Supplement
Filed Pursuant to Rule 424(b)(3)
Registration No. 333-234280
Prospectus
Supplement
(To
Prospectus dated November 1, 2019)
PolarityTE,
Inc.
7,050,000
Shares of Common Stock
This
prospectus supplement amends the accompanying prospectus that forms a part of the Registration Statement on Form S-3 (File No.
333-234280), which became effective on November 1, 2019, to update the section entitled “Description of Capital Stock”
set forth in the accompanying prospectus. The section set forth in this prospectus supplement entitled “Description of Capital
Stock” replaces and supersedes in its entirety the section entitled “Description of Capital Stock” set forth
in the accompanying prospectus.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “PTE.”
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties set forth beginning
on page 5 of the accompanying prospectus under the heading “Risk Factors,” and under similar headings in the other
documents that are incorporated by reference into this prospectus supplement and the accompanying prospectus.
This
prospectus supplement should be read in conjunction with the accompanying prospectus dated November 1, 2019.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is December 17, 2019.
Description
of Capital Stock
The
following description of our common stock and preferred stock, together with the additional information we include in any applicable
prospectus supplements, summarizes the material terms and provisions of our common stock and preferred stock. The following description
of our capital stock does not purport to be complete and is subject to, and qualified in its entirety by, our certificate of incorporation,
bylaws and the Rights Agreement we have entered into with Equity Stock Transfer, LLC (as further described below), and by applicable
law. We have filed copies of our certificate of incorporation, bylaws and the Rights Agreement with the SEC, and they are incorporated
by reference as exhibits to the registration statement of which this prospectus forms a part. See “Information We Incorporate
By Reference.” The terms of our common stock and preferred stock may also be affected by Delaware law.
Authorized
Capital Stock
Our
authorized capital stock consists of 250,000,000 shares of common stock, par value $0.001 per share, and 25,000,000 shares of
preferred stock, par value $0.001 per share. As of September 30, 2019, we had 26,932,764 shares of common stock outstanding and
no shares of preferred stock outstanding.
Common
Stock
The
holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the stockholders.
The holders of our common stock do not have any cumulative voting rights. Holders of our common stock are entitled to receive
ratably any dividends declared by our board of directors out of funds legally available for that purpose, subject to any preferential
dividend rights of any outstanding preferred stock. Our common stock has no preemptive rights, conversion rights or other subscription
rights or redemption or sinking fund provisions.
In
the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in all
assets remaining after payment of all debts and other liabilities and any liquidation preference of any outstanding preferred
stock. All outstanding shares are fully paid and non-assessable.
Preferred
Stock
Our
board of directors is authorized to issue up to 25,000,000 shares of undesignated preferred stock in one or more series without
stockholder approval. Our board of directors may determine the rights, preferences, privileges and restrictions, including voting
rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock.
The
purpose of authorizing our board of directors to issue preferred stock in one or more series and determine the number of shares
in the series and its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances.
Examples of rights and preferences that the board of directors may fix are:
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dividend
rights;
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conversion
rights;
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voting
rights;
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preemptive
rights;
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terms
of redemption;
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liquidation
preferences;
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sinking
fund terms; and
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the
number of shares constituting, or the designation of, such series, any or all of which may be greater than the rights of common
stock.
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The
existence of authorized but unissued shares of undesignated preferred stock may enable our board of directors to render more difficult
or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example,
if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not
in the best interests of us or our stockholders, our board of directors could cause shares of preferred stock to be issued without
stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the
proposed acquirer, stockholder or stockholder group. The rights of holders of our common stock described above, will be subject
to, and may be adversely affected by, the rights of any preferred stock that we may designate and issue in the future. The issuance
of shares of undesignated preferred stock could decrease the amount of earnings and assets available for distribution to holders
of shares of common stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders
and may have the effect of delaying, deterring or preventing a change in control of us.
In
connection with the adoption of the Rights Agreement described below, we filed a Certificate of Designation of Series A Junior
Participating Preferred Stock of PolarityTE, Inc. (the “Certificate of Designation”) with the Secretary of State of
the State of Delaware, which designated 100,000 shares of Preferred Stock as Series A Junior Participating Preferred Stock. The
rights, preferences and privileges of the Series A Junior Participating Preferred Stock are as set forth in the Certificate of
Designation. The Rights Agreement is described in more detail below.
Rights
Agreement
On
November 7, 2019, the Board authorized and declared a dividend to stockholders of record at the close of business on November
18, 2019 (the “Record Date”) of one preferred share purchase right (a “Right”) for each outstanding share
of our common stock. Each Right entitles the holder to purchase from us one one-thousandth (subject to adjustment) of one share
of our Series A Junior Participating Preferred Stock, $0.001 par value per share (“Preferred Stock”) at an exercise
price of $12.00 per one one-thousandth of a share of Preferred Stock (the “Purchase Price”). The complete terms of
the Rights are set forth in the Rights Agreement (the “Rights Agreement”), dated as of November 7, 2019, between us
and Equity Stock Transfer, LLC, as rights agent.
Generally,
the Rights Agreement works by imposing a significant penalty upon any person or group (including a group of persons that are acting
in concert with each other) that acquires 10% or more (or 20% or more in the case of a “Passive Institutional Investor,”
as defined in the Rights Agreement) of our common stock without the approval of the Board. As a result, the overall effect of
the Rights Agreement and the issuance of the Rights may be to render more difficult or discourage a tender or exchange offer or
other acquisition of our common stock that is not approved by the Board. The Rights Agreement does not prevent the Board from
considering any offer that it considers to be in the best interest of its stockholders.
The
following is a summary of the terms of the Rights Agreement. The summary is qualified in its entirety by reference to the complete
text of the Rights Agreement, a copy of which is filed as Exhibit 4.1 to the Form 8-K that we filed with the SEC on November 7,
2019 and which is incorporated by reference herein.
Distribution
and Transfer of Rights; Rights Certificates
The
Board has declared a dividend of one Right for each outstanding share of our common stock. Prior to the Distribution Date referred
to below:
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the
Rights will be evidenced by and trade with the certificates for the shares of our common stock (or, with respect to any uncertificated
common stock registered in book-entry form, by notation in book-entry), and no separate rights certificates will be distributed;
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new
certificates for shares of our common stock issued after the Record Date will contain a legend incorporating the Rights Agreement
by reference (for uncertificated shares of Common Stock registered in book-entry form, this legend will be contained in a
notation in book-entry);
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the
surrender for transfer of any certificates for shares of our common stock (or the surrender for transfer of any uncertificated
shares of our common stock registered in book-entry form) will also constitute the transfer of the Rights associated with
such shares of our common stock; and
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the
Rights will accompany any new shares of our common stock that are issued after the Record Date.
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Distribution
Date
Subject
to certain exceptions specified in the Rights Agreement, the Rights will separate from the shares of our common stock and become
exercisable following the earlier of (i) the tenth (10th) business day after a public announcement that either discloses
that a person or a group of related persons has acquired beneficial ownership of 10% or more (or 20% or more in the case of a
Passive Institutional Investor) of the shares of our common stock other than as a result of repurchases of shares of our common
stock by us or certain inadvertent acquisitions (an “Acquiring Person”) or information which reveals the existence
of an Acquiring Person, or (ii) the tenth (10th) business day (or, if such tenth (10th) business day occurs
before the Record Date, the close of business on the Record Date), or such later date as may be determined by the Board, after
a person or a group of related persons announce or commence a tender or exchange offer that would result in a person or a group
of related persons becoming an Acquiring Person. For purposes of the Rights Agreement, beneficial ownership is defined to include
the ownership of derivative securities.
The
date on which the Rights separate from the shares of our common stock and become exercisable is referred to as the “Distribution
Date.”
After
the Distribution Date, we will mail Rights certificates to the Company’s stockholders as of the close of business on the
Distribution Date and the Rights will become transferable apart from the shares of our common stock. Thereafter, such Rights certificates
alone will represent the Rights.
Exempt
Persons
The
Rights Agreement provides that an Acquiring Person does not include the Company, any subsidiary of the Company, any employee benefit
plan of the Company or any subsidiary of the Company, or any person holding shares of our common stock for or pursuant to the
terms of any such employee benefit plan of the Company. In addition, certain inadvertent acquisitions will not trigger the occurrence
of the Distribution Date. The Rights Agreement also provides that any person that would otherwise be deemed an Acquiring Person
as of the date of the adoption of the Rights Agreement will be exempted but only for so long as neither it nor any of its Related
Persons (as defined in the Rights Agreement) acquire or are deemed to acquire, without the prior approval of the Board, beneficial
ownership of any additional shares of our common stock following the adoption of the Rights Agreement.
Grandfathered
Persons
The
Rights Agreement provides that a “Grandfathered Person” means any Person which, together with all of its Affiliates
and Associates, is, as of the date of the Agreement, the Beneficial Owner of 20% or more of the shares of our common stock then
outstanding; provided, however, that such Person shall cease to be a Grandfathered Person and shall become an Acquiring
Person if such Person exceeds its Grandfathered Percentage (as defined in the Rights Agreement) by 0.01% or more of the shares
of our common stock, subject to certain exemptions for (i) any unilateral grant of any security by the Company, (ii) the exercise
of any options, warrants, rights or similar interests, (iii) the grant of stock options pursuant to any written agreement with
us and (iv) any increase in the percentage of stock ownership as a result of any Company stock repurchases.
Preferred
Stock Purchasable Upon Exercise of Rights
After
the Distribution Date, each Right will entitle the holder to purchase, for the Purchase Price, one one-thousandth of a share of
Preferred Stock having economic and other terms similar to that of one share of our common stock. This portion of a share of Preferred
Stock is intended to give a stockholder approximately the same dividend, voting and liquidation rights as would one share of our
common stock.
Flip-In
Trigger
If
a person or group of related persons becomes an Acquiring Person, then each Right will entitle the holder thereof to purchase,
upon payment of the Purchase Price, in accordance with the terms of the Rights Agreement, in lieu of a number of one one-thousandths
of a share of Preferred Stock, a number of shares of our common stock (or, in certain circumstances, cash, property or other securities
of the Company) having a then-current market value of twice the Purchase Price. However, the Rights are not exercisable following
the occurrence of the foregoing event until such time as the Rights are no longer redeemable by us, as further described below.
Following
the occurrence of an event set forth in the preceding paragraph, all Rights that are or, under certain circumstances specified
in the Rights Agreement, were beneficially owned by an Acquiring Person or certain of its transferees will be null and void.
Flip-Over
Trigger
If,
after an Acquiring Person obtains 10% or more (or 20% or more in the case of a Passive Institutional Investor) of the shares of
our common stock, (i) we merge into another entity, (ii) an acquiring entity merges into us, and, in connection with such transaction,
all or part of the outstanding shares of our common stock are converted into stock or other securities of another entity, cash,
or other property or (iii) we sell or transfer 50% or more of the Company’s assets or earning power, then each Right (except
for Rights that have previously been voided as set forth above) will entitle the holder thereof to purchase, upon payment of the
Purchase Price, in accordance with the terms of the Rights Agreement, a number of shares of common stock of the person engaging
in the transaction having a then-current market value of twice the Purchase Price.
Redemption
of the Rights
The
Rights will be redeemable at the Board’s sole discretion for $0.001 per Right (payable in cash, shares of our common stock
or other consideration deemed appropriate by the Board) at any time ending on the earlier of (i) the tenth (10th) business
day (or such later date as may be determined by the Board) after the public announcement that a person has acquired beneficial
ownership of 10% or more (or 20% or more in the case of a Passive Institutional Investor) of the shares of our common stock and
(ii) the final expiration date of the Rights Agreement. Until such time as the Rights are no longer redeemable by us, the Rights
are not exercisable. Immediately upon the action of the Board ordering redemption, the Rights will terminate and the only right
of the holders of the Rights will be to receive the $0.001 redemption price. The redemption price will be adjusted if we undertake
a stock dividend, a stock split or similar transaction.
Exchange
Provision
At
any time after the date on which a person beneficially owns 10% or more (or 20% or more in the case of a Passive Institutional
Investor) of the shares of our common stock and prior to the acquisition by the person of 50% or more of the shares of our common
stock, the Board may exchange the Rights (other than Rights owned by the Acquiring Person or any Related Person, which would have
become void), in whole or in part, for shares of our common stock at an exchange ratio (subject to adjustment) of one share of
our common stock per Right (or, if insufficient shares are available, we may issue preferred stock, cash, debt or equity securities,
property or a combination thereof in exchange for the Rights).
Expiration
of the Rights
The
Rights expire at or prior to the earlier of (i) November 7, 2020 or (ii) the redemption or exchange of the Rights as described
above.
Amendment
of Terms of Rights Agreement and Rights
The
terms of the Rights and the Rights Agreement may be amended by action of the Board in any respect without the consent of the holders
of the Rights on or prior to the time a person becomes an Acquiring Person. Thereafter, the terms of the Rights and the Rights
Agreement may not be supplemented or amended in any manner that would adversely affect the interests of the holders of the Rights.
Rights
of Holders
Until
a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends.
Anti-Dilution
Provisions
The
Board may adjust the Purchase Price, the number of shares of Preferred Stock issuable and the number of outstanding Rights to
prevent dilution that may occur from a stock dividend, a stock split or a reclassification of the Preferred Stock or common stock.
With
certain exceptions, no adjustments to the Purchase Price will be made until the cumulative adjustments amount to at least 1% of
the Purchase Price.
Taxes
The
distribution of Rights should not be taxable for federal income tax purposes. However, following an event that renders the Rights
exercisable or upon redemption of the Rights, stockholders may recognize taxable income.
Certain
Anti-Takeover Effects
The
Rights are not intended to prevent a takeover of the Company and should not interfere with any merger or other business combination
approved by the Board. However, the Rights may cause substantial dilution to a person or group that acquires beneficial ownership
of 10% or more (or 20% or more in the case of a Passive Institutional Investor) of the outstanding shares of our common stock
(which includes for this purpose stock referenced in derivative transactions and securities).
Antitakeover
Effects of Delaware Law and Provisions of our Restated Certificate of Incorporation and Amended and Restated Bylaws
Certain
provisions of the Delaware General Corporation Law and of our restated certificate of incorporation and amended and restated bylaws
could have the effect of delaying, deferring or discouraging another party from acquiring control of us unless such takeover or
change of control is approved by the board of directors. These provisions, which are summarized below, are expected to discourage
certain types of coercive takeover practices and inadequate takeover bids and, therefore, they might also inhibit temporary fluctuations
in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These provisions are
also designed in part to encourage anyone seeking to acquire control of us to first negotiate with our board of directors. These
provisions might also have the effect of preventing changes in our management. It is possible that these provisions could make
it more difficult to accomplish transactions that stockholders might otherwise deem to be in their best interests. However, we
believe that the advantages gained by protecting our ability to negotiate with any unsolicited and potentially unfriendly acquirer
outweigh the disadvantages of discouraging such proposals, including those priced above the then-current market value of our common
stock, because, among other reasons, the negotiation of such proposals could improve their terms.
Delaware
Takeover Statute. We are subject to the provisions of Section 203 of the Delaware General Corporation Law. In general, Section
203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested
stockholder” for a three-year period following the time that this stockholder becomes an interested stockholder, unless
the business combination is approved in a prescribed manner. Under Section 203, a business combination between a corporation and
an interested stockholder is prohibited unless it satisfies one of the following conditions:
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before
the stockholder became interested, our board of directors approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
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upon
consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for
purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee
stock plans, in some instances, but not the outstanding voting stock owned by the interested stockholder; or
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at
or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized
at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting
stock which is not owned by the interested stockholder.
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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, lease, pledge, exchange, mortgage or other disposition involving the interested stockholder of 10% or more
of the assets of the corporation;
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subject
to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
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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; or
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the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits
provided by or through the corporation.
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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.
Provisions
of our Restated Certificate of Incorporation and Amended and Restated Bylaws. Our restated certificate of incorporation and
amended and restated bylaws include several provisions that may have the effect of delaying, deferring or discouraging another
party from acquiring control of us and encouraging persons considering unsolicited tender offers or other unilateral takeover
proposals to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. These provisions include
the items described below.
Board
composition and filling vacancies. In accordance with our restated certificate of incorporation, our board is divided into
three classes serving staggered three-year terms, with one class being elected each year. Our restated certificate of incorporation
also provides that directors may be removed only for cause and then only by the affirmative vote of the holders of two-thirds
or more of the shares then entitled to vote at an election of directors. Furthermore, any vacancy on our board of directors, however
occurring, including a vacancy resulting from an increase in the size of our board, may only be filled by the affirmative vote
of a majority of our directors then in office even if less than a quorum.
No
written consent of stockholders. Our restated certificate of incorporation provides that all stockholder actions are required
to be taken by a vote of the stockholders at an annual or special meeting, and that stockholders may not take any action by written
consent in lieu of a meeting. This limit may lengthen the amount of time required to take stockholder actions and would prevent
the amendment of our bylaws or removal of directors by our stockholder without holding a meeting of stockholders.
Meetings
of stockholders. Our bylaws provide that only a majority of the members of our board of directors then in office or stockholders
holding at least one-quarter of the voting power of all the then outstanding shares of our capital stock entitled to vote generally
in the election of directors may call special meetings of stockholders and only those matters set forth in the notice of the special
meeting may be considered or acted upon at a special meeting of stockholders. Our bylaws limit the business that may be conducted
at an annual meeting of stockholders to those matters properly brought before the meeting.
Advance
notice requirements. Our bylaws establish advance notice procedures regarding stockholder proposals pertaining to the nomination
of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide
that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which
the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 45
days or more than 75 days prior to the first anniversary date of the annual meeting for the preceding year. The notice must contain
certain information specified in our bylaws.
Amendment
to certificate of incorporation and bylaws. As required by the Delaware General Corporation Law, any amendment of our restated
certificate of incorporation must first be approved by a majority of our board of directors, and if required by law or our restated
certificate of incorporation, must thereafter be approved by a majority of the outstanding shares entitled to vote on the amendment,
and a majority of the outstanding shares of each class entitled to vote thereon as a class, except that the amendment of the provisions
relating to stockholder action, directors, amending our bylaws, limitation of liability and the amendment of our restated certificate
of incorporation must be approved by not less than two-thirds of the outstanding shares entitled to vote on the amendment, and
a majority of the outstanding shares of each class entitled to vote thereon as a class. Our bylaws may be amended by the affirmative
vote of a majority vote of the directors then in office, subject to any limitations set forth in the bylaws; and may also be amended
by the affirmative vote of at least two-thirds of the voting power of all the then outstanding shares of our capital stock entitled
to vote generally in the election of directors, voting together as a single class.
Undesignated
preferred stock. Our restated certificate of incorporation provides for authorized shares of preferred stock. The existence
of authorized but unissued shares of preferred stock may enable our board of directors to render more difficult or to discourage
an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in the due
exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not in the best interests
of us or our stockholders, our board of directors could cause shares of preferred stock to be issued without stockholder approval
in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer or
insurgent stockholder or stockholder group. In this regard, our restated certificate of incorporation grants our board of directors’
broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares
of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common
stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the
effect of delaying, deterring or preventing a change in control of us.
Prospectus
PolarityTE,
Inc.
7,050,000
Shares of Common Stock
This
prospectus relates to the resale, from time to time, of up to 7,050,000 shares of common stock, $0.001 par value per share, previously
issued by PolarityTE, Inc. to Dr. Denver Lough, as selling stockholder (the “selling stockholder”). See “Selling
Stockholder.”
We
are not offering any shares of common stock for sale under this prospectus and will not receive any proceeds from the sales of
these shares of common stock by the selling stockholder under this prospectus.
The
selling stockholder, or his pledgees, donees, transferees or other successors-in-interest, may offer the shares of common stock
from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices
or at privately negotiated prices.
To
the extent required, we will provide the specific terms of transactions in these shares of common stock in supplements to this
prospectus. You should read this prospectus and any applicable prospectus supplement carefully before you invest. See “Plan
of Distribution.”
Our
common stock is listed on The Nasdaq Capital Market under the symbol “PTE.”
Investing
in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the
heading “Risk Factors” contained in this prospectus beginning on page 5 and any applicable prospectus supplement,
and under similar headings in the other documents that are incorporated by reference into this prospectus.
This
prospectus may not be used to offer or sell securities unless accompanied by a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is November 1 , 2019.
TABLE
OF CONTENTS
About
This Prospectus
This
prospectus is part of a registration statement that we filed with the United States Securities and Exchange Commission (the “SEC”)
using a “shelf” registration process. Under this shelf registration process, the selling stockholder named in this
prospectus or in one or more supplements to this prospectus may sell, from time to time, up to 7,050,000 shares of our common
stock.
This
prospectus provides you with a general description of the common stock the selling stockholder may offer. For a more complete
understanding of the offering of the securities, you should refer to the registration statement of which this prospectus forms
a part, including its exhibits. A prospectus supplement or free writing prospectus may also add, update or change information
contained in this prospectus. You should read both this prospectus and any prospectus supplement or free writing prospectus, including
all documents incorporated herein or therein by reference, together with additional information contained under the heading “Where
You Can Find More Information” and “Information We Incorporate By Reference.”
We
and the selling stockholder have not authorized anyone to provide you with different information from the information contained
or incorporated by reference in this prospectus and in any prospectus supplement or in any free writing prospectus that we may
provide you. You should not assume that the information contained in this prospectus, any prospectus supplement, any document
incorporated by reference or any free writing prospectus is accurate as of any date, other than the date mentioned on the cover
page of these documents. We and the selling stockholder are not making offers to sell the securities in any jurisdiction in which
an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so
or to anyone to whom it is unlawful to make an offer or solicitation.
Unless
the context otherwise indicates, references in this prospectus to “PolarityTE,” the “Company,” “we,”
“us,” and “our” refer, collectively, to PolarityTE, Inc., a Delaware corporation, and its subsidiaries.
We
use various trademarks and trade names in our business, including without limitation our corporate name and logo. All other trademarks
or trade names referred to in this prospectus are the property of their respective owners. Solely for convenience, the trademarks
and trade names in this prospectus may be referred to without the ® and ™ symbols, but such references should not be
construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights
thereto.
Where
You Can Find More Information
This
prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement
has been omitted from this prospectus in accordance with the rules of the SEC. We are subject to the information and periodic
reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and, in accordance
therewith, we file periodic reports, proxy statements and other information with the SEC. These periodic reports, proxy statements
and other information are available on the SEC’s website at www.sec.gov. We have the authority to designate and issue
more than one class or series of stock having various preferences, conversion and other rights, voting powers, restrictions, limitations
as to dividends, qualifications, and terms and conditions of redemption. See “Description of Capital Stock.” We will
furnish a full statement of the relative rights and preferences of each class or series of our stock which has been so designated
and any restrictions on the ownership or transfer of our stock to any stockholder upon request and without charge. Written requests
for such copies should be directed to PolarityTE, Inc., 123 Wright Brothers Drive, Salt Lake City, Utah, 84104, Attention: General
Counsel, by telephone request to (800) 560-3983, or by e-mail to cameronhoyler@polarityte.com. Our website is located at www.polarityte.com.
Information contained on our website is not incorporated by reference into this prospectus and, therefore, is not part of this
prospectus or any accompanying prospectus supplement.
Information
We Incorporate By Reference
The
SEC allows us to “incorporate by reference” into this prospectus the information in documents we file with it, which
means that we can disclose important information to you by referring you to those documents. The information incorporated by reference
is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede
this information. Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in or omitted
from this prospectus or any accompanying prospectus supplement, or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We
incorporate by reference the documents listed below and any future documents that we file with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act (1) after the date of the initial filing of the registration statement of which this prospectus
forms a part prior to the effectiveness of the registration statement and (2) after the date of this prospectus until the offering
of the securities is terminated:
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our
Transition Report on Form 10-KT for the transition period from November 1, 2018 to December 31, 2018, filed with the SEC on
March 18, 2019;
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our
Annual Report on Form 10-K for the fiscal year ended October 31, 2018, filed with the SEC on January 14, 2019;
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019 and June 30, 2019, filed on May 10, 2019 and August 8,
2019, respectively;
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our
Current Reports on Form 8-K and Form 8-K/A filed with the SEC on January 29, 2019, March 29, 2019, April 11, 2019, April 25,
2019, June 4, 2019, July 1, 2019, August 8, 2019 (with respect to Item 5.02 only), August 8, 2019 (with respect to Item 5.02
only) and August 26, 2019; and
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the
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on January 21, 2005
(File No. 000-51128), including any amendment or report filed to update such description.
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We
will not, however, incorporate by reference in this prospectus any documents or portions thereof that are not deemed “filed”
with the SEC, including any information furnished pursuant to Item 2.02 or Item 7.01 of our current reports on Form 8-K unless,
and except to the extent, specified in such current reports.
Upon
written or oral request, we will provide, without charge, to each person, including any beneficial owner, to whom a copy of this
prospectus is delivered, a copy of the documents incorporated by reference into this prospectus but not delivered with the prospectus.
You may request a copy of these filings, and any exhibits we have specifically incorporated by reference as an exhibit in this
prospectus, at no cost by writing or telephoning us at the following address:
PolarityTE,
Inc.
123
Wright Brothers Drive
Salt
Lake City, Utah 84116
(800)
560-3983
You
may also access these documents, free of charge on the SEC’s website at www.sec.gov or on our website at www.polarityte.com.
Information contained on our website is not incorporated by reference into this prospectus, and you should not consider any information
on, or that can be accessed from, our website as part of this prospectus or any accompanying prospectus supplement.
This
prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into this registration statement.
You should read the exhibits carefully for provisions that may be important to you.
You
should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with different information. 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 or in the documents incorporated
by reference is accurate as of any date other than the date on the front of this prospectus or those documents.
Prospectus
Summary
The
following summary highlights selected information incorporated by reference in this prospectus. This summary does not contain
all the information you should consider before investing in the securities. Before making an investment decision, you should read
the entire prospectus carefully, including without limitation the financial statements and other information incorporated by reference
in this prospectus.
PolarityTE,
Inc.
PolarityTE
is focused on transforming the lives of patients by discovering, designing and developing a range of regenerative tissue products
and biomaterials for the fields of medicine, biomedical engineering and material sciences. Rather than manufacturing with synthetic
and foreign materials within artificially engineered environments, PolarityTE manufactures products from the patient’s own
tissue and uses the patient’s own body to support the regenerative process. From a small piece of healthy autologous tissue,
the company creates an easily deployable, dynamic and self-propagating product designed to regenerate the target tissues. PolarityTE’s
innovative method is intended to promote and accelerate growth of the patient’s tissues to undergo a form of effective regenerative
healing.
SkinTE,
our first commercial product, is a human cellular and tissue-based product derived from a patient’s own skin intended for
the repair, reconstruction, and replacement of skin tissue. SkinTE has been used to treat a variety of skin defects, including
burns, wounds, traumatic injuries, surgical reconstruction, scars, and failed skin grafts or conventional treatments for wounds
and burns.
SkinTE
is intended to be used by physicians or other appropriate healthcare providers for homologous uses of skin tissues/integument.
Patients who have suffered from an event, disease, process or acquired deficit that results in the functional loss or void of
skin/integument systems can receive SkinTE as an adjunct and/or in place of split-thickness skin grafting, full-thickness grafting,
temporizing skin coverage or skin substitute products. SkinTE is for autologous use only. Aseptic technique during harvest and
deployment of SkinTE is mandatory. SkinTE is marketed as an HCT/P regulated by the FDA solely under Section 361 of the Public
Health Service Act and 21 CFR 1271.
Our
principal executive offices are located at 123 Wright Brothers Drive, Salt Lake City, UT 84116 and our telephone number is (800)
560-3983. Our website address is www.polarityte.com. The information contained in
or that can be accessed through our website is not part of this prospectus.
The
Offering
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Common
stock that may be sold by the selling stockholder
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7,050,000
shares
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Common
stock to be outstanding immediately after this offering
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26,932,764
shares
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Use
of proceeds
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We
will not receive any proceeds from the sale of shares of common stock by the selling stockholder in this offering. See
“Use of Proceeds.”
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Risk
factors
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An
investment in our common stock involves a high degree of risk. See “Risk Factors” for a discussion of factors
you should consider carefully before making an investment decision.
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NASDAQ
symbol
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PTE
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The
number of shares of common stock to be outstanding immediately after this offering and, unless otherwise indicated, the information
in this prospectus, is based on 26,932,764 shares of our common stock outstanding as of September 30, 2019 and excludes 6,343,406
shares issuable upon the exercise of outstanding stock options and 511,609 share issuable upon the vesting of outstanding restricted
stock units.
Risk
Factors
Investing
in our securities involves a high degree of risk. You should carefully consider the risks described in the documents incorporated
by reference in this prospectus and any prospectus supplement, as well as other information we include or incorporate by reference
into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition
or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price
of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment.
This prospectus and the documents incorporated herein by reference also contain forward-looking statements that involve risks
and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements because of
certain factors, including the risks described in the documents incorporated herein by reference, including our Transition Report
on Form 10-KT for the transition period from November 1, 2018 to December 31, 2018 and our annual report on Form 10-K for the
fiscal year ended October 31, 2018, which are on file with the SEC, and other documents we file with the SEC that are deemed incorporated
by reference into this prospectus.
Disclosure
Regarding Forward-Looking Statements
This
prospectus contains forward-looking statements. Risks and uncertainties are inherent in forward-looking statements. Furthermore,
such statements may be based on assumptions that fail to materialize or prove incorrect. Consequently, our business development,
operations, and results could differ materially from those expressed in forward-looking statements made in this prospectus. We
make such forward-looking statements pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of
1995 and other federal securities laws. All statements other than statements of historical facts contained in this prospectus
are forward-looking statements. In some cases, you can identify forward-looking statements by words such as “anticipate,”
“believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,”
“intend,” “may,” “plan,” “potential,” “predict,” “project,”
“seek,” “should,” “target,” “would,” or the negative of these words or other comparable
terminology. These forward-looking statements include, but are not limited to, statements about:
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the
initiation, timing, progress, and results of our research and development programs;
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the
timing or success of commercialization of our products;
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the
pricing and reimbursement of our products;
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the
initiation, timing, progress, and results of our preclinical and clinical studies;
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the
scope of protection we can establish and maintain for intellectual property rights covering our product candidates and technology;
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estimates
of our expenses, future revenues, and capital requirements;
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our
need for, and ability to obtain, additional financing in the future;
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our
ability to comply with regulations applicable to the manufacture, marketing, sale and distribution of our products;
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the
potential benefits of strategic collaboration agreements and our ability to enter into strategic arrangements;
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our
views about our prospects in ongoing litigation and SEC investigation;
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developments
relating to our competitors and industry; and
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other
risks and uncertainties, including those listed under “Risk Factors” in our Transition Report on Form 10-KT filed
with the Securities and Exchange Commission on March 18, 2019.
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Given
the known and unknown risks, uncertainties, and other factors that may cause our actual results, performance, or achievements
to be materially different from any future results, performance, or achievements expressed or implied by our forward-looking statements,
you should not place undue reliance on these forward-looking statements. Except as required by law, we assume no obligation to
update or revise these forward-looking statements for any reason, even if new information becomes available in the future.
Information
that is based on estimates, forecasts, projections, market research, or similar methodologies is inherently subject to uncertainties,
and actual events or circumstances may differ materially from events and circumstances reflected in this information. Unless otherwise
expressly stated, we obtained this industry, business, market and other data from reports, research surveys, studies and similar
data prepared by market research firms and other third parties, industry, medical and general publications, government data and
similar sources.
Use
of Proceeds
The
shares of common stock offered hereby are being registered for the account of the selling stockholder identified in this prospectus.
See “Selling Stockholder.” All net proceeds from the sale of the shares of common stock will go to the selling stockholder.
We will not receive any part of the proceeds from such sale of common stock.
Selling
Stockholder
This
prospectus relates to the registration of and possible resale by Dr. Denver Lough, as selling stockholder, of up to 7,050,000
shares of our common stock that were issued and outstanding prior to the original date of filing of the registration statement
of which this prospectus forms a part. When we refer to the selling stockholder, we mean the individual himself, as well as his
donees, pledgees, assignees, transferees, distributees and other successors in interest.
Dr.
Lough previously served as the Company’s Chairman, Chief Executive Officer and Chief Scientific Officer beginning on December
1, 2016, and also served as a director of the Company. Pursuant to a “Settlement Terms” agreement dated August
21, 2019, he resigned all of his offices with the Company and from the Board of Directors, which was accepted by the Board
of Directors effective on August 26, 2019. As part of the Settlement Terms agreement, Dr. Lough’s executive employment
agreement with the Company was terminated, except for specific sections that survive termination, including sections pertaining
to (i) non-disclosure of confidential information, (ii) non-competition and non-solicitation, and (iii) indemnification for service
to the Company. The selling stockholder has advised the Company he believes the settlement between the parties includes
an agreement to modify his equity awards previously granted under the Company’s 2017 Equity Incentive Plan to accelerate
vesting of all awards and extend the exercise period for the stock options to ten years from the original grant date. The Company
has advised the selling stockholder it does not agree that modification to his equity awards was included in the settlement
or agreed to by the parties, and the disagreement has yet to be resolved. Resolution of the disagreement could affect the selling
stockholder’s beneficial ownership of the Company’s common stock reported below.
On
March 6, 2018, the Company entered into a registration rights agreement (the “Registration Rights Agreement”) with
Dr. Lough, pursuant to which the Company agreed to file a registration statement to register the resale of 7,050,000 shares of
Common Stock issued upon conversion of Dr. Lough’s Series E Convertible Preferred Stock of the Company within six months,
to cause such registration statement to be declared effective by the SEC as promptly as possible following its filing and, with
certain exceptions set forth in the Registration Rights Agreement, to maintain the effectiveness of the registration statement
until all of such shares have been sold or are otherwise able to be sold pursuant to Rule 144 under the Securities Act without
restriction. On March 14, 2019, the Company’s registration obligation was waived, and the Registration Rights Agreement
was amended to provide that Dr. Lough may demand registration by written request to the Company. On August 23, 2019,
Dr. Lough requested registration of the resale of the 7,050,000 shares and that any restrictions on these shares be removed.
The
following table has been prepared based solely on information supplied to us by the selling stockholder, or included in statements
on Schedule 13D filed by the selling stockholder with the SEC on October 15, 2019, or other public documents filed by the selling
stockholder with the SEC. The number of shares in the column “Number of Shares Being Offered” represents all of the
shares that the selling stockholder may offer under this prospectus. The selling stockholder may sell some, all or none of his
shares. We do not know how long the selling stockholder will hold the shares before selling them. The shares covered hereby
may be offered from time to time by the selling stockholder.
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Name of Selling
Stockholder
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Shares of Common Stock Beneficially
Owned Prior to
Offering (1)
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Number of
Shares Being
Offered
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Shares of Common Stock
Beneficially Owned After
Offering (2)
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Number
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Percent
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Dr. Denver Lough
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9,473,673
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(3)
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7,050,000
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2,423,673
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9.0
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%
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(1)
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“Beneficial
ownership” is a term broadly defined by the SEC in Rule 13d-3 under the Exchange Act, and includes more than the typical
form of stock ownership, that is, stock held in the person’s name. The term also includes what is referred to as “indirect
ownership,” meaning ownership of shares as to which a person has or shares investment power. For purposes of this table,
a person or group of persons is deemed to have “beneficial ownership” of any shares that are currently exercisable
or exercisable within 60 days of the date hereof.
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(2)
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Assumes
that all shares being registered in this prospectus are resold to third parties and that the selling stockholder sells all
shares of common stock registered under this prospectus held by him. The percentage of shares owned after the offering is
based on 26,932,764 shares of common stock outstanding as of September 30, 2019, including the shares of common stock covered
hereby.
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(3)
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The
number of shares beneficially held by the selling stockholder includes 536,954 shares of the Company’s common stock
held by certain other stockholders of the Company who granted an irrevocable proxy to the selling stockholder to vote such
shares subject to certain limitations, pursuant to exchange agreements between the Company and such stockholders.
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Description
of Capital Stock
The
following description of our common stock and preferred stock, together with the additional information we include in any applicable
prospectus supplements, summarizes the material terms and provisions of our common stock and preferred stock. The following description
of our capital stock does not purport to be complete and is subject to, and qualified in its entirety by, our certificate of incorporation
and bylaws and by applicable law. We have filed copies of our certificate of incorporation and bylaws with the SEC, and they are
incorporated by reference as exhibits to the registration statement of which this prospectus forms a part. See “Information
We Incorporate By Reference.” The terms of our common stock and preferred stock may also be affected by Delaware law.
Authorized
Capital Stock
Our
authorized capital stock consists of 250,000,000 shares of common stock, par value $0.001 per share, and 25,000,000 shares of
preferred stock, par value $0.001 per share, all of which are undesignated preferred stock. As of September 30, 2019, we had 26,932,764
shares of common stock outstanding and no shares of preferred stock outstanding.
Common
Stock
The
holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the stockholders.
The holders of our common stock do not have any cumulative voting rights. Holders of our common stock are entitled to receive
ratably any dividends declared by our board of directors out of funds legally available for that purpose, subject to any preferential
dividend rights of any outstanding preferred stock. Our common stock has no preemptive rights, conversion rights or other subscription
rights or redemption or sinking fund provisions.
In
the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in all
assets remaining after payment of all debts and other liabilities and any liquidation preference of any outstanding preferred
stock. All outstanding shares are fully paid and non-assessable.
Undesignated
Preferred Stock
Our
board of directors is authorized to issue up to 25,000,000 shares of undesignated preferred stock in one or more series without
stockholder approval. Our board of directors may determine the rights, preferences, privileges and restrictions, including voting
rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock.
The
purpose of authorizing our board of directors to issue preferred stock in one or more series and determine the number of shares
in the series and its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances.
Examples of rights and preferences that the board of directors may fix are:
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dividend
rights;
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conversion
rights;
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voting
rights;
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preemptive
rights;
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terms
of redemption;
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liquidation
preferences;
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sinking
fund terms; and
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the
number of shares constituting, or the designation of, such series, any or all of which may be greater than the rights of common
stock.
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The
existence of authorized but unissued shares of undesignated preferred stock may enable our board of directors to render more difficult
or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example,
if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not
in the best interests of us or our stockholders, our board of directors could cause shares of preferred stock to be issued without
stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the
proposed acquirer, stockholder or stockholder group. The rights of holders of our common stock described above, will be subject
to, and may be adversely affected by, the rights of any preferred stock that we may designate and issue in the future. The issuance
of shares of undesignated preferred stock could decrease the amount of earnings and assets available for distribution to holders
of shares of common stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders
and may have the effect of delaying, deterring or preventing a change in control of us.
Antitakeover
Effects of Delaware Law and Provisions of our Restated Certificate of Incorporation and Amended and Restated Bylaws
Certain
provisions of the Delaware General Corporation Law and of our restated certificate of incorporation and amended and restated bylaws
could have the effect of delaying, deferring or discouraging another party from acquiring control of us unless such takeover or
change of control is approved by the board of directors. These provisions, which are summarized below, are expected to discourage
certain types of coercive takeover practices and inadequate takeover bids and, therefore, they might also inhibit temporary fluctuations
in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These provisions are
also designed in part to encourage anyone seeking to acquire control of us to first negotiate with our board of directors. These
provisions might also have the effect of preventing changes in our management. It is possible that these provisions could make
it more difficult to accomplish transactions that stockholders might otherwise deem to be in their best interests. However, we
believe that the advantages gained by protecting our ability to negotiate with any unsolicited and potentially unfriendly acquirer
outweigh the disadvantages of discouraging such proposals, including those priced above the then-current market value of our common
stock, because, among other reasons, the negotiation of such proposals could improve their terms.
Delaware
Takeover Statute. We are subject to the provisions of Section 203 of the Delaware General Corporation Law. In general, Section
203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested
stockholder” for a three-year period following the time that this stockholder becomes an interested stockholder, unless
the business combination is approved in a prescribed manner. Under Section 203, a business combination between a corporation and
an interested stockholder is prohibited unless it satisfies one of the following conditions:
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before
the stockholder became interested, our board of directors approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
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upon
consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for
purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee
stock plans, in some instances, but not the outstanding voting stock owned by the interested stockholder; or
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at
or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized
at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting
stock which is not owned by the interested stockholder.
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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, lease, pledge, exchange, mortgage or other disposition involving the interested stockholder of 10% or more
of the assets of the corporation;
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subject
to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
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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; or
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the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits
provided by or through the corporation.
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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.
Provisions
of our Restated Certificate of Incorporation and Amended and Restated Bylaws. Our restated certificate of incorporation and
amended and restated bylaws include several provisions that may have the effect of delaying, deferring or discouraging another
party from acquiring control of us and encouraging persons considering unsolicited tender offers or other unilateral takeover
proposals to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. These provisions include
the items described below.
Board
composition and filling vacancies. In accordance with our restated certificate of incorporation, our board is divided into
three classes serving staggered three-year terms, with one class being elected each year. Our restated certificate of incorporation
also provides that directors may be removed only for cause and then only by the affirmative vote of the holders of two-thirds
or more of the shares then entitled to vote at an election of directors. Furthermore, any vacancy on our board of directors, however
occurring, including a vacancy resulting from an increase in the size of our board, may only be filled by the affirmative vote
of a majority of our directors then in office even if less than a quorum.
No
written consent of stockholders. Our restated certificate of incorporation provides that all stockholder actions are required
to be taken by a vote of the stockholders at an annual or special meeting, and that stockholders may not take any action by written
consent in lieu of a meeting. This limit may lengthen the amount of time required to take stockholder actions and would prevent
the amendment of our bylaws or removal of directors by our stockholder without holding a meeting of stockholders.
Meetings
of stockholders. Our bylaws provide that only a majority of the members of our board of directors then in office or stockholders
holding at least one-quarter of the voting power of all the then outstanding shares of our capital stock entitled to vote generally
in the election of directors may call special meetings of stockholders and only those matters set forth in the notice of the special
meeting may be considered or acted upon at a special meeting of stockholders. Our bylaws limit the business that may be conducted
at an annual meeting of stockholders to those matters properly brought before the meeting.
Advance
notice requirements. Our bylaws establish advance notice procedures regarding stockholder proposals pertaining to the nomination
of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide
that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which
the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 45
days or more than 75 days prior to the first anniversary date of the annual meeting for the preceding year. The notice must contain
certain information specified in our bylaws.
Amendment
to certificate of incorporation and bylaws. As required by the Delaware General Corporation Law, any amendment of our restated
certificate of incorporation must first be approved by a majority of our board of directors, and if required by law or our restated
certificate of incorporation, must thereafter be approved by a majority of the outstanding shares entitled to vote on the amendment,
and a majority of the outstanding shares of each class entitled to vote thereon as a class, except that the amendment of the provisions
relating to stockholder action, directors, amending our bylaws, limitation of liability and the amendment of our restated certificate
of incorporation must be approved by not less than two-thirds of the outstanding shares entitled to vote on the amendment, and
a majority of the outstanding shares of each class entitled to vote thereon as a class. Our bylaws may be amended by the affirmative
vote of a majority vote of the directors then in office, subject to any limitations set forth in the bylaws; and may also be amended
by the affirmative vote of at least two-thirds of the voting power of all the then outstanding shares of our capital stock entitled
to vote generally in the election of directors, voting together as a single class.
Undesignated
preferred stock. Our restated certificate of incorporation provides for authorized shares of preferred stock. The existence
of authorized but unissued shares of preferred stock may enable our board of directors to render more difficult or to discourage
an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise. For example, if in the due
exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not in the best interests
of us or our stockholders, our board of directors could cause shares of preferred stock to be issued without stockholder approval
in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer or
insurgent stockholder or stockholder group. In this regard, our restated certificate of incorporation grants our board of directors’
broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares
of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common
stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the
effect of delaying, deterring or preventing a change in control of us.
Plan
of Distribution
We
are registering 7,050,000 shares of our common stock to permit the resale of these shares by the selling stockholder from time
to time after the date of this prospectus. The shares of common stock covered by this prospectus may be offered and sold from
time to time by the selling stockholder or the selling stockholder’s pledgees, donees, transferees or other successors-in-interest
who have received, after the date of this prospectus and from the selling stockholder, shares as a gift, pledge, partnership distribution
or other non-sale related transfer. The selling stockholder will act independently of us in making decisions with respect to the
timing, manner and size of each sale. Such sales may be made
at prices and under terms then prevailing or at prices related to the then current market price or in privately negotiated transactions.
The selling stockholder may sell his shares of common stock by one or more of, or a combination of, the following methods:
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purchases
by a broker-dealer as principal and resale by such broker-dealer for its own account
pursuant to this prospectus;
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ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
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block
trades in which the broker-dealer so engaged will attempt to sell the shares of common
stock as agent but may position and resell a portion of the block as principal to facilitate
the transaction;
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a
transaction on any exchange or in the over-the-counter market;
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in
privately negotiated transactions;
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in
options transactions, including through the writing of put or call options (whether those
options are listed on an options exchange or otherwise) relating to the shares of common
stock offered by this prospectus, or the short sales of the offered shares of common
stock; or
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any
other method permitted pursuant to applicable law.
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The
selling stockholder may also sell securities pursuant to Rule 144 under the Securities Act, or any other exemption from registration
under the Securities Act, rather than pursuant to this prospectus, in each case if such exemption is available.
To
the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution.
In connection with distributions of the shares of common stock or otherwise, the selling stockholder may enter into hedging transactions
with broker-dealers or other financial institutions. In connection with such transactions, broker-dealers or other financial institutions
may engage in short sales of the shares of common stock in the course of hedging the positions they assume with the selling stockholder.
The selling stockholder may also sell the shares of common stock short and redeliver the shares of common stock to close out such
short positions. The selling stockholder may also enter into option or other transactions with broker-dealers or other financial
institutions that require the delivery to such broker-dealer or other financial institution of shares of common stock offered
by this prospectus, which shares of common stock such broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The
selling stockholder may also pledge shares of common stock to a broker-dealer or other financial institution, and, upon a default,
such broker-dealer or other financial institution, may affect sales of the pledged shares of common stock pursuant to this prospectus
(as supplemented or amended to reflect such transaction). In effecting sales, broker-dealers or agents engaged by the selling
stockholder may arrange for other broker-dealers to participate. Broker-dealers or their agents may receive commissions, discounts
or concessions from the selling stockholder in amounts to be negotiated immediately prior to the sale.
In
offering the shares of common stock covered by this prospectus, the selling stockholder and any broker-dealers who execute sales
for the selling stockholder may be deemed to be “underwriters” within the meaning of the Securities Act in connection
with such sales. Any profits realized by the selling stockholder and the compensation of any broker-dealer may be deemed to be
underwriting discounts and commissions under the Securities Act.
In
order to comply with the securities laws of certain states, if applicable, the shares of common stock must be sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain states the shares of common stock may not be sold
unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The
selling stockholder will be subject to the anti-manipulation rules of Regulation M under the Exchange Act. In addition, we will
make copies of this prospectus available to the selling stockholder for the purpose of satisfying the prospectus delivery requirements
of the Securities Act, which may include delivery through the facilities of the New York Stock Exchange pursuant to Rule 153 under
the Securities Act. The selling stockholder may indemnify any broker-dealer that participates in transactions involving the sale
of the shares of common stock against certain liabilities, including liabilities arising under the Securities Act.
At
the time a particular offer of shares of common stock is made, if required, a prospectus supplement will be distributed that will
set forth the number of shares of common stock being offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, any discount, commission and other item constituting compensation,
any discount, commission or concession allowed or reallowed or paid to any dealer, and the proposed selling price to the public.
There
can be no assurance that the selling stockholder will sell any or all of the shares of our common stock registered pursuant to
the registration statement, of which this prospectus or any applicable prospectus supplement forms a part.
Legal
Matters
King
& Spalding LLP will pass upon the validity of the securities being offered hereby.
Experts
The
consolidated balance sheets of PolarityTE, Inc. and Subsidiaries as of December 31, 2018, October 31, 2018 and 2017, and the related
consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for the transition period
from November 1, 2018 through December 31, 2018 and for each of the years in the two-year period ended October 31, 2018, have
been audited by EisnerAmper LLP, independent registered public accounting firm, as stated in their reports which are incorporated
herein by reference, which reports (1) express an unqualified opinion on the financial statements, and (2) express an adverse
opinion on the effectiveness of internal control over financial reporting. Such financial statements have been incorporated herein
by reference in reliance on the reports of such firm given upon their authority as experts in accounting and auditing.
7,050,000
Shares of Common Stock
PROSPECTUS
SUPPLEMENT
December
17, 2019
We
have not authorized any dealer, salesperson or other person to give any information or represent anything not contained in this
prospectus. You must not rely on any unauthorized information. If anyone provides you with different or inconsistent information,
you should not rely on it. This prospectus does not offer to sell any securities in any jurisdiction where it is unlawful. Neither
the delivery of this prospectus, nor any sale made hereunder, shall create any implication that the information in this prospectus
is correct after the date hereof.
PolarityTE (NASDAQ:PTE)
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PolarityTE (NASDAQ:PTE)
過去 株価チャート
から 7 2023 まで 7 2024
