| PROSPECTUS |
Registration
No. 333-280924 |
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Filed
pursuant to Rule 424(b)(4) |
Greenwave
Technology Solutions, Inc.
27,612,612
Shares
COMMON
STOCK
This
prospectus relates to the resale, from time to time, by the selling stockholders named herein (the “Selling Stockholders”)
of up to 27,612,612 shares of our common stock, par value $0.001 per share (“common stock”), consisting of: (i) up to an
aggregate of 1,894,280 shares of our common stock issuable upon exercise of certain outstanding warrants (the “Inducement Warrants”)
issued in connection with an inducement to exercise then-existing warrants; (ii) up to an aggregate of 4,556,903 shares of our common
stock issuable upon exercise of certain outstanding warrants issued in a private placement conducted on April 22, 2024 concurrently with
a registered direct offering (the “April RD Warrants”); (iii) up to an aggregate of 14,178,680 shares of our common stock
issuable upon exercise of certain outstanding warrants issued in a private placement conducted on May 16, 2024 concurrently with a registered
direct offering (the “May RD Warrants”); (iv) up to an aggregate of 5,044,885 shares of our common stock issuable upon exercise
of certain outstanding warrants issued in a private placement conducted on June 10, 2024 concurrently with a registered direct offering
(the “June RD Warrants”); (v) up to 232,100 shares of our common stock issuable upon exercise of warrants issued to the financial
advisor in connection with the Inducement Warrants (the “March FA Warrants”), up to 477,573 shares of our common stock issuable
upon exercise of warrants issued to the financial advisor in connection with the April RD Warrants (the “April FA Warrants”),
and 311,342 shares of our common stock issuable exercise of warrants issued to the financial advisor in connection with the May RD Warrants
(the “May FA Warrants”); (vi) up to an aggregate of 504,489 shares of our common stock issuable exercise of warrants issued
to the financial advisor in connection with the June RD Warrants (the “June FA Warrants” and together with the March FA Warrants,
the April FA Warrants, the May FA Warrants, the Inducement Warrants, the April RD Warrants, the May RD Warrants, and the June RD Warrants,
the “Warrants”); and (vii) 412,360 shares of our common stock (the “Exchange Shares”) issued to an entity controlled
by our Chief Executive Officer in connection with an exchange agreement dated April 22, 2024 (the “Exchange Agreement”).
All share numbers herein are adjusted for the one-for-one hundred fifty
(1:150) reverse stock split of our common stock that we effectuated with an effective time of 11:59 p.m. Eastern Time on May 31, 2024
(the “Reverse Stock Split”). Our common stock began trading on Nasdaq on a split-adjusted basis beginning at the open of
the market on June 3, 2024.
We
are not selling any securities under this prospectus and we will not receive proceeds from the sale of the shares of our common stock
by the Selling Stockholders. However, we may receive proceeds from the cash exercise of the Warrants, which, if exercised in cash at
the current applicable exercise price, with respect to all of the 27,200,252 shares of common stock, would result in gross proceeds to
us of approximately $79,521,010.
We
will pay the expenses of registering the shares of common stock offered by this prospectus, but all selling and other expenses incurred
by the Selling Stockholders will be paid by the Selling Stockholders. The Selling Stockholders may sell our shares of common stock offered
by this prospectus from time to time on terms to be determined at the time of sale through ordinary brokerage transactions or through
any other means described in this prospectus under “Plan of Distribution.” The prices at which the Selling Stockholders
may sell shares will be determined by the prevailing market price for our common stock or in negotiated transactions.
Our
common stock is listed on the Nasdaq Capital Market (“Nasdaq”) under the trading symbol “GWAV.” On July 18, 2024,
the last reported sale price of our common stock was $1.64 per share. There is no established public trading market for the Warrants,
and we do not expect a market to develop. In addition, we do not intend to list the Warrants on Nasdaq, any other national securities
exchange or any other nationally recognized trading system.
Our
principal executive office is located at 4016 Raintree Rd., Ste 300, Chesapeake, VA 23321, and our telephone number is (800) 490-5020.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page 4 of this prospectus for a
discussion of information that should be considered in connection with an investment in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This
prospectus is dated August 2, 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the U.S. Securities and Exchange Commission (the “SEC”).
You should read this prospectus and the information and documents incorporated herein by reference carefully. Such documents contain
important information you should consider when making your investment decision. See “Where You Can Find More Information”
and “Information Incorporated by Reference” in this prospectus.
You
should rely only on the information contained in or incorporated by reference into this prospectus. Neither we nor the selling stockholders
named herein (the “Selling Stockholders”) have authorized anyone to provide you with information different from, or in addition
to, that contained in or incorporated by reference into this prospectus. This prospectus is an offer to sell only the securities offered
hereby but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in or incorporated by
reference into this prospectus is current only as of their respective dates or on the date or dates that are specified in those documents.
Our business, financial condition, results of operations and prospects may have changed since those dates.
The
Selling Stockholders are not offering to sell or seeking offers to purchase these securities in any jurisdiction where the offer or sale
is not permitted. Neither we nor the Selling Stockholders have done anything that would permit this offering or possession or distribution
of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the
jurisdiction of the United States who come into possession of this prospectus are required to inform themselves about and to observe
any restrictions relating to this offering and the distribution of this prospectus applicable to that jurisdiction.
If
required, each time the Selling Stockholders offer shares of our common stock, par value $0.001 per share (“common stock”),
we will provide you with, in addition to this prospectus, a prospectus supplement that will contain specific information about the terms
of that offering. We may also authorize the Selling Stockholders to use one or more free writing prospectuses to be provided to you that
may contain material information relating to that offering. We may also use a prospectus supplement and any related free writing prospectus
to add, update or change any of the information contained in this prospectus or in documents we have incorporated by reference. This
prospectus, together with any applicable prospectus supplements, any related free writing prospectuses and the documents incorporated
by reference into this prospectus, includes all material information relating to this offering. To the extent that any statement that
we make in a prospectus supplement is inconsistent with statements made in this prospectus, the statements made in this prospectus will
be deemed modified or superseded by those made in a prospectus supplement. Please carefully read both this prospectus and any prospectus
supplement together with the additional information described below under the section entitled “Information Incorporated by
Reference” before buying any of the securities offered.
As
used in this prospectus, unless context otherwise requires, the words “we,” “us,” “our,” “the
Company,” “Greenwave,” “Registrant” refer to Greenwave Technology Solutions, Inc. and its subsidiaries.
Additionally, any reference to (i) “Empire” refers to the Company’s wholly owned subsidiary, “Empire Services,
Inc.” and the assets used in its operation. Also, any reference to “common share” or “common stock,” refers
to our $0.001 par value common stock on a post-Reverse Stock Split basis.
Unless
otherwise stated, the information which appears on our web site www.GWAV.com is not part of this report and is specifically not
incorporated by reference. Unless otherwise indicated, information contained in this prospectus or incorporated by reference herein concerning
our industry and the markets in which we operate is based on information from independent industry and research organizations, other
third-party sources (including industry publications, surveys and forecasts), and management estimates. Management estimates are derived
from publicly available information released by independent industry analysts and third-party sources, as well as data from our internal
research, and are based on assumptions made by us upon reviewing such data and our knowledge of such industry and markets, which we believe
to be reasonable. Although we believe the data from these third-party sources is reliable, we have not independently verified any third-party
information. In addition, projections, assumptions and estimates of the future performance of the industry in which we operate and our
future performance are necessarily subject to uncertainty and risk due to a variety of factors, including those described in “Risk
Factors” and “Special Note Regarding Forward-Looking Statements.” These and other factors could cause results
to differ materially from those expressed in the estimates made by the independent parties and by us.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements in this prospectus, including the documents incorporated by reference in this prospectus, contain “forward-looking statements”
within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. Forward-looking statements can be identified
by words such as “anticipate,” “believe,” “contemplate,” “continue,” “could,”
“estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,”
“potential,” “predict,” “project,” “should,” “will,” “would”
and variations of these words and similar references to future periods, although not all forward-looking statements contain these identifying
words. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based on our current
beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events
and trends, the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent
risks, uncertainties, and changes in circumstances, including but not limited to risk factors incorporated by reference under “Item
1A. Risk Factors” to Part I of our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and other factors described
elsewhere in this prospectus or in our current and future filings with the SEC. As a result, our actual results may differ materially
from those expressed or forecasted in the forward-looking statements, and you should not rely on such forward-looking statements. You
should carefully read this prospectus, together with the information incorporated by reference herein and therein as described under
the sections titled “Where You Can Find More Information,” completely and with the understanding that our actual future results
may be materially different from what we expect. We can give no assurances that any of the events anticipated by the forward-looking
statements will occur or, if any of them do, what impact they will have on our results of operations and financial condition. Important
factors that could cause our actual results and financial condition to differ materially from those indicated in the forward-looking
statements include, among others, the following:
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our
ability to continue as a going concern; |
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our
reliance on third party vendors; |
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our
dependence on our executive officers; |
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our
financial performance guidance; |
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material
weaknesses in our internal control over financial reporting; |
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regulatory
developments in the United States and foreign countries; |
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the
impact of laws, regulations, accounting standards, regulatory requirements, judicial decisions and guidance issued by authoritative
bodies; |
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our
estimates regarding expenses, future revenue and cash flow, capital requirements and needs for additional financing; |
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our
financial performance; |
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our
ability to regain and maintain compliance with the listing standards of Nasdaq; |
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the
ability to recognize the anticipated benefits of our business combination and/or divestitures; and |
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the
effect of COVID-19 on the foregoing. |
Any
forward-looking statement made by us in this prospectus, including the documents incorporated by reference in this prospectus, is based
only on information currently available to us and speaks only as of the date on which it is made. We undertake no obligation to publicly
update any forward-looking statement, whether as a result of new information, future developments or otherwise. However, you should carefully
review the risk factors set forth in other reports or documents we file from time to time with the SEC.
PROSPECTUS
SUMMARY
This
summary highlights information contained elsewhere or incorporated by reference in this prospectus. This summary is not complete and
does not contain all of the information that you should consider before investing in our common stock. We urge you to read this entire
prospectus and the documents incorporated by reference herein carefully, including the financial statements and notes to those financial
statements incorporated by reference herein and therein. Please read the section of this prospectus entitled “Risk Factors”
for more information about important risks that you should consider before investing in our common stock.
Our
Business
We
were formed on April 26, 2013 as a technology platform developer under the name MassRoots, Inc. In October 2021, we changed our corporate
name from “MassRoots, Inc.” to “Greenwave Technology Solutions, Inc.” We sold all of our social media assets
on October 28, 2021 for cash consideration equal to $10,000 and have discontinued all operations related to our social media business.
On September 30, 2021, we closed our acquisition of Empire Services, Inc. (“Empire”), which operates 13 metal recycling facilities
in Virginia, North Carolina, and Ohio. The acquisition was effective October 1, 2021 upon the effectiveness of the Certificate of Merger
in Virginia.
Upon
the acquisition of Empire, we transitioned into the scrap metal industry which involves collecting, classifying and processing appliances,
construction material, end-of-life vehicles, boats, and industrial machinery. We process these items by crushing, shearing, shredding,
separating, and sorting, into smaller pieces and categorize these recycled ferrous, nonferrous, and mixed metal pieces based on density
and metal prior to sale. In cases of scrap cars, we remove the catalytic converters, aluminum wheels, and batteries for separate processing
and sale prior to shredding the vehicle. We have designed our systems to maximize the value of metals produced from this process.
We
operate an automotive shredder at our Kelford, North Carolina location and a second automotive shredder at our Carrollton, Virginia location
is expected to come online in the second quarter of 2024. Our shredders are designed to produce a denser product and, in concert with
advanced separation equipment, more refined recycled ferrous metals, which are more valuable as they require less processing to produce
recycled steel products. In totality, this process reduces large metal objects like auto bodies into baseball-sized pieces of shredded
recycled metal.
The
shredded pieces are then placed on a conveyor belt under magnetized drums to separate the ferrous metal from the mixed nonferrous metal
and residue, producing consistent and high-quality ferrous scrap metal. The nonferrous metals and other materials then go through a number
of additional mechanical systems which separate the nonferrous metal from any residue. The remaining nonferrous metal is further processed
to sort the metal by type, grade, and quality prior to being sold as products, such as zorba (mainly aluminum), zurik (mainly stainless
steel), and shredded insulated wire (mainly copper and aluminum).
One
of our main corporate priorities is to open a facility with rail or deep-water port access to enable us to efficiently transport our
products to domestic steel mills and overseas foundries. Because this would greatly expand the number of potential buyers of our processed
scrap products, we believe opening a facility with port or rail access could result in an increase in both the revenue and profitability
of our existing operations.
Empire
is headquartered in Chesapeake, Virginia and employs 141 people as of July 9, 2024.
Products
and Services
Our
main product is selling ferrous metal, which is used in the recycling and production of finished steel. It is categorized into heavy
melting steel, plate and structural, and shredded scrap, with various grades of each of those categorizations based on the content, size
and consistency of the metal. All of these attributes affect the metal’s value.
We
also process nonferrous metals such as aluminum, copper, stainless steel, nickel, brass, titanium, lead, alloys and mixed metal products.
Additionally, we sell the catalytic converters recovered from end-of-life vehicles to processors which extract the nonferrous precious
metals such as platinum, palladium and rhodium.
We
provide metal recycling services to a wide range of suppliers, including large corporations, industrial manufacturers, retail customers,
and government organizations.
Pricing
and Customers
Prices
for our ferrous and nonferrous products are based on prevailing market rates and are subject to market cycles, worldwide steel demand,
government regulations and policy, and supply of products that can be processed into recycled steel. Our main buyers adjust the prices
they pay for scrap metal products based on market rates usually on a monthly or bi-weekly basis. We are usually paid for the scrap metal
we deliver to customers within 14 days of delivery.
Based
on any price changes from our customers or our other buyers, we in turn adjust the price for unprocessed scrap we pay suppliers in order
to manage the impact on our operating income and cash flows.
The
spread we are able to realize between the sales prices and the cost of purchasing scrap metal is determined by a number of factors, including
transportation and processing costs. Historically, we have experienced sustained periods of stable or rising metal selling prices, which
allow us to manage or increase our operating income. When selling prices decline, we adjust the prices we pay customers to minimize the
impact to our operating income.
Sources
of Unprocessed Metal
Our
main sources of unprocessed metal we purchase are end-of-life vehicles, old equipment, appliances and other consumer goods, and scrap
metal from construction or manufacturing operations. We acquire this unprocessed metal from a wide base of suppliers including large
corporations, industrial manufacturers, retail customers, and government organizations who unload their metal at our facilities or we
pick it up and transport it from the supplier’s location. Currently, our operations and main suppliers are located in the Hampton
Roads and northeastern North Carolina markets. In the second quarter of 2023, we are expanding our operations by opening a metal recycling
facility in Cleveland, Ohio.
Our
supply of scrap metal is influenced by the overall health of economic activity in the United States, changes in prices for recycled metal,
and, to a lesser extent, seasonal factors such as severe weather conditions, which may prohibit or inhibit scrap metal collection.
Competition
We
compete with several large, well-financed recyclers of scrap metal, steel mills which own their own scrap metal processing operations,
and with smaller metal recycling companies. Demand for metal products is sensitive to global economic conditions, the relative value
of the U.S. dollar, and availability of material alternatives, including recycled metal substitutes. Prices for recycled metal are also
influenced by tariffs, quotas, and other import restrictions, and by licensing and government requirements.
We
aim to create a competitive advantage through our ability to process significant volumes of metal products and utilize the technology
solutions, our use of processing and separation equipment, the number and location of our facilities, and the operating synergies we
have been able to develop based on our experience.
Nasdaq
Listing Deficiency
On
November 21, 2023, we received a written notice (the “Notice”) from the Listing Qualifications Department of Nasdaq indicating
that Nasdaq had determined that we had failed to comply with certain Nasdaq Listing Rules.
By
letter dated June 17, 2024, Nasdaq notified the Company that it had regained compliance with Nasdaq Listing Rules and that the scheduled
hearing originally planned for June 25, 2024 was cancelled. The Company’s common stock will continue to trade on Nasdaq under the
symbol “GWAV”.
Reverse
Stock Split
On
May 20, 2024, our stockholders approved a proposal at our 2024 Annual Meeting of Stockholders (the “Annual Meeting”) further
amending our Second Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), to
effect a reverse stock split of our common stock at a ratio between one-for-two (1:2) and one-for-one hundred fifty (1:150),
without reducing the authorized number of our shares of common stock. Following the Annual Meeting, our Board of Directors approved a
final split ratio of one-for-one hundred fifty (1:150). Following such approval, on May 29, 2024, we filed an amendment to the Certificate
of Incorporation with the Secretary of State of the State of Delaware to effect the reverse stock split, with an effective time of 11:59 p.m.
Eastern Time on May 31, 2024 (the “Reverse Stock Split”). Our common stock began trading on Nasdaq on a split-adjusted basis
beginning on June 3, 2024. Unless otherwise noted, all share and per share information relating to our Common Stock in this prospectus
has been adjusted to reflect the 1-for-150 Reverse Stock Split.
Corporate
Information
Our
principal executive office is located at 4016 Raintree Rd., Ste 300, Chesapeake, VA 23321, and our telephone number is (800) 490-5020.
Our Internet website address is www.GWAV.com. We were incorporated in the State of Delaware on April 26, 2013.
The
Offering
| Securities
offered by the Selling Stockholders: |
|
Up
to 27,612,612 shares of our common stock, par value $0.001 per share (“common stock”), consisting of: (i) up to an aggregate
of 1,894,280 shares of our common stock issuable upon exercise of certain outstanding warrants (the “Inducement Warrants”)
issued in connection with an inducement to exercise then-existing warrants; (ii) up to an aggregate of 4,556,903 shares of our common
stock issuable upon exercise of certain outstanding warrants issued in a private placement conducted on April 22, 2024 concurrently
with a registered direct offering (the “April RD Warrants”); (iii) up to an aggregate of 14,178,680 shares of our common
stock issuable upon exercise of certain outstanding warrants issued in a private placement conducted on May 16, 2024 concurrently
with a registered direct offering (the “May RD Warrants”); (iv) up to an aggregate of 5,044,885 shares of our common
stock issuable upon exercise of certain outstanding warrants issued in a private placement conducted on June 10, 2024 concurrently
with a registered direct offering (the “June RD Warrants”); (v) up to 232,100 shares of our common stock issuable upon
exercise of warrants issued to the financial advisor in connection with the Inducement Warrants (the “March FA Warrants”),
up to 477,573 shares of our common stock issuable upon exercise of warrants issued to the financial advisor in connection with the
April RD Warrants (the “April FA Warrants”), and 311,342 shares of our common stock issuable exercise of warrants issued
to the financial advisor in connection with the May RD Warrants (the “May FA Warrants”), (vi) up to an aggregate of 504,489
shares of our common stock issuable exercise of warrants issued to the financial advisor in connection with the June RD Warrants,
(the “June FA Warrants” and together with the March FA Warrants, the April FA Warrants, the May FA Warrants, the Inducement
Warrants, the April RD Warrants, the May RD Warrants, and the June RD Warrants, the “Warrants”); and (vii) 412,360 shares
of our common stock (the “Exchange Shares”) issued to an entity controlled by our Chief Executive Officer in connection
with an exchange agreement dated April 22, 2024 (the “Exchange Agreement”). |
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| Common
stock outstanding prior to the offering: |
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12,750,628
shares |
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| Common
stock to be outstanding after the offering assuming exercise of all Warrants: |
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39,950,880
shares |
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| Use
of Proceeds: |
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We
will not receive any proceeds from the sale by the Selling Stockholders of the shares of common stock being offered by this prospectus.
However, we may receive proceeds from the cash exercise of the Warrants, which, if exercised in cash at the current exercise price
with respect to all Warrants, would result in gross proceeds to us of approximately $79,521,010. The proceeds from such Warrant exercises,
if any, will be used for expansion of our metal recycling operations, bringing our copper extraction
system online, and other working capital and general corporate purposes. |
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| Risk
Factors: |
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Investing
in our securities is highly speculative and involves a high degree of risk. You should carefully consider the information set forth
in the “Risk Factors” section on page 4 before deciding to invest in our securities. |
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| Trading
Symbol: |
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Our
common stock is currently quoted on The Nasdaq Capital Market under the trading symbol “GWAV”. |
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(1)
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The
number of shares of common stock to be outstanding after this offering is based on 12,750,628 shares of our common stock outstanding
as of July 18, 2024, which excludes as of such date: |
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754
shares of common stock issuable upon the exercise of certain vested options with a weighted average exercise price of $24,089 per
share; and |
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16,525
shares of common stock issuable upon the exercise of certain vested warrants with a weighted average exercise price of $2.85 per
share. |
RISK
FACTORS
An
investment in our company involves a high degree of risk. Before you make a decision to invest in our securities, you should consider
carefully the risks described below, as well as the risks described in or incorporated by reference in this prospectus, including the
risks and uncertainties discussed under the section titled “Risk Factors” in our most recent Annual Report for the year ended
December 31, 2023, any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and all other documents incorporated
by reference into this prospectus, as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
Any
of these risks could have a material adverse effect on our business, prospects, financial condition and results of operations. In any
such case, the trading price of our securities could decline and you could lose all or part of your investment. Additional risks not
presently known to us or that we currently deem immaterial may also adversely affect our business operations.
Risks
Related to Our Common Stock and this Offering
Our
independent registered accounting firm has expressed concerns about our ability to continue as a going concern.
The
report of our independent registered accounting firm expresses concern about our ability to continue as a going concern based on our
historical losses from operations and the potential need for additional financing to fund our operations. It is not possible at this
time for us to predict with assurance the potential success of our business. If we cannot continue as a viable entity, we may be unable
to continue our operations and you may lose some or all of your investment in our securities.
There
may be future sales of our securities or other dilution of our equity, which may adversely affect the market price of our common stock.
With
limited exceptions, we are generally not restricted from issuing additional common stock, including any securities that are convertible
into or exchangeable for, or that represent the right to receive, common stock. The market price of our common stock could decline as
a result of sales of common stock or securities that are convertible into or exchangeable for, or that represent the right to receive,
common stock after this offering or the perception that such sales could occur.
If
we are unable to satisfy the applicable continued listing requirements of Nasdaq, our common stock could be delisted.
On
November 21, 2023, we received a written notice (the “Notice”) from the Listing Qualifications Department of Nasdaq indicating
that Nasdaq had determined that we had failed to comply with certain Nasdaq Listing Rules.
By
letter dated June 17, 2024, Nasdaq notified the Company that it had regained compliance with Nasdaq Listing Rules and that the scheduled
hearing originally planned for June 25, 2024 was cancelled. The Company’s common stock will continue to trade on Nasdaq under the
symbol “GWAV”. Although we anticipate complying with Nasdaq’s
Listing Rules going forward, there can be no assurance that we will be able to meet continued listing requirements in the future. In
determining whether to afford a company a cure period prior to commencing suspension or delisting procedures, Nasdaq analyzes all relevant
facts including any past deficiencies, and thus our prior deficiencies could be used as a factor by Nasdaq in any future decision to
delist our securities from trading on its exchange.
If
our common stock is delisted, it could reduce the price of our common stock and the levels of liquidity available to our stockholders.
In addition, the delisting of our common stock could materially adversely affect our access to the capital markets and any limitation
on liquidity or reduction in the price of our common stock could materially adversely affect our ability to raise capital. Delisting
from Nasdaq could also result in other negative consequences, including the potential loss of confidence by suppliers, customers and
employees, the loss of institutional investor interest and fewer business development opportunities.
A
substantial number of shares of common stock may be sold in this offering, which could cause the price of our common stock to decline.
In
this offering, the Selling Stockholders may sell up to 27,612,612 shares of common stock. This sale and any future sales of a substantial
number of shares of common stock in the public market, or the perception that such sales may occur, could adversely affect the price
of the common stock on Nasdaq. We cannot predict the effect, if any, that market sales of those shares of common stock or the availability
of those shares of common stock for sale will have on the market price of our common stock.
Our
management has significant flexibility in using the net proceeds of this offering.
We
currently intend to use the net proceeds from this offering for expansion of our metal recycling
operations, bringing our copper extraction system online, and other working capital and general corporate purposes. Our management
will have significant flexibility in applying the net proceeds of this offering. Management’s failure to use these funds effectively
would have an adverse effect on the value of our common stock and could make it more difficult and costly to raise funds in the future.
We
do not intend to apply for any listing of the Warrants on any exchange or nationally recognized trading system, and we do not expect
a market to develop for the unregistered warrants.
We
do not intend to apply for any listing of the Warrants on Nasdaq or any other securities exchange or nationally recognized trading system,
and we do not expect a market to develop for the Warrants. Without an active market, the liquidity of the Warrants will be limited. Further,
the existence of the Warrants may act to reduce both the trading volume and the trading price of our common stock.
The
market price of our common stock may be volatile and adversely affected by several factors.
Our
share price is highly volatile. During the past 12 months, the closing price of our common stock ranged from a high of $165.00 per share
to a low of $1.535 per share (all on a post-Reverse Stock Split basis). The stock market in general has experienced extreme volatility
that has often been unrelated to the operating performance of particular companies; however, the fluctuation in the price of our common
stock is still larger than the stock market in general. As a result of this volatility, you may not be able to sell your common stock
at or above the price at which you purchased your common stock and you may lose some or all of your investment. In addition to the general
volatility risks of the market, our common stock may experience extreme stock price volatility unrelated to our actual or expected operating
performance, financial condition or prospects, making it difficult for prospective investors to assess the rapidly changing value of
our common stock. As a company with a relatively small public float, our common stock may experience greater stock price volatility,
extreme price run-ups, lower trading volume, large spreads in bid and asked prices, and less liquidity than large-capitalization companies.
Trading in our common stock may be unrelated to our actual or expected operating performance, financial condition or prospects, making
it difficult for prospective investors to assess the value of our common stock . Because of the low public float and the absence of any
significant trading volume, the public offering price may not reflect the price at which you would be able to sell shares if you want
to sell any shares you own or buy shares if you wish to buy share. If the trading volumes of our common stock are low, persons buying
or selling in relatively small quantities may easily influence the prices of our common stock. A low volume of trades could also cause
the price of our common stock to fluctuate greatly, with large percentage changes in price occurring in any trading day session. Broad
market fluctuations and general economic and political conditions may also adversely affect the market price of our common stock. The
volatility also could adversely affect our ability to issue additional common stock or other securities and our ability to obtain stock
market based financing in the future. No assurance can be given that an active market in our common stock will develop or be sustained.
Due
to the recent implementation of the Reverse Stock Split, the liquidity of our common stock may be adversely effected.
Our
common stock began trading on Nasdaq on a Reverse Stock Split-adjusted basis beginning on June 3, 2024. The liquidity of the shares
of our common stock may be affected adversely by any reverse stock split given the reduced number of shares of our common stock that
are outstanding following the Reverse Stock Split, especially if the market price of our common stock does not increase as a result of
the Reverse Stock Split. Following the Reverse Stock Split, the resulting market price of our common stock may not attract new investors
and may not satisfy the investing requirements of those investors. Although we believe that a higher market price of our common stock
may help generate greater or broader investor interest, there can be no assurance that the Reverse Stock Split resulted in a share price
that will attract new investors, including institutional investors. In addition, there can be no assurance that the market price of our
common stock will satisfy the investing requirements of those investors. As a result, the trading liquidity of our common stock may not
necessarily improve.
INDUCEMENT
WARRANTS
On
March 18, 2024, we extended warrant exercise inducement offer letters (the “Inducement Letters”) to the holders (the “Holders”)
of our existing warrants to purchase shares of common stock (the “Existing Warrants”), pursuant to which the Holders could
exercise for cash their Existing Warrants to purchase an aggregate of up to 107,652 shares of common stock, in the aggregate, at an exercise
price of $30.60 per share, in exchange for our agreement to issue the Inducement Warrants on the terms described below, to purchase up
to 215,305 shares of common stock (the “Inducement Warrant Shares”). From March 18
to March 26, 2024, we issued 91,825 shares for the exercise of the Existing Warrants for proceeds of $2,809,568. We issued 18,650 Inducement
Warrants to the Holders who exercised during the inducement period. In addition, in connection with the Inducement Warrants, we issued
18,002 March FA Warrants to Dawson James Securities, LLC and its designees in connection with their services as financial advisor.
The
shares of common stock issued upon exercise of the Existing Warrants are registered for resale by the Holders pursuant to existing registration
statements on Form S-1 (File No. 333-261771), Form S-1 (File No. 333-269089) and Form S-3 (File No. 333-274293), which were each declared
effective by the U.S. Securities Exchange Commission on May 2, 2022, April 14, 2023 and September 12, 2023, respectively.
We
also agreed to file a registration statement on Form S-3 (or other appropriate form if we are not then Form S-3 eligible) covering the
resale of the Inducement Warrants Shares issued or issuable upon the exercise of the Inducement Warrants (the “Resale Registration
Statement”) by April 25, 2024.
On
May 20, 2024, at the Annual Meeting, our stockholders approved the issuance of the Inducement Warrants and the Inducement Warrant Shares
upon exercise of the Inducement Warrants.
On
June 10, 2024, as a result of the reverse-split adjustment contained in the Inducement Warrants and March FA Warrants, the number of
shares underlying the warrants increased to 1,894,280 and 232,100 shares, respectively, while the exercise price of these warrants was
reduced to $2.9664 per share. On June 10, 2024, as a result of the price protection provisions contained in the Inducement Warrants and
March FA Warrants, the exercise price of these warrants was reduced to $2.91 per share.
Each
Inducement Warrant has an exercise price equal to $2.91 per share, is contingent upon receiving stockholder approval, and may be exercised
until five years from the date of such stockholder approval. The exercise price and number of shares of common stock issuable upon exercise
is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our common
stock and the exercise price. Subject to stockholder approval, the Inducement Warrants also contain (i) exercise price reset provisions
triggered by any intervening reverse stock splits and (ii) anti-dilution protection provisions relating to subsequent equity sales of
shares of our common stock or common stock equivalents at an effective price per share lower than the then effective exercise price of
such Inducement Warrants. The Inducement Warrants will be issued in certificated form only. Each March FA Warrant is identical in terms
to the Inducement Warrants.
The
issuance of the Inducement Warrants and the March FA Warrants was made in reliance on the exemption provided by Section 4(a)(2) of the
Securities Act of 1933, as amended (the “Securities Act”), for the offer and sale of securities not involving a public offering,
and Regulation D promulgated under the Securities Act.
REGISTERED
DIRECT OFFERINGS
April
Registered Direct Offering
On
April 22, 2024, we entered into a securities purchase agreement (the “April RD Purchase Agreement”) with certain of the Selling
Stockholders, pursuant to which, we sold, and such Selling Stockholders purchased, an aggregate of 300,397 shares of common stock, in
a registered direct offering, and accompanying April RD Warrants to purchase up to 300,397 shares of common stock in a concurrent private
placement, for gross proceeds of $5,258,340, before deducting the financial advisor’s fees and other estimated offering expenses
(the “Offering”). The purchase price for each share and the accompanying April RD Warrant was $17.51. The transaction closed
on April 24, 2024. In addition, in connection with the Offering, we issued 25,186 April FA Warrants
to Dawson James Securities, LLC and its designees in connection with their services as financial advisor.
On
June 10, 2024, as a result of the reverse-split adjustment contained in the April RD Warrants and April FA Warrants, the number of shares
underlying the warrants increased to 4,556,903 and 477,573 shares, respectively, while the exercise price of these warrants was reduced
to $2.9664 per share, subject to shareholder approval. On June 10, 2024, as a result of the price protection provisions contained in
the April RD Warrants and April FA Warrants and due to the issuance of the May RD Warrants, the exercise price of these warrants was
reduced to $2.91 per share, subject to shareholder approval.
The
April RD Warrants are exercisable on or after the date of stockholder approval and have an exercise price of $2.91 per share, subject
to shareholder approval. The April RD Warrants will
expire five years from the date we obtain stockholder approval for the issuance of the April RD Warrants
and the shares issuable upon exercise of the April RD Warrants. Each April RD Warrant
is subject to anti-dilution provisions to reflect stock dividends and splits or other similar transactions, and following the approval
our stockholders, (i) exercise price provisions triggered by any intervening reverse stock splits and (ii) anti-dilution provisions relating
to future issuances or deemed issuances of our common stock at a price per share below the then-current exercise price of the April RD
Warrants. The April RD Warrants can be exercised on
a cashless basis if there is no effective registration statement registering, or no current prospectus available for, the resale of the
shares issuable upon exercise of the April RD Warrants.
The
April FA Warrants have generally the same terms and conditions as the April RD Warrants, except
that the April FA Warrants will have a term of five years from the commencement of sales.
The
issuance of the April RD Warrants and the April FA Warrants was made in reliance on the exemption provided by Section 4(a)(2) of the
Securities Act, for the offer and sale of securities not involving a public offering, and Regulation D promulgated under the Securities
Act.
May
Registered Direct Offering
On
May 16, 2024, we entered into a securities purchase agreement (the “May RD Purchase Agreement”) with certain of the Selling
Stockholders, pursuant to which, we sold, and such Selling Stockholders purchased, an aggregate of 2,803,985 shares of common stock,
in a registered direct offering, and accompanying May RD Warrants to purchase up to 2,803,985 shares of common stock in a concurrent
private placement, for gross proceeds of $21,871,000.06, before deducting the financial advisor’s fees and other estimated offering
expenses (the “Offering”). The purchase price for each share and the accompanying May RD Warrant was $7.80. The transaction
closed on May 20, 2024. In addition, in connection with the Offering, we issued 49,257 May
FA Warrants to Dawson James Securities, LLC and its designees in connection with their services
as financial advisor.
On
June 10, 2024, as a result of the reverse-split adjustment contained in the May RD Warrants and May FA Warrants, the number of shares
underlying the warrants increased to 14,178,680 and 311,342 shares, respectively, while the exercise price of these warrants was reduced
to $2.9664 per share, subject to shareholder approval. On June 10, 2024, as a result of the price protection provisions contained in
the May RD Warrants and May FA Warrants and due to the issuance of the May RD Warrants, the exercise price of these warrants was reduced
to $2.91 per share, subject to shareholder approval.
The
May RD Warrants are exercisable on or after the date of stockholder approval and have an exercise price of $2.91 per share, subject to
shareholder approval. The May RD Warrants will expire five years from the date we obtain stockholder approval for the issuance of the
May RD Warrants and the shares issuable upon exercise of the May RD Warrants. Each May RD Warrant is subject to anti-dilution provisions
to reflect stock dividends and splits or other similar transactions, and following the approval our stockholders, (i) exercise price
provisions triggered by any intervening reverse stock splits and (ii) anti-dilution provisions relating to future issuances or deemed
issuances of our common stock at a price per share below the then-current exercise price of the May RD Warrants. The May RD Warrants
can be exercised on a cashless basis if there is no effective registration statement registering, or no current prospectus available
for, the resale of the shares issuable upon exercise of the May RD Warrants.
The
May FA Warrants have generally the same terms and conditions as the May RD Warrants, except that the May FA Warrants will have a term
of five years from the commencement of sales.
The
issuance of the May RD Warrants and the May FA Warrants was made in reliance on the exemption provided by Section 4(a)(2) of the Securities
Act, for the offer and sale of securities not involving a public offering, and Regulation D promulgated under the Securities Act.
June
Registered Direct Offering
On
June 10, 2024, we entered into a securities purchase agreement (the “June RD Purchase Agreement”) with certain of the Selling
Stockholders, pursuant to which, we sold, and such Selling Stockholders purchased, an aggregate of 5,044,885 shares of common stock,
in a registered direct offering, and accompanying June RD Warrants to purchase up to 5,044,885 shares of common stock in a concurrent
private placement, for gross proceeds of $15,311,225.98, before deducting the placement agent’s fees and other estimated offering
expenses (the “Offering”). The purchase price for each share and the accompanying June RD Warrant was $3.035. The transaction
closed on June 11, 2024. In addition, in connection with the Offering, we issued 504,489
June FA Warrants to Dawson James Securities, LLC and its designees in connection with their services
as placement agent.
The
June RD Warrants are exercisable on or after the date of stockholder approval and have an exercise price of $2.91 per share. The June
RD Warrants will expire five years from the date we obtain stockholder approval for the issuance of the June RD Warrants and the shares
issuable upon exercise of the June RD Warrants. Each June RD Warrant is subject to anti-dilution provisions to reflect stock dividends
and splits or other similar transactions. The June RD Warrants can be exercised on a cashless basis if there is no effective registration
statement registering, or no current prospectus available for, the resale of the shares issuable upon exercise of the June RD Warrants.
The
June FA Warrants have generally the same terms and conditions as the June RD Warrants, except that the June FA Warrants will have a term
of five years from the commencement of sales.
The
issuance of the June RD Warrants and the June FA Warrants was made in reliance on the exemption provided by Section 4(a)(2) of the Securities
Act, for the offer and sale of securities not involving a public offering, and Regulation D promulgated under the Securities Act.
EXCHANGE
AGREEMENT
On
April 22, 2024, we entered into the Exchange Agreement with DWM Properties LLC (“DWM”), pursuant to which we agreed with
DWM to exchange the remaining $7,218,350 of a certain Secured Promissory Note, dated July 31, 2023, issued by us to DWM for 412,360 shares
of our common stock. In connection with the Exchange Agreement, we entered into a voting agreement (the “Voting Agreement”)
with DWM, pursuant to which DWM agreed that at any meeting of our stockholders, however called, or in any action by written consent of
our stockholders in lieu of a meeting, DWM will vote all of the shares of common stock which DWM is currently entitled to vote, or after
the date hereof becomes entitled to vote, at any meeting of our stockholders or by written consent in lieu of a meeting, in favor of
the approval for the issuance of the April RD Warrants and shares issuable upon exercise of the April RD Warrants. DWM is an entity controlled
by our Chief Executive Officer, Danny Meeks.
The
issuance of the Exchange Shares was made in reliance on the exemption provided by Section 3(a)(9) of the Securities Act, for the offer
and sale of securities not involving a public offering, and Regulation D promulgated under the Securities Act.
USE
OF PROCEEDS
We
are not selling any securities under this prospectus and will not receive any proceeds from the sale of the common stock offered by this
prospectus by the Selling Stockholders. However, we may receive proceeds from the cash exercise of the Warrants, which, if exercised
in cash at the current exercise price, with respect to all Warrants, would result in gross proceeds to us of approximately $79,521,010.
The proceeds from such Warrant exercises, if any, will be used for expansion of our metal recycling
operations, bringing our copper extraction system online, and other working capital and general corporate purposes. We cannot
predict when or whether the Warrants will be exercised, and it is possible that some or all of the Warrants may expire unexercised. For
information about the Selling Stockholders, see “Selling Stockholders.”
The
Selling Stockholders will pay any underwriting discounts and commissions and expenses incurred by the Selling Stockholders for brokerage
or legal services or any other expenses incurred by the Selling Stockholders in disposing of the shares of common stock offered hereby.
We will bear all other costs, fees and expenses incurred in effecting the registration of the shares of common stock covered by this
prospectus, including all registration and filing fees and fees and expenses of our counsel and accountants.
DIVIDEND
POLICY
We
have never declared or paid cash or stock dividends on our common stock and do not anticipate paying any dividends on the shares of our
common stock in the foreseeable future. Our current policy is to retain earnings, if any, for use in our operations and in the development
of our business. Any future determination to declare dividends on common stock will be made at the discretion of our board of directors
and will depend on our financial condition, operating results, capital requirements, general business conditions and other factors that
our board of directors may deem relevant.
DESCRIPTION
OF SECURITIES
The
following summary of certain provisions of our securities does not purport to be complete and is subject to our certificate of incorporation
and bylaws and the provisions of applicable law. Copies of our amended and restated certificate of incorporation and bylaws are filed
as exhibits to the registration statement of which this prospectus is a part.
Common
Stock
Authorized
Capitalization
General
The
total amount of our authorized share capital consists of 1,200,000,000 shares of common stock, par value $0.001 per share, and 10,000,000
shares of preferred stock, par value $0.001 per share.
Common
Stock Rights
Voting
rights. Except as required by law or matters relating solely to the terms of preferred stock, each outstanding share of common
stock will be entitled to one vote on all matters submitted to a vote of stockholders. Holders of shares of our common stock shall have
no cumulative voting rights. Except in respect of matters relating to the election and removal of directors on our board of directors
and as otherwise provided in our certificate of incorporation or required by law, all matters to be voted on by our stockholders must
be approved by a majority of the shares present in person or by proxy at the meeting and entitled to vote on the subject matter. In the
case of election of directors, all matters to be voted on by our stockholders must be approved by a plurality of the voting power of
the shares present in person or by proxy at the meeting and entitled to vote thereon.
Dividend
rights. Subject to preferences that may be applicable to any then outstanding preferred stock, holders of our common stock are
entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds.
Rights
upon liquidation. In the event of the liquidation, dissolution or winding up of our company, holders of our common stock are
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 and the satisfaction of any liquidation preference granted to the holders of any then outstanding shares of preferred
stock.
Other
rights. No holder of shares of common stock is entitled to preemptive or subscription rights contained in our certificate of
incorporation or bylaws. There are no redemption or sinking fund provisions applicable to the common stock. The rights, preferences and
privileges of holders of the common stock will be subject to those of the holders of any shares of preferred stock with preferential
rights that we may issue in the future.
Anti-takeover
effects of provisions of our certificate of incorporation and bylaws and Delaware law
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 10,000,000 shares of preferred stock, with any rights, preferences and privileges as they may
designate |
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|
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● |
provide
that the authorized number of directors may be changed only by resolution adopted by the board of directors; |
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provide
that all vacancies, including newly created directorships, may, except as otherwise required by law or subject to the rights of holders
of preferred stock as designated from time to time, be filled by the affirmative vote of a majority of directors then in office,
even if less than a quorum; |
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● |
provide
that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors
at a meeting of stockholders must provide notice in writing in a timely manner and also specify requirements as to the form and content
of a stockholder’s notice; |
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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); |
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|
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● |
provide
that special meetings of our stockholders may be called only by the board of directors or by holders of more than ten percent (10%)
of all shares entitled to vote at the meeting; |
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provide
that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for any claims, including derivative actions,
brought by a stockholder (i) that are based upon a violation of a duty by a current or former director or officer or stockholder
in such capacity or (ii) as to which the Delaware General Corporation Law, of the DGCL, confers jurisdiction upon the Court of Chancery
of the State of Delaware; and |
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provide
the ability to our board of directors to authorize and designated undesignated preferred stock and issue such preferred stock with
voting or other rights or preferences that could impede the success of any attempt to acquire us. These and other provisions may
have the effect of deferring hostile takeovers or delaying changes in control or management of our company. |
Delaware
Anti-Takeover Law
We
are subject to Section 203 of the DGCL, or Section 203. 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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|
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the
interested stockholder owned at least 85% of the voting stock of the corporation outstanding upon consummation of the transaction,
excluding for purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and also officers
and (b) 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 consummation 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 involving the corporation that has the effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by the interested stockholder; |
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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; and |
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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.
Limitations
on Liability and Indemnification of Officers and Directors
Our
certificate of incorporation limits the liability of our directors to the fullest extent permitted by the DGCL, and our Bylaws provide
that we will indemnify them to the fullest extent permitted by such law. We have entered and expect to continue to enter into agreements
to indemnify our directors, executive officers and other employees as determined by our board of directors. Under the terms of such indemnification
agreements, we are required to indemnify each of our directors and officers, to the fullest extent permitted by the laws of the state
of Delaware, if the basis of the indemnitee’s involvement was by reason of the fact that the indemnitee is or was a director or
officer of us or any of its subsidiaries or was serving at our request in an official capacity for another entity. We must indemnify
our officers and directors against all reasonable fees, expenses, charges and other costs of any type or nature whatsoever, including
any and all expenses and obligations paid or incurred in connection with investigating, defending, being a witness in, participating
in (including on appeal), or preparing to defend, be a witness or participate in any completed, actual, pending or threatened action,
suit, claim or proceeding, whether civil, criminal, administrative or investigative, or establishing or enforcing a right to indemnification
under the indemnification agreement. The indemnification agreements also require us, if so requested, to advance within 10 days of such
request all reasonable fees, expenses, charges and other costs that such director or officer incurred, provided that such person will
return any such advance if it is ultimately determined that such person is not entitled to indemnification by us. Any claims for indemnification
by our directors and officers may reduce our available funds to satisfy successful third-party claims against us and may reduce the amount
of money available to us.
Exclusive
Jurisdiction of Certain Actions
Our
certificate of incorporation requires, to the fullest extent permitted by law, unless we consent in writing to the selection of an alternative
forum, that actions, including derivative actions brought in our name, by stockholders (i) that are based upon a violation of a duty
by a current or former director or officer or stockholder in such capacity and (ii) as to which the DGCL confers jurisdiction upon the
Court of Chancery of the State of Delaware, may be brought only in the Court of Chancery in the State of Delaware and, if brought outside
of Delaware, the stockholder bringing the suit will be deemed to have consented to service of process on such stockholder’s counsel;
provided, however, that the foregoing provisions will not apply to any claims arising under the Exchange Act or the Securities Act. Although
we believe this provision benefits us by providing increased consistency in the application of Delaware law in the types of lawsuits
to which it applies, the provision may have the effect of discouraging lawsuits against our directors and officers.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock and outstanding Series D Preferred Stock is Equity Stock Transfer, Inc. The transfer
agent and registrar’s address is 237 W 37th St #602, New York, NY 10018, phone number (212) 575-5757. The transfer agent for any
series of preferred stock that we may offer under this prospectus will be named and described in the prospectus supplement related to
that series.
Listing
on the Nasdaq Capital Market
Our
common stock is listed on the Nasdaq Capital Market under the symbol “GWAV”.
SELLING
STOCKHOLDERS
The
shares of common stock being offered by the Selling Stockholders are those Exchange Shares issued to DWM and those shares of common stock
issuable to the Selling Stockholders upon exercise of the Warrants. For additional information regarding the issuance of the Inducement
Warrants and the March FA Warrants, see “Inducement Warrants” above. For additional information regarding the issuance
of the April RD Warrants, the April FA Warrants, the May RD Warrants, the May FA Warrants, the June RD Warrants, and the June FA Warrants,
see “Registered Direct Offerings” above. For additional information regarding the issuance of the Exchange Shares,
see “Exchange Agreement” above. We are registering the shares of common stock in order to permit the Selling Stockholders
to offer the shares of common stock for resale from time to time. Except for: (i) DWM being controlled by our Chief Executive Officer;
(ii) the ownership of the Existing Warrants; (iii) certain Selling Stockholders who participated in a registered direct offering we conducted
in August 2023; (iv) ownership of the Inducement Warrants, the ownership of the shares of common stock and April RD Warrants issued pursuant
to the April RD Purchase Agreement, the ownership of the shares of common stock and May RD Warrants issued pursuant to the May RD Purchase
Agreement, and the ownership of the shares of common stock and June RD Warrants issued pursuant to the June RD Purchase Agreement; and
(v) the financial advisor’s services to us as our financial advisor, the Selling Stockholders have not had any material relationship
with us within the past three years.
The
table below lists the Selling Stockholders and other information regarding the beneficial ownership (as determined under Section 13(d)
of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the shares of common stock held by each
of the Selling Stockholders. The second column lists the number of shares of common stock beneficially owned by the Selling Stockholders,
based on their respective ownership of shares of common stock and Warrants, as of July 18, 2024, assuming exercise of the Warrants held
by each such Selling Stockholder on that date without taking account of any limitations on conversion and exercise set forth therein.
The
third column lists the shares of common stock being offered by this prospectus by the Selling Stockholders and does not take in account
any limitations on exercise of the Warrants set forth therein.
In
accordance with the terms of a registration rights agreement with the holders of the Inducement Warrants, this prospectus generally covers
the resale of the maximum number of shares of common stock issued or issuable upon exercise of the Inducement Warrants, determined as
if the outstanding Inducement Warrants were converted or exercised (as the case may be) in full (without regard to any limitations on
conversion or exercise contained therein solely for the purpose of such calculation) at the exercise price of the Inducement Warrants
then in effect calculated as of the trading day immediately preceding the date this registration statement was initially filed with the
SEC. The fourth column assumes the sale of all of the shares offered by the Selling Stockholders pursuant to this prospectus.
Under
the terms of the Warrants, a Selling Stockholder may not exercise the Warrants to the extent (but only to the extent) such Selling Stockholder
or any of its affiliates would beneficially own a number of shares of our common stock which would exceed 4.99% of our outstanding shares
of common stock. The number of shares in the second and fourth columns do not reflect these limitations, but the percentages set forth
in the fifth column do give effect to such limitations. The Selling Stockholders may sell all, some or none of their shares in this offering.
See “Plan of Distribution.”
| Name of
Selling Stockholder | |
Number
of Shares
of Common
Stock Owned
Prior to
Offering | | |
Maximum
Number of
Shares of
Common Stock
to be Sold
Pursuant
to this
Prospectus(1) | | |
Number
of
Shares of
Common Stock
of Owned
After Offering(2) | | |
Percentage
of Shares
of Common
Stock of
Owned After
Offering(42) | |
| 32 Entertainment LLC(3) | |
| - | | |
| 87,253 | | |
| - | | |
| - | % |
| 3i, LP(4) | |
| - | | |
| 1,962,647 | | |
| - | | |
| - | % |
| Andrew Arno(5) | |
| - | | |
| 8,907 | | |
| - | | |
| - | % |
| Anson East Master Fund LP(6) | |
| - | | |
| 1,272,893 | | |
| - | | |
| - | % |
| Anson Investments Master Fund
LP(7) | |
| - | | |
| 4,618,983 | | |
| - | | |
| - | % |
| Brio Capital Master Fund,
Ltd. (8) | |
| - | | |
| 404,847 | | |
| - | | |
| - | % |
| Dawson James Securities, LLC(9) | |
| 196 | | |
| 332,203 | | |
| 196 | | |
| * | % |
| Danny Meeks(10) | |
| 1,775,019 | | |
| 412,360 | | |
| 1,362,659 | | |
| 10.69 | % |
| Empery Asset Master, LTD(11) | |
| - | | |
| 66,403 | | |
| - | | |
| - | % |
| Empery Debt Opportunity Fund,
LP(12) | |
| - | | |
| 84,087 | | |
| - | | |
| - | % |
| Empery Tax Efficient, LP(13) | |
| - | | |
| 36,371 | | |
| - | | |
| - | % |
| Gregory Castaldo(14) | |
| - | | |
| 1,856,777 | | |
| - | | |
| - | % |
| HB Fund LLC(15) | |
| - | | |
| 37,682 | | |
| - | | |
| - | % |
| Hudson Bay Master Fund Ltd.
(16) | |
| - | | |
| 3,746,912 | | |
| - | | |
| - | % |
| Intracoastal Capital, LLC(17) | |
| - | | |
| 220,389 | | |
| - | | |
| - | % |
| Iroquois Capital Investment
Group LLC(18) | |
| - | | |
| 450,989 | | |
| - | | |
| - | % |
| Iroquois Master Fund Ltd.(19) | |
| - | | |
| 429,429 | | |
| - | | |
| - | % |
| Jaime Taicher(20) | |
| - | | |
| 32,813 | | |
| - | | |
| - | % |
| Jonathan Lawrence(21) | |
| - | | |
| 743 | | |
| - | | |
| - | % |
| Jonathan Schechter(22) | |
| - | | |
| 693,467 | | |
| - | | |
| - | % |
| Joseph Reda(23) | |
| - | | |
| 3,100,006 | | |
| - | | |
| - | % |
| Kingsbrook Opportunities Master
Fund LP(24) | |
| - | | |
| 9,343 | | |
| - | | |
| - | % |
| L1 Capital Global Opportunities
Master Fund(25) | |
| - | | |
| 1,655,943 | | |
| - | | |
| - | % |
| Leonard R. Warner Jr. (26) | |
| - | | |
| 190,821 | | |
| - | | |
| - | % |
| Leonite Fund I, LP(27) | |
| - | | |
| 18,686 | | |
| - | | |
| - | % |
| LGH Investments, LLC(28) | |
| - | | |
| 14,949 | | |
| - | | |
| - | % |
| Linda Mackay(29) | |
| - | | |
| 1,040 | | |
| - | | |
| - | % |
| Living Full Blast Inc. (30) | |
| - | | |
| 3,738 | | |
| - | | |
| - | % |
| Rampart Capital Group, LLC(31) | |
| - | | |
| 37,372 | | |
| - | | |
| - | % |
| Richard Molinsky(32) | |
| - | | |
| 411,671 | | |
| - | | |
| - | % |
| Sabby Volatility Warrant Master
Fund, Ltd.(33) | |
| - | | |
| 2,675,025 | | |
| - | | |
| - | % |
| Seafield Brothers Holdings,
LLC(34) | |
| - | | |
| 1,869 | | |
| - | | |
| - | % |
| Sixth Borough Capital Fund
LP(35) | |
| 491 | | |
| 1,016,867 | | |
| 491 | | |
| * | % |
| The Special Equities Opportunity
Fund, LLC(36) | |
| - | | |
| 862,372 | | |
| - | | |
| - | % |
| Timothy Tyler Berry(37) | |
| - | | |
| 190,945 | | |
| - | | |
| - | % |
| William Cobb(38) | |
| - | | |
| 3,738 | | |
| - | | |
| - | % |
| Robert D. Keyser, Jr.(39) | |
| - | | |
| 64,829 | | |
| - | | |
| - | % |
| Unterberg Legacy, LLC(40) | |
| - | | |
| 97,243 | | |
| - | | |
| - | % |
| Robert Forster(41) | |
| - | | |
| 500,000 | | |
| - | | |
| - | % |
| * |
Represents
beneficial ownership of less than 1% of the outstanding shares of our common stock |
| |
|
| (1) |
This
column represents the amount of shares that will be held by the Selling Stockholders after completion of this offering based on the
assumptions that (a) all securities registered for sale by the registration statement of which this prospectus is part of will be
sold, and (b) no other shares of common stock are acquired or sold by the Selling Stockholders prior to completion of this offering.
However, the Selling Stockholders are not obligated to sell all or any portion of the shares of our common stock offered pursuant
to this prospectus. |
| (2) |
For
the purposes of the calculations of common stock to be sold pursuant to the prospectus we are assuming the exercise of 100% of all
of the Warrants held by the Selling Stockholders, without regard to any limitations set forth therein. |
| |
|
| (3) |
Robert
Wolf, the Founder of this Selling Stockholder, holds voting and dispositive power over the shares of common stock held by this Selling
Stockholder. The address of this Selling Stockholder is 9 Westerleigh Road, Purchase, NY 10577. |
| |
|
| (4) |
The
business address of 3i, LP is 2 Wooster Street, 2nd floor, New York, NY 10013. 3i, LP’s principal business is that
of a private investor. Maier Joshua Tarlow is the manager of 3i Management, LLC, the general partner of 3i, LP, and has sole voting
control and investment discretion over securities beneficially owned directly or indirectly by 3i Management, LLC and 3i, LP. Mr.
Tarlow disclaims any beneficial ownership of the securities beneficially owned directly by 3i, LP and indirectly by 3i Management,
LLC. |
| |
|
| (5) |
The
address of this Selling Stockholder is 240 Riverside Boulevard PH2B, New York, NY 10069. |
| |
|
| (6) |
Anson
Advisors Inc and Anson Funds Management LP, the Co-Investment Advisers of Anson East Master Fund LP (“Anson”), hold voting
and dispositive power over the Common Shares held by Anson. Bruce Winson is the manager of Anson Management GP LLC, which is the
general partner of Anson Funds Management LP. Moez Kassam and Amin Nathoo are directors of Anson Advisors Inc. Mr. Winson, Mr. Kassam
and Mr. Nathoo each disclaim beneficial ownership of these Common Shares except to the extent of their pecuniary interest therein.
The principal business address of Anson is Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman
Islands. |
| |
|
| (7) |
Anson
Advisors Inc and Anson Funds Management LP, the Co-Investment Advisers of Anson Investments Master Fund LP (“Anson”),
hold voting and dispositive power over the Common Shares held by Anson. Bruce Winson is the manager of Anson Management GP LLC, which
is the general partner of Anson Funds Management LP. Moez Kassam and Amin Nathoo are directors of Anson Advisors Inc. Mr. Winson,
Mr. Kassam and Mr. Nathoo each disclaim beneficial ownership of these Common Shares except to the extent of their pecuniary interest
therein. The principal business address of Anson is Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104,
Cayman Islands. |
| |
|
| (8) |
Shaye
Hirsch, the Director of this Selling Stockholder, holds voting and dispositive power over the shares of common stock held by this
Selling Stockholder. The address of this Selling Stockholder is 100 Merrick Road Suite 401W, Rockville Centre, NY 11570. |
| |
|
| (9) |
Robert
D. Keyser, Jr., the CEO of this Selling Stockholder, holds voting and dispositive power over the shares of common stock held by this
Selling Stockholder. The address of this Selling Stockholder is 101 N Federal Hwy, Suite 600, Boca Raton, FL, 33432. |
| |
|
| (10) |
The
address of this Selling Stockholder is 4016 Raintree Rd, Ste 300, Chesapeake, VA 23321. |
| |
|
| (11) |
Empery
Asset Management LP, the authorized agent of Empery Asset Master, LTD (“EAM”), has discretionary authority to vote and
dispose of the shares held by EAM and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their
capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power
over the shares held by EAM. EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of this
Selling Stockholder is c/o Empery Asset Management LP 1 Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| |
|
| (12) |
Empery
Asset Management LP, the authorized agent of Empery Debt Opportunity Fund, LP (“EDOF”), has discretionary authority to
vote and dispose of the shares held by EDOF and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane,
in their capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting
power over the shares held by EDOF. EDOF, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address
of this Selling Stockholder is c/o Empery Asset Management LP 1 Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| |
|
| (13) |
Empery
Asset Management LP, the authorized agent of Empery Tax Efficient, LP (“ETE”), has discretionary authority to vote and
dispose of the shares held by ETE and may be deemed to be the beneficial owner of these shares. Martin Hoe and Ryan Lane, in their
capacity as investment managers of Empery Asset Management LP, may also be deemed to have investment discretion and voting power
over the shares held by ETE. ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial ownership of these shares. The address of this
Selling Stockholder is c/o Empery Asset Management LP 1 Rockefeller Plaza, Suite 1205, New York, NY 10020. |
| |
|
| (14) |
The
address of this Selling Stockholder is 3776 Steven James Drive, Garnet Valley, PA 19060. |
| |
|
| (15) |
Hudson
Bay Capital Management LP, the investment manager of HB Fund LLC, has voting and investment power over these securities. Sander Gerber
is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of HB
Fund LLC and Sander Gerber disclaims beneficial ownership over these securities. The address of this Selling Stockholder is c/o Hudson
Bay Capital Management LP, 28 Havemeyer Place, 2nd Floor, Greenwich, CT 06830. |
| |
|
| (16) |
Hudson
Bay Capital Management LP, the investment manager of Hudson Bay Master Fund Ltd., has voting
and investment power over these securities. Sander Gerber is the managing member of Hudson
Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each
of Hudson Bay Master Fund Ltd., and Sander Gerber disclaims beneficial ownership over these
securities. The address of this Selling Stockholder is c/o Hudson Bay Capital Management
LP, 28 Havemeyer Place, 2nd Floor, Greenwich, CT 06830. |
| |
|
| (17) |
Mitchell
P. Kopin (“Mr. Kopin”) and Daniel B. Asher (“Mr. Asher”), each of whom are managers of Intracoastal Capital
LLC (“Intracoastal”), have shared voting control and investment discretion over the securities reported herein that are
held by Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may be deemed to have beneficial ownership (as determined under
Section 13(d) of the Exchange Act) of the securities reported herein that are held by Intracoastal. The address of this Selling Stockholder
is 245 Palm Trail, Delray Beach, FL 33483. |
| (18) |
Iroquois
Capital Management L.L.C. is the investment manager of Iroquois Capital Investment Group
LLC. Iroquois Capital Management, LLC has voting control and investment discretion over securities
held by Iroquois Master Fund. As Managing Members of Iroquois Capital Management, LLC , Richard
Abbe and Kimberly Page make voting and investment decisions on behalf of Iroquois Capital
Management, LLC in its capacity as investment manager to Iroquois Capital Investment Group
LLC. As a result of the foregoing, Mr. Abbe and Mrs. Page may be deemed to have beneficial
ownership (as determined under Section 13(d) of the Exchange Act) of the securities held
by Iroquois Capital Management and Iroquois Capital Investment Group LLC. The address of
this Selling Stockholder is 125 Park Ave., 25th Fl., New York, NY 10017. |
| |
|
| (19) |
Iroquois
Capital Management L.L.C. is the investment manager of Iroquois Master Fund, Ltd. Iroquois Capital Management, LLC has voting control
and investment discretion over securities held by Iroquois Master Fund. As Managing Members of Iroquois Capital Management, LLC ,
Richard Abbe and Kimberly Page make voting and investment decisions on behalf of Iroquois Capital Management, LLC in its capacity
as investment manager to Iroquois Master Fund Ltd. As a result of the foregoing, Mr. Abbe and Mrs. Page may be deemed to have beneficial
ownership (as determined under Section 13(d) of the Exchange Act) of the securities held by Iroquois Capital Management and Iroquois
Master Fund. The address of this Selling Stockholder is 125 Park Ave., 25th Fl., New York, NY 10017. |
| |
|
| (20) |
The
address of this Selling Stockholder is 475 2nd Street N, Unit 204, Saint Petersburg, FL 33701. |
| |
|
| (21) |
The
address of this Selling Stockholder is 1515 N. Federal Highway Suite 300, Boca Raton, FL
33431. |
| |
|
| (22) |
The
address of this Selling Stockholder is 135 Sycamore Drive, Roslyn, NY 11576. |
| |
|
| (23) |
The
address of this Selling Stockholder is 1324 Manor Circle, Pelham, NY 10803. |
| |
|
| (24) |
Kingsbrook
Partners LP (“Kingsbrook Partners”) is the investment manager of Kingsbrook Opportunities Master Fund LP (“Kingsbrook
Opportunities”) and consequently has voting control and investment discretion over securities held by Kingsbrook Opportunities.
Kingsbrook Opportunities GP LLC (“Opportunities GP”) is the general partner of Kingsbrook Opportunities and may be considered
the beneficial owner of any securities deemed to be beneficially owned by Kingsbrook Opportunities. KB GP LLC (“GP LLC”)
is the general partner of Kingsbrook Partners and may be considered the beneficial owner of any securities deemed to be beneficially
owned by Kingsbrook Partners. Ari J. Storch, Adam J. Chill and Scott M. Wallace are the sole managing members of Opportunities GP
and GP LLC and as a result may be considered beneficial owners of any securities deemed beneficially owned by Opportunities GP and
GP LLC. Each of Kingsbrook Partners, Opportunities GP, GP LLC and Messrs. Storch, Chill and Wallace disclaim beneficial ownership
of these securities. The address of this Selling Stockholder is 689 Fifth Avenue, 12th Floor, New York, NY 10022. |
| |
|
| (25) |
David
Feldman, the Portfolio Manager of this Selling Stockholder, holds voting and dispositive power over the shares of common stock held
by this Selling Stockholder. The address of this Selling Stockholder is 161A Shedden Road, 1 Artillery Court, PO Box 10085, Grand
Cayman KY1-1001, Cayman Islands. |
| |
|
| (26) |
The
address of this Selling Stockholder is 220 Victory Drive, Massapequa Park, NY 11762. |
| |
|
| (27) |
Avi
Geller, the CIO of this Selling Stockholder, holds voting and dispositive power over the
shares of common stock held by this Selling Stockholder. The
address of this Selling Stockholder is 1 Hillcrest
Center Drive, Ste 232, Spring Valley, NY 10977. |
| |
|
| (28) |
Lucas
Hoppel, the President of this Selling Stockholder, holds voting and dispositive power over
the shares of common stock held by this Selling Stockholder. The address of this Selling
Stockholder is 6170 Tiki Ct, San Diego, CA 92130. |
| |
|
| (29) |
The
address of this Selling Stockholder is 135
Sycamore Drive, Roslyn, NY 11576. |
| |
|
| (30) |
Marc
Savas, the Chief Executive Officer of this Selling Stockholder, holds voting and dispositive power over the shares of common stock
held by this Selling Stockholder. The address of this Selling Stockholder is 3773 New Hope Road, Aubrey, TX 76627. |
| |
|
| (31) |
Peter
Abskharon, the Partner of this Selling Stockholder, holds voting and dispositive power over the shares of common stock held by this
Selling Stockholder. The address of this Selling Stockholder is 6111 W 74th Street, Westchester, CA 90045. |
| |
|
| (32) |
The
address of this Selling Stockholder is 329 Chestnut Hill Road, Unit 2, Norwalk, CT 06883. |
| |
|
| (33) |
Sabby
Management, LLC serves as the investment manager of Sabby Volatility Warrant Master Fund, Ltd. Hal Mintz is the manager of Sabby
Management, LLC and has voting and investment control of the securities held by Sabby Volatility Warrant Master Fund, Ltd. Each of
Sabby Management, LLC and Hal Mintz disclaims beneficial ownership over the securities beneficially owned by Sabby Volatility Warrant
Master Fund, Ltd., except to the extent of their respective pecuniary interest therein. The address of this Selling Stockholder is
c/o Sabby Mgt. LLC, 10 Mountainview Rd., Suite 205, Upper Saddle River, NJ 07458. |
| |
|
| (34) |
Robert
Haag, the Managing Member of this Selling Stockholder, holds voting and dispositive power over the shares of common stock held by
this Selling Stockholder. The address of this Selling Stockholder is 720 N.4th Street, Montpelier, ID 83254. |
| |
|
| (35) |
Robert
D. Keyser, Jr., the CEO of this Selling Stockholder, holds voting and dispositive power over the shares of common stock held by this
Selling Stockholder. The address of this Selling Stockholder is 1515 N. Federal Highway Suite 300, Boca Raton, FL 33431. |
| |
|
| (36) |
Jonathan
Schechter, a Member of this Selling Stockholder, holds voting and dispositive power over
the shares of common stock held by this Selling Stockholder. The
address of this Selling Stockholder is 135 Sycamore Drive, Roslyn, NY 11576. |
| |
|
| (37) |
The
address of this Selling Stockholder is 4 Millers Way, Old Lyme, CT 06371. |
| |
|
| (38) |
The
address of this Selling Stockholder is 38 Oakwood Road, Allendale, NJ 07401. |
| |
|
| (39) |
The
address of this Selling Stockholder is 2973 NE 7th Drive, Boca Raton, FL 33432. |
| |
|
| (40) |
James
Satloff, the Managing Member of this Selling Stockholder, holds voting and dispositive power
over the shares of common stock held by this Selling Stockholder. The address of this Selling
Stockholder is 10 Gracie Square Apt 9E, New York, NY 10028. |
| |
|
| (41) |
The
address of this Selling Stockholder is 54 Deepdale Dr, Great Neck, NY 11021. |
| |
|
| (42) |
The
percentages in the table have been calculated on the basis of treating as outstanding for a particular person, all shares of our
capital stock outstanding on July 18, 2024. On July 18, 2024, there were 12,750,628 shares of our common stock outstanding. To calculate
a stockholder’s percentage of beneficial ownership, we include in the numerator and denominator the common stock outstanding
and all shares of our common stock issuable to that person in the event of the exercise of outstanding warrants owned by that person
which are exercisable or convertible within 60 days of July 18, 2024. Warrants held by other stockholders are disregarded in this
calculation. Therefore, the denominator used in calculating beneficial ownership amount our stockholders may differ. Unless we have
indicated otherwise, each person named in the table has sole voting power and sole investment power for the shares listed opposite
such person’s name. |
PLAN
OF DISTRIBUTION
We
are registering the Exchange Shares and the shares of common stock issuable upon exercise of the Warrants to permit the resale of these
shares of common stock by the Selling Stockholders from time to time after the date of this prospectus. We will not receive any of the
proceeds from the sale by the Selling Stockholders of the shares of common stock, although we will receive the exercise price of any
Warrants not exercised by the Selling Stockholders on a cashless exercise basis. We will bear all fees and expenses incident to our obligation
to register the shares of common stock.
The
Selling Stockholders may sell all or a portion of the shares of common stock held by them and offered hereby from time to time directly
or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers,
the Selling Stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of common
stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices
determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block
transactions, pursuant to one or more of the following methods:
| |
● |
on
any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; |
| |
|
|
| |
● |
in
the over-the-counter market; |
| |
|
|
| |
● |
in
transactions otherwise than on these exchanges or systems or in the over-the-counter market; |
| |
|
|
| |
● |
through
the writing or settlement of options, whether such options are listed on an options exchange or otherwise; |
| |
|
|
| |
● |
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| |
|
|
| |
● |
block
trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; |
| |
|
|
| |
● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
| |
|
|
| |
● |
an
exchange distribution in accordance with the rules of the applicable exchange; |
| |
|
|
| |
● |
privately
negotiated transactions; |
| |
|
|
| |
● |
short
sales made after the date the registration statement of which this prospectus is a part is declared effective by the SEC; |
| |
|
|
| |
● |
broker-dealers
may agree with a selling security holder to sell a specified number of such shares at a stipulated price per share; |
| |
|
|
| |
● |
a
combination of any such methods of sale; and |
| |
|
|
| |
● |
any
other method permitted pursuant to applicable law. |
The
Selling Stockholders may also sell shares of common stock under Rule 144 promulgated under the Securities Act of 1933, as amended, if
available, rather than under this prospectus. In addition, the Selling Stockholders may transfer the shares of common stock by other
means not described in this prospectus. If the Selling Stockholders effect such transactions by selling shares of common stock to or
through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the Selling Stockholders or commissions from purchasers of the shares of common stock for whom they may
act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers
or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of common
stock or otherwise, the Selling Stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short
sales of the shares of common stock in the course of hedging in positions they assume. The Selling Stockholders may also sell shares
of common stock short and deliver shares of common stock covered by this prospectus to close out short positions and to return borrowed
shares in connection with such short sales. The Selling Stockholders may also loan or pledge shares of common stock to broker-dealers
that in turn may sell such shares.
The
Selling Stockholders may pledge or grant a security interest in some or all of the Warrants or shares of common stock owned by them and,
if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common
stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act amending, if necessary, the list of Selling Stockholders to include the pledgee, transferee or other successors
in interest as Selling Stockholders under this prospectus. The Selling Stockholders also may transfer and donate the shares of common
stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial
owners for purposes of this prospectus.
To
the extent required by the Securities Act and the rules and regulations thereunder, the Selling Stockholders and any broker-dealer participating
in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities
Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions
or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement,
if required, will be distributed, which will set forth the aggregate amount of shares of common stock being offered and the terms of
the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation
from the Selling Stockholders and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.
Under
the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers
or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified
for sale in such state or an exemption from registration or qualification is available and is complied with.
There
can be no assurance that any Selling Stockholder will sell any or all of the shares of common stock registered pursuant to the registration
statement, of which this prospectus forms a part.
The
Selling Stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable,
Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the Selling
Stockholders and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged
in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock. All
of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making
activities with respect to the shares of common stock.
We
will pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreements, estimated to
be $43,863.49 in total, including, without limitation, SEC filing fees and expenses of compliance with state securities or “blue
sky” laws; provided, however, a Selling Stockholder will pay all underwriting discounts and selling commissions, if any. We will
indemnify the Selling Stockholders against liabilities, including some liabilities under the Securities Act in accordance with the registration
rights agreements or the Selling Stockholders will be entitled to contribution. We may be indemnified by the Selling Stockholders against
civil liabilities, including liabilities under the Securities Act that may arise from any written information furnished to us by the
Selling Stockholder specifically for use in this prospectus, in accordance with the related registration rights agreements or we may
be entitled to contribution.
Once
sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the
hands of persons other than our affiliates.
LEGAL
MATTERS
The
validity of the securities offered in this prospectus will be passed upon for us by Pryor Cashman LLP, New York, New York. Additional
legal matters may be passed upon for us, the Selling Stockholder or any underwriters, dealers or agents, by counsel that we will name
in the applicable prospectus supplement. As appropriate, legal counsel representing the underwriters, dealers or agents will be named
in the accompanying prospectus supplement and may opine to certain legal matters.
EXPERTS
Our
consolidated balance sheets as of December 31, 2023 and 2022 and the related consolidated statement of operations, stockholders’
equity and cash flows for the years ended December 31, 2023 and 2022 incorporated by reference in this prospectus have been audited by
RBSM LLP, independent registered public accounting firm, as indicated in their report with respect thereto, and have been so included
in reliance upon the report of such firm given on their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all
the information set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements
or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement
or the exhibits to the reports or other documents incorporated by reference into this prospectus for a copy of such contract, agreement
or other document. Neither we nor any agent, underwriter or dealer has authorized any person to provide you with information that is
different from that contained in this prospectus nor in any free writing prospectus we may authorize to be delivered or made available
to you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give
you. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information
in this prospectus is accurate as of any date other than the date on the front page of this prospectus, regardless of the time of delivery
of this prospectus or any sale of the securities offered by this prospectus.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains
reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including Greenwave.
The address of the SEC website is www.sec.gov. We maintain a website at www.GWAV.com. Information contained in or accessible through
our website does not constitute a part of this prospectus. Because our common stock is listed on the Nasdaq Capital Market, you may also
inspect reports, proxy statements and other information at the offices of the Nasdaq Capital Market.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important
information to you by referring you to another document filed separately with the SEC. The documents incorporated by reference into this
prospectus contain important information that you should read about us.
The
following documents are incorporated by reference into this document:
| ● |
our
Annual Report on Form
10-K for the fiscal year ended December 31, 2023, which was filed with the SEC on April 16, 2024; |
| |
|
| ● |
our
Quarterly Report on Form
10-Q for the fiscal quarter ended March 31, 2024, which was filed with the SEC on May 20, 2024; |
| |
|
| ● |
our
Current Reports on Form 8-K filed with the SEC on March
18, 2024, April
1, 2024 (as amended on Form 8-K/A on April
2, 2024), April
4, 2024, April
22, 2024, May
3, 2024, May
9, 2024, May
10, 2024, May
16, 2024, June 3, 2024, June
3, 2024, June
11, 2024 (as amended on Form 8-K/A on June
12, 2024), and June
18, 2024 (in each case other than information “furnished” under Items 2.02 or 7.01, or corresponding information
furnished under Item 9.01 or included as an exhibit); and |
| |
|
| ● |
the
description of our common stock contained in the registration statement on Form
8-A, dated July 21, 2022, File No. 001-41452, as updated by Exhibit 4.2 to our Annual Report on Form 10-K for the year ended December 31, 2023 and any other amendment or report filed for the purpose
of updating such description. |
All
filings filed by us pursuant to the Exchange Act after the date of the initial filing of the registration statement of which this prospectus
is a part and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
We
also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration
statement of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective
amendment that indicates the termination of the offering of the securities made by this prospectus and will become a part of this prospectus
from the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information
provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information
in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent
that statements in the later filed document modify or replace such earlier statements.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request,
a copy of any or all of the documents that are incorporated by reference into this prospectus but not delivered with the prospectus,
including exhibits which are specifically incorporated by reference into such documents. You should direct any requests for documents
to:
Greenwave
Technology Solutions, Inc.
4016
Raintree Rd., Ste 300
Chesapeake,
VA 23321
(800)
490-5020
Attention:
Chief Financial Officer
GREENWAVE
TECHNOLOGY SOLUTIONS, INC.
27,612,612
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August
2, 2024
Greenwave Technology Sol... (NASDAQ:GWAV)
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Greenwave Technology Sol... (NASDAQ:GWAV)
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