
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any
discounts or concessions allowed or re-allowed or paid to dealers; and |
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any
securities exchange or market on which the securities may be listed or traded. |
We
may distribute the securities from time to time in one or more transactions at:
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a
fixed price or prices, which may be changed; |
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market
prices prevailing at the time of sale; |
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prices
related to such prevailing market prices; or |
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negotiated
prices. |
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each
underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters
and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented
by managing underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is
used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale,
the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will
be subject to conditions precedent, and the underwriters will be obligated to purchase all of the offered securities, if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price,
with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-allotment
option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the
securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by
the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the
securities for whom they act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase securities directly for the purpose of resale or distribution,
may be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of the common
stock by them may be deemed to be underwriting discounts and commissions under the Securities Act.
We
may provide agents, underwriters and other purchasers with indemnification against particular civil liabilities, including liabilities
under the Securities Act, or contribution with respect to payments that the agents, underwriters or other purchasers may make with respect
to such liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
To
facilitate the public offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In addition, those
persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing
penalty bids, whereby selling concessions allowed to underwriters or dealers participating in any such offering may be reclaimed if securities
sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain
the market price of the securities at a level above that which might otherwise prevail in the open market. Such transactions, if commenced,
may be discontinued at any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions
described above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, any common stock sold pursuant to a prospectus supplement will be eligible
for listing on The Nasdaq Capital Market, subject to official notice of issuance. Any underwriters to whom securities are sold by us
for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue
any market making at any time without notice.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will be sold
in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless
they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement
is available and complied with.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon for us by Haynes and Boone, LLP, New York, New York.
EXPERTS
The
financial statements as of and for the year ended December 31, 2022 incorporated by reference in this registration statement have been
audited by Marcum LLP, an independent registered public accounting firm, as stated in the report (the report on the financial statements
contains an explanatory paragraph regarding the Company’s ability to continue as a going concern). Such financial statements are
incorporated by reference in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The
financial statements as of and for the year ended December 31, 2021 incorporated by reference in this registration statement have been
audited by Friedman LLP, an independent registered public accounting firm, as stated in the report. Such financial statements are incorporated
by reference in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Exchange Act, and in accordance therewith file annual, quarterly and current reports,
proxy statements and other information with the SEC. The SEC maintains an internet website at www.sec.gov that contains periodic and
current reports, proxy and information statements and other information regarding registrants that are filed electronically with the
SEC.
These
documents are also available, free of charge, through the Investors section of our website, which is located at www.biosig.com.
We
have filed with the SEC a registration statement under the Securities Act, relating to the offering of these securities. The registration
statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus does
not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement for free
at www.sec.gov. The registration statement and the documents referred to below under “Incorporation of Documents by Reference”
are also available on our website, www.biosig.com.
We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of
this prospectus.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” the information we have filed with it, which means that we can disclose important
information to you by referring you to those documents. The information we incorporate by reference is an important part of this prospectus,
and later information that we file with the SEC will automatically update and supersede this information. We specifically are incorporating
by reference the following documents filed with the SEC (excluding those portions of any Current Report on Form 8-K that are furnished
and not deemed “filed” pursuant to the General Instructions of Form 8-K):
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our
Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 31, 2023; |
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023, filed with the SEC on
May 15, 2023, August 14, 2023, and November 14, 2023, respectively; |
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our
Current Reports on Form 8-K filed with the SEC on January
17, 2023, January
17, 2023, January
24, 2023, January
26, 2023, February
7, 2023 (as amended on Form 8-K/A on February
7, 2023), February
8, 2023, February
9, 2023, February
13, 2023, February
22, 2023, March
16, 2023, March
29, 2023, April
21, 2023, May
22, 2023, June
30, 2023,
July 21, 2023, July
31, 2023, August
18, 2023, September
5, 2023, September
12, 2023, September
12, 2023, September
15, 2023, September
27, 2023, October
16, 2023, November
1, 2023, November 2, 2023, November
7, 2023, November
8, 2023, November 13, 2023, December
5, 2023, December
18, 2023, December
22, 2023; and |
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the
description of the Company’s common stock and warrants contained in the Form 8-A filed with the SEC on September 17, 2018,
as amended by Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, including any amendments
thereto or reports filed for the purposes of updating this description. |
All
reports and definitive proxy or information statements subsequently filed after the date of this initial registration statement and prior
to effectiveness of this registration statement by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, but
excluding information furnished to, rather than filed with, the SEC, shall be deemed to be incorporated by reference herein and to be
a part hereof from the date such documents are filed.
Any
statement contained herein or in any document incorporated or deemed to be incorporated by reference shall be deemed to be modified or
superseded for purposes of the registration statement of which this prospectus forms a part to the extent that a statement contained
in any other subsequently filed document which also is or is deemed to be incorporated by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed to constitute a part of the registration statement of which this prospectus
forms a part, except as so modified or superseded.
You
should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide
you with different information. You should not assume that the information in this prospectus is accurate as of any date other than the
date of this prospectus or the date of the documents incorporated by reference in this prospectus.
We
will provide without charge to each person to whom a copy of this prospectus is delivered, upon written or oral request, a copy of any
or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus (other than
an exhibit to these filings, unless we have specifically incorporated that exhibit by reference in this prospectus). Any such request
should be addressed to us at:
BioSig
Technologies, Inc.
Attn:
Chief Executive Officer
55
Greens Farms Road, 1st Floor
Westport,
Connecticut 06880
(203)
409-5444
You
may also access the documents incorporated by reference in this prospectus through our website at www.biosig.com. Except for the specific
incorporated documents listed above, no information available on or through our website shall be deemed to be incorporated in this prospectus
or the registration statement of which it forms a part.
$75,000,000
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
UNITS
PROSPECTUS
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses payable by the registrant expected to be incurred in connection with the
issuance and distribution of the common stock being registered hereby (other than underwriting discounts and commissions). All of such
expenses are estimates, except for the SEC registration fee and FINRA fee.
| |
Amount
to be Paid | |
SEC registration fee | |
$ | 9,340.74 | |
FINRA fee | |
| 5,012.62 | |
Printing fees and expenses | |
| 500.00 | |
Transfer agent and registrar fees | |
| 500.00 | |
Accounting fees and expenses | |
| 8,500.00 | |
Legal fees and expenses | |
| 150,000.00 | |
Miscellaneous | |
| 250.00 | |
Total | |
$ | 174,103.35 | |
Each
of the amounts set forth above, other than the registration fee and FINRA fee, is an estimate.
Item
15. Indemnification of Directors and Officers.
Set
forth below is a description of certain provisions of the Company’s Amended and Restated Certificate of Incorporation, as amended
to date (the “Certificate of Incorporation”) and Amended and Restated Bylaws, as amended to date (the “Bylaws”),
and the Delaware General Corporation Law (the “DGCL”). This description is intended as a summary only and is qualified in
its entirety by reference to the Certificate of Incorporation, the Bylaws and the DGCL.
Limitation
on Liability of Directors
Article
IX of the Certificate of Incorporation limits the personal liability of directors to the Company or the Company’s stockholders
for monetary damages for acts or omissions occurring in their capacity as directors, to the fully extent permitted by the laws of the
State of Delaware and any other applicable law, as such laws currently exist and to such greater extent as they may provide in the future.
Indemnification
and Insurance
Section
145 of the DGCL provides, in general, that a corporation incorporated under the laws of the State of Delaware, as we are, may indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding
(other than a derivative action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent
of another enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. In the case of a derivative action, a Delaware
corporation may indemnify any such person against expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification will be made in
respect of any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation unless and only
to the extent that the Court of Chancery of the State of Delaware or any other court in which such action was brought determines such
person is fairly and reasonably entitled to indemnity for such expenses.
The
Certificate of Incorporation and Bylaws provide that we will indemnify our directors, officers, employees and agents to the extent and
in the manner permitted by the provisions of the DGCL, as amended from time to time, subject to any permissible expansion or limitation
of such indemnification, as may be set forth in any stockholders’ or directors’ resolution or by contract. Any repeal or
modification of these provisions approved by our stockholders will be prospective only and will not adversely affect any limitation on
the liability of any of our directors or officers existing as of the time of such repeal or modification.
We
are also permitted to apply for insurance on behalf of any director, officer, employee or other agent for liability arising out of his
actions, whether or not the DGCL would permit indemnification.
Item
16. Exhibits.
Exhibit
|
|
|
Number |
|
Description
of Document |
1.1* |
|
Form
of Underwriting Agreement |
4.1 |
|
Common Stock Purchase Warrant of BioSig Technologies, Inc., dated November 20, 2019, issued to Mayo Foundation for Medical Education and Research (EP Software Warrant) (incorporated by reference to Exhibit 10.26 to the Form 10-K filed on March 13, 2020) |
4.2 |
|
Common Stock Purchase Warrant of BioSig Technologies, Inc., dated November 20, 2019, issued to Mayo Foundation for Medical Education and Research (Tools Warrant) (incorporated by reference to Exhibit 10.27 to the Form 10-K filed on March 13, 2020) |
4.3 |
|
Common Stock Purchase Warrant of NeuroClear Technologies, Inc., dated November 20, 2019, issued to Mayo Clinic Ventures (incorporated by reference to Exhibit 10.28 to the Form 10-K filed on March 13, 2020) |
4.4 |
|
Form of Underwriter Warrant (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on February 24, 2020) |
4.5 |
|
Form of Underwriter Warrant (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on July 6, 2021) |
4.6 |
|
Form of Common Stock Purchase Warrant dated March 22, 2022 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on March 24, 2022) |
4.7** |
|
Form of Consultant Warrant dated November 18, 2022 |
4.8 |
|
Form of Common Stock Purchase Warrant dated December 27, 2022 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on December 28, 2022) |
4.9 |
|
Form of Common Stock Purchase Warrant dated January 24, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on January 24, 2023) |
4.10 |
|
Form of Common Stock Purchase Warrant dated January 13, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on January 17, 2023) |
4.11 |
|
Form of Common Stock Purchase Warrant dated January 26, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on January 26, 2023) |
4.12 |
|
Form of Laidlaw Warrant dated January 24, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on February 7, 2023) |
4.13 |
|
Form of Common Stock Purchase Warrant dated February 8, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on February 8, 2023) |
4.14 |
|
Form of Laidlaw Warrant dated January 13, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on February 8, 2023) |
4.15 |
|
Form of Laidlaw Warrant dated February 8, 2023 (incorporated by reference to Exhibit 4.3 to the Form 8-K filed on February 8, 2023) |
4.16 |
|
Form of Common Stock Purchase Warrant dated February 13, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on February 13, 2023) |
4.17 |
|
Form of Laidlaw Warrant dated March 16, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on March 15, 2023) |
4.18 |
|
Form of Common Stock Purchase Warrant dated March 16, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on March 15, 2023) |
4.19 |
|
Form of Laidlaw Warrant dated March 29, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on March 29, 2023) |
4.20 |
|
Form of Common Stock Purchase Warrant dated March 29, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on March 29, 2023) |
4.21 |
|
Form of Common Stock Purchase Warrant dated April 21, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on April 21, 2023) |
4.22 |
|
Form of Laidlaw Warrant dated April 21, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on April 21, 2023) |
4.23 |
|
Form of Common Stock Purchase Warrant dated May 22, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on May 22, 2023) |
4.24 |
|
Form of Laidlaw Warrant dated May 22, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on May 22, 2023) |
4.25 |
|
Form of Common Stock Purchase Warrant dated July 31, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on July 31, 2023) |
4.26 |
|
Form of Laidlaw Warrant dated July 31, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on July 31, 2023) |
4.27 |
|
Form of Common Stock Purchase Warrant dated September 12, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on September 12, 2023) |
4.28 |
|
Form of Laidlaw Warrant dated September 12, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on September 12, 2023) |
4.29 |
|
Form of Common Stock Purchase Warrant dated September 27, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on September 27, 2023) |
4.30 |
|
Form of Laidlaw Warrant dated September 27, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on September 27, 2023) |
4.31 |
|
Form of Common Stock Purchase Warrant dated October 16, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on October 16, 2023) |
4.32 |
|
Form of Laidlaw Warrant dated October 16, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on October 16, 2023) |
4.33 |
|
Form of Series A Common Stock Purchase Warrant dated November 13, 2023 (incorporated by reference to Exhibit 4.1 to the Form 8-K filed on November 13, 2023) |
4.34 |
|
Form of Series B Common Stock Purchase Warrant dated November 13, 2023 (incorporated by reference to Exhibit 4.2 to the Form 8-K filed on November 13, 2023) |
4.35 |
|
Form of Placement Agent Warrant dated November 13, 2023 (incorporated by reference to Exhibit 4.3 to the Form 8-K filed on November 13, 2023) |
4.36* |
|
Form
of Warrant Agreement and Warrant Certificate |
4.37* |
|
Form
of Unit Agreement |
5.1** |
|
Opinion of Haynes and Boone, LLP |
23.1** |
|
Consent of Marcum LLP |
23.2** |
|
Consent of Friedman LLP |
23.3** |
|
Consent of Haynes and Boone, LLP (included in Exhibit 5.1) |
24.1** |
|
Power of Attorney (contained in signature pages) |
107** |
|
Filing Fee Exhibit |
* |
To
be filed as an exhibit to a Current Report of the registrant on Form 8-K or other document to be incorporated herein by reference. |
** |
Filed
herewith. |
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee
Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
If the registrant is relying on Rule 430B (§230.430B of this chapter):
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(ii)
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
(d)
The undersigned registrant hereby undertakes that:
|
(1) |
For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective. |
|
|
|
|
(2) |
For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Westport, State of Connecticut, on December 28, 2023.
|
BioSig
Technologies, Inc. |
|
|
|
|
By: |
/s/
Kenneth L: Londoner |
|
Name: |
Kenneth
L. Londoner |
|
Title: |
Chairman
and Chief Executive Officer |
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints each of Kenneth L. Londoner and Steven J. Buhaly, severally, each with
full power to act alone and without the others, his true and lawful attorney-in-fact, with full power of substitution, and with the authority
to execute in the name of each such person, any and all amendments (including without limitation, post-effective amendments) to this
registration statement on Form S-3, to sign any and all additional registration statements relating to the same offering of securities
as this registration statement that are filed pursuant to Rule 462(b) of the Securities Act of 1933, and to file such registration statements
with the Securities and Exchange Commission, together with any exhibits thereto and other documents therewith, necessary or advisable
to enable the registrant to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact
executing the same deems appropriate.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Kenneth L. Londoner |
|
Chairman,
Chief Executive Officer and Director |
|
December
28, 2023 |
Kenneth
L. Londoner |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Steven J. Buhaly |
|
Chief
Financial Officer |
|
December 28, 2023 |
Steven
J. Buhaly |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
|
|
|
|
/s/
James J. Barry |
|
Director |
|
December 28, 2023 |
James
J. Barry |
|
|
|
|
|
|
|
|
|
/s/
Frederick D. Hrkac |
|
Director |
|
December 28, 2023 |
Frederick
D. Hrkac |
|
|
|
|
|
|
|
|
|
/s/
David Weild IV |
|
Director |
|
December 28, 2023 |
David
Weild IV |
|
|
|
|
|
|
|
|
|
/s/
Patrick J. Gallagher |
|
Director |
|
December 28, 2023 |
Patrick
J. Gallagher |
|
|
|
|
|
|
|
|
|
/s/
Donald E. Foley |
|
Director |
|
December 28, 2023 |
Donald
E. Foley |
|
|
|
|
|
|
|
|
|
/s/
James L. Klein |
|
Director |
|
December 28, 2023 |
James
L. Klein |
|
|
|
|
Exhibit
4.7
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN
WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER
LOAN SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
BIOSIG
TECHNOLOGIES, INC.
Warrant
Shares: __________ |
Initial
Exercise Date: November 18, 2022 |
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, ____________, or its assigns (the
“Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set
forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to the close of business
on the tenth anniversary of the Initial Exercise Date (the “Termination Date”) but not thereafter, to subscribe for
and purchase from BioSig Technologies, Inc., a Delaware corporation (the “Company”), up to __________ shares (as subject
to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price, of one share of Common Stock under
this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain
Consulting Agreement with Corafin, LLC (the “Consultant”), dated November 18, 2022, among the Company and the Consultant
(the “Agreement”).
Section
2. Exercise.
a.
Exercise of the purchase rights represented by this Warrant may be made in whole or in part, at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by delivery to the Company (or such other office or agency of the Company as it may
designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company) of a duly
executed copy of the Notice of Exercise Form annexed hereto. Within five (5) Trading Days following the date of exercise as aforesaid,
the Holder shall deliver the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer
or cashier’s check drawn on a United States bank. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and
the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within
three (3) Trading Days of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting
in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding
number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and
the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver
any objection to any Notice of Exercise Form within one (1) Business Day of receipt of such notice. The Holder and any assignee, by
acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion
of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the
amount stated on the face hereof.
b)
Exercise Price. The exercise price per share of the Common Stock under this Warrant shall be $.4066 per share, subject
to adjustment hereunder (the “Exercise Price”).
c)
Mechanics of Exercise.
|
i.
|
Delivery
of Certificates Upon Exercise. Certificates for shares purchased hereunder shall be transmitted by the Transfer Agent to the
Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal
at Custodian system (“DWAC”) if the Company is then a participant in such system and there is an effective registration
statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or otherwise by physical
delivery to the address specified by the Holder in the Notice of Exercise by the date that is five (5) Trading Days after the latest
of (A) the delivery to the Company of the Notice of Exercise, (B) surrender of this Warrant (if required) and (C) payment of the
aggregate Exercise Price as set forth above (such date, the “Warrant Share Delivery Date”). The Warrant Shares
shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become
a holder of record of such shares for all purposes, as of the date the Warrant has been exercised, with payment to the Company of
the Exercise Price and all taxes required to be paid by the Holder, if any, pursuant to Section 2(c)(vi) prior to the issuance of
such shares, having been paid. |
|
|
|
|
ii. |
Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder
and upon surrender of this Warrant certificate, at the time of delivery of the certificate or certificates representing Warrant Shares,
deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by
this Warrant, which new Warrant shall in all other respects be identical with this Warrant. |
|
|
|
|
iii. |
Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder a certificate or the certificates representing
the Warrant Shares pursuant to Section 2(c)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind
such exercise. |
|
|
|
|
v.
|
No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of
this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share. |
|
vi.
|
Charges,
Taxes and Expenses. Issuance of certificates for Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;
provided, however, that in the event certificates for Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise. |
|
|
|
|
vii.
|
Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this
Warrant, pursuant to the terms hereof. |
d)
Holder’s Exercise Limitations. The Company shall not affect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of 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’s Affiliates), would beneficially own in excess of the
Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially
owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with
respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon
(i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates and (ii)
exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation,
any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially
owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 2(d), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the
extent that the limitation contained in this Section 2(d) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable shall be in
the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which
portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation
to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall
be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes
of this Section 2(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding
shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the
case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall
within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case,
the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities
of the Company, including this Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding shares
of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the
Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant.
The Holder, upon not less than 61 days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section 2(d), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares
of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant
held by the Holder and the provisions of this Section 2(d) shall continue to apply. Any such increase or decrease will not be effective
until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 2(d) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor
holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly
or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of
its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange
their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock,
(iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization
of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for
other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock
or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off
or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding
shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated
or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each
a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right
to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental
Transaction, at the option of the Holder (without regard to any limitation in Section 2(d) on the exercise of this Warrant), the number
of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional
consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of
the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without
regard to any limitation in Section 2(d) on the exercise of this Warrant). For purposes of any such exercise, the determination of the
Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other
Transaction Documents in accordance with the provisions of this Section 3(b) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at
the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value
of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of
shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior
to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon
the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after
the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein.
c)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
d)
Notice to Holder.
|
i.
|
Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
mail to the Holder a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of
Warrant Shares and setting forth a brief statement of the facts requiring such adjustment. |
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ii.
|
Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer
of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be mailed to the Holder at its last address
as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record
to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock
for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange;
provided that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice
with the Commission pursuant to a Current Report on Form 8-K if the Company is then subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date
of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. |
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. The Warrant, if properly assigned in accordance herewith, may be exercised
by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rights
as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(c)(i).
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the exercise of
the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant
Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading
Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise
of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment
for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes,
liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of the Holder as set forth in this Warrant against impairment. Without limiting the generality of
the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined
in accordance with the provisions of the Agreement.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will
have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant,
which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover
any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred
by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase Agreement.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and
holders holding Warrants to acquire 67% of the Warrant Shares issuable pursuant to the Warrants that were issued under the Purchase Agreement.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
|
BIOSIG
TECHNOLOGIES, INC. |
|
|
|
|
By:
|
|
|
Name: |
Kenneth
L. Londoner |
|
Title: |
Chairman
& Chief Executive Officer |
NOTICE
OF EXERCISE
TO:
BIOSIG TECHNOLOGIES, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of lawful money of the United States.
(3)
Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is
specified below:
_______________________________________________________________________________________________
The
Warrant Shares shall be delivered to the following by {physical delivery of a certificate} or {book entry} (please circle one)
to:
_______________________________________________________________________________________________
_______________________________________________________________________________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: _______________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
_______________________________________________________________________________________
*For
wire transfers:
Wells
Fargo Bank, N.A.
420
Montgomery Street
San
Francisco, CA 94104
ABA
# 121000248
Beneficiary:
BioSig Technologies, Inc.
55
Greens Farms Rd FL 1 Westport, CT 06880
A/C#
1280933662
Please
reference Warrant Exercise – with shareholder name
For
checks: Please send to BioSig Technologies, Inc. 55 Greens Farms Rd FL 1 Westport, CT 06880.
Please
send completed form to bsgmstock@biosigtech.com
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR
VALUE RECEIVED, [____] all of or [_______] shares of the foregoing Warrant and all rights evidenced thereby are hereby assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated:
______________, _______
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Signature:
___________________________________________
NOTE:
The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant.
Exhibit 5.1
December
28, 2023
BioSig
Technologies, Inc.
55
Greens Farms Road, 1st Floor
Westport,
Connecticut 06880
Ladies
and Gentlemen:
We
have acted as counsel to BioSig Technologies, Inc., a Delaware corporation (the “Company”), in connection with the
filing with the Securities and Exchange Commission (the “Commission”) on the date hereof, under the Securities Act
of 1933, as amended (the “Act”) of a registration statement on Form S-3 (the “Registration Statement”)
by the Company relating to (i) shares of common stock, $0.001 par value per share, of the Company (the “Common Stock”),
(ii) shares of preferred stock, $0.001 par value per share, of the Company (the “Preferred Stock”), (iii) warrants
to purchase Common Stock or Preferred Stock (the “Warrants”), and (iv) units comprised of one or more shares of Common
Stock, Preferred Stock or Warrants in any combination (the “Units” and, together with the Common Stock, the Preferred
Stock and the Warrants, the “Securities” and individually, a “Security”) that may be issued and
sold from time to time pursuant to Rule 415 under the Act for an aggregate initial offering price not to exceed $75,000,000.
The
Securities will be offered in amounts, at prices, and on terms to be determined in light of market conditions at the time of sale and
to be set forth in supplements to the prospectus contained in the Registration Statement.
For
purposes of the opinions we express below, we have examined originals, or copies certified or otherwise identified, of (i) the Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as amended and/or restated as of the date hereof (the
“Charter Documents”); (ii) certain resolutions of the Board of Directors of the Company related to the filing of the
Registration Statement, the authorization and issuance of the Securities and related matters; (iii) the Registration Statement
and all exhibits thereto; (iv) the specimen Common Stock certificate of the Company; (v) a certificate executed by an officer
of the Company, dated as of the date hereof and (vi) such other records, documents and instruments as we have deemed necessary or appropriate
for purposes of the opinions hereafter expressed.
As
to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to
the extent we deem reasonably appropriate upon the representations and warranties of the Company contained in such documents, records,
certificates, instruments or representations furnished or made available to us by the Company.
In
making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted
to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv)
that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v)
that all factual information on which we have relied was accurate and complete.
Haynes
and Boone, LLP |
30
Rockefeller Plaza | 26th Floor | New York, NY 10112
T:
212.659.7300 | haynesboone.com |
BioSig Technologies, Inc.
December 28, 2023
Page 2
We
have also assumed that (i) the Company will continue to be incorporated and in existence and good standing in its jurisdiction of organization,
(ii) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective and
will continue to be effective; (iii) no stop order of the Commission preventing or suspending the use of the prospectus contained
in the Registration Statement or any prospectus supplement will have been issued; (iv) a prospectus supplement will have been prepared
and filed with the Commission properly describing the Securities offered thereby and will have been delivered to the purchaser(s) of
the Securities as required in accordance with applicable law; (v) all Securities will be offered, issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate prospectus supplement;
(vi) a definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized and
validly executed and delivered by the Company and the other parties thereto and will be an enforceable obligation of the parties thereto;
(vii) in connection with the sale of Warrants, any required warrant agreement or agreement relating to the Warrants (a “Warrant
Agreement”) will have been executed and delivered by all applicable parties and will be enforceable in all respects in accordance
with its terms; (viii) in connection with the sale of any Units, any required unit agreement relating to the Units (a “Unit
Agreement”) will have been executed and delivered by all applicable parties and will be enforceable in all respects in accordance
with its terms; (ix) any securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will be
duly and validly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise;
and (x) with respect to shares of Common Stock or Preferred Stock offered or underlying the Securities offered, there will be sufficient
shares of Common Stock or Preferred Stock authorized under the Charter Documents and not otherwise reserved for issuance.
Based
on the foregoing, and subject to the limitations and qualifications set forth herein, we are of the opinion that:
1. |
With
respect to shares of Common Stock, when (i) the Board of Directors of the Company or, to the extent permitted by the General Corporation
Law of the State of Delaware and the Charter Documents, a duly constituted and acting committee thereof (such Board of Directors
or committee being hereinafter referred to as the “Company Board”) has taken all necessary corporate action to
approve the issuance thereof and the terms of the offering of shares of Common Stock and related matters, and (ii) certificates representing
the shares of Common Stock have been duly executed, countersigned, registered and delivered, or if uncertificated, valid book-entry
notations have been made in the share register of the Company, in each case in accordance with the provisions of the Charter Documents,
either (a) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Company Board
and upon payment of the consideration therefor (which shall not be less than the par value of the Common Stock) provided for therein,
all in accordance with the Registration Statement and any applicable prospectus supplement, or (b) upon conversion, exchange, redemption
or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing
for such conversion, exchange, redemption or exercise as approved by the Company Board, and for the consideration approved by the
Company Board (which shall not be less than the par value of the Common Stock), all in accordance with the Registration Statement
and any applicable prospectus supplement, the shares of Common Stock will be validly issued, fully paid and non-assessable. The Common
Stock covered in the opinion in this paragraph includes any shares of Common Stock that may be issued upon exercise, conversion or
exchange pursuant to the terms of any other Securities. |
|
|
BioSig Technologies, Inc.
December 28, 2023
Page 3
2. |
With
respect to shares of Preferred Stock, when (i) the Company Board has taken all necessary corporate action to approve and establish
the terms of the shares of Preferred Stock, to approve the issuance thereof and the terms of the offering thereof and related matters,
including the adoption of a Certificate of Designations relating to such Preferred Stock (a “Certificate of Designations”),
and such Certificate of Designations has been filed with the Secretary of State of the State of Delaware, and (ii) certificates representing
the shares of Preferred Stock have been duly executed, countersigned, registered and delivered, or if uncertificated, valid book-entry
notations have been made in the share register of the Company, in each case in accordance with the provisions of the Charter Documents,
either (a) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Company Board
and upon payment of the consideration therefor (which shall not be less than the par value of the Preferred Stock) provided for therein,
all in accordance with the Registration Statement and any applicable prospectus supplement, or (b) upon conversion, exchange, redemption
or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing
for such conversion, exchange, redemption or exercise as approved by the Company Board, and for the consideration approved by the
Company Board (which shall not be less than the par value of the Preferred Stock), all in accordance with the Registration Statement
and any applicable prospectus supplement, the shares of Preferred Stock will be validly issued, fully paid and non-assessable. The
Preferred Stock covered in the opinion in this paragraph includes any shares of Preferred Stock that may be issued upon exercise,
conversion or exchange pursuant to the terms of any other Securities. |
|
|
3. |
With
respect to the Warrants, when (i) the Company Board has taken all necessary corporate action to approve the creation of and the issuance
and terms of the Warrants, the terms of the offering thereof and related matters, (ii) the Warrant Agreements and Warrants have been
duly prepared, authorized and validly executed and delivered by the Company and the other parties thereto (if any) in compliance
with all applicable laws, and (iii) the Warrants or certificates representing the Warrants have been duly registered and delivered
in accordance with the appropriate Warrant Agreements and the applicable definitive purchase, underwriting or similar agreement approved
by the Company Board and upon payment of the consideration therefor provided for therein (which shall not be less than the par value
of any Common Stock or Preferred Stock underlying such Warrants), all in accordance with the Registration Statement and any prospectus
supplement, the Warrants will constitute valid and legally binding obligations of the Company. |
|
|
4. |
With
respect to Units, when (i) the Company Board has taken all necessary corporate action to approve the creation of and the issuance
and terms of the Units, the terms of the offering thereof and related matters, (ii) the Unit Agreements and Units have been duly
prepared, authorized and validly executed and delivered by the Company and the other parties thereto (if any) in compliance with
all applicable laws, and (iii) the Units or certificates representing the Units have been duly registered and delivered in accordance
with the appropriate Unit Agreements and the applicable definitive purchase, underwriting or similar agreement approved by the Company
Board and upon payment of the consideration therefor provided for therein (which shall not be less than the par value of any Common
Stock or Preferred Stock underlying such Units), all in accordance with the Registration Statement and any prospectus supplement,
the Units will constitute valid and legally binding obligations of the Company. |
The
opinions set forth above are subject to the following qualifications, limitations and exceptions:
(a)
The opinions are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, rearrangement, liquidation,
conservatorship or other similar laws now or hereafter in effect relating to or affecting the rights of creditors generally, (ii) provisions
of applicable law pertaining to the voidability of preferential or fraudulent transfers and conveyances and (iii) the fact that the remedy
of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(b)
The opinions are subject to the effect of (i) general principles of equity, including (without limitation) concepts of materiality, reasonableness,
good faith and fair dealing, general matters of public policy and other similar doctrines generally affecting the enforceability of agreements
(regardless of whether considered in a proceeding in equity or at law) (ii) obligations of good faith and fair dealing under New York
law, and (iii) other commonly-recognized statutory and judicial constraints on enforceability, including statutes of limitation, limitations
on rights to indemnification that contravene law or public policy and the effectiveness of waivers of rights or benefits that cannot
be effectively waived under applicable law.
BioSig Technologies, Inc.
December 28, 2023
Page 4
(c)
In rendering the opinions, we have assumed that, at the time of the sale of the Securities, (i) the resolutions of the Company Board
or similar governing body, as reflected in the minutes and proceedings of the Company, will not have been modified or rescinded, (ii)
there will not have occurred any change in the laws affecting the authorization, execution, delivery, issuance, sale, ranking, validity
or enforceability of the Securities, (iii) all third party consents required in connection with the sale of the Securities will have
been received by the Company, (iv) none of the particular terms of a series of Securities will violate any applicable law or the
terms of any applicable governing documents and (v) neither the issuance and sale thereof nor the compliance by the Company with the
terms thereof will result in a violation of any agreement or instrument then binding upon the Company or any order of any court or governmental
body having jurisdiction over the Company.
The
opinions expressed herein are limited to the federal laws of the United States of America, and, to the extent relevant to the opinions
expressed herein, (i) the Delaware General Corporation Law and (ii) the laws of the State of New York, in each case as in effect on the
date hereof (all of the foregoing being referred to as the “Opined on Law”). We do not express any opinion with respect
to any other laws, or the laws of any other jurisdiction (including, without limitation, any laws of any other jurisdiction which might
be referenced by the choice-of-law rules of the Opined on Law), other than the Opined on Law or as to the effect of any such other laws
on the opinions herein stated.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm contained
therein under the heading “Legal Matters.” In giving this consent, we do not hereby admit we are in the category of persons
whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. This opinion is given
as of the date hereof and we assume no obligation to update or supplement such opinion after the date hereof to reflect any facts or
circumstances that may thereafter come to our attention or any changes that may thereafter occur.
|
Very
truly yours, |
|
|
|
/s/
Haynes and Boone, LLP |
|
|
|
Haynes
and Boone, LLP |
Exhibit
23.1
Independent
Registered Public Accounting Firm’s Consent
We
consent to the incorporation by reference in this Registration Statement of on Form S-3 of our report dated March 31, 2023, which includes
an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to our audit of the consolidated
financial statements of as of December 31, 2022 and for the year ended December 31, 2022 appearing in the Annual Report on Form 10-K
of for the year ended December 31, 2022. We also consent to the reference to our firm under the heading “Experts” in the
Prospectus, which is part of this Registration Statement.
/s/
Marcum llp
Marcum
llp
Marlton,
New Jersey
December
28, 2023
Exhibit
23.2
Independent
Registered Public Accounting Firm’s Consent
We
consent to the incorporation by reference in this Registration Statement of on Form S-3 of our report dated March 31, 2022, which includes
an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to our audit of the consolidated
financial statements of as of December 31, 2021 and for the year ended December 31, 2021 appearing in the Annual Report on Form 10-K
of for the year ended December 31, 2021. We also consent to the reference to our firm under the heading “Experts” in the
Prospectus, which is part of this Registration Statement.
We
were dismissed as auditors on September 7, 2022 and, accordingly, we have not performed any audit or review procedures with respect to
any financial statements incorporated by reference for the periods after the date of our dismissal.
/s/
Friedman llp
Friedman
llp
Marlton,
New Jersey
December
28, 2023
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
BioSig
Technologies, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
|
|
Security
Type |
|
Security
Class Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
|
Amount
Registered |
|
|
Proposed
Maximum
Offering
Price Per
Unit |
|
|
Maximum
Aggregate
Offering
Price |
|
|
Fee
Rate |
|
|
Amount of
Registration
Fee |
|
Carry
Forward
Form
Type |
|
|
Carry
Forward
File Number |
|
|
Carry
Forward
Initial
Effective
Date |
|
|
Filing Fee
Previously
Paid In
Connection
With Unsold
Securities to
be Carried
Forward |
|
Newly
Registered Securities |
|
|
|
Fees
to be Paid |
|
Equity |
|
Common
Stock, $0.001 par value per share |
|
|
|
|
|
|
(1)(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Equity |
|
Preferred
Stock, $0.001 par value per share |
|
|
|
|
|
|
(1)(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Other |
|
Warrants |
|
|
|
|
|
|
(1)(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Other |
|
Units |
|
|
|
|
|
|
(1)(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Unallocated
(Universal) Shelf |
|
Unallocated
(Universal) Shelf |
|
|
457(o) |
|
|
|
(1)(2) |
|
|
|
(2) |
|
|
$ |
30,084,147 |
|
|
$ |
0.00014760 |
|
|
$ |
4,440.42 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry
Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry
Forward Securities |
|
Equity |
|
Common
Stock, $0.001 par value per share |
|
|
415
(a) |
(6) |
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(2)(3) |
|
|
|
|
|
|
|
(3) |
|
|
S-3 |
|
|
|
333-251859 |
|
|
|
January 12, 2021 |
|
|
|
(3) |
|
Carry
Forward Securities |
|
Equity |
|
Preferred
Stock, $0.001 par value per share |
|
|
415
(a) |
(6) |
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(2)(3) |
|
|
|
|
|
|
|
(3) |
|
|
S-3 |
|
|
|
333-251859 |
|
|
|
January 12, 2021 |
|
|
|
(3) |
|
Carry
Forward Securities |
|
Other |
|
Warrants |
|
|
415
(a) |
(6) |
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(2)(3) |
|
|
|
|
|
|
|
(3) |
|
|
S-3 |
|
|
|
333-251859 |
|
|
|
January 12, 2021 |
|
|
|
(3) |
|
Carry
Forward Securities |
|
Other |
|
Units |
|
|
415
(a) |
(6) |
|
|
(1)(2)(3) |
|
|
|
|
|
|
|
(2)(3) |
|
|
|
|
|
|
|
(3) |
|
|
S-3 |
|
|
|
333-251859 |
|
|
|
January 12, 2021 |
|
|
|
(3) |
|
Carry
Forward Securities |
|
Unallocated
(Universal) Shelf |
|
Unallocated
(Universal) Shelf |
|
|
415
(a) |
(6) |
|
$ |
44,915,853
(1)(2)(3) |
|
|
|
|
|
|
$ |
44,915,853
(1)(2)(3) |
|
|
|
|
|
|
|
(3) |
|
|
S-3 |
|
|
|
333-251859 |
|
|
|
January 12, 2021 |
|
|
$ |
4,900.32(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Offering Amounts |
|
|
$ |
75,000,000 |
|
|
|
|
|
|
$ |
9,340.74 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
$ |
4,900.32 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Fee Due |
|
|
|
|
|
|
|
|
|
|
$ |
4,440.42 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Pursuant
to Rule 416 of the Securities Act, this Registration Statement also includes additional shares of common stock issuable upon stock
splits, stock dividends or similar transactions. These offered securities may be sold separately, together or as units with other
offered securities. An unspecified number of securities or aggregate principal amount, as applicable, is being registered as may
from time to time be offered at unspecified prices. |
|
|
(2) |
Pursuant
to Rule 457(o) under the Securities Act, which permits the registration fee to be calculated on the basis of the maximum offering
price of all the securities listed, the table does not specify by each class information as to the amount to be registered, proposed
maximum offering price per unit or proposed maximum aggregate offering price. The aggregate public offering price of securities sold
by the Registrant (including newly listed securities and carry-forward securities) will not exceed $75,000,000. |
|
|
(3) |
The
Registrant previously registered $75,000,000 in aggregate offering price of securities pursuant
to the Registration Statement on Form S-3 (File No. 333-251859) filed on December 31, 2020
and declared effective on January 12, 2021 (the “Prior Registration Statement”),
$44,915,853 of which remains unsold as of the date of filing of this registration
statement (the “Unsold Securities”). The Registrant expects to carry forward
to this registration statement the Unsold Securities pursuant to Rule 415(a)(6) under the
Securities Act of 1933, as amended. The Registrant previously paid a registration fee of
$8,182.50 in connection with the filing of the Prior Registration Statement of which $4,900.32
relates to the Unsold Securities. The $4,900.32 previously paid filing fee relating
to such Unsold Securities under the Prior Registration Statement will continue to be applied
to such Unsold Securities registered on this registration statement. For reasons stated above,
the net registration fee paid in connection with the Unsold Securities is $0.
To
the extent that, after the filing date hereof and prior to the effectiveness of this registration statement, the Registrant sells any
Unsold Securities pursuant to the Prior Registration Statement, the Registrant will identify in a pre-effective amendment to this registration
statement the updated amount of Unsold Securities from the Prior Registration Statement to be included in this registration statement
pursuant to Rule 415(a)(6). Pursuant to Rule 415(a)(6), the offering of the Unsold Securities under the Prior Registration Statement
will be deemed terminated as of the date of effectiveness of this registration statement. |
Table
2: Fee Offset Claims and Sources
N/A
Table
3: Combined Prospectuses
N/A
BioSig Technologies (NASDAQ:BSGM)
過去 株価チャート
から 4 2024 まで 5 2024
BioSig Technologies (NASDAQ:BSGM)
過去 株価チャート
から 5 2023 まで 5 2024