Sanara MedTech Inc S-3, filed Dec 23, 2020
Sanara MedTech Inc. (SMTI)
S-3
2020-12-23
View Original
Added on
October 19, 2026
As filed with
the Securities and Exchange Commission on December 23,
2020
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C.
20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Sanara MedTech Inc.
(Exact name of
registrant as specified in its charter)
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Texas
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59-2219994
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(State or other
jurisdiction of
incorporation or
organization)
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(I.R.S.
Employer
Identification
Number)
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1200 Summit Ave,
Suite 414
Fort Worth,
Texas 76102
(817)
529-2300
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Michael D. McNeil
Chief Financial Officer
1200 Summit Ave, Suite 414
Fort Worth, Texas 76102
(817)
529-2300
(Name, address,
including zip code, and telephone number, including area code, of
agent for service)
Copies of all communications, including communications sent to
agent for service, should be sent to:
Matthew L. Fry,
Esq.
Haynes and
Boone, LLP
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2323 Victory Avenue, Suite 700
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Dallas, Texas 75219
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(214) 651-5000
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Approximate date of commencement of proposed
sale to the public: From time to time after the effective
date of this Registration Statement.
If the only securities being
registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box:
[ ]
If any of the securities being
registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box:
[X]
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under
the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
[ ]
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the
Commission pursuant to Rule 462(e) under the Securities Act, check
the following box. [ ]
If this Form is a post-effective
amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
[ ]
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, a smaller reporting company or an emerging
growth company. See the definitions of “large accelerated
filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company”
in Rule 12b-2 of the Exchange Act.
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Large accelerated
filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[X]
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Smaller reporting
company
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[X]
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Emerging growth
company
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[ ]
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If an emerging growth company,
indicate by check mark if the registrant has elected not to use the
extended transition period for complying with any new or revised
financial accounting standards provided to Section 7(a)(2)(B) of
the Securities Act. [ ]
CALCULATION OF
REGISTRATION FEE
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Title of each
class of
securities to be
registered (1)
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Amount to
beregistered (1)(2)
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Proposed maximum
aggregate offering priceper security (3)
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Proposed
maximum
aggregate
offering
price
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Amount of
registration fee
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Common Stock, $0.001 par value per
share
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$—
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$—
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Preferred Stock, $10.00 par value
per share
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—
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—
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||
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Warrants
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—
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—
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Units (4)
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—
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—
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Total
Offering
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$150,000,000.00
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$16,365.00(5)
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(1)
There are being registered
hereunder such indeterminate number of shares of common stock and
preferred stock, such indeterminate number of warrants to purchase
common stock or preferred stock, and such indeterminate number of
units as may, from time to time, be issued at indeterminate prices.
Any securities registered hereunder may be sold separately or as
units with the other securities registered hereunder. The proposed
maximum offering price per unit will be determined, from time to
time, by the registrant in connection with the issuance by the
registrant of the securities registered hereunder. The securities
registered hereunder also include such indeterminate number of
shares of common stock and preferred stock as may be issued upon
conversion of or exchange for preferred stock that provide for
conversion or exchange, upon exercise of warrants or pursuant to
the antidilution provisions of any of such
securities.
(2)
Pursuant to Rule 416 under the
Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such
indeterminate number of shares of common stock and preferred stock
as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar
transactions.
(3)
The proposed maximum offering price
per security will be determined from time to time by the registrant
in connection with, and at the time of, the issuance of the
securities and is not specified as to each class of security
pursuant to General Instruction II.D. of Form S-3, as
amended.
(4)
Each unit will represent an
interest in two or more other securities, which may or may not be
separable from one another.
(5)
Calculated pursuant to Rule 457(o)
under the Securities Act based on the proposed maximum aggregate
offering price of all securities listed.
The
registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or
until this registration statement shall become effective on such
date as the Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 23, 2020
Prospectus
Sanara MedTech Inc.
$150,000,000
Common Stock
Preferred Stock
Warrants
Units
We may
offer and sell from time to time, in one or more series or
issuances and on terms that we will determine at the time of the
offering, any combination of the securities described in this
prospectus, up to an aggregate amount of $150,000,000.
We will
provide specific terms of any offering in a supplement to this
prospectus. Any prospectus supplement may also add, update, or
change information contained in this prospectus. You should
carefully read this prospectus and the applicable prospectus
supplement as well as the documents incorporated or deemed to be
incorporated by reference in this prospectus before you purchase
any of the securities offered hereby.
These
securities may be offered and sold in the same offering or in
separate offerings; to or through underwriters, dealers, and
agents; or directly to purchasers. The names of any underwriters,
dealers, or agents involved in the sale of our securities, their
compensation and any over-allotment options held by them will be
described in the applicable prospectus supplement. See “Plan
of Distribution.”
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “SMTI.” On December 22, 2020, the last reported
sale price of our common stock was $52.42 per share as reported on
The Nasdaq Capital Market. We recommend that you obtain current
market quotations for our common stock prior to making an
investment decision. We will provide information in any applicable
prospectus supplement regarding any listing of securities other
than shares of our common stock on any securities
exchange.
You
should carefully read this prospectus, any prospectus supplement
relating to any specific offering of securities, and all
information incorporated by reference herein and
therein.
Investing in our securities involves a high
degree of risk. These risks are discussed in this prospectus under
“Risk Factors” beginning on page 4 and in the documents incorporated by reference
in this prospectus.
Neither
the Securities and Exchange Commission (the “SEC”) nor
any state securities commission has approved or disapproved of
these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The
date of this prospectus
is
,
TABLE OF CONTENTS
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Page
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iii
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4
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5
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i
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we
filed with the SEC using a “shelf” registration
process. Under this shelf process, we may, from time to time, sell
any combination of the securities described in this prospectus in
one or more offerings up to a total amount of
$150,000,000.
This
prospectus provides you with a general description of the
securities we may offer. Each time we sell securities under this
prospectus, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The
prospectus supplement may also add to, update or change information
contained in the prospectus and, accordingly, to the extent
inconsistent, information in this prospectus is superseded by the
information in the prospectus supplement.
This
prospectus may not be used to sell securities unless it is
accompanied by a prospectus supplement that describes those
securities. The prospectus supplement to be attached to the front
of this prospectus may describe, as applicable: the terms of the
securities offered; the public offering price; the price paid for
the securities; net proceeds; and the other specific terms related
to the offering of the securities.
You
should only rely on the information contained or incorporated by
reference in this prospectus and any prospectus supplement or
issuer free writing prospectus relating to a particular offering.
No person has been authorized to give any information or make any
representations in connection with this offering other than those
contained or incorporated by reference in this prospectus, any
accompanying prospectus supplement and any related issuer free
writing prospectus in connection with the offering described herein
and therein, and, if given or made, such information or
representations must not be relied upon as having been authorized
by us. Neither this prospectus nor any prospectus supplement nor
any related issuer free writing prospectus shall constitute an
offer to sell or a solicitation of an offer to buy offered
securities in any jurisdiction in which it is unlawful for such
person to make such an offering or solicitation. This prospectus
does not contain all of the information included in the
registration statement. For a more complete understanding of the
offering of the securities, you should refer to the registration
statement, including its exhibits.
You
should read the entire prospectus and any prospectus supplement and
any related issuer free writing prospectus, as well as the
documents incorporated by reference into this prospectus or any
prospectus supplement or any related issuer free writing
prospectus, before making an investment decision. Neither the
delivery of this prospectus or any prospectus supplement or any
issuer free writing prospectus nor any sale made hereunder shall
under any circumstances imply that the information contained or
incorporated by reference herein or in any prospectus supplement or
issuer free writing prospectus is correct as of any date subsequent
to the date hereof or of such document incorporated by reference,
prospectus supplement or issuer free writing prospectus, as
applicable. You should assume that the information appearing in
this prospectus, any prospectus supplement, any issuer free writing
prospectus, or any document incorporated by reference is accurate
only as of the date of the applicable documents, regardless of the
time of delivery of this prospectus or any sale of securities. Our
business, financial condition, results of operations and prospects
may have changed since that date.
Sanara,
Sanara MedTech, our logo and other trademarks or service marks
appearing in this prospectus and the documents incorporated by
reference herein are the property of Sanara MedTech, Inc. Trade
names, trademarks and service marks of other companies appearing in
this prospectus and the documents incorporated by reference herein
are the property of their respective owners. Solely for
convenience, the trademarks, service marks and trade names included
in this prospectus and the documents incorporated by reference
herein are without the ®, ™ or other applicable symbols,
but such references are not intended to indicate, in any way, that
we will not assert, to the fullest extent under applicable law, our
rights or the rights of the applicable licensors to these
trademarks, service marks and trade names.
ii
CAUTIONARY STATEMENT
REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein
contain forward-looking statements within the meaning of the
federal securities laws. Forward-looking statements generally
relate to future events or our future financial or operating
performance. In some cases, you can identify forward-looking
statements because they contain words such as
“anticipates,” “believes,”
“continue,” “contemplates,”
“could,” “estimates,”
“expects,” “intends,” “may,”
“plans,” “potential,”
“predicts,” “projects,”
“should,” “target,” “will” or
“would” or the negative of these words, variations of
these words or other similar terms or expressions that concern our
expectations, strategy, plans, or intentions. Such forward-looking
statements are subject to certain risks, uncertainties and
assumptions relating to factors that could cause actual results to
differ materially from those anticipated in such statements,
including, without limitation, the following:
●
unanticipated
changes in the markets for the Company’s
business;
●
unanticipated
downturns in business relationships with customers or their
purchases from us;
●
the potential
effects on our businesses from natural disasters;
●
the availability of
credit to customers and suppliers;
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competitive
pressures on sales and pricing;
●
unanticipated
changes in the cost of inventory and other operating
costs;
●
the introduction of
competing products;
●
unexpected
technical or marketing difficulties;
●
unexpected claims,
charges, litigation or dispute resolutions;
●
new laws and
governmental regulations;
●
stock market and
currency fluctuations;
●
war, civil or
political unrest or terrorism;
●
the course of the
COVID-19 pandemic and government responses thereto;
and
●
unanticipated
deterioration of economic and financial conditions in the United
States and around the world.
We
caution you that the foregoing list may not contain all of the risk
factors that may impact the forward-looking statements made in this
prospectus and the documents incorporated herein.
You should not rely upon forward-looking
statements as predictions of future events. We have based the
forward-looking statements contained in this prospectus primarily
on our current expectations and projections about future events and
trends that we believe may affect our business, financial
condition, results of operations, and prospects. The outcome of the
events described in these forward-looking statements is subject to
risks, uncertainties
and other factors described in the section titled “Risk
Factors” in this prospectus and in the
documents incorporated by reference in this prospectus. Moreover, we operate in a very competitive and
rapidly changing environment. New risks and uncertainties emerge
from time to time, and it is not possible for us to predict all
risks and uncertainties that could have an impact on the
forward-looking statements contained in this prospectus. We cannot
assure you that the results, events, and circumstances reflected in
the forward-looking statements will be achieved or occur, and
actual results, events, or circumstances could differ materially
from those described in the forward-looking
statements.
iii
The
forward-looking statements made, or incorporated by reference, in
this prospectus relate only to events as of the date on which the
statements are made. We undertake no obligation to update any
forward-looking statements made, or incorporated by reference, in
this prospectus to reflect events or circumstances after the date
of this prospectus or the documents incorporated by reference
herein or to reflect new information or the occurrence of
unanticipated events, except as required by law. We may not
actually achieve the plans, intentions, or expectations disclosed
in our forward-looking statements, and you should not place undue
reliance on our forward-looking statements. Our forward-looking
statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures, or investments
we may make.
In
addition, statements that “we believe” and similar
statements reflect our beliefs and opinions on the relevant
subject. These statements are based upon information available to
us as of the date of this prospectus, and while we believe such
information forms a reasonable basis for such statements, such
information may be limited or incomplete, and our statements should
not be read to indicate that we have conducted an exhaustive
inquiry into, or review of, all potentially available relevant
information. These statements are inherently uncertain, and
investors are cautioned not to unduly rely upon these
statements.
iv
PROSPECTUS
SUMMARY
This summary provides an overview of selected
information contained elsewhere or incorporated by reference in
this prospectus and does not contain all of the information you
should consider before investing in our securities. You should
carefully read the prospectus, the information incorporated by
reference and the registration statement of which this prospectus
is a part in their entirety before investing in our securities,
including the information discussed under “Risk
Factors” in this prospectus and the documents incorporated by
reference and our financial statements and notes thereto that are
incorporated by reference in this prospectus. Some of the
statements in this prospectus and the documents incorporated by
reference herein constitute forward-looking statements that involve
risks and uncertainties. See information set forth under the
section “Cautionary Statement Regarding Forward-Looking
Statements.” In this
prospectus, unless the context otherwise requires, references to
“we,” “us,” “our,” the
“Company” and “Sanara MedTech” refer to
Sanara MedTech Inc. and its subsidiaries.
Overview
We
develop, market and distribute wound and skin care products to
physicians, hospitals, clinics and post-acute care settings. Our
products are primarily sold in the North American advanced wound
care and surgical tissue repair markets. Sanara MedTech products
include CellerateRX Surgical Activated Collagen Adjuvant
(“CellerateRX”), HYCOL Hydrolyzed Collagen
(“HYCOL”), BIAKŌS Antimicrobial Skin & Wound
Cleanser (“BIAKŌS AWC”), BIAKŌS Antimicrobial
Skin and Wound Irrigation Solution and BIAKŌS Antimicrobial
Wound Gel.
CellerateRX
products are primarily purchased by hospitals and ambulatory
surgical centers for use by surgeons on surgical wounds. HYCOL
products are used in skilled nursing facilities, wound care clinics
and other medical facilities, and are intended for the management
of full and partial thickness wounds including pressure ulcers,
venous and arterial leg ulcers and diabetic foot ulcers. HYCOL is
currently approved for reimbursement under Medicare Part B. We
believe CellerateRX and HYCOL products are unique in composition,
superior to other products in clinical performance, and demonstrate
the ability to reduce costs associated with the standards of care
for their intended uses.
BIAKŌS AWC is
an FDA cleared, patented product that effectively disrupts
extracellular polymeric substances to eradicate biofilm microbes.
BIAKŌS AWC also provides mechanical removal of debris, dirt,
foreign materials, and microorganisms from wounds including stage
I-IV pressure ulcers, diabetic foot ulcers, post-surgical wounds,
first and second-degree burns as well as grafted and donor sites.
BIAKŌS AWC is effective in killing free-floating microbes,
immature, and mature bacterial biofilms and fungal biofilms. In
addition, safety studies demonstrated that BIAKŌS AWC is
biocompatible and supports the wound healing process. Initial sales
of BIAKŌS AWC occurred in July 2019. BIAKŌS AWC is also
available in an irrigation bottle (BIAKŌS Antimicrobial Skin
and Wound Irrigation Solution) that can be used in conjunction with
negative pressure wound therapy installation and dwell (NPWTi-d)
and other wound irrigation needs.
BIAKŌS
Antimicrobial Wound Gel is an antimicrobial hydrogel wound dressing
that can be used alone or in combination with BIAKŌS AWC.
Based on laboratory studies, when used in conjunction, the products
can work together to enhance effectiveness. The cleanser is applied
initially to clean a wound and disrupts biofilm microbes (removing
99% in 10 minutes). The gel can then be applied and will remain in
the wound for up to 72 hours helping to continue to disrupt biofilm
microbes. When used in clinical settings, BIAKŌS
Antimicrobial Wound Gel is indicated for the management of partial
and full thickness wounds, such as diabetic foot ulcers,
post-surgical wounds, pressure ulcers, first and second-degree
burns, grafts and donor sites.
Corporate Information
We were
incorporated in Texas on December 14, 2001. On March 15, 2019, we
entered into a Share Exchange Agreement with CGI Cellerate RX, LLC,
an affiliate of The Catalyst Group, Inc. (“Catalyst”),
pursuant to which we acquired Catalyst’s 50% equity interest
in Cellerate, LLC (“Cellerate”) in exchange for
1,136,815 shares of our newly created Series F Convertible
Preferred Stock (the “Cellerate Acquisition”). Prior to
the consummation of the Cellerate Acquisition, we and Catalyst each
owned a 50% equity interest in Cellerate. The Cellerate Acquisition
was accounted for as a reverse merger, and Cellerate was deemed to
be the accounting acquirer. In May 2019, we changed our name to
Sanara MedTech Inc.
1
Our
principal executive offices are located at 1200 Summit Ave, Suite
414, Fort Worth, Texas 76102, telephone number (817) 529-2300. Our
website address is www.sanaramedtech.com. Information accessed
through our website is not incorporated into this prospectus and is
not a part of this prospectus.
Offerings Under This Prospectus
We may
offer up to $150,000,000 of common stock, preferred stock, warrants
and/or units in one or more offerings and in any combination. This
prospectus provides you with a general description of the
securities we may offer. A prospectus supplement, which we will
provide each time we offer securities, will describe the specific
amounts, prices and terms of these securities.
Common Stock
We may
issue shares of our common stock from time to time. The holders of
common stock are entitled to one vote per share. Our Certificate of
Formation, as amended (the “Certificate of Formation”),
does not provide for cumulative voting. All of our directors hold
office for one-year terms until the election and qualification of
their successors. The holders of our common stock are entitled to
receive ratably such dividends, if any, as may be declared by the
board of directors out of legally available funds. Upon
liquidation, dissolution or winding-up, the holders of our common
stock are entitled to share ratably in all assets that are legally
available for distribution. The holders of our common stock have no
preemptive, subscription, redemption or conversion rights. The
rights, preferences and privileges of holders of our common stock
are subject to, and may be adversely affected by, the rights of the
holders of any series of preferred stock, which may be designated
solely by action of the board of directors and issued in the
future.
Preferred Stock
We may
issue shares of our preferred stock from time to time, in one or
more series. Our board of directors will determine the rights,
preferences, privileges and restrictions of the preferred stock,
including dividend rights, conversion rights, voting rights, terms
of redemption, liquidation preferences, sinking fund terms and the
number of shares constituting any series or the designation of such
series, without any further vote or action by shareholders.
Convertible preferred stock will be convertible into our common
stock or exchangeable for our other securities. Conversion may be
mandatory or at your option or both and would be at prescribed
conversion rates.
If we
sell any series of preferred stock under this prospectus and
applicable prospectus supplements, we will fix the rights,
preferences, privileges and restrictions of the preferred stock of
such series in the certificate of designation relating to that
series. We will file as an exhibit to the registration statement of
which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of any certificate
of designation that describes the terms of the series of preferred
stock we are offering before the issuance of the related series of
preferred stock. We urge you to read the applicable prospectus
supplement related to the series of preferred stock being offered,
as well as the complete certificate of designation that contains
the terms of the applicable series of preferred stock.
Warrants
We may
issue warrants for the purchase of common stock or preferred stock
in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may
be attached to or separate from these securities. We will evidence
each series of warrants by warrant certificates that we will issue
under a separate agreement. We may enter into warrant agreements
with a bank or trust company that we select to be our warrant
agent. We will indicate the name and address of any such warrant
agent in the applicable prospectus supplement relating to a
particular series of warrants.
2
In this
prospectus, we have summarized certain general features of the
warrants. We urge you, however, to read the applicable prospectus
supplement related to the particular series of warrants being
offered, as well as the warrant agreements and warrant certificates
that contain the terms of the warrants. We will file as exhibits to
the registration statement of which this prospectus is a part, or
will incorporate by reference from reports that we file with the
SEC, the form of warrant agreement or warrant certificate
containing the terms of the warrants we are offering before the
issuance of the warrants.
Units
We may
issue units consisting of common stock, preferred stock and/or
warrants for the purchase of common stock or preferred stock in one
or more series. In this prospectus, we have summarized certain
general features of the units. We urge you, however, to read the
applicable prospectus supplement related to the series of units
being offered, as well as the unit agreements that contain the
terms of the units. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate
by reference from reports that we file with the SEC, the form of
unit agreement and any supplemental agreements that describe the
terms of the series of units we are offering before the issuance of
the related series of units.
3
RISK FACTORS
An investment in our securities involves a high degree of risk.
Before deciding whether to invest in our securities, you should
consider carefully the specific factors discussed under the heading
“Risk Factors” in the applicable prospectus supplement,
together with all of the other information contained or
incorporated by reference in the prospectus supplement or appearing
or incorporated by reference in this prospectus. You should also
consider the risks, uncertainties and assumptions discussed under
Item 1A, “Risk Factors,” in our most recent Annual
Report on Form 10-K and any updates in our Quarterly Reports on
Form 10-Q or in other documents that are filed after the date
hereof and incorporated by reference into this prospectus and any
prospectus supplement related to a particular offering. The risks
and uncertainties we have described are not the only ones we face.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also affect our operations.
Past financial performance may not be a reliable indicator of
future performance, and historical trends should not be used to
anticipate results or trends in future periods. If any of these
risks actually occurs, our business, business prospects, financial
condition or results of operations could be seriously harmed. This
could cause the trading price of our common stock to decline,
resulting in a loss of all or part of your investment. Please also
read carefully the section above entitled “Cautionary
Statement Regarding Forward-Looking Statements.”
4
USE OF
PROCEEDS
We
cannot assure you that we will receive any proceeds in connection
with securities which may be offered pursuant to this prospectus.
Unless otherwise indicated in the applicable prospectus supplement,
we intend to use any net proceeds from the sale of securities under
this prospectus for our operations and for other general corporate
purposes, including, but not limited to, general working capital
and possible future acquisitions. We have not determined the
amounts we plan to spend on any of the areas listed above or the
timing of these expenditures. As a result, our management will have
broad discretion to allocate the net proceeds, if any, we receive
in connection with securities offered pursuant to this prospectus
for any purpose. Pending application of the net proceeds as
described above, we may initially invest the net proceeds in
investment-grade, interest-bearing securities such as money market
funds, certificates of deposit, or direct or guaranteed obligations
of the U.S. government, hold the net proceeds as cash or apply the
net proceeds to the reduction of short-term
indebtedness.
5
DESCRIPTION OF CAPITAL
STOCK
The
following description of common stock and preferred stock
summarizes the material terms and provisions of the common stock
and preferred stock that we may offer under this prospectus, but is
not complete. For the complete terms of our common stock and
preferred stock, please refer to our Certificate of Formation, any
certificates of designation for our preferred stock and our bylaws.
While the terms we have summarized below will apply generally to
any future common stock or preferred stock that we may offer, we
will describe the specific terms of any series of preferred stock
in more detail in the applicable prospectus supplement. If we so
indicate in a prospectus supplement, the terms of any preferred
stock we offer under that prospectus supplement may differ from the
terms we describe below.
We
have authorized 22,000,000 shares of capital stock, 20,000,000 of
which are designated as common stock, par value $0.001 per share,
and 2,000,000 of which are designated as “blank check”
preferred stock, par value $10.00 per share, none of which are
currently designated as an outstanding series. On December 21,
2020, there were 6,293,968 shares of common stock issued and
outstanding and no shares of preferred stock
outstanding.
Common Stock
Voting Rights
Holders
of shares of common stock are entitled to one vote for each share
held of record on all matters to be voted on by shareholders.
Except as otherwise provided by law, matters other than the
election of directors require the affirmative vote of the holders
of a majority of shares entitled to vote thereon. Holders of our
common stock do not have any cumulative voting rights, which means
that a plurality of the shares voted can elect all of the directors
then standing for election. Holders of common stock vote together
as a single class.
Dividend Rights
Subject
to preferential dividend rights of any other class or series of
stock, the holders of shares of common stock are entitled to
receive dividends, including dividends of equity, as and when
declared by our board of directors, subject to any limitations
applicable by law and to the rights of the holders, if any, of our
preferred stock. Our board of directors is not obligated to declare
a dividend.
Liquidation Rights
Upon
our liquidation, dissolution or winding-up, the holders of our
common stock are entitled to share equally, identically and ratably
in all assets remaining, subject to the prior satisfaction of all
outstanding debt and liabilities and the preferential rights and
payment of liquidation preferences, if any, on any outstanding
shares of preferred stock.
Other Rights and Preferences
Subject
to the preferential rights of any other class or series of stock,
all shares of common stock have equal dividend, distribution,
liquidation and other rights, and have no preference, appraisal or
exchange rights, except for any appraisal rights provided by Texas
law. Furthermore, holders of common stock have no conversion,
sinking fund or redemption rights, or preemptive rights to
subscribe for any of our securities.
The
rights, powers, preferences and privileges of holders of common
stock are subject to, and may be adversely affected by, the rights
of holders of shares of any series of preferred stock which we may
designate and issue in the future.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Securities
Transfer Corporation, Plano, Texas.
6
Listing
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “SMTI.”
Preferred Stock
Our
board of directors is authorized, subject to limitations prescribed
by Texas law, to issue up to 2,000,000 shares of preferred stock in
one or more series, to establish from time to time the number of
shares to be included in each series, and to fix the designation,
powers, preferences, and rights of the shares of each series and
any of its qualifications, limitations, or restrictions, in each
case without further vote or action by our shareholders. Our board
of directors can also increase or decrease the number of shares of
any series of preferred stock, but not below the number of shares
of that series then outstanding, without any further vote or action
by our shareholders. Our board of directors may authorize the
issuance of preferred stock with voting or conversion rights that
could adversely affect the voting power or other rights of the
holders of our common stock. The issuance of preferred stock, while
providing flexibility in connection with possible acquisitions and
other corporate purposes, could, among other things, have the
effect of delaying, deferring, or preventing a change in control of
our company and might adversely affect the market price of our
common stock and the voting and other rights of the holders of our
common stock.
If we
offer shares of preferred stock, we will file as an exhibit to the
registration statement of which this prospectus forms a part, or
will incorporate by reference from reports that we file with the
SEC, the form of any certificate of designation that describes the
terms of the series of preferred stock we are offering. This
description and the applicable prospectus supplement will
include:
●
the title and
stated value;
●
the number of
shares authorized;
●
the liquidation
preference per share;
●
the purchase
price;
●
the dividend rate,
period and payment date, and method of calculation for
dividends;
●
whether dividends
will be cumulative or non-cumulative and, if cumulative, the date
from which dividends will accumulate;
●
the procedures for
any auction and remarketing, if any;
●
the provisions for
a sinking fund, if any;
●
the provisions for
redemption or repurchase, if applicable, and any restrictions on
our ability to exercise such redemption and repurchase
rights;
●
any listing of the
preferred stock on any securities exchange or market;
●
whether the
preferred stock will be convertible into our common stock, and, if
applicable, the conversion price, or how it will be calculated, and
the conversion period;
●
voting rights, if
any, of the preferred stock;
●
preemptive rights,
if any;
●
restrictions on
transfer, sale or other assignment, if any;
7
●
a discussion of any
material United States federal income tax considerations applicable
to the preferred stock;
●
the relative
ranking and preferences of the preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our
affairs;
●
any limitations on
issuance of any class or series of preferred stock ranking senior
to or on a parity with the series of preferred stock as to dividend
rights and rights if we liquidate, dissolve or wind up our affairs;
and
●
any other specific
terms, preferences, rights or limitations of, or restrictions on,
the preferred stock.
The
transfer agent, registrar, and dividend disbursement agent, if any,
for a series of preferred stock will be named in a prospectus
supplement. The registrar for shares of preferred stock will send
notices to stockholders of any meetings at which holders of the
preferred stock have the right to elect directors or to vote on any
other matter.
Texas Anti-Takeover Law and Provisions of our Certificate of
Formation and Bylaws
A
number of provisions of Texas law, our Certificate of Formation and
our bylaws could have an anti-takeover effect and make more
difficult the acquisition of the Company by means of a tender
offer, a proxy contest or otherwise and the removal of our
directors or management. These provisions are intended to
discourage coercive takeover practices and inadequate takeover bids
and to encourage persons seeking to acquire control of the Company
to negotiate first with our board of directors.
We
are subject to the provisions of Title 2, Chapter 21, Subchapter M
of the Texas Business Organizations Code (the “TBOC”),
which provides that a Texas corporation that qualifies as an
“issuing public corporation” (as defined in the TBOC)
may not engage in specified types of business combinations,
including mergers, consolidations and asset sales, with a person,
or an affiliate or associate of that person, who is an
“affiliated shareholder.” The restrictions in Title 2,
Chapter 21, Subchapter M of the TBOC do not apply to corporations
that have elected, in the manner provided under the TBOC, not to be
subject to such provisions. Our Certificate of Formation
affirmatively states that the Company elects not to be governed by
such provisions, and neither our Certificate of Formation nor
bylaws provide a similar restriction on business
combinations.
However,
provisions of our Certificate of Formation 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 shareholders might otherwise receive a premium for their
shares, or transactions that our shareholders might otherwise deem
to be in their best interests. Therefore, these provisions could
adversely affect the price of our common stock. Among other things,
for example, our Certificate of Formation and bylaws:
●
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);
●
empower
our board of directors, without shareholder approval, to issue our
preferred stock, the terms of which, including voting power, are
set by our board of directors;
●
require
that special meetings of the shareholders be called by the Chairman
of the board of directors, the President or the board of directors,
or by the holders of not less than ten percent (10%) of all the
shares issued, outstanding and entitled to vote;
●
permit
our board of directors to alter, amend or repeal our bylaws or to
adopt new bylaws; and
●
enable
our board of directors to increase the number of persons serving as
directors and to fill vacancies created as a result of the increase
by a majority vote of the directors present at a meeting of
directors.
8
Indemnification of Directors and Officers
Pursuant
to the TBOC, a corporation has the power to indemnify its directors
and officers against judgments and certain expenses other than
judgments that are actually and reasonably incurred in connection
with a proceeding, provided that there is a determination that the
individual acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation
and, with respect to any criminal proceeding, had no reasonable
cause to believe the individual’s conduct was unlawful. Such
determination will be made, in the case of an individual who is a
director or officer at the time of such determination:
●
by
a majority of the disinterested and independent directors, even
though less than a quorum;
●
by
a majority vote of a committee of the directors if the committee is
designated by a majority vote of the directors, who at the time of
the vote are disinterested and independent, even though less than a
quorum, and is composed solely of one or more directors who are
disinterested and independent;
●
by
special legal counsel selected by the directors, or selected by a
committee of the directors as described in the preceding two
subparts above;
●
by
the owners or members of the corporation in a vote that excludes
the ownership or membership interests held by each director who is
not disinterested and independent; or
●
by
a unanimous vote of the owners or members of the
corporation.
No
indemnification may be made in respect of any proceeding in which
such individual is liable to the corporation or improperly received
a personal benefit and is found liable for willful misconduct,
breach of the duty of loyalty owned to the corporation, or an act
or omission deemed not to be committed in good faith.
The
TBOC requires indemnification of directors and officers for
reasonable expenses relating to a wholly successful defense on the
merits or otherwise in defense of a proceeding.
The
TBOC permits a corporation to advance expenses relating to the
defense of any proceeding to directors and officers, contingent
upon, among other things, such individuals’ commitment to
repay any advances unless it is determined ultimately that such
individuals are entitled to be indemnified.
Our
Certificate of Formation and bylaws provide for indemnification by
us of our directors and officers to the fullest extent permitted by
Texas Law.
Limitation of Personal Liability of Directors
Our
Certificate of Formation provides that our directors will not be
personally liable to us or any of our shareholders for monetary
damages for an act or omission in the director’s capacity as
a director to the fullest extent permitted by Texas
law.
The
TBOC provides that a corporation’s certificate of formation
may include a provision limiting the personal liability of a
director to the corporation or its shareholders for monetary
damages for an act or omission as a director. However, no such
provision can eliminate or limit the liability of a director
for:
●
any
breach of the director’s duty of loyalty to the corporation
or its shareholders;
●
acts
or omissions not in good faith or that constitute a breach of a
duty owed to the corporation or involve intentional misconduct or a
knowing violation of the law;
●
violation
of certain provisions of the Texas Law; or
●
any
transaction from which the director received an improper
benefit.
9
DESCRIPTION OF
WARRANTS
We may
issue warrants for the purchase of common stock or preferred stock
in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may
be attached to or separate from these securities.
We will
evidence each series of warrants by warrant certificates that we
may issue under a separate agreement. We may enter into a warrant
agreement with a warrant agent. Each warrant agent may be a bank
that we select which has its principal office in the United States.
We may also choose to act as our own warrant agent. We will
indicate the name and address of any such warrant agent in the
applicable prospectus supplement relating to a particular series of
warrants.
We will
describe in the applicable prospectus supplement the terms of the
series of warrants, including:
●
the offering price
and aggregate number of warrants
offered;
●
if applicable, the
designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or
each principal amount of such security;
●
if applicable, the
date on and after which the warrants and the related securities
will be separately transferable;
●
in the case of
warrants to purchase common stock or preferred stock, the number or
amount of shares of common stock or preferred stock, as the case
may be, purchasable upon the exercise of one warrant and the price
at which and currency in which these shares may be purchased upon
such exercise;
●
the manner of
exercise of the warrants, including any cashless exercise
rights;
●
any warrant
agreement under which the warrants will be issued;
●
the effect of any
merger, consolidation, sale or other disposition of our business on
the warrant agreement and the warrants;
●
anti-dilution
provisions of the warrants, if any;
●
the terms of any
rights to redeem or call the warrants;
●
any provisions for
changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the
warrants;
●
the dates on which
the right to exercise the warrants will commence and expire or, if
the warrants are not continuously exercisable during that period,
the specific date or dates on which the warrants will be
exercisable;
●
the manner in which
any warrant agreement and warrants may be modified;
●
the identities of
any warrant agent and any calculation or other agent for the
warrants;
●
federal income tax
consequences of holding or exercising the warrants;
●
the terms of the
securities issuable upon exercise of the warrants;
●
any securities
exchange or quotation system on which the warrants or any
securities deliverable upon exercise of the warrants may be listed
or quoted; and
●
any other specific
terms, preferences, rights or limitations of or restrictions on the
warrants.
10
Before
exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such
exercise, including, in the case of warrants to purchase common
stock or preferred stock, the right to receive dividends, if any,
or, payments upon our liquidation, dissolution or winding up or to
exercise voting rights, if any.
Exercise of Warrants
Each
warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement.
Unless we otherwise specify in the applicable prospectus
supplement, holders of the warrants may exercise the warrants at
any time up to 5:00 P.M. eastern time, the close of business, on
the expiration date that we set forth in the applicable prospectus
supplement. After the close of business on the expiration date,
unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with
specified information, and paying the required exercise price by
the methods provided in the applicable prospectus supplement. We
will set forth on the reverse side of the warrant certificate, and
in the applicable prospectus supplement, the information that the
holder of the warrant will be required to deliver to the Company or
any warrant agent.
Upon
receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of the
warrants represented by the warrant certificate are exercised, then
we will issue a new warrant certificate for the remaining amount of
warrants.
Enforceability of Rights by Holders of Warrants
Any
warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than
one issue of warrants. A warrant agent will have no duty or
responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a warrant may, without the consent of
the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action the holder’s right to
exercise, and receive the securities purchasable upon exercise of,
its warrants in accordance with their terms.
Warrant Agreement Will Not Be Qualified Under Trust Indenture
Act
No
warrant agreement will be qualified as an indenture, and no warrant
agent will be required to qualify as a trustee, under the Trust
Indenture Act of 1939. Therefore, holders of warrants issued under
a warrant agreement will not have the protection of the Trust
Indenture Act of 1939 with respect to their warrants.
Governing Law
Unless
we provide otherwise in the applicable prospectus supplement, each
warrant agreement and any warrants issued under the warrant
agreements will be governed by New York law.
11
DESCRIPTION OF
UNITS
We may
issue units comprised of one or more of the other securities
described in this prospectus or any prospectus supplement in any
combination. Each unit will be issued so that the holder of the
unit is also the holder, with the rights and obligations of a
holder, of each security included in the unit. The unit agreement
under which a unit is issued may provide that the securities
included in the unit may not be held or transferred separately, at
any time or at any times before a specified date or upon the
occurrence of a specified event or occurrence.
The
applicable prospectus supplement will describe:
●
the designation and
the terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may
be held or transferred separately;
●
any unit agreement
under which the units will be issued;
●
any provisions for
the issuance, payment, settlement, transfer or exchange of the
units or of the securities comprising the units; and
●
whether the units
will be issued in fully registered or global
form.
12
PLAN OF
DISTRIBUTION
We may
sell the securities offered pursuant to this prospectus from time
to time in one or more transactions, including, without
limitation:
●
to or through
underwriters;
●
through
broker-dealers (acting as agent or principal);
●
through
agents;
●
directly by us to
one or more purchasers (including our affiliates and shareholders),
through a specific bidding or auction process, a rights offering or
otherwise;
●
through a
combination of any such methods of sale; or
●
through any other
methods described in a prospectus supplement or free writing
prospectus.
The
distribution of securities may be effected, from time to time, in
one or more transactions, including:
●
block transactions
(which may involve crosses) and transactions on The Nasdaq Capital
Market or any other organized market where the securities may be
traded;
●
purchases by a
broker-dealer as principal and resale by the broker-dealer for its
own account pursuant to a prospectus supplement or free writing
prospectus;
●
ordinary brokerage
transactions and transactions in which a broker-dealer solicits
purchasers;
●
sales “at the
market” to or through a market maker or into an existing
trading market, on an exchange or otherwise; and
●
sales in other ways
not involving market makers or established trading markets,
including direct sales to purchasers.
The
applicable prospectus supplement or free writing prospectus will
describe the terms of the offering of the securities,
including:
●
the name or names
of any underwriters, and if required, any dealers or
agents;
●
the purchase price
of the securities and the proceeds we will receive from the
sale;
●
any underwriting
discounts and other items constituting underwriters’
compensation;
●
any discounts or
concessions allowed or re-allowed or paid to dealers;
and
●
any securities
exchange or market on which the securities may be listed or
traded.
We may
distribute the securities from time to time in one or more
transactions at:
●
a fixed price or
prices, which may be changed;
●
market prices
prevailing at the time of sale;
●
prices related to
such prevailing market prices; or
●
negotiated
prices.
13
Only
underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an
underwriting agreement with such underwriters and will specify the
name of each underwriter and the terms of the transaction
(including any underwriting discounts and other terms constituting
compensation of the underwriters and any dealers) in a prospectus
supplement. The securities may be offered to the public either
through underwriting syndicates represented by managing
underwriters or directly by one or more investment banking firms or
others, as designated. If an underwriting syndicate is used, the
managing underwriter(s) will be specified on the cover of the
prospectus supplement. If underwriters are used in the sale, the
offered securities will be acquired by the underwriters for their
own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale.
Any public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
Unless otherwise set forth in the prospectus supplement, the
obligations of the underwriters to purchase the offered securities
will be subject to conditions precedent, and the underwriters will
be obligated to purchase all of the offered securities, if any are
purchased.
We may
grant to the underwriters options to purchase additional securities
to cover over-allotments, if any, at the public offering price,
with additional underwriting commissions or discounts, as may be
set forth in a related prospectus supplement. The terms of any
over-allotment option will be set forth in the prospectus
supplement for those securities.
If we
use a dealer in the sale of the securities being offered pursuant
to this prospectus or any prospectus supplement, we will sell the
securities to the dealer, as principal. The dealer may then resell
the securities to the public at varying prices to be determined by
the dealer at the time of resale. The names of the dealers and the
terms of the transaction will be specified in a prospectus
supplement.
We may
sell the securities directly or through agents we designate from
time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we will pay
the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, any agent will act on a best-efforts
basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by institutional
investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on a
specified date in the future. We will describe the conditions to
these contracts and the commissions we must pay for solicitation of
these contracts in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers
or agents may receive compensation from us or from purchasers of
the securities for whom they act as agents, in the form of
discounts, concessions or commissions. Underwriters may sell the
securities to or through dealers, and those dealers may receive
compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom
they may act as agents. Underwriters, dealers and agents that
participate in the distribution of the securities, and any
institutional investors or others that purchase securities directly
for the purpose of resale or distribution, may be deemed to be
underwriters, and any discounts or commissions received by them
from us and any profit on the resale of the common stock by them
may be deemed to be underwriting discounts and commissions under
the Securities Act of 1933, as amended.
We may
provide agents, underwriters and other purchasers with
indemnification against particular civil liabilities, including
liabilities under the Securities Act, or contribution with respect
to payments that the agents, underwriters or other purchasers may
make with respect to such liabilities. Agents and underwriters may
engage in transactions with, or perform services for, us in the
ordinary course of business.
14
To
facilitate the public offering of a series of securities, persons
participating in the offering may engage in transactions that
stabilize, maintain, or otherwise affect the market price of the
securities. This may include over-allotments or short sales of the
securities, which involves the sale by persons participating in the
offering of more securities than have been sold to them by us. In
addition, those persons may stabilize or maintain the price of the
securities by bidding for or purchasing securities in the open
market or by imposing penalty bids, whereby selling concessions
allowed to underwriters or dealers participating in any such
offering may be reclaimed if securities sold by them are
repurchased in connection with stabilization transactions. The
effect of these transactions may be to stabilize or maintain the
market price of the securities at a level above that which might
otherwise prevail in the open market. Such transactions, if
commenced, may be discontinued at any time. We make no
representation or prediction as to the direction or magnitude of
any effect that the transactions described above, if implemented,
may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, any
common stock sold pursuant to a prospectus supplement will be
eligible for listing on The Nasdaq Capital Market, subject to
official notice of issuance. Any underwriters to whom securities
are sold by us for public offering and sale may make a market in
the securities, but such underwriters will not be obligated to do
so and may discontinue any market making at any time without
notice.
In
order to comply with the securities laws of some states, if
applicable, the securities offered pursuant to this prospectus will
be sold in those states only through registered or licensed brokers
or dealers. In addition, in some states securities may not be sold
unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or
qualification requirement is available and complied
with.
15
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be
passed upon for us by Haynes and Boone, LLP, Dallas, Texas. If
legal matters in connection with offerings made by this prospectus
are passed on by counsel for the underwriters, dealers or agents,
if any, that counsel will be named in the applicable prospectus
supplement.
EXPERTS
Our
financial statements as of December 31, 2019 and 2018 and for the
years then ended incorporated in this prospectus by reference to
our Annual Report on Form 10-K for the year ended December 31, 2019
have been audited by MaloneBailey, LLP, an independent registered
public accounting firm, as stated in its report appearing in the
registration statement, and are incorporated in reliance upon the
report of such firm given upon its authority as experts in
accounting and auditing.
WHERE YOU CAN
FIND MORE INFORMATION
We are
subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
and in accordance therewith file annual, quarterly and current
reports, proxy statements and other information with the SEC. The
SEC maintains an internet website at www.sec.gov that contains
periodic and current reports, proxy and information statements and
other information regarding registrants that are filed
electronically with the SEC.
These
documents are also available, free of charge, through the Investor
Relations section of our website, which is located at
www.sanaramedtech.com.
We have
filed with the SEC a registration statement under the Securities
Act relating to the offering of these securities. The registration
statement, including the attached exhibits, contains additional
relevant information about us and the securities. This prospectus
does not contain all of the information set forth in the
registration statement. You can obtain a copy of the registration
statement for free at www.sec.gov. The registration statement and
the documents referred to below under “Incorporation of
Documents by Reference” are also available on our website,
www.sanaramedtech.com.
We have
not incorporated by reference into this prospectus the information
on our website, and you should not consider it to be a part of this
prospectus.
INCORPORATION OF
DOCUMENTS BY REFERENCE
The SEC
allows us to “incorporate by reference” the information
we have filed with it, which means that we can disclose important
information to you by referring you to those documents. The
information we incorporate by reference is an important part of
this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We
specifically are incorporating by reference the following documents
filed with the SEC (excluding those portions of any Current Report
on Form 8-K that are furnished and not deemed “filed”
pursuant to the General Instructions of Form 8-K):
●
our
Annual
Report on Form 10-K for the
fiscal year ended December 31, 2019, filed with the SEC on March
26, 2020;
●
the portions of our
Definitive
Proxy Statement on Schedule 14A, filed with the SEC on June 25, 2020, that were
deemed to be filed with the SEC;
●
our Quarterly Reports on Form 10-Q
for the
quarter ended March 31, 2020, filed with the SEC on May 12, 2020,
for the
quarter ended June 30, 2020, filed with the SEC on August 13, 2020,
and
for the
quarter ended September 30, 2020, filed with the SEC on November 13,
2020;
16
●
our Current Reports on Form 8-K filed on
February
13, 2020,
April 29,
2020,
May 8,
2020,
May 21,
2020, July
14, 2020 (as amended
on
October
14, 2020),
October
16, 2020 and
December 23, 2020; and
●
the description of our securities contained in our
registration statement on
Form
8-A, filed with the SEC on
October 29, 2020, including all amendments and reports filed for
the purpose of updating such description.
All reports and
definitive proxy or information statements subsequently filed after
the date of the initial registration statement of which this
prospectus forms a part and prior to effectiveness of such
registration statement by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, but excluding information
furnished to, rather than filed with, the SEC, shall be deemed to
be incorporated by reference herein and to be a part hereof from
the date such documents are filed.
Any
statement contained herein or in any document incorporated or
deemed to be incorporated by reference shall be deemed to be
modified or superseded for purposes of the registration statement
of which this prospectus forms a part to the extent that a
statement contained in any other subsequently filed document which
also is or is deemed to be incorporated by reference modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of the
registration statement of which this prospectus forms a part,
except as so modified or superseded.
You
should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to
provide you with different information. You should not assume that
the information in this prospectus is accurate as of any date other
than the date of this prospectus or the date of the documents
incorporated by reference in this prospectus.
We will
provide without charge to each person to whom a copy of this
prospectus is delivered, upon written or oral request, a copy of
any or all of the information that has been incorporated by
reference in this prospectus but not delivered with this prospectus
(other than an exhibit to these filings, unless we have
specifically incorporated that exhibit by reference in this
prospectus). Any such request should be addressed to us at 1200
Summit Ave, Suite 414, Fort Worth, Texas 76102 (telephone:
817-529-2300).
You may
also access the documents incorporated by reference in this
prospectus through our website at www.sanaramedtech.com. Except for
the specific incorporated documents listed above, no information
available on or through our website shall be deemed to be
incorporated in this prospectus or the registration statement of
which it forms a part.
17
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|
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$150,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
UNITS
PROSPECTUS
|
|
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses payable
by the registrant expected to be incurred in connection with the
issuance and distribution of the securities being registered hereby
(other than underwriting discounts and commissions). All of such
expenses are estimates, except for the SEC registration fee. The
additional estimated amounts, if any, of fees and expenses to be
incurred, to the extent applicable, in connection with any offering
of securities pursuant to this registration statement will be
determined from time to time and reflected in the applicable
prospectus supplement.
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Amount
to
be Paid
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SEC registration
fee
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$16,365.00
|
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Printing fees and
expenses
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2,000.00
|
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Transfer agent and
registrar fees
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1,000.00
|
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Accounting fees and
expenses
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2,500.00
|
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Legal fees and
expenses
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20,000.00
|
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Miscellaneous
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2,500.00
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Total
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$44,365.00
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Item 15. Indemnification of Directors and Officers.
Section
8.101 of the TBOC provides that a corporation may indemnify any
director or officer who was, is or is threatened to be named as a
defendant or respondent in a proceeding because he is or was a
director or officer, provided that the director or officer (i)
conducted himself in good faith, (ii) reasonably believed (a) in
the case of conduct in his official capacity, that his conduct was
in the corporation's best interests or (b) in all other cases, that
his conduct was not opposed to the corporation’s best
interests and (iii) in the case of any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. Subject to
certain exceptions, a director or officer may not be indemnified if
such person is found liable to the corporation or if such person is
found liable on the basis that he improperly received a personal
benefit. Under Texas law, reasonable expenses incurred by a
director or officer may be paid or reimbursed by the corporation in
advance of a final disposition of the proceeding after the
corporation receives a written affirmation by the director or
officer of his good faith belief that he has met the standard of
conduct necessary for indemnification and a written undertaking by
or on behalf of the director or officer to repay the amount if it
is ultimately determined that the director or officer is not
entitled to indemnification by the corporation. Texas law requires
a corporation to indemnify an officer or director against
reasonable expenses incurred in connection with a proceeding in
which he is named a defendant or respondent because he is or was a
director or officer if he is wholly successful in the defense of
the proceeding.
Texas
law also permits a corporation to purchase and maintain insurance
or another arrangement on behalf of any person who is or was a
director or officer against any liability asserted against him and
incurred by him in such a capacity or arising out of his status as
such a person, whether or not the corporation would have the power
to indemnify him against that liability under Section 8.101 of the
TBOC.
Our
Certificate of Formation and bylaws provide that we will, to the
fullest extent permitted by the TBOC, indemnify each of our
directors and officers against liabilities imposed upon them
(including reasonable amounts paid in settlement) and expenses
incurred by them in connection with any claim made against them or
any action, suit or proceeding to which they may be a party by
reason of their being or having been a director or officer of the
Company or having served in the same or other capacities for
another entity at the request of the Company.
The
indemnification rights set forth above shall not be exclusive of
any other right which an indemnified person may have or hereafter
acquire under any statute, provision of our Certificate of
Formation or bylaws, agreement, vote of shareholders or
disinterested directors or otherwise.
II-1
We have
entered into indemnification agreements with each of the
individuals serving on our board of directors. These agreements
provide for the indemnification of our directors to the fullest
extent permitted by law. We believe that these bylaw provisions and
indemnification agreements are necessary to attract and retain
qualified persons as directors, officers and employees. We also
maintain directors’ and officers’ liability
insurance.
Item 16. Exhibits.
The
following exhibits are filed with this registration
statement.
The
agreements included or incorporated by reference as exhibits to
this registration statement contain representations and warranties
by each of the parties to the applicable agreement. These
representations and warranties were made solely for the benefit of
the other parties to the applicable agreement and (i) were not
intended to be treated as categorical statements of fact, but
rather as a way of allocating the risk to one of the parties if
those statements prove to be inaccurate; (ii) may have been
qualified in such agreement by disclosures that were made to the
other party in connection with the negotiation of the applicable
agreement; (iii) may apply contract standards of
“materiality” that are different from
“materiality” under the applicable securities laws; and
(iv) were made only as of the date of the applicable agreement or
such other date or dates as may be specified in the
agreement.
The
undersigned registrant acknowledges that, notwithstanding the
inclusion of the foregoing cautionary statements, it is responsible
for considering whether additional specific disclosures of material
information regarding material contractual provisions are required
to make the statements in this registration statement not
misleading.
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Exhibit No.
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Description
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1.1*
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Form of
Underwriting Agreement.
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Share
Exchange Agreement, dated March 15, 2019, between Catalyst
CellerateRX, LLC and WNDM Medical Inc. (incorporated by reference
to Exhibit 2.1 to the Company’s Current Report on Form 8-K
dated March 21, 2019).
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Certificate of
Formation of Sanara MedTech Inc. (incorporated by reference to
Exhibit 3.1 to the Company’s Registration Statement on Form
S-1 filed April 11, 2008).
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Amendment to
Certificate of Formation of Sanara MedTech Inc. (incorporated by
reference to Exhibit A to the Company’s Information Statement
filed with the SEC on May 13, 2008).
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Amendment to
Certificate of Formation of Sanara MedTech Inc., effective February
20, 2015 (incorporated by reference to Exhibit 4.4 to the
Company’s Registration Statement on Form S-8, filed with the
SEC on February 21, 2020).
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Amendment to
Certificate of Formation of Sanara MedTech Inc., effective May 10,
2019 (incorporated by reference to Exhibit 4.4 to the
Registrant’s Registration Statement on Form S-8, filed with
the SEC on February 21, 2020).
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Bylaws
(incorporated by reference to Exhibit 3.2 to the Company’s
Registration Statement on Form S-1 filed April 11,
2008).
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Certificate of
Designations of Series F Convertible Preferred Stock (incorporated
by reference to Exhibit 3.1 to the Company’s Current Report
on Form 8-K, filed with the SEC on March 21, 2019).
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||
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4.2*
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Certificate of
Designation of Preferred Stock.
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4.3*
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Form of
Warrant Agreement and Warrant Certificate.
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4.4*
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Form of
Unit Agreement.
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5.1**
|
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Opinion
of Haynes and Boone, LLP.
|
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23.1**
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Consent
of MaloneBailey, LLP.
|
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23.2**
|
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Consent
of Haynes and Boone, LLP (included in Exhibit 5.1).
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24.1**
|
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Power
of Attorney (contained in the signature page to this registration
statement).
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*
To be
filed as an exhibit to a Current Report of the registrant on Form
8-K or other document to be incorporated herein by
reference.
**
Filed
herewith.
II-2
Item 17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) to
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(i),
(1)(ii) and (1)(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i) If
the registrant is relying on Rule 430B (§230.430B of this
chapter):
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
II-3
(ii) If
the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
(5)
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of
determining any liability of the registrant under the Securities
Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-4
(d) The
undersigned registrant hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective.
(2) For
the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-5
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fort Worth,
State of Texas, on December 23, 2020.
|
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SANARA MEDTECH INC.
|
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By:
|
/s/ Michael D. McNeil
|
|
|
Name:
|
Michael
D. McNeil
|
|
|
Title:
|
Chief
Financial Officer
|
POWER OF ATTORNEY
Each
person whose signature appears below constitutes and appoints J.
Michael Carmena and Michael D. McNeil, severally, each with full
power to act alone and without the others, his true and lawful
attorney-in-fact, with full power of substitution, and with the
authority to execute in the name of each such person, any and all
amendments (including without limitation, post-effective
amendments) to this registration statement on Form S-3, to sign any
and all additional registration statements relating to the same
offering of securities as this registration statement that are
filed pursuant to Rule 462(b) of the Securities Act of 1933, and to
file such registration statements with the Securities and Exchange
Commission, together with any exhibits thereto and other documents
therewith, necessary or advisable to enable the registrant to
comply with the Securities Act of 1933, and any rules, regulations
and requirements of the Securities and Exchange Commission in
respect thereof, which amendments may make such other changes in
the registration statement as the aforesaid attorney-in-fact
executing the same deems appropriate.
Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
||
|
/s/ J. Michael Carmena
|
|
Vice
Chairman and Principal Executive Officer
|
|
December
23, 2020
|
|
J.
Michael Carmena
|
|
(Principal
Executive Officer)
|
|
|
|
|
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|
||
|
/s/ Michael D. McNeil
|
|
Chief
Financial Officer
|
|
December
23, 2020
|
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Michael
D. McNeil
|
|
(Principal
Financial Officer and Principal Accounting Officer)
|
||
|
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|
||
|
/s/ Ronald T. Nixon
|
|
Executive
Chairman
|
|
December
23, 2020
|
|
Ronald
T. Nixon
|
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|
||
|
/s/ Robert A. DeSutter
|
|
Director
|
|
December
23, 2020
|
|
Robert
A. DeSutter
|
|
|
||
|
|
|
|
||
|
/s/ Sara N. Ortwein
|
|
Director
|
|
December
23, 2020
|
|
Sara N.
Ortwein
|
|
|
||
|
|
|
|
||
|
/s/ Ann Beal Salamone
|
|
Director
|
|
December
23, 2020
|
|
Ann
Beal Salamone
|
|
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|
|
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|
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|
||
|
/s/ James W. Stuckert
|
|
Director
|
|
December
23, 2020
|
|
James
W. Stuckert
|
|
|
|
|
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|
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|
||
|
/s/ Kenneth E. Thorpe
|
|
Director
|
|
December
23, 2020
|
|
Kenneth
E. Thorpe
|
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|
II-6
December
23, 2020
Sanara
MedTech Inc.
1200
Summit Ave
Suite
414
Fort
Worth, TX 76102
Ladies
and Gentlemen:
We have
acted as counsel to Sanara MedTech Inc., a Texas corporation (the
“Company”), in
connection with the filing with the Securities and Exchange
Commission (the “Commission”)
on the date hereof, under the Securities Act of 1933, as amended
(the “Act”) of a
registration statement on Form S-3 (the “Registration
Statement”) by the Company relating to (i) shares of
common stock, $0.001 par value per share, of the Company (the
“Common
Stock”), (ii) shares of preferred stock, $10.00 par
value per share, of the Company (the “Preferred
Stock”), (iii) warrants to purchase Common Stock or
Preferred Stock (the “Warrants”),
and (iv) units comprised of one or more shares of Common Stock,
Preferred Stock or Warrants in any combination (the
“Units” and,
together with the Common Stock, the Preferred Stock and the
Warrants, the “Securities”
and individually a “Security”)
that may be issued and sold from time to time pursuant to Rule 415
under the Act for an aggregate initial offering price not to exceed
$150,000,000.
For
purposes of the opinions we express below, we have examined
originals, or copies certified or otherwise identified, of (i) the
Certificate of Formation and Bylaws of the Company, each as amended
to date (the “Company Charter
Documents”); (ii) certain resolutions of the
Board of Directors of the Company related to the filing of the
Registration Statement, the authorization and issuance of the
Securities and related matters; (iii) the Registration Statement
and all exhibits thereto; and (iv) such other corporate records of
the Company as we have deemed necessary or appropriate for purposes
of the opinions hereafter expressed.
As to
questions of fact material to the opinions expressed below, we
have, without independent verification of their accuracy, relied to
the extent we deem reasonably appropriate upon the representations
and warranties of the Company contained in such documents, records,
certificates, instruments or representations furnished or made
available to us by the Company.
In
making the foregoing examination, we have assumed (i) the
genuineness of all signatures, (ii) the authenticity of all
documents submitted to us as originals, (iii) the conformity to
original documents of all documents submitted to us as certified or
photostatic copies, (iv) that all agreements or instruments we have
examined are the valid, binding and enforceable obligations of the
parties thereto, and (v) that all factual information on which we
have relied was accurate and complete.
Haynes and Boone, LLP
Attorneys and Counselors
2323
Victory Avenue
Suite
700
Dallas,
Texas 75219
T (214)
651-5000
F (214)
651-5940
www.haynesboone.com
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We have
also assumed that prior to, or in connection with, the issuance of
any Securities: (i) the Company will continue to be incorporated
and in existence and good standing in its jurisdiction of
organization; (ii) the Registration Statement, and any amendments
thereto (including post-effective amendments), will have become
effective; (iii) no stop order of the Commission preventing or
suspending the use of the prospectus contained in the Registration
Statement or any prospectus supplement will have been issued; (iv)
a prospectus supplement will have been prepared and filed with the
Commission properly describing the Securities offered thereby and
will have been delivered to the purchaser(s) of the Securities as
required in accordance with applicable law; (v) all Securities will
be offered, issued and sold in compliance with applicable federal
and state securities laws and in the manner stated in the
Registration Statement and the appropriate prospectus supplement;
(vi) a definitive purchase, underwriting or similar agreement with
respect to any Securities offered will have been duly authorized
and validly executed and delivered by the Company and the other
parties thereto and will be an enforceable obligation of the
parties thereto; (vii) in connection with the sale of Warrants, any
required warrant agreement or agreement relating to the Warrants (a
“Warrant
Agreement”) will have been executed and delivered by
all applicable parties and will be enforceable in all respects in
accordance with its terms; (viii) in connection with the sale of
any Units, any required unit agreement relating to the Units (a
“Unit
Agreement”) will have been executed and delivered by
all applicable parties and will be enforceable in all respects in
accordance with its terms; (ix) any securities issuable upon
conversion, exchange, redemption or exercise of any Securities
being offered will be duly and validly authorized, created and, if
appropriate, reserved for issuance upon such conversion, exchange,
redemption or exercise; and (x) with respect to shares of Common
Stock or Preferred Stock, there will be sufficient shares of Common
Stock or Preferred Stock authorized under the Company Charter
Documents and not otherwise reserved for issuance.
Based
on the foregoing, and subject to the limitations and qualifications
set forth herein, we are of the opinion that:
1. With
respect to shares of Common Stock, when (i) the Board of Directors
of the Company or, to the extent permitted by the Texas Business
Organizations Code and the Company Charter Documents, a duly
constituted and acting committee thereof (such Board of Directors
or committee being hereinafter referred to as the
“Company
Board”) has taken all necessary corporate action to
approve the issuance thereof and the terms of the offering of
shares of Common Stock and related matters, and (ii) certificates
representing the shares of Common Stock have been duly executed,
countersigned, registered and delivered, or if uncertificated,
valid book-entry notations have been made in the share register of
the Company, in each case in accordance with the provisions of the
Company Charter Documents, either (a) in accordance with the
applicable definitive purchase, underwriting or similar agreement
approved by the Company Board and upon payment of the consideration
therefor (which shall not be less than the par value of the Common
Stock) provided for therein, all in accordance with the
Registration Statement and any applicable prospectus supplement, or
(b) upon conversion, exchange, redemption or exercise of any other
Security, in accordance with the terms of such Security or the
instrument governing such Security providing for such conversion,
exchange, redemption or exercise as approved by the Company Board,
and for the consideration approved by the Company Board (which
shall not be less than the par value of the Common Stock), all in
accordance with the Registration Statement and any applicable
prospectus supplement, the shares of Common Stock will be validly
issued, fully paid and non-assessable.
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2. With
respect to shares of Preferred Stock, when (i) the Company Board
has taken all necessary corporate action to approve and establish
the terms of the shares of Preferred Stock, to approve the issuance
thereof and the terms of the offering thereof and related matters,
including the adoption of a Certificate of Designations relating to
such Preferred Stock (a “Certificate of
Designations”), and such Certificate of Designations
has been filed with the Secretary of State of the State of Texas,
and (ii) certificates representing the shares of Preferred Stock
have been duly executed, countersigned, registered and delivered,
or if uncertificated, valid book-entry notations have been made in
the share register of the Company, in each case in accordance with
the provisions of the Company Charter Documents, either (a) in
accordance with the applicable definitive purchase, underwriting or
similar agreement approved by the Company Board and upon payment of
the consideration therefor (which shall not be less than the par
value of the Preferred Stock) provided for therein, all in
accordance with the Registration Statement and any applicable
prospectus supplement, or (b) upon conversion, exchange, redemption
or exercise of any other Security, in accordance with the terms of
such Security or the instrument governing such Security providing
for such conversion, exchange, redemption or exercise as approved
by the Company Board, and for the consideration approved by the
Company Board (which shall not be less than the par value of the
Preferred Stock), all in accordance with the Registration Statement
and any applicable prospectus supplement, the shares of Preferred
Stock will be validly issued, fully paid and
non-assessable.
3. With
respect to Warrants, when (i) the Company Board has taken all
necessary corporate action to approve the creation of and the
issuance and terms of the Warrants, the terms of the offering
thereof and related matters, (ii) the Warrant Agreements and
Warrants have been duly prepared, authorized and validly executed
and delivered by the Company and the other parties thereto (if any)
in compliance with all applicable laws, and (iii) the Warrants or
certificates representing the Warrants have been duly registered
and delivered in accordance with the appropriate Warrant Agreements
and the applicable definitive purchase, underwriting or similar
agreement approved by the Company Board and upon payment of the
consideration therefor provided for therein (which shall not be
less than the par value of any Common Stock or Preferred Stock
underlying such Warrants), all in accordance with the Registration
Statement and any prospectus supplement, the Warrants will
constitute valid and legally binding obligations of the
Company.
4. With
respect to the Units, when (i) the Company Board has taken all
necessary corporate action to approve the creation of and the
issuance and terms of the Units, the terms of the offering thereof
and related matters, (ii) such Units and any Unit Agreement or
agreements establishing such Units and the rights of the holders
thereof have been duly prepared, authorized and validly executed
and delivered by the Company and the other parties thereto (if any)
in compliance with all applicable laws, and (iii) such Units have
been delivered in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Company
Board and upon payment of the consideration therefor provided for
therein, all in accordance with the Registration Statement and any
prospectus supplement, the Units will constitute valid and legally
binding obligations of the Company.
The
opinions set forth above are subject to the following
qualifications, limitations and exceptions:
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(a) The
opinions are subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium, rearrangement,
liquidation, conservatorship or other similar laws now or hereafter
in effect relating to or affecting the rights of creditors
generally, (ii) provisions of applicable law pertaining to the
voidability of preferential or fraudulent transfers and conveyances
and (iii) the fact that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(b) The
opinions are subject to the effect of (i) general principles of
equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing, general matters of
public policy and other similar doctrines generally affecting the
enforceability of agreements (regardless of whether considered in a
proceeding in equity or at law) (ii) obligations of good faith and
fair dealing under New York law, and (iii) other
commonly-recognized statutory and judicial constraints on
enforceability, including statutes of limitation, limitations on
rights to indemnification that contravene law or public policy and
the effectiveness of waivers of rights or benefits that cannot be
effectively waived under applicable law.
(c) In
rendering the opinions, we have assumed that, at the time of the
sale of the Securities, (i) the resolutions of the Board of
Directors of the Company, as reflected in the minutes and
proceedings of the Company, will not have been modified or
rescinded and (ii) there will not have occurred any change in the
laws affecting the authorization, execution, delivery, issuance,
sale, ranking, validity or enforceability of the
Securities.
The
opinions expressed herein are limited to the federal laws of the
United States of America, and, to the extent relevant to the
opinions expressed herein, (i) the Texas Business Organizations
Code and (ii) the laws of the State of New York, in each case as in
effect on the date hereof (all of the foregoing being referred to
as the “Opined on
Law”). We do not express any opinion with respect to
any other laws, or the laws of any other jurisdiction (including,
without limitation, any laws of any other jurisdiction which might
be referenced by the choice-of-law rules of the Opined on Law),
other than the Opined on Law or as to the effect of any such other
laws on the opinions herein stated.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm contained
therein under the heading “Legal Matters.” In giving
this consent, we do not hereby admit we are in the category of
persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission thereunder.
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Very
truly yours,
/s/
Haynes and Boone, LLP
HAYNES
AND BOONE, LLP
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Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 26, 2020 with
respect to the audited consolidated financial statements of Sanara
MedTech, Inc. and its subsidiaries for the years ended December 31,
2019 and 2018.
We also
consent to the references to us under the heading
“Experts” in such Registration Statement.
/s/ MaloneBailey, LLP
www.malonebailey.com
Houston,
Texas
December 23,
2020