As
filed with the Securities and Exchange Commission on May 13, 2016
Registration
No. 333-208704
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON
D.C. 20549
Post-Effective
Amendment No. 1
to
FORM
S-1
on
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
COMBIMATRIX
CORPORATION
(Exact
name of Registrant as specified in its charter)
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Delaware
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8071
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47-0899439
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(State
or other jurisdiction of
incorporation or organization)
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(Primary
Standard Industrial
Classification Code Number)
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(I.R.S.
Employer
Identification Number)
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310
Goddard, Suite 150
Irvine,
California 92618
(949)
753-0624
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Mark
McDonough
Chief
Executive Officer
CombiMatrix
Corporation
310
Goddard, Suite 150
Irvine,
California 92618
(949)
753-0624
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Parker
A. Schweich, Esq.
Dorsey
& Whitney LLP
600
Anton Blvd., Suite 2000
Costa
Mesa, CA 92626
Telephone:
(714) 800-1400
Facsimile:
(714) 800-1499
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From
time to time after the effective date of this Registration Statement.
If
any 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, 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 post-effective amendment filed pursuant to Rule 462(d) 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. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting
company. See definitions of “large accelerated filer,” “accelerated filed,” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ]
(Do not check if a
smaller reporting company)
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Smaller
reporting company [X]
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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 hereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
On
December 22, 2015, CombiMatrix Corporation (the “Company”) filed a registration statement with the Securities and
Exchange Commission (the “SEC”) on Form S-1 (Registration No. 333-208704), as subsequently amended by amendments one
through four thereto (as amended, the “Registration Statement” or the “Form S-1”). The Registration Statement
was declared effective by the SEC on March 18, 2016 to register the sale by the Company of 8,000 units (the “Units”)
in an underwritten public offering, with the Units consisting in the aggregate of (1) 8,000 shares of the Company’s Series
F preferred stock (the “Series F Preferred Stock”), which were convertible into an aggregate of 2,067,183 shares of
the Company’s common stock (the “Conversion Shares”) and (2) 2,067,183 warrants (the “Warrants”)
exercisable for an aggregate of 2,067,183 shares of the Company’s common stock (the “Warrant Shares”). All of
the Units, which includes all of the Series F Preferred Stock and Warrants, offered pursuant to the Registration Statement were
sold on March 24, 2016. 1,852 shares of the Series F Preferred Stock sold in connection therewith have been converted into 478,564
of the Conversion Shares, and 6,148 shares of Series F Preferred Stock remain outstanding and convertible into 1,588,619 of the
Conversion Shares. None of the Warrants have been exercised, and all of the Warrants remain outstanding and exercisable for the
Warrant Shares. This Post-Effective Amendment No. 1 to Form S-1 on Form S-3 is being filed by the Company to convert the Form
S-1 into a registration statement on Form S-3 and contains an updated prospectus relating solely to the offering and sale of the
remaining Conversion Shares and Warrant Shares that were registered for sale by the Company on the Form S-1.
No
additional securities are being registered under this Post-Effective Amendment No. 1. All filing fees payable in connection with
the registration of the Units, the Series F Preferred Stock, the Conversion Shares, the Warrants and the Warrant Shares covered
by the Registration Statement were paid by the Company either at the time of the initial filing of the Form S-1 or upon the filing
with the SEC on March 21, 2016 of the registration statement on Form S-1 pursuant to Rule 462(b) under the Securities Act of 1933
(Registration No. 333-210298).
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 is
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS
(SUBJECT
TO COMPLETION: DATED MAY 13, 2016)
1,588,619
Shares of Common Stock
Issuable
Upon Conversion of Series F Convertible Preferred Stock
2,067,183
Shares of Common Stock
Issuable
Upon Exercise of March 2016 Warrants
This
prospectus relates to 1,588,619 shares of our common stock issuable upon the conversion of our outstanding Series F convertible
preferred stock and 2,067,183 shares of our common stock issuable upon the exercise of our outstanding March 2016 warrants. The
Series F convertible preferred stock and the March 2016 warrants were offered and sold by us pursuant to a prospectus dated March
21, 2016, which prospectus also covered the offer and sale by us of the shares of our common stock underlying the Series F convertible
preferred stock and underlying the March 2016 warrants. The ongoing offer and sale by us of the shares of our common stock issuable
upon conversion of the Series F convertible preferred stock and upon exercise of the March 2016 warrants is being made pursuant
to this prospectus. The Series F convertible preferred stock is convertible at any time at the option of the holder into shares
of our common stock at a current conversion price per share equal to $3.87, subject to adjustment upon events specified in the
certificate of designation of the Series F convertible preferred stock, and the March 2016 warrants are exercisable until March
24, 2021 at a current exercise price of $5.17 per share of our common stock, subject to adjustment upon events specified in the
March 2016 warrants.
For
a more detailed description of our common stock, see the section entitled “Description of Capital Stock—Common Stock
and Preferred Stock” beginning on page 19 of this prospectus. For a more detailed description of the Series F convertible
preferred stock, see the section entitled “Description of Capital Stock—Series F Preferred Stock” beginning
on page 19 of this prospectus. For a more detailed description of our March 2016 warrants, see the section entitled “Description
of Capital Stock—Warrants” beginning on page 19 of this prospectus. For a more detailed description of the securities
we are offering, see the section entitled “Description of Securities We Are Offering” beginning on page 30 of this
prospectus. We refer to the Series F convertible preferred stock and warrants offered and sold by us pursuant to a prospectus
dated March 21, 2016 as the Series F preferred stock and the March 2016 warrants, respectively. We refer to the shares of common
stock issuable upon conversion of the Series F preferred stock and upon exercise of the March 2016 warrants as the securities.
Our
common stock and the March 2016 warrants are listed on The NASDAQ Capital Market under the symbols “CBMX” and “CBMXW”,
respectively. On May 12, 2016, the closing sale price of our common stock on The NASDAQ Capital Market was $3.08 per share and
the closing sale price of our March 2016 warrants on The NASDAQ Capital Market was $1.335 on April 6, 2016, the most recent date
on which the March 2016 warrants traded.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page 7 of this prospectus
.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense
.
The
date of this prospectus is ,
2016.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
You
should rely only on the information contained or incorporated by reference in this prospectus. We have not, and the underwriters
have not, authorized any person to provide you with different or inconsistent information. If anyone provides you with different
or inconsistent information, you should not rely on it. We are not, and the underwriters are not, making an offer to sell or seeking
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information
appearing in this prospectus and the documents incorporated by reference is accurate only as of their respective dates. CombiMatrix
Corporation’s business, financial condition, results of operations and prospects may have changed since such dates.
We
further note that the representations, warranties and covenants made by us in any document that is filed as an exhibit to the
registration statement of which this prospectus is a part and in any document that is incorporated by reference herein were made
solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the
parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants
should not be relied on as accurately representing the current state of our affairs.
Unless
the context otherwise requires, the terms “CombiMatrix Corporation,” the “Company,” “we,”
“us,” “our” and similar terms used in this prospectus refer to CombiMatrix Corporation and its wholly-owned
subsidiary.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains, and may incorporate by reference, forward-looking statements, within the meaning of the “safe harbor”
provisions of the Private Securities Litigation Reform Act of 1995, regarding us which include, but are not limited to, statements
concerning our plans and objectives for future operations, assumptions underlying such plans and objectives, projected results
of operations, capital expenditures, earnings, management’s future strategic plans, development of new technologies and
services, litigation, regulatory matters, market acceptance and performance of our services, the success and effectiveness of
our technologies and services, our ability to retain and hire key personnel, the competitive nature of and anticipated growth
in our markets, market size, market position of our services, marketing efforts and partnerships, liquidity and capital resources,
our accounting estimates, and our assumptions and judgments. All statements, other than statements of historical fact, are forward
looking statements. Such statements are based on management’s current expectations, estimates and projections about our
industry, management’s beliefs, and certain assumptions made by us, all of which are subject to change. Words such as “anticipates,”
“expects,” “intends,” “plans,” “predicts,” “potential,” “believes,”
“seeks,” “estimates,” “should,” “would,” “could,” “may,”
“will”, “ongoing,” “more likely to,” “with a view to,” “continue,”
“focus,” “more likely to,” “with a view to,” “our future success depends,” “seek
to continue,” or the negative of these words and variations of these words or similar expressions are intended to identify
forward-looking statements. These forward-looking statements are not guarantees of future results and are subject to a number
of risks, uncertainties and assumptions that are difficult to predict and that could cause our actual results to differ materially
and adversely from those described in the forward-looking statements as a result of various factors, including those set forth
in the section “Risk Factors” beginning on page 7 of this prospectus and elsewhere in this prospectus. Such factors
include, but are not limited to the following:
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our
ability to continue as a going concern;
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our
ability to maintain compliance with NASDAQ’s continued listing requirements;
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our
ability to obtain additional financing for working capital on acceptable terms and in a timely manner;
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our
ability to successfully increase the volume of our existing tests, expand the number of tests offered by our laboratory, increase
the number of customers and partners and improve reimbursement for our testing;
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market
acceptance of chromosomal microarray analysis, or CMA, as a preferred method over karyotyping;
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the
rate of transition to CMA from karyotyping;
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changes
in consumer demand;
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our
ability to attract and retain a qualified sales force and key technical personnel;
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our
ability to successfully develop and introduce new technologies and services;
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rapid
technological change in our markets;
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supply
availability;
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our
ability to bill and obtain reimbursement for highly specialized tests;
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the
rate of growth of the
in vitro
fertilization, or IVF, diagnostic testing market;
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our
ability to comply with regulations to which our business is subject, including changes in coding and reimbursement methods;
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legislative,
regulatory and competitive developments in markets in which we and our subsidiaries operate;
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our
limited market capitalization;
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future
economic conditions;
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other
circumstances affecting anticipated revenues and costs; and
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those
additional factors which are listed under the section “Risk Factors” beginning on page 7 of this prospectus.
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These
forward looking statements speak only as of the date of this prospectus and we expressly disclaim any obligation or undertaking
to release publicly any updates or revisions to any forward looking statements contained herein, or in the documents incorporated
by reference herein, to reflect any change in our expectations with regard thereto or any change in events, conditions, or circumstances
on which any such statement is based, except as otherwise required by law. Additional factors that could cause such results to
differ materially from those described in the forward looking statements are set forth in connection with the forward looking
statements.
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PROSPECTUS
SUMMARY
This
summary highlights certain information described in greater detail elsewhere or incorporated by reference in this prospectus.
Before deciding to invest in our securities you should read the entire prospectus carefully, including the “Risk Factors”
section contained in this prospectus, and our consolidated financial statements and the related notes, “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and the other documents incorporated by reference
into this prospectus.
Our
Company
We
provide valuable molecular diagnostic solutions for reproductive health, along with comprehensive clinical support, facilitating
the highest quality of care. We specialize in pre-implantation genetic screening, miscarriage analysis, prenatal diagnosis and
pediatric developmental disorders, offering DNA-based testing for the detection of genetic abnormalities beyond what can be identified
through traditional methodologies. We perform genetic testing utilizing a variety of advanced cytogenomic techniques, including
chromosomal microarray, or CMA, standardized and customized fluorescent in-situ hybridization, or FISH, and high resolution karyotyping.
Our emphasis is on supporting healthcare professionals to ensure their understanding of complex test results and how best to communicate
those results to their patients. We deliver technology-driven answers, with a high degree of support for the ordering physicians
and their staff.
Services
Offered
We
utilize the latest technologies to deliver molecular diagnostic services primarily in the area of reproductive health for the
diagnosis of developmental disorders associated with intellectual disability, congenital anomalies, dysmorphic features, and autism
spectrum disorders in the following four areas:
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In
Vitro Fertilization, or IVF, Diagnostic Testing.
IVF testing is focused on screening embryos for aneuploidy (i.e., an
abnormal chromosome complement) and is referred to as either Preimplantation Genetic Screening, or PGS, or Comprehensive Chromosomal
Screening, or CCS. A significant proportion of embryos created through IVF have an abnormal chromosomal complement known as
aneuploidy, and this percentage dramatically increases with age. The goal of PGS is to determine the chromosomal make-up of
each embryo to help the IVF specialist identify the most suitable embryo(s) for transfer. We believe this market segment is
rapidly growing due to the impact of delayed childbearing as well as the negative impact of increased obesity on fertility.
As most insurers do not provide coverage benefits for IVF, this market involves fee-for-service billing of the testing directly
to the patient, as opposed to the patient’s insurance.
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Miscarriage
Analysis.
It is estimated that 50-60% of all first trimester pregnancy losses are due to chromosomal abnormalities. Being
able to identify the cause of the miscarriage in one out of every two women means that physicians are better able to provide
personalized reproductive counseling and plan future pregnancy management for a much larger segment of their patient population.
Microarray testing that we provide is particularly useful in this area in order to help determine the cause of the miscarriage,
simply by analyzing the DNA from the product of conception, or POC, whether direct from the operating room or from tissue
samples that have been previously archived.
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Prenatal
Diagnostics:
We provide molecular diagnostic testing of fetal DNA in utero, which allows the physician and patient to
make better pregnancy management and care decisions, as well as allowing for the opportunity to provide anticipatory care
with respect to abnormalities that may be associated with a specific disorder that may not yet be recognizable. Such knowledge
can inform decisions about where to deliver (such as at a tertiary care center for an infant with complex abnormalities) and
how aggressive to be with neonatal support in very severe cases.
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Postnatal
Diagnostics:
We also provide molecular diagnostic testing of a child’s DNA. Once the cause of a child’s development
disorder and/or congenital anomalies has been identified, parents, teachers and physicians can work toward ensuring that appropriate
medical and educational care decisions are made based on the child’s condition. And as with prenatal care, microarray
analysis can assist in providing appropriate anticipatory care, such as initiating screening tests at an earlier age when
the child’s disorder is associated with an increased risk of a specific disorder or disease complication.
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Technologies
In
order to achieve the promise of personalized medicine, our objective is to provide a suite of molecular diagnostic tests
based on the following technologies:
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Oligo
Arrays with Single Nucleotide Polymorphisms, or SNPs—
We use the Illumina CytoSNP-850K BeadChip microarray to perform
our microarray testing for our POC, prenatal genetics, and postnatal developmental disorders markets. Illumina’s CytoSNP-850K
microarray is comprised of 50 nucleotide base, or 50-mer, probes attached to individual silica beads, which self-assemble
into microwells on the array’s surface. Each SNP probe is represented with a high degree of redundancy to improve sensitivity
by increasing the signal-to-noise ratio.
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BAC
Arrays—
For our IVF testing, we use the Illumina 24sure
®
Microarray, which is comprised of thousands
of bacterial artificial chromosome, or BAC, probes that are immobilized on the surface of a glass slide. Unlike the 50-mer
SNP probes utilized in the 850K BeadChip microarray, BAC probes contain tens to hundreds of thousands of nucleotides per probe,
and rely on extensive complimentary base pairing of single stranded patient and reference DNA.
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Market
Opportunity
We
believe the molecular diagnostics market is one of the fastest-growing segments within the overall diagnostics market.
Molecular diagnostics refers to the use of an individual’s genetic analysis to guide medical decision-making in
the area of disease diagnosis and post-diagnostic patient care management. We believe innovative approaches to re-sequencing
of the human genome and a growing clinical appreciation and acceptance of the utility of genomic information in guiding
clinical care are enabling rapid growth of this market. We believe that the use of molecular diagnostics will continue
to grow in the coming years and will have a significant impact on the way in which medicine is practiced.
Our
Strategy
Our
strategic intent is to become the preeminent diagnostics services laboratory for reproductive health, and we leverage
our sales organization and channel partners to drive market adoption of our tests in the four markets noted above. Through
channel partners and our direct sales organization, we are able to service IVF clinics, the underserved pathology community,
maternal fetal medicine, or MFM, specialists, and also to obstetrics and gynecology specialists, or OB-GYN.
Recent
Alliances and Partnerships
We
have established several key partnerships, most notably with Sequenom, Inc., where we jointly announced in August 2013
that we entered into a collaboration agreement to market and promote CMA to broaden and confirm the results of NIPS for
physicians and their patients. Under this agreement, our two companies collaboratively use our respective marketing channels
and sales forces to promote the use of NIPS and CMA and work together to provide technical training to physicians and
counseling, education and support services to expectant parents. Our two companies provide, when clinically appropriate,
a comprehensive test results report for physicians and parents.
Corporate
Information
Our
principal business office is located at 310 Goddard, Suite 150, Irvine, California 92618, and our telephone number is
(949) 753-0624. Our website address is www.combimatrix.com. Information contained on our website or any other website
does not constitute part of, and is not incorporated into, this prospectus.
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The
Offering
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The
following summary contains basic information about the offering and the securities we are offering and is not intended to
be complete. It does not contain all the information that is important to you. For a more complete understanding of the securities
we are offering, please refer to the sections of this prospectus titled “Description of Capital Stock” and “Description
of Securities We Are Offering.”
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Securities
offered by us
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1,588,619
shares of our common stock issuable upon conversion of outstanding Series F convertible preferred stock and 2,067,183 shares
of our common stock issuable upon exercise of outstanding March 2016 warrants.
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Conversion
Price of Series F preferred stock
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$3.87
per share (subject to adjustment as described in this prospectus). Until the volume weighted
average price of our common stock exceeds 200% of the conversion price of the Series
F preferred stock for any 20 of 30 consecutive trading days and the daily dollar trading
volume for each trading day during such period exceeds $200,000 per trading day, the
Series F preferred stock has full ratchet price based anti-dilution protection, subject
to customary carve-outs, in the event of a down-round financing below the conversion
price.
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Exercise
Price of March 2016 warrants
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$5.17
per share.
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Common
stock outstanding before this offering
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1,335,493
shares.
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Common
stock to be outstanding after this offering
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4,991,295
shares(1).
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Use
of proceeds
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We
will not receive any proceeds from conversions of Series F preferred stock. We intend to use the net proceeds from any exercises
of the March 2016 warrants for working capital and general corporate purposes (including research and development and sales
and marketing). General corporate purposes may include capital expenditures. Additionally, we may use a portion of such net
proceeds to finance acquisitions of, or investments in, competitive and complementary businesses, products or services as
a part of our growth strategy. However, we currently have no commitments with respect to any such acquisitions or investments.
See “Use of Proceeds” below.
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Limitations
on beneficial ownership
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Notwithstanding
anything herein to the contrary, no holder will be permitted to convert its Series F
preferred stock or exercise its March 2016 warrants if, after such conversion or exercise,
such holder would beneficially own more than 4.99% of the shares of common stock then
outstanding (subject to the right of the holder to increase such beneficial ownership
limitation upon not less than 61 days prior notice provided that such limitation can
never exceed 9.99% and such 61 day period cannot be waived).
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Investor
Leak-Out
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Certain
holders of Series F preferred stock have agreed to a leak-out of their shares. See “Description of Capital Stock—Investor
Leak-Out Agreement” for more information.
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Market
for our common stock and our March 2016 warrants
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Our
common stock and our March 2016 warrants are listed and traded on The NASDAQ Capital
Market under the symbols “CBMX” and “CBMXW”, respectively.
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Risk
Factors
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You
should read the “Risk Factors” section of this prospectus for a discussion of factors to consider before deciding
to purchase our securities.
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(1)
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The
number of shares of common stock to be outstanding after this offering as reflected in the table above is based on the actual
number of shares outstanding as of April 30, 2016, which was 1,335,493, and does not include, as of that date:
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75,163
shares of common stock issuable upon the exercise of outstanding stock options under our 2006 Incentive Plan, having a weighted
average exercise price of $92.63 per share;
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27,848
shares of common stock issuable upon the vesting of certain restricted stock units under our 2006 Incentive Plan;
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634,571
shares of common stock issuable upon the exercise of outstanding warrants, having a weighted average exercise price of $37.09
per share, other than the shares of common stock that may be issued upon exercise of the March 2016 warrants with an exercise
price of $5.17 per share; and
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additional
shares of common stock that may be issuable upon conversion of Series F preferred stock pursuant to the anti-dilution provisions
thereof.
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Unless
otherwise stated, outstanding share information throughout this prospectus excludes such outstanding options and warrants
to purchase shares of common stock.
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RISK
FACTORS
An
investment in our securities involves a high degree of risk. Before making a decision to purchase our securities, you should carefully
consider the risks described below, as well as those risks described in the sections titled “Risk Factors” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” each contained in our most recent Annual Report
on Form 10-K for the year ended December 31, 2015, which has been filed with the Securities and Exchange Commission, or SEC, and
is incorporated herein by reference in its entirety, as well as other information in this prospectus or in any other documents
incorporated by reference. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may
also affect our business and results of operations. Each of the risks described in these sections and documents could adversely
affect our business, financial condition, results of operations and prospects, and could result in a complete loss of your investment.
This prospectus and the incorporated documents also contain forward-looking statements that involve risks and uncertainties. Our
actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors,
including the risks mentioned above.
Risks
Related to Our Business
We
have a history of losses and expect to incur additional losses in the future.
We
have sustained substantial losses since our inception. We may never become profitable, or if we do, we may not be able to sustain
profitability. We expect to incur significant research and development, marketing, general and administrative expenses. As a result,
we expect to incur losses for the foreseeable future.
To
date, we have relied primarily upon selling equity and convertible debt and equity securities to generate the funds needed to
finance the implementation of our business strategies. We cannot assure you that we will not encounter unforeseen difficulties,
including the outside influences identified below that may deplete our capital resources more rapidly than anticipated. We may
be required to obtain additional financing through bank borrowings, debt or equity financings or otherwise, which would require
us to make additional investments or face a dilution of our equity interests. We cannot be sure that additional funding will be
available on favorable terms, if at all. In order to issue securities at a price below the exercise prices of our outstanding
warrants issued in connection with our past preferred stock private placement financings, we must obtain the affirmative consent
of holders of at least 67% of each series of such outstanding warrants. If we are unable to obtain the consent of these holders
in connection with future financings, we may be unable to raise additional capital on acceptable terms, or at all. If external
financing sources are not available in a timely manner or at all, or are inadequate to fund our operations, it could result in
reduced revenues and cash flows from the sales of our diagnostic services and/or could jeopardize our ability to launch, market
and sell additional products and services necessary to grow and sustain our operations. If we fail to obtain additional funding
when needed, we may not be able to execute our business plans or continue operations, and our business may be materially adversely
affected.
We
began commercialization of our molecular diagnostics services in 2006. Accordingly, we have a limited operating history of generating
revenues from services. In addition, we are still developing our technologies and service offerings and are subject to the risks,
expenses and difficulties frequently encountered by companies with such limited operating histories. Since we have a limited operating
history, we cannot assure you that our operations will become profitable or that we will generate sufficient revenues to meet
our expenditures and support our activities.
Because
our business operations are subject to many uncontrollable outside influences, we may not succeed.
Our
business operations are subject to numerous risks from outside influences, including the following:
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Technological
advances may make our array-based technology less competitive or even obsolete, and as a result, our revenue and the value
of our assets could materially decrease.
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Our
services are dependent upon oligonucleotide and SNP array-based technologies. These technologies compete with conventional diagnostic
technologies such as karyotyping, FISH and polymerase chain reaction, or PCR-based tests. Many newly developed tests rely on Next
Generation Sequencing, or NGS, and there is a trend in the field toward increased usage of NGS-based testing. Our services are
substantially dependent upon our ability to offer the latest in microarray technology in the cytogenomic market. We expect to
face additional competition from new market entrants and consolidation of our existing competitors. Many of our competitors have
existing strategic relationships with major pharmaceutical and biotechnology companies, greater commercial experience and substantially
greater financial and personnel resources than we do. We expect new competitors to emerge and the intensity of competition to
increase in the future. If these companies are able to offer technological advances, our services may become less valuable or
even obsolete. We cannot provide any assurance that existing or new competitors will not enter the market with the same or similar
technological advances before we are able to do so.
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Our
technologies face uncertain market value.
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Our
business includes many services, some of which were more recently introduced into the market. We cannot provide any assurance
that the increase, if any, in market acceptance of these technologies and services will meet or exceed our expectations.
Further,
we are developing services, some of which have not yet been introduced into the market. A lack of or limited market acceptance
of these technologies and services will have a material adverse effect upon our results of operations.
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We
obtain components and raw materials from a limited number of sources and, in some cases, a single source, and the loss or
interruption of our supply sources may materially adversely impact our ability to provide testing services to meet our existing
or future sales targets.
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Substantially
all of the components and raw materials used in providing our testing services, including microarray slides and reagents, are
currently provided to us from a limited number of sources or in some cases from a single source. Any supply interruption in a
sole-sourced component or raw material might result in up to a several-month delay and materially harm our ability to provide
testing services until a new source of supply, if any, could be located and qualified. In addition, an uncorrected impurity or
supplier’s variation in a raw material, either unknown to us or incompatible with our process, could have a material adverse
effect on our ability to provide testing services. We may be unable to find a sufficient alternative supply channel in a reasonable
time period, or on commercially reasonable terms, if at all.
Any
one of the foregoing outside influences may require us to seek additional financing to meet the challenges presented or to mitigate
a loss in revenue, and we may not be able to obtain the needed financing in a timely manner on commercially reasonable terms or
at all. Further, any one of the foregoing outside influences affecting our business could make it less likely that we will be
able to gain acceptance of our array technology by researchers in the pharmaceutical, biotechnology and academic communities.
Our
revenues will be unpredictable, and this may materially adversely affect our financial condition.
The
amount and timing of revenues that we may realize from our business will be unpredictable because whether our services are commercialized
and generate revenues depends, in part, on the efforts and timing of our potential customers. Also, our sales cycles may be lengthy.
As a result, our revenues may vary significantly from quarter to quarter, which could make our business difficult to manage and
cause our quarterly results to be below market expectations. If this happens, the price of our common stock may decline significantly.
Our revenues are also subject to seasonality factors and can be impacted by circumstances outside of our control, such as patient
and IVF clinic vacation schedules and severe weather conditions that hamper or otherwise restrict when a patient seeking genetic
diagnostic services such as ours visits the ordering physician.
We
face intense competition, and we cannot assure you that we will be successful competing in the market.
The
diagnostics market is characterized by rapidly changing technology, evolving industry standards, changes in customer needs, emerging
competition and new product and services introductions. One or more of our competitors may offer technology superior to ours and
render our technology obsolete or uneconomical. Many of our competitors have greater financial and personnel resources and more
experience in marketing, sales and research and development than we have. If we were not able to compete successfully, our business
and financial condition would be materially harmed.
If
our technology is not widely adopted by physicians and laboratories in the diagnostics market, our business will be materially
adversely affected.
In
order to be successful, our test offerings must meet the commercial requirements of hospitals and physicians and be considered
the standard of care in order to be widely adopted. Market acceptance will depend on many factors, including:
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the
benefits and cost-effectiveness of our services relative to others available in the market;
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our
ability to provide testing services in sufficient quantities with acceptable quality and reliability and at an acceptable
cost;
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our
ability to develop and market additional tests and enhance existing tests that are responsive to the changing needs of our
customers; and
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the
willingness and ability of customers to adopt new technologies or the reluctance of customers to change technologies upon
which they have previously relied.
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The
U.S. FDA’s decision to regulate Laboratory Developed Tests, or LDTs, could prevent us from offering existing tests and/or
delay the introduction of new testing services.
During
2014, the FDA publicly announced that it has decided to exercise regulatory authority over LDTs and that it plans to issue guidance
to the industry regarding its regulatory approach. The FDA has indicated that it will use a risk-based approach to regulation
and will direct more resources to tests with wider distribution and with the highest risk of injury, but that it will be sensitive
to the need to not adversely impact patient care or innovation. On October 3, 2014, the FDA published two draft guidance documents
regarding proposals for the regulation of LDTs in the Federal Register. The 120-day public comment period on the draft documents
began at issuance and lasted until February 2, 2015. Since this time, industry stakeholders have responded to the FDA draft guidance
document during the public comment period, both for and against, with final guidance expected in 2016. The regulatory approach
adopted by the FDA may lead to an increased regulatory burden, including additional costs and delays in introducing new tests.
While the ultimate impact of the FDA’s approach is unknown, it may be extensive and may result in significant change. Our
failure to adapt to these changes could have a material adverse effect on our business.
U.S.
healthcare reform legislation may result in significant changes and our business could be adversely impacted if we fail to adapt.
Government
oversight of and attention to the healthcare industry in the United States is significant and increasing. In March 2010, U.S.
federal legislation was enacted to reform healthcare. The legislation provides for reductions in the Medicare clinical laboratory
fee schedule beginning in 2011 and also includes a productivity adjustment that reduces the CPI market basket update beginning
in 2011. The legislation imposes an excise tax on the seller for the sale of certain medical devices in the United States, including
those purchased and used by laboratories, beginning in 2013. The legislation establishes the Independent Payment Advisory Board,
which is responsible for submitting proposals aimed at reducing Medicare cost growth while preserving quality. These proposals
automatically will be implemented unless Congress enacts alternative proposals that achieve the same savings targets. Further,
the legislation calls for the Center for Medicare and Medicaid Innovation to examine alternative payment methodologies and conduct
demonstration programs. The legislation provides for extensive health insurance reforms, including the elimination of pre-existing
condition exclusions and other limitations on coverage, fixed percentages on medical loss ratios, expansion in Medicaid and other
programs, employer mandates, individual mandates, creation of state and regional health insurance exchanges, and tax subsidies
for individuals to help cover the cost of individual insurance coverage. The legislation also permits the establishment of accountable
care organizations, a new healthcare delivery model.
While
the ultimate impact of the health reform and related legislation on the healthcare industry is unknown, it is likely to be extensive
and may result in significant change. Our failure to adapt to these changes could have a material adverse effect on our business.
A
significant component of our revenue is dependent upon successful insurance claims. Our revenue will be diminished if payors do
not adequately cover or reimburse us for our services.
Physicians
and patients may decide not to order our high-complexity genomic microarray tests unless third-party payors, such as managed care
organizations as well as government payors such as Medicare and Medicaid, pay a substantial portion of the test price. Reimbursement
by a third-party payor may depend on a number of factors, including a payor’s determination that tests using our technologies
are:
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not
experimental or investigational;
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medically
necessary;
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appropriate
for the specific patient;
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cost-effective;
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supported
by peer-reviewed publications; and
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included
in clinical practice guidelines.
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A
substantial portion of the testing for which we bill our hospital and laboratory clients is ultimately paid by third-party payors.
However, there is uncertainty concerning third-party payor reimbursement of any test, including our high-complexity genomic microarray
tests. Several entities conduct technology assessments of medical tests and devices and provide the results of their assessments
for informational purposes to other parties. These assessments may be used by third-party payors and health care providers as
grounds to deny coverage for a test or procedure. It is possible that federal, state and third-party insurers may limit their
coverage of our tests in the future.
Increasing
emphasis on managed care in the United States is likely to put pressure on the pricing of healthcare services. Uncertainty exists
as to the coverage and reimbursement status of new applications or services. Governmental payors and private payors are scrutinizing
new medical products and services. Such third-parties may not cover, or may limit coverage and resulting reimbursement for our
services.
Additionally,
third-party insurance coverage may not be available to patients for any of our existing tests or tests we may add in the future.
Any pricing pressure exerted by these third-party payors on our customers may, in turn, be exerted by our customers on us. If
governmental payors, including their contracted administrators, and other third-party payors do not provide adequate coverage
and/or timely reimbursement for our services, our operating results, cash flows, or financial condition may materially decline.
Our
business could be adversely impacted by the adoption of new coding for molecular genetic tests.
Certain
Common Procedural Terminology, or CPT, codes that we use to bill for our microarray tests were omitted by Centers for Medicare
and Medicaid Services, or CMS, from the Clinical Laboratory Fee Schedule in 2013. The pricing omission has forced state Medicaid
plans and third party payors to determine their own price independent of CMS’s recommendations (or lack thereof). There
can be no guarantees that Medicaid and other payors will establish favorable reimbursement rates or adequate coverage policies.
If payors do not recognize the value of the molecular genetic tests we offer or do not provide coverage for molecular tests such
as ours, our revenues, earnings and cash flows could be adversely impacted.
Our
cash flows and financial condition may materially decline if payors do not reimburse us for our services in a timely manner.
We
depend on our payors to reimburse us for our services in timely manner. If our payors do not reimburse us in a timely manner,
our cash flows and financial condition may materially decline.
Third-party
billing is extremely complicated and could result in us incurring significant additional costs.
Billing
for molecular laboratory services is extremely complicated. The client is the party that orders the tests and the payor is the
party that pays for the tests, and the two are not typically the same. Depending on the billing arrangement and/or applicable
law, we need to bill various payors, such as patients, health insurance companies, Medicare, Medicaid, doctors and employer groups,
all of which have different billing requirements. Health insurance companies and governmental payors also generally require complete
and correct billing information within certain filing deadlines. Additionally, our billing relationships require us to undertake
internal audits to evaluate compliance with applicable laws and regulations as well as internal compliance policies and procedures.
Health insurance companies also impose routine external audits to evaluate payments made. Additional factors complicating billing
include:
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pricing
differences between our fee schedules and the reimbursement rates of the payors;
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disputes
with payors as to which party is responsible for payment; and
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disparity
in coverage and information requirements among various carriers.
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We
incur significant additional costs as a result of our participation in the Medicare and Medicaid programs, as billing and reimbursement
for laboratory testing are subject to considerable and complex federal and state regulations. The additional costs we expect to
incur as a result of our participation in the Medicare and Medicaid programs include costs related to, among other factors: (1)
complexity added to our billing processes; (2) training and education of our employees and customers; (3) implementing compliance
procedures and oversight; (4) collections and legal costs; (5) challenging coverage and payment denials; and (6) providing patients
with information regarding claims processing and services, such as advanced beneficiary notices. If these costs increase, our
results of operations will be materially adversely affected.
Loss
of or adverse changes to our accreditations or licenses could materially and adversely affect our business, prospects and results
of operations.
The
clinical laboratory testing industry is highly regulated. We are subject to the Clinical Laboratory Improvement Amendments of
1988, or CLIA, a federal law that regulates clinical laboratories that perform testing on specimens derived from humans for the
purpose of providing information for the diagnosis, prevention or treatment of disease. CLIA is intended to ensure the quality
and reliability of clinical laboratories in the United States by mandating specific standards in the areas of personnel qualifications,
administration, and participation in proficiency testing, patient test management, quality control, quality assurance and inspections.
We have a current certificate of accreditation under CLIA to perform testing. To renew this certificate, we are subject to survey
and inspection every two years. Moreover, CLIA inspectors may make random inspections of our clinical reference laboratory. A
failure to pass such inspections would result in suspension of our certificate of accreditation, which would have a material adverse
effect on our business and results of operations.
We
are also required to maintain a laboratory license to conduct testing in California. California laws establish standards for day-to-day
operation of our clinical reference laboratory, including the training and skills required of personnel and quality control. Moreover,
several states require that we hold licenses to test specimens from patients in those states. Other states may have similar requirements
or may adopt similar requirements in the future. A failure to obtain and maintain these licenses would have a material adverse
effect on our business and results of operations.
Complying
with numerous regulations pertaining to our business is an expensive and time-consuming process, and failure to comply could result
in significant penalties and suspension of one or more of our licenses.
Areas
of the regulatory environment that may affect our ability to conduct business include, without limitation:
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Federal
and state laws applicable to billing and claims payment and/or regulatory agencies enforcing those laws and regulations;
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Federal
and state laboratory anti-mark-up laws;
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Federal
and state anti-kickback laws;
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Federal
and state false claims laws;
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Federal
and state self-referral and financial inducement laws, including the federal physician anti-self-referral law, or the Stark
Law;
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Coverage
and reimbursement levels by Medicare, Medicaid, other governmental payors and private insurers;
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Restrictions
on reimbursements for our services;
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Federal
and state laws governing laboratory testing, including CLIA;
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Federal
and state laws governing the development, use and distribution of diagnostic medical tests known as “home brews”;
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Health
Insurance Portability and Accountability Act of 1996, or HIPAA;
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Federal
and state regulation of privacy, security and electronic transactions;
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State
laws regarding prohibitions on the corporate practice of medicine;
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State
laws regarding prohibitions on fee-splitting;
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Federal,
state and local laws governing the handling and disposal of medical and hazardous waste; and
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Occupational
Safety and Health Administration, or OSHA, rules and regulations.
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The
above-noted laws and regulations are extremely complex and, in many instances, there are no significant regulatory or judicial
interpretations of such laws and regulations. We also may be subject to regulation in foreign jurisdictions as we seek to expand
international distribution of our tests. Any determination that we have violated these laws, or the public announcement that we
are being investigated for possible violations of these laws, would materially adversely affect our business, prospects, results
of operations and financial condition. Violations could also result in extensive civil and/or criminal penalties, loss of licensure
or accreditation (which could in turn affect our ability to operate or collect reimbursement), exclusion from government healthcare
programs or private payer networks, and other materially adverse effects. In addition, a significant change in any of these laws
may require us to change our business model in order to maintain compliance with these laws, which could reduce our revenue or
increase our costs and materially adversely affect our business, prospects, results of operations, and financial condition.
We
are subject to significant environmental, health and safety regulation.
We
are subject to licensing and regulation under federal, state and local laws and regulations relating to the protection of the
environment and human health and safety, including laws and regulations relating to the handling, transportation and disposal
of medical specimens, infectious and hazardous waste and radioactive materials, as well as to the safety and health of laboratory
employees. In addition, OSHA has established extensive requirements relating to workplace safety for health care employers, including
clinical laboratories, whose workers may be exposed to blood-borne pathogens such as HIV and the hepatitis B virus. These regulations,
among other things, require work practice controls, protective clothing and equipment, training, medical follow-up, vaccinations,
and other measures designed to minimize exposure to, and transmission of, blood-borne pathogens. In addition, the federally enacted
Needlestick Safety and Prevention Act requires, among other things, that we include in our safety programs the evaluation and
use of engineering controls such as safety needles if found to be effective at reducing the risk of needlestick injuries in the
workplace. If we are found in violation of any of these regulations, we could be subject to substantial penalties or discipline
and our business, prospects and results of operations could be materially and adversely affected.
Our
business is subject to stringent laws and regulations governing the privacy, security and transmission of medical information,
and our failure to comply could subject us to criminal penalties and civil sanctions.
Governmental
laws and regulations protect the privacy, security and transmission of medical information. Such laws and regulations restrict
our ability to use or disclose patient identifiable laboratory data, without patient authorization, for purposes other than payment,
treatment or healthcare operations (as defined by HIPAA), except for disclosures for various public policy purposes and other
permitted purposes outlined in the privacy regulations. The privacy and security regulations provide for significant fines and
other penalties for wrongful use or disclosure of PHI, including potential civil and criminal fines and penalties. Such regulations
were expanded under the HITECH Act, including rules impacting the release of protected health information, patients’ right
to access such information, the content and manner of providing notice of a breach, and information system security requirements.
We also could incur damages under state laws to private parties for the wrongful use or disclosure of confidential health information
or other private personal information. In addition, the Secretary of the Department of Health and Human Services has published
HIPAA regulations to protect the privacy of health information when it is exchanged electronically during certain financial and
administrative transactions. These HIPAA transaction standards are complex and different payers interpret them differently. Complying
with applicable transmission standards is costly and failure to comply could disrupt our receipts or subject us to penalties.
Generally, any security breach of our information systems, including the theft of our patients’ financial information due
to our failure to comply with applicable security standards, would adversely impact our business and our reputation.
Our
services development efforts may be hindered if we are unable to gain access to patients’ tissue and blood samples.
The
development of our diagnostic services requires access to tissue and blood samples from patients who may or may not have the diseases
we are addressing. Our clinical development relies on our ability to secure access to these samples, as well as information pertaining
to their associated clinical outcomes. Access to samples can be difficult since it may involve multiple levels of approval, complex
usage rights and privacy rights, among other issues. Lack of or limited access to samples would harm our future services development
efforts, which would have a material adverse effect on our business and results of operations.
If
our current laboratory facility becomes inoperable or loses certification, we will be unable to perform our tests and our business
will be materially adversely affected.
Our
diagnostic tests are operated out of our CLIA-certified laboratory in Irvine, California. Currently, we do not have a second certified
laboratory. Should our only CLIA-certified laboratory be unable to perform tests, for any reason, we may be unable to perform
needed diagnostic tests in connection with our development of technologies services and our business will be materially adversely
affected.
Our
future success depends on the continued service from our scientific, technical and key management personnel and our ability to
identify, hire and retain additional scientific, technical and key management personnel in the future.
There
is intense competition for qualified personnel in our industry, particularly for laboratory technicians, scientific and medical
experts and senior level management. Loss of the services of, or failure to recruit, these key personnel could be significantly
detrimental to us and could materially adversely affect our business and operating results. We may not be able to continue to
attract and retain scientific and medical experts or other qualified personnel necessary for the development of our business or
to replace key personnel who may leave us in the future. If our business grows, it will place increased demands on our resources
and likely will require the addition of new management personnel. An inability to recruit and retain qualified management and
employees on commercially reasonable terms would adversely and materially affect our business.
As
our operations expand, our costs to comply with environmental laws and regulations will increase, and failure to comply with these
laws and regulations could materially harm our financial results.
Our
operations involve the use, transportation, storage and disposal of hazardous substances and, as a result, we are subject to environmental
and health and safety laws and regulations. As we expand our operations, our use of hazardous substances will increase and lead
to additional and more stringent requirements. The cost to comply with these and any future environmental and health and safety
regulations could be substantial. In addition, our failure to comply with laws and regulations, and any releases of hazardous
substances into the environment or at our disposal sites, could expose us to substantial liability in the form of fines, penalties,
remediation costs and other damages, or could lead to a curtailment or shut down of our operations. These types of events, if
they occur, would materially adversely affect our financial results.
We
could face substantial liabilities if we are sued for product liability.
Product
liability claims could be filed by someone alleging that our tests failed to perform as claimed. We may also be subject to liability
for errors in the performance of our tests. Such product liability and related claims could be substantial. Defense of such claims
could be time consuming and expensive and could result in damages that are not covered by our insurance.
Exposure
to possible litigation and legal liability may adversely affect our business, financial condition and results of operations.
In
the past, we have been exposed to a variety of litigation claims and there can be no assurance that we will not be subject to
other litigation in the future that may adversely affect our business, financial condition or results of operations.
Failure
to effectively manage our growth could place strains on our managerial, operational and financial resources and could materially
adversely affect our business and operating results.
Our
growth has placed, and is expected to continue to place, a strain on our managerial, operational and financial resources. In addition,
any further growth by us or an increase in the number of our strategic relationships may further constrain our ability to achieve
the rapid execution necessary to successfully implement our business plan.
As
a public company, we are subject to complex legal and accounting requirements that will require us to incur substantial expense
and will expose us to risk of non-compliance.
As
a public company, we are subject to numerous legal and accounting requirements that do not apply to private companies. The cost
of compliance with many of these requirements is substantial, not only in absolute terms but, more importantly, in relation to
the overall scope of the operations of a small company. Failure to comply with these requirements can have numerous material adverse
consequences including, but not limited to, our inability to file required periodic reports on a timely basis, which would result
in the loss of our eligibility to use Form S-3 for raising capital, loss of market confidence, delisting of our securities, governmental
or private actions against us and/or liquidated damages payable to the holders of our Series A Warrants, Series C Warrants, our
April 2015 private placement warrants, our Series F preferred stock and our March 2016 warrants. We cannot assure you that we
will be able to comply with all of these requirements or that the cost of such compliance will not prove to be a substantial competitive
disadvantage compared to our privately held and larger public competitors.
Ethical,
legal and social concerns surrounding the use of genetic information could reduce demand for our test offerings.
Genetic
testing has raised ethical issues regarding privacy and the appropriate uses of the resulting information. For these reasons,
governmental authorities may call for limits on or regulation of the use of genetic testing or prohibit testing for genetic predisposition
to certain conditions, particularly for those that have no known cure. Similarly, such concerns may lead individuals to refuse
to use genetics tests even if permissible. Any of these scenarios could reduce the potential markets for our molecular diagnostic
services, which reduction could have a material adverse effect on our business.
Risks
Related To Investment In Our Securities
Small
company stock prices are especially volatile, and this volatility may depress the price of our stock.
The
stock market has experienced significant price and volume fluctuations, and the market prices of small companies have been highly
volatile. We believe that various factors may cause the market price of our stock to fluctuate, perhaps substantially, including,
among others, announcements of:
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our
or our competitors’ technological innovations;
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supply,
manufacturing, or distribution disruptions or other similar problems;
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proposed
laws regulating participants in the laboratory services industry;
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developments
in relationships with collaborative partners or customers;
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our
failure to meet or exceed securities analysts’ expectations of our financial results; or
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a
change in financial estimates or securities analysts’ recommendations.
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In
the past, companies that have experienced volatility in the market price of their stock have been the objects of securities class
action litigation. If we become the object of securities class action litigation, it could result in substantial costs and a diversion
of management’s attention and resources, all of which could materially adversely affect the business and financial results
of our business.
Future
sales or the potential for future sales of our securities in the public markets may cause the trading price of our common stock
to decline and could impair our ability to raise capital through subsequent equity offerings.
Sales
of a substantial number of shares of our common stock or other securities in the public markets, or the perception that these
sales may occur, could cause the market price of our common stock or other securities to decline and could materially impair our
ability to raise capital through the sale of additional securities. The shares of common stock issuable upon conversion of our
Series F preferred stock and upon exercise of our outstanding warrants are freely tradable, without restriction, in the public
market. We have obligations to the investors in our 2012 private placement offering of Series A convertible preferred stock and
warrants to purchase common stock and in our 2013 private placement offering of Series C convertible preferred stock and warrants
to maintain the public registration of common stock underlying their issued and outstanding warrants. If we raise additional capital
in the future through the use of our existing shelf registration statement or if we register existing, or agree to register future,
privately placed shares for resale on a registration statement, such additional shares would be freely tradable, and, if significant
in amount, such sales could further adversely affect the market price of our common stock. The sale of a large number of shares
of our common stock also might make it more difficult for us to sell equity or equity-related securities in the future at a time
and at the prices that we deem appropriate.
Our
stock price could decline because of the potentially dilutive effect of future financings, the Series F preferred stock anti-dilution
provision or exercises of warrants and common stock options.
As
of March 31, 2016, we had 1,067,788 shares of common stock issued and outstanding. Assuming exercise in full of all options, warrants
and convertible securities outstanding as of March 31, 2016 (not taking into account any price-based or anti-dilution adjustments
related to the Series F preferred stock), approximately 5.7 million shares of our common stock would be outstanding. Any additional
equity or convertible debt financings in the future could result in further dilution to our stockholders. Existing stockholders
also will suffer significant dilution in ownership interests and voting rights and our stock price could decline as a result of
potential future application of anti-dilution feature of our Series F preferred stock.
We
may fail to meet market expectations because of fluctuations in our quarterly operating results, all of which could cause our
stock price to decline.
Our
revenues and operating results have fluctuated in the past and may continue to fluctuate significantly from quarter to quarter
in the future. It is possible that, in future periods, our revenues could fall below the expectations of securities analysts or
investors, all of which could cause the market price of our stock to decline. The following are among the factors that could cause
our operating results to fluctuate significantly from period to period:
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our
unpredictable revenue sources;
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the
nature, pricing and timing of our and our competitors’ products and/or services;
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changes
in our and our competitors’ research and development budgets;
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expenses
related to, and our ability to comply with, governmental regulations of our services and processes; and
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expenses
related to, and the results of, patent filings and other proceedings relating to intellectual property rights.
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We
anticipate significant fixed expenses due in part to our need to continue to invest in services development. We may be unable
to adjust our expenditures if revenues in a particular period fail to meet our expectations, all of which would materially adversely
affect our operating results for that period. As a result of these fluctuations, we believe that period-to-period comparisons
of our financial results will not necessarily be meaningful, and you should not rely on these comparisons as an indication of
our future performance.
Our
common stock may be delisted from The NASDAQ Capital Market if we cannot maintain compliance with NASDAQ’s continued listing
requirements.
While
we are in compliance with NASDAQ’s stockholders’ equity requirement and minimum bid price requirement as of the date
of this prospectus, there are no assurances that we will be able to sustain long-term compliance with NASDAQ’s stockholders’
equity requirement or minimum bid price requirement. If we fail to maintain compliance with the applicable requirements, our stock
may be delisted. Delisting from The NASDAQ Capital Market could make trading our common stock more difficult for investors, potentially
leading to declines in our share price and liquidity. Without a NASDAQ Capital Market listing, stockholders may have a difficult
time getting a quote for the sale or purchase of our stock, the sale or purchase of our stock would likely be made more difficult
and the trading volume and liquidity of our stock could decline. Delisting from The NASDAQ Capital Market could also result in
negative publicity and could also make it more difficult for us to raise additional capital. The absence of such a listing may
adversely affect the acceptance of our common stock as currency or the value accorded by other parties. Further, if we are delisted,
we would also incur additional costs under state blue sky laws in connection with any sales of our securities. These requirements
could severely limit the market liquidity of our common stock and the ability of our stockholders to sell our common stock in
the secondary market. If our common stock is delisted by NASDAQ, our common stock may be eligible to trade on an over-the-counter
quotation system, such as the OTCQB market, where an investor may find it more difficult to sell our stock or obtain accurate
quotations as to the market value of our common stock. We cannot assure you that our common stock, if delisted from The NASDAQ
Capital Market, will be listed on another national securities exchange or quoted on an over-the counter quotation system.
If
we are delisted from The NASDAQ Capital Market, your ability to sell your shares of our common stock would also be limited by
the penny stock restrictions, which could further limit the marketability of your shares.
If
our common stock is delisted, it would come within the definition of “penny stock” as defined in the Securities Exchange
Act of 1934, or the Exchange Act, and would be covered by Rule 15g-9 of the Exchange Act. That Rule imposes additional sales practice
requirements on broker-dealers who sell securities to persons other than established customers and accredited investors. For transactions
covered by Rule 15g-9, the broker-dealer must make a special suitability determination for the purchaser and receive the purchaser’s
written agreement to the transaction prior to the sale. Consequently, Rule 15g-9, if it were to become applicable, would affect
the ability or willingness of broker-dealers to sell our securities, and accordingly would affect the ability of stockholders
to sell their securities in the public market. These additional procedures could also limit our ability to raise additional capital
in the future.
The
significant influence over stockholder voting matters that may be exercised by our 5% or greater stockholders may limit your ability
to influence corporate actions.
As
of March 31, 2016, our 5% or greater stockholders collectively have voting power over approximately 38% of our outstanding common
stock. As a result, our 5% or greater stockholders, acting together, may be able to influence matters requiring stockholder approval,
including the election of directors, management changes and approval of significant corporate transactions. This concentration
of voting power may have the effect of delaying, preventing or deterring a change in control, could deprive our stockholders of
an opportunity to receive a premium for their common stock as part of a change in control and might reduce the market price of
our common stock.
Risks
Associated with this Offering
You
may experience immediate dilution in the book value per share of common stock as a result of this offering upon the conversion
of the Series F preferred stock or the exercise of the March 2016 warrants.
An
investor that acquires additional shares of common stock upon conversion of the Series F preferred stock or exercise of the March
2016 warrants may experience additional dilution depending on our net tangible book value at the time of conversion or exercise.
Our net tangible book value as of March 31, 2016 was approximately $8.7 million, or $8.13 per share of our common stock based
on 1,067,788 shares outstanding at that time. Assuming that we issue all of the remaining 1,856,324 shares of our common stock
issuable upon conversion of the remaining unconverted Series F convertible preferred stock at March 31, 2016 (of which 267,705
shares of common stock have been issued for conversions since March 31, 2016) and all 2,067,183 shares of our common stock issuable
upon exercise of the March 2016 warrants at a per share exercise price of $5.17, our net tangible book value as of March 31, 2016
would have been approximately $19.4 million, or $3.88 per share of our common stock. This amount represents an immediate decrease
in net tangible book value of $4.25 per share to our existing stockholders and an immediate dilution in net tangible book value
of $0.01 per share to investors acquiring common stock upon conversion of the remaining Series F preferred stock and upon exercise
of the March 2016 warrants. If outstanding options and warrants to purchase our common stock are exercised, you will experience
further dilution. See the section entitled “Dilution” below.
Our
management might not use the proceeds of this offering effectively.
Our
management has broad discretion over the use of proceeds of this offering. In addition, our management has not designated a specific
use for a substantial portion of the proceeds of this offering. Accordingly, it is possible that our management may allocate the
proceeds in ways that do not improve our operating results. In addition, cash proceeds received in the offering may be temporarily
used to purchase short-term, low-risk investments, and such investments might not be invested to yield a favorable rate of return.
Our
corporate governance structure may prevent our acquisition by another company at a premium over the public trading price of our
shares.
It
is possible that the acquisition of a majority of our outstanding voting stock by another company could result in our stockholders
receiving a premium over the public trading price for our shares. Provisions of our certificate of incorporation and bylaws, each
as amended, and of Delaware corporate law could delay or make more difficult an acquisition of our Company by merger, tender offer
or proxy contest, even if it would create an immediate benefit to our stockholders. For example, our certificate of incorporation
does not permit stockholders to act by written consent or to call a special meeting.
In
addition, our board of directors has the authority to issue up to 5,000,000 shares of preferred stock and to determine the terms,
rights and preferences of this preferred stock, including voting rights of those shares, without any further vote or action by
the stockholders. The rights of the holders of common stock may be subordinate to, and adversely affected by, the rights of holders
of preferred stock that may be issued in the future. The issuance of preferred stock could also make it more difficult for a third
party to acquire a majority of our outstanding voting stock, even at a premium over our public trading price.
Further,
our certificate of incorporation also provides that our directors may only be removed by the affirmative vote of holders of at
least two- thirds of the shares entitled to vote at a meeting called for that purpose or, where such action is approved by a majority
of the directors, the affirmative vote of the holders of a majority of the shares entitled to vote. These provisions may have
the effect of delaying or preventing a change in control of us without action by our stockholders and, therefore, could adversely
affect the price of our stock or the possibility of sale of shares to an acquiring person. See the section in this prospectus
entitled “Description of Capital Stock—Anti-Takeover Effects of Certain Provisions of Delaware Law and Our Certificate
of Incorporation and Bylaws.”
We
do not anticipate declaring any cash dividends on our common stock.
We
have never declared or paid cash dividends on our common stock and do not plan to pay any cash dividends in the near future. Our
current policy is to retain all funds and earnings for use in the operation and expansion of our business.
The
leak-out agreement prevents certain investors in this offering from selling shares of our common stock and may result in a loss
of investment.
The
leak-out agreement executed by certain holders of our Series F preferred stock contains terms which restrict the ability of such
investors and their affiliates to sell, dispose or otherwise transfer, in the aggregate, more than their pro-rata portion of 40%
of the composite trading volume of our common stock on any trading day; provided, however, that such restriction shall not apply
to any sale, disposal or other transfer at a price greater than $5.00 per share (as adjusted for stock splits and the like). Such
investors will not be permitted to accumulate or roll-forward to a subsequent trading day the amount to which such investor was
entitled to sell on such trading day but elected not to sell. If our stock price decreases following this offering, such investors
will only be able to sell limited quantities of shares of common stock and therefore may be unable to prevent a loss on investment
if our stock price continues to decline. These restrictions may be amended or waived by us and the holders of two-thirds of the
outstanding Series F preferred stock (and shares of common stock issued upon conversion thereof). If this happens, the price of
our common stock could decline significantly.
Additional
Risks Related to our Business, Industry and an Investment in our common stock
For
a discussion of additional risks associated with our business, our industry and an investment in our common stock, see the section
entitled “Risk Factors” in our most recent Annual Report on Form 10-K, as filed with the SEC on February 18, 2016,
as well as the disclosures contained in documents filed by us thereafter pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, which are incorporated by reference into, and deemed to be a part of, this prospectus.
USE
OF PROCEEDS
We
will not receive any proceeds from conversions of Series F preferred stock. We expect to receive net proceeds from the sale of
the common stock upon exercise of the March 2016 warrants to be approximately $10.7 million, which assumes all of the March 2016
warrants are exercised in full at the exercise price of $5.17 per share. We cannot predict when or if the March 2016 warrants
will be exercised, however, and it is possible that the March 2016 warrants may expire and never be exercised.
We
intend to use the net proceeds from this public offering for working capital and general corporate purposes (including research
and development and sales and marketing). General corporate purposes may include capital expenditures. We will continue to invest
in commercial, scientific, and development infrastructure to drive revenue growth and to bring new assays to market that will
be accretive to our current suite of diagnostic testing services. The amounts and timing of our actual expenditures will depend
on numerous factors. We may find it necessary or advisable to use portions of the net proceeds for other purposes, and we will
have broad discretion in the application and allocation of the net proceeds from this offering. Additionally, we may use a portion
of the net proceeds of this offering to finance acquisitions of, or investments in, competitive and complementary businesses,
products or services as a part of our growth strategy. However, we currently have no commitments with respect to any such acquisitions
or investments.
Pending
use of the net proceeds from this offering, we may invest the net proceeds in short-term, interest-bearing, investment-grade securities.
We cannot predict whether the proceeds invested will yield a favorable return.
DILUTION
An
investor that acquires additional shares of common stock upon conversion of the Series F preferred stock or exercise of the March
2016 warrants may experience additional dilution depending on our net tangible book value at the time of conversion or exercise.
Our net tangible book value as of March 31, 2016 was approximately $8.7 million, or $8.13 per share of our common stock. Net tangible
book value per share is equal to our total tangible assets minus total liabilities, all divided by 1,067,788 of shares of common
stock issued and outstanding as of March 31, 2016.
Assuming
that we issue all of the remaining 1,856,324 shares of our common stock issuable upon conversion of the the remaining unconverted
Series F convertible preferred stock at March 31, 2016 (of which 267,705 shares of common stock have been issued for conversions
since March 31, 2016) and all 2,067,183 shares of our common stock issuable upon exercise of the March 2016 warrants at a per
share exercise price of $5.17, our net tangible book value as of March 31, 2016 would have been approximately $19.4 million, or
$3.88 per share of our common stock. This amount represents an immediate decrease in net tangible book value of $4.25 per share
to our existing stockholders and an immediate dilution in net tangible book value of $0.01 per share to investors acquiring common
stock upon conversion of the Series F preferred stock and upon exercise of the March 2016 warrants.
We
determine dilution by subtracting the adjusted net tangible book value per share after this offering from the conversion price
per share of our common stock. The following table illustrates the dilution in net tangible book value per share to new investors.
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Conversion price per share of Series F preferred stock
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$
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3.87
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Exercise price per share underlying March 2016 warrants
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$
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5.17
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Net tangible book value per share of common stock as of March 31, 2016
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$
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8.13
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Decrease in net tangible book value per share attributable to new investors
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(4.25
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)
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Adjusted net tangible book value per share as of March 31, 2016 after
giving effect to this offering
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3.88
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Dilution in net tangible book value per share to new investors acquiring
common stock upon conversion of Series F preferred stock and upon exercise of the March 2016 warrants
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$
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0.01
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Dilution as a percentage of conversion price
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0.3
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%
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The
amounts above are based on 1,067,788 shares of common stock outstanding as of March 31, 2016, and include 267,705 shares of common
stock issued from conversions of Series F preferred stock to common stock, which have occurred subsequent to March 31, 2016 through
May 6, 2016. The amounts also assume no exercise of outstanding convertible securities (other than the Series F preferred stock
conversions described herein), options or warrants (other than the March 2016 warrants) since that date. The number of shares
of common stock anticipated to be outstanding after this offering excludes:
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75,163
shares of common stock issuable upon the exercise of outstanding stock options under our 2006 Incentive Plan, having a weighted
average exercise price of $92.63 per share;
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27,848
shares of common stock issuable upon the vesting of certain restricted stock units under our 2006 Incentive Plan;
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634,571
shares of common stock issuable upon the exercise of outstanding warrants, having a weighted average exercise price of $37.09
per share, other than the shares of common stock that may be issued upon the exercise of outstanding March 2016 warrants with
an exercise price of $5.17 per share; and
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additional
shares of common stock that may be issuable upon conversion of Series F preferred stock pursuant to the anti-dilution provisions
thereof.
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To
the extent that any of our outstanding options or warrants (other than the March 2016 warrants) are exercised, we grant additional
options or awards under our stock option plans or issue additional warrants or preferred stock, or we issue additional shares
of common stock in the future, there may be further dilution to new investors.
PLAN
OF DISTRIBUTION
This
prospectus relates to 1,588,619 shares of our common stock issuable upon the conversion of our outstanding Series F convertible
preferred stock and 2,067,183 shares of our common stock issuable upon the exercise of our outstanding March 2016 warrants. The
Series F convertible preferred stock and the March 2016 warrants were offered and sold by us in an underwritten public offering
pursuant to a prospectus dated March 21, 2016, which prospectus also covered the offer and sale by us of the shares of our common
stock underlying the Series F convertible preferred stock and underlying the March 2016 warrants. The ongoing offer and sale by
us of the shares of our common stock issuable upon conversion of the Series F convertible preferred stock and upon exercise of
the March 2016 warrants is being made pursuant to this prospectus. The Series F convertible preferred stock is convertible at
any time at the option of the holder into shares of our common stock at a current conversion price per share equal to $3.87, subject
to adjustment upon events specified in the certificate of designation of the Series F convertible preferred stock, and the March
2016 warrants are exercisable until March 24, 2021 at a current exercise price of $5.17 per share of our common stock, subject
to adjustment upon events specified in the March 2016 warrants.
The
conversion price per share of the Series F preferred stock and the exercise price per share of the March 2016 warrants were negotiated
between us and the underwriters in our March 2016 underwritten public offering based on the trading of our common stock prior
to that offering, among other things, and equaled 75% and 100%, respectively, of the consolidated closing bid price of our common
stock on The NASDAQ Capital Market on the date we entered into the underwriting agreement in connection with that offering. Other
factors considered in determining the conversion price of the Series F preferred stock and the exercise price of the March 2016
warrants included our history and prospects, the stage of development of our business, our business plans for the future and the
extent to which they have been implemented, an assessment of our management, general conditions of the securities markets at the
time of the underwritten public offering and such other factors as were deemed relevant.
As
of April 30, 2016, 6,148 shares of Series F preferred stock and all of the March 2016 warrants are outstanding. No additional
Series F preferred stock or March 2016 warrants will be issued. We will deliver shares of our common stock upon conversion of
Series F preferred stock or exercise of March 2016 warrants. We will not issue fractional shares. The certificate of designation
of the Series F preferred stock contains instructions for conversion and each March 2016 warrant contains instructions for exercise.
In order to convert Series F preferred stock or exercise a March 2016 warrant, the holder must deliver to us, or our transfer
agent, the information required thereby and, in the case of the March 2016 warrants, payment of the exercise price for the shares
to be purchased. We will then deliver shares of our common stock in the manner described below in the sections titled “Description
of Capital Stock — Common Stock and Preferred Stock” and “Description of Capital Stock — Warrants —
March 2016 warrants”.
DESCRIPTION
OF CAPITAL STOCK
The
following is a brief description of our capital stock. This summary does not purport to be complete in all respects. This description
is subject to and qualified entirely by the terms of our certificate of incorporation, as amended, or our certificate of incorporation,
and our bylaws, as amended, or our bylaws, copies of which have been filed with the SEC and are also available upon request from
us, and by the General Corporation Law of the State of Delaware.
Capital
Stock
Common
Stock and Preferred Stock
We
are authorized to issue up to 50,000,000 shares of common stock, par value $0.001 per share. As of April 30, 2016, we had 1,335,493
shares of common stock outstanding. Holders of our common stock are entitled to one vote for each share on all matters submitted
to a stockholder vote and may not cumulate their votes. Holders of common stock are entitled to share in all dividends that our
Board of Directors, or the Board, in its discretion, declares from legally available funds. In the event of our liquidation, dissolution
or winding up, each outstanding share entitles its holder to participate pro rata in all assets that remain after payment of liabilities
and after providing for each class of stock, if any, having preference over the common stock.
Holders
of our common stock have no preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges
of holders of common stock are subject to, and may be adversely affected by, the rights of holders of Series F preferred stock
or shares of any other series of preferred stock which we may designate and issue in the future without further stockholder approval.
The outstanding shares of common stock are fully paid and nonassessable and shares of common stock issued under this prospectus
will be fully paid and nonassessable upon issuance. Our common stock is traded on The NASDAQ Capital Market under the symbol “CBMX.”
We
are authorized to issue up to 5,000,000 shares of preferred stock, par value $0.001 per share. Our Board is authorized by our
certificate of incorporation to establish classes or series of preferred stock and fix the designation, powers, preferences and
rights of the shares of each such class or series and the qualifications, limitations or restrictions thereof without any further
vote or action by our stockholders. Any shares of preferred stock so issued could have priority over our common stock with respect
to dividend or liquidation rights. Any future issuance of preferred stock may have the effect of delaying, deferring or preventing
a change in our control without further action by our stockholders and may adversely affect the voting and other rights of the
holders of our common stock.
The
issuance of shares of preferred stock, or the issuance of rights to purchase such shares, could be used to discourage an unsolicited
acquisition proposal. For instance, the issuance of a series of preferred stock might impede a business combination by including
class voting rights that would enable a holder to block such a transaction. In addition, under certain circumstances, the issuance
of preferred stock could adversely affect the voting power of holders of our common stock. Although our Board is required to make
any determination to issue preferred stock based on its judgment as to the best interests of our stockholders, our Board could
act in a manner that would discourage an acquisition attempt or other transaction that some, or a majority, of our stockholders
might believe to be in their best interests or in which such stockholders might receive a premium for their stock over the then
market price of such stock. Our Board presently does not intend to seek stockholder approval prior to the issuance of currently
authorized stock, unless otherwise required by law or applicable stock exchange rules.
Series
A Preferred Stock
In
2012, we consummated a Series A preferred stock financing, pursuant to which we issued and sold shares of Series A 6% convertible
preferred stock and warrants to purchase common stock. Although there currently are no outstanding shares of Series A preferred
stock, we still have certain other obligations in connection with the Series A preferred stock financing as described below.
On
September 28, 2012, we entered into a Registration Rights Agreement with the Series A Investors which requires us to maintain
effective registration statements with the SEC registering for resale the shares of common stock issuable upon exercise of the
Series A Warrants (including any additional shares of common stock issuable in connection with any anti-dilution provisions of
the Series A Warrants).
Until
all Series A Investors no longer hold Series A Warrants, without the consent of the holders of a majority of the Series A Warrants
then outstanding: (i) we may not sell any variable rate securities or dilutive securities except for certain exempt issuances;
(ii) if we enter into a subsequent financing on more favorable terms than the Series A preferred stock financing, then the agreements
between us and the Series A Investors may be amended to include such more favorable terms; and (iii) we may not sell securities
at an effective price per share less than $73.65 except for certain exempt issuances.
Series
B Preferred Stock
In
2013, we consummated a Series B preferred stock financing through a registered direct offering, pursuant to which we issued and
sold shares of Series B 6% convertible preferred stock and warrants to purchase common stock. Although there currently are no
outstanding shares of Series B preferred stock, we still have certain other obligations in connection with the Series B preferred
stock financing as described below.
We
have agreed with the Series B Investor that while such Series B Investor holds Series B Warrants, we will not effect or enter
into an agreement to effect a variable rate transaction, which means a transaction in which we: (i) issue or sell any convertible
securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading
prices of, or quotations for, the shares of common stock at any time after the initial issuance of such convertible securities,
or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance
of such convertible securities or upon the occurrence of specified or contingent events directly or indirectly related to our
business; or (ii) enter into any agreement (including, without limitation, an equity line of credit) whereby we may sell securities
at a future determined price.
We
also have agreed with the Series B Investor that, except under certain permitted circumstances, until the time that less than
7.5% of the Series B Warrants remain outstanding, neither we nor our subsidiary shall issue, or enter into any agreement to issue,
common stock or equivalents thereof at a price below the exercise price of the Series B Warrants without the consent of the holders
of a majority of the Series B Warrants then outstanding.
Series
C Preferred Stock
In
2013, we consummated a Series C preferred stock financing, pursuant to which we issued and sold shares of Series C 6% convertible
preferred stock and warrants to purchase common stock. Although there currently are no outstanding shares of Series C preferred
stock, we still have certain other obligations in connection with the Series C preferred stock financing as described below.
Until
all Series C Investors no longer hold Series C Warrants, without the consent of the holders of a majority of the Series C Warrants
then outstanding, (i) we may not sell any variable rate securities except for certain exempt issuances and (ii) if we enter into
a subsequent financing on more favorable terms than the Series C preferred stock financing, then the agreements between us and
the Series C Investors may be amended to include such more favorable terms. In addition, until 7.5% or less of the Series C Warrants
remain unexercised, we may not sell any dilutive securities at a price below the exercise price of the Series C Warrants, except
for certain exempt issuances.
In
connection with the Series C preferred stock financing, we entered into a Registration Rights Agreement with the Series C Investors
which requires us to maintain an effective registration statement with the SEC registering for resale the shares of common stock
issuable upon exercise of the Series C Warrants.
Series
D Preferred Stock
In
2013, we consummated a public offering of Series D preferred stock and warrants to purchase common stock. There currently are
no outstanding shares of Series D preferred stock.
Series
E Preferred Stock
In
2015, we consummated a Series E preferred stock financing through a registered direct offering, pursuant to which we issued and
sold shares of Series E 6% convertible preferred stock and warrants to purchase common stock. Although there currently are no
outstanding shares of Series E preferred stock, we still have certain other obligations in connection with the Series E preferred
stock financing as described below.
We
agreed with the Series E investors that while such investors hold Series E Warrants, we will not effect or enter into an agreement
to effect a “Variable Rate Transaction,” which means a transaction in which we: (i) issue or sell any convertible
securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading
prices of, or quotations for, the shares of our common stock at any time after the initial issuance of such convertible securities,
or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance
of such convertible securities or upon the occurrence of specified or contingent events directly or indirectly related to our
business; or (ii) enter into any agreement (including, without limitation, an equity line of credit) whereby we may sell securities
at a future determined price.
We
also agreed with the Series E investors that, without the consent of the holders of a majority of the Series E Warrants then outstanding,
except under certain permitted circumstances, until the time that less than 7.5% of the Series E Warrants remain outstanding,
neither we nor our subsidiaries will issue, or enter into any agreement to issue, common stock or equivalents thereof at a price
below the exercise price of the Series E Warrants.
Series
F Preferred Stock
Our
Board has designated 8,000 shares of preferred stock as Series F convertible preferred stock, $0.001 par value. As of April 30,
2016, there were 6,148 shares of Series F preferred stock outstanding. Although there is no current intent to do so, our Board
may, without stockholder approval, issue shares of an additional class or series of preferred stock with voting and conversion
rights which could adversely affect the voting power of the holders of the common stock or the convertible preferred stock, except
as prohibited by the certificate of designation of preferences, rights and limitations of Series F convertible preferred stock.
The
following is a summary of the material terms of our Series F preferred stock. For more information, please refer to the certificate
of designation of preferences, rights and limitations of Series F convertible preferred stock.
Liquidation.
Upon any dissolution, liquidation or winding up, whether voluntary or involuntary, holders of Series F preferred stock will
be entitled to receive distributions out of our assets, whether capital or surplus, of an amount equal to $0.001 per share of
Series F preferred stock before any distributions shall be made on the common stock or any series of preferred stock ranked junior
to the Series F preferred stock, but after distributions shall be made on any outstanding Series E preferred stock and any of
our existing or future indebtedness.
Dividends.
Holders of the Series F preferred stock will be entitled to receive dividends equal (on an “as converted to common stock”
basis) to and in the same form as dividends actually paid on shares of our common stock when, as and if such dividends are paid
on shares of our common stock. No other dividends will be paid on shares of Series F preferred stock.
Conversion.
Each share of Series F preferred stock is convertible, at any time and from time to time at the option of the holder thereof,
into that number of shares of common stock determined by dividing 1,000 by the conversion price of $3.87 (subject to adjustment
described below), which is 75% of the consolidated closing bid price of our common stock on The NASDAQ Capital Market on the date
we entered into the underwriting agreement. This right to convert is limited by the beneficial ownership limitation described
below.
Forced
Conversion.
Subject to certain ownership limitations as described below and certain equity conditions being met, until such
time that during any 20 of 30 consecutive trading days, the volume weighted average price of our common stock exceeds 200% of
the conversion price and the daily dollar trading volume during such period exceeds $200,000 per trading day, we shall have the
right to force the conversion of the Series F preferred stock into common stock.
Beneficial
Ownership Limitation.
A holder shall have no right to convert any portion of Series F preferred stock, to the extent that,
after giving effect to such conversion, such holder, together with such holder’s affiliates, and any persons acting as a
group together with such holder or any such affiliate, would beneficially own in excess of 4.99% of the number of shares of common
stock outstanding immediately after giving effect to the issuance of shares of common stock upon such conversion (subject to the
right of the holder to increase such beneficial ownership limitation upon not less than 61 days prior notice provided that such
limitation can never exceed 9.99% and such 61 day period cannot be waived). Beneficial ownership of the holder and its affiliates
will be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. Holders of Series F preferred stock who are subject to such beneficial ownership limitation are and will
remain responsible for ensuring their own compliance with Regulation 13D-G promulgated under the Securities Exchange Act of 1934,
as amended, consistent with their individual facts and circumstances. In addition, pursuant to Rule 13d-3(d)(1)(i) promulgated
under the Securities Exchange Act of 1934, as amended, any person who acquires Series F preferred stock with the purpose or effect
of changing or influencing the control of our company, or in connection with or as a participant in any transaction having such
purpose or effect, immediately upon such acquisition will be deemed to be the beneficial owner of the underlying common stock.
Conversion
Price Adjustment
Subsequent
Equity Sales.
The Series F preferred stock has full ratchet price based anti-dilution protection, subject to customary carve
outs, in the event of a down-round financing at a price per share below the conversion price of the Series F preferred stock.
If during any 20 of 30 consecutive trading days the volume weighted average price of our common stock exceeds 200% of the then-effective
conversion price of the Series F preferred stock and the daily dollar trading volume for each trading day during such period exceeds
$200,000, the anti-dilution protection in the Series F preferred stock will expire and cease to apply.
Stock
Dividends and Stock Splits.
If we pay a stock dividend or otherwise make a distribution payable in shares of common stock
on shares of common stock or any other common stock equivalents, subdivide or combine outstanding common stock, or reclassify
common stock, the conversion price will be adjusted by multiplying the then conversion price by a fraction, the numerator of which
shall be the number of shares of common stock outstanding immediately before such event, and the denominator of which shall be
the number of shares outstanding immediately after such event.
Fundamental
Transaction.
If we effect a fundamental transaction in which we are the surviving entity, then upon any subsequent conversion
of Series F preferred stock, the holder thereof shall have the right to receive, for each share of common stock that would have
been issuable upon such conversion immediately prior to the occurrence of such fundamental transaction, the number of shares of
our common stock and any additional consideration receivable as a result of such fundamental transaction by a holder of the number
of shares of common stock into which Series F preferred stock is convertible immediately prior to such fundamental transaction.
If we effect a fundamental transaction in which we are not the surviving entity or a reverse merger in which we are the surviving
entity, then the surviving entity shall purchase the outstanding Series F preferred stock by paying and issuing, in the event
that such consideration given to common stockholders is non-cash consideration, as the case may be, to such holder (or canceling
such holder’s outstanding Series F preferred stock and converting it into the right to receive) an amount equal to the greater
of (i) the cash consideration plus the non-cash consideration (in the form issuable to the holders of common stock) per share
of the common stock in the fundamental transaction multiplied by the number of conversion shares underlying the shares of Series
F preferred stock held by the holder on date of the consummation of the fundamental transaction or (ii) 130% of the stated value
of the Series F preferred stock then outstanding on the date immediately prior to the consummation of the fundamental transaction.
Such amount shall be paid in the same form and mix (be it securities, cash or property, or any combination of the foregoing) as
the consideration received by the common stock in such fundamental transaction. A fundamental transaction means: (i) our merger
or consolidation with or into another entity, (ii) any sale or other disposition of all or substantially all of our assets in
one transaction or a series of related transactions, (iii) any tender offer or exchange offer allowing holders of our common stock
to tender or exchange their shares for cash, property or securities, and has been accepted by the holders of 50% or more of the
outstanding common stock (iv) any reclassification of our common stock or any compulsory share exchange by which common stock
is effectively converted into or exchanged for other securities, cash or property, or (v) consummation of a stock or share purchase
agreement or other business combination with another person whereby such other person acquires more than 50% of the outstanding
shares of common stock.
Voting
Rights, etc.
Except as otherwise provided in the Series F preferred stock certificate of designation or required by law, the
Series F preferred stock has no voting rights. However, as long as any shares of Series F preferred stock are outstanding, we
may not, without the affirmative vote of the holders of a majority of the then outstanding shares of the Series F preferred stock,
alter or change adversely the powers, preferences or rights given to the Series F preferred stock, amend its certificate of designation,
amend our certificate of incorporation or other charter documents in any manner that adversely affects any rights of the holders,
increase the number of authorized shares of Series F preferred stock, or enter into any agreement with respect to any of the foregoing.
The Series F preferred stock certificate of designation provides that if any party commences an action or proceeding to enforce
any provisions of the certificate of designation, then the prevailing party in such action or proceeding shall be reimbursed by
the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution
of such action or proceeding. This provision may, under certain circumstances, be inconsistent with federal securities laws and
Delaware general corporation law.
Fractional
Shares.
No fractional shares of common stock will be issued upon conversion of Series F preferred stock. Rather, we shall,
at our election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the conversion price or round up to the next whole share.
The
Series F preferred stock has been issued in book-entry form under a preferred stock agent agreement between Computershare as preferred
stock agent, and us, and is represented by one or more book-entry certificates deposited with The Depository Trust Company, or
DTC, and registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC. There is no established
public trading market for the Series F preferred stock and we do not expect a market to develop. We do not plan on applying to
list the Series F preferred stock on The NASDAQ Capital Market, any other national securities exchange or any other nationally
recognized trading system.
Warrants
Outstanding
warrants to purchase our common stock are as follows:
|
|
|
Shares of
Common Stock
Issuable from
Warrants
Outstanding as of
March 31, 2016
|
|
|
Exercise
Price
|
|
|
Expiration
|
|
March 2016
|
|
|
2,067,183
|
|
|
$
|
5.17
|
|
|
March 2021
|
|
April 2015
|
|
|
1,831
|
|
|
$
|
32.51
|
|
|
August 2020
|
|
April 2015
|
|
|
100,847
|
|
|
$
|
16.50
|
(1)
|
|
August 2020
|
|
February 2015
|
|
|
46,676
|
|
|
$
|
16.50
|
(2)
|
|
August 2020
|
|
June 2014
|
|
|
1,690
|
|
|
$
|
30.90
|
|
|
April 2018
|
|
December 2013
|
|
|
388,365
|
|
|
$
|
46.80
|
|
|
December 2018
|
|
June 2013
|
|
|
32,788
|
|
|
$
|
29.55
|
(3)
|
|
June 2019
|
|
May 2013
|
|
|
32,788
|
|
|
$
|
29.55
|
(4)
|
|
May 2019
|
|
March 2013
|
|
|
18,334
|
|
|
$
|
29.55
|
(5)
|
|
March 2019
|
|
October 2012
|
|
|
11,252
|
|
|
$
|
29.55
|
(6)
|
|
September 2018
|
|
|
|
|
2,701,754
|
|
|
|
|
|
|
|
|
(1)
|
Prior
to a warrant modification, which occurred in October 2015, these warrants had an initial exercise price of $32.51 per share.
|
|
|
|
|
(2)
|
Prior
to a warrant modification, which occurred in October 2015, these warrants had an initial exercise price of $29.55 per share.
|
|
|
|
|
(3)
|
Prior
to a warrant modification, which occurred in February 2015, these warrants had an initial exercise price of $53.25 per share.
|
|
|
|
|
(4)
|
Prior
to a warrant modification, which occurred in February 2015, these warrants had an initial exercise price of $56.55 per share.
|
|
|
|
|
(5)
|
Prior
to a warrant modification, which occurred in February 2015, these warrants had an initial exercise price of $52.35 per share.
|
|
|
|
|
(6)
|
Prior
to anti-dilution adjustments, which occurred on March 20, 2013 and June 28, 2013, and a warrant modification which occurred
in February 2015 these warrants had an initial exercise price of $142.50 per share.
|
October
2012 Warrants
As
of April 30, 2016, there are warrants to purchase 11,252 shares of common stock that were issued to the Series A investors in
October 2012 in connection with the first closing of the Series A preferred stock financing.
The
warrants originally had a term of 5
1
/
2
years and were exercisable at an exercise price of $42.90 per share;
however, pursuant to a modification entered into in February 2015, (i) the exercise price of these warrants was reduced to $29.55,
(ii) the exercise of such modified warrants was prohibited for a period of six months after the date of the modification and (iii)
the exercise period of such modified warrants was extended for an additional six months.
The
exercise price of these warrants and the number of shares of common stock underlying these warrants are subject to proportional
adjustment for stock splits, stock dividends and the like, but, as amended, are not subject to any price-based anti-dilution adjustments.
If,
at the time of exercise of these warrants, there is no effective registration statement registering the shares of common stock
issuable upon exercise of the warrant or the prospectus contained in the registration statement is not available for the issuance
of the shares of common stock issuable upon exercise of the warrant, the holder may exercise the warrant, in whole or in part,
on a cashless basis. When exercised on a cashless basis, a portion of the warrant is cancelled in payment of the purchase price
payable in respect of the number of shares of our common stock purchasable upon such exercise.
A
holder has no right to exercise any portion of these warrants, to the extent that, after giving effect to such exercise, such
holder, together with such holder’s affiliates, and any persons acting as a group together with such holder or any such
affiliate, would beneficially own in excess of, at the initial option of the holder thereof, 4.99% (which may be increased, but
not above 9.99%) of the number of shares of common stock outstanding immediately after giving effect to the issuance of the shares
of common stock upon such exercise. Beneficial ownership of the holder and its affiliates will be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
March
2013 Warrants
As
of April 30, 2016, there are warrants to purchase 18,334 shares of common stock that were issued to the Series B investor in March
2013 in connection with the closing of the Series B preferred stock financing.
The
warrants originally had a term of 5½ years and were exercisable at an exercise price of $52.35 per share; however, pursuant
to a modification entered into in February 2015, (i) the exercise price of these warrants was reduced to $29.55, (ii) the exercise
of such modified warrants was prohibited for a period of six months after the date of the modification and (iii) the exercise
period of such modified warrants was extended for an additional six months.
The
exercise price of these warrants and the number of shares of common stock underlying these warrants are subject to proportional
adjustment for stock splits, stock dividends and the like, but are not subject to any price-based anti-dilution adjustments.
If,
at the time of exercise of these warrants, there is no effective registration statement registering the shares of common stock
issuable upon exercise of the warrant or the prospectus contained in the registration statement is not available for the issuance
of the shares of common stock issuable upon exercise of the warrant, the holder may exercise the warrant, in whole or in part,
on a cashless basis. When exercised on a cashless basis, a portion of the warrant is cancelled in payment of the purchase price
payable in respect of the number of shares of our common stock purchasable upon such exercise.
A
holder has no right to exercise any portion of these warrants, to the extent that, after giving effect to such exercise, such
holder, together with such holder’s affiliates, and any persons acting as a group together with such holder or any such
affiliate, would beneficially own in excess of, at the initial option of the holder thereof, 4.99% (which may be increased, but
not above 9.99%) of the number of shares of common stock outstanding immediately after giving effect to the issuance of the shares
of common stock upon such exercise. Beneficial ownership of the holder and its affiliates will be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
May
and June 2013 Warrants
As
of April 30, 2016, there are warrants to purchase 32,788 shares of common stock that were issued to the Series C investors in
May 2013 and warrants to purchase 32,788 shares of common stock that were issued to the Series C investors in June 2013, all in
connection with the closings of the Series C preferred stock financing.
The
warrants originally had a term of 5½ years and were exercisable at exercise prices of $56.55 and $53.25 per share, respectively;
however, pursuant to a modification entered into in February 2015, (i) the exercise price of these warrants was reduced to $29.55,
(ii) the exercise of such modified warrants was prohibited for a period of six months after the date of the modification and (iii)
the exercise period of such modified warrants was extended for an additional six months.
The
exercise price of these warrants and the number of shares of common stock underlying these warrants are subject to proportional
adjustment for stock splits, stock dividends and the like, but are not subject to any price-based anti-dilution adjustments.
If,
at the time of exercise of a Series C Warrant, there is no effective registration statement registering the shares of common stock
issuable upon exercise of the warrant or the prospectus contained in the registration statement is not available for the issuance
of the shares of common stock issuable upon exercise of the warrant, the holder may exercise the warrant, in whole or in part,
on a cashless basis. When exercised on a cashless basis, a portion of the warrant is cancelled in payment of the purchase price
payable in respect of the number of shares of our common stock purchasable upon such exercise.
A
holder has no right to exercise any portion of these warrants, to the extent that, after giving effect to such exercise, such
holder, together with such holder’s affiliates, and any persons acting as a group together with such holder or any such
affiliate, would beneficially own in excess of, at the initial option of the holder thereof, 4.99% (which may be increased, but
not above 9.99%) of the number of shares of common stock outstanding immediately after giving effect to the issuance of the shares
of common stock upon such exercise. Beneficial ownership of the holder and its affiliates will be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
December
2013 Warrants
As
of April 30, 2016, there are warrants to purchase 388,365 shares of common stock that were issued to the Series D investors in
December 2013 in connection with the closings of the Series D preferred stock financing.
The
warrants are currently exercisable at an exercise price of $46.80 per share and expire in December 2018. The exercise price of
these warrants and the number of shares of common stock underlying these warrants are subject to proportional adjustment for stock
splits, stock dividends and the like, but are not subject to any price-based anti-dilution adjustments.
If,
at the time of exercise of a Series D Warrant, there is no effective registration statement registering the shares of common stock
issuable upon exercise of the warrant or the prospectus contained in the registration statement is not available for the issuance
of the shares of common stock issuable upon exercise of the warrant, the holder may exercise the warrant, in whole or in part,
on a cashless basis. When exercised on a cashless basis, a portion of the warrant is cancelled in payment of the purchase price
payable in respect of the number of shares of our common stock purchasable upon such exercise.
A
holder has no right to exercise any portion of these warrants, to the extent that, after giving effect to such exercise, such
holder, together with such holder’s affiliates, and any persons acting as a group together with such holder or any such
affiliate, would beneficially own in excess of, at the initial option of the holder thereof, 4.99% (which may be increased, but
not above 9.99%) of the number of shares of common stock outstanding immediately after giving effect to the issuance of the shares
of common stock upon such exercise. Beneficial ownership of the holder and its affiliates will be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
June
2014 Warrants
As
of April 30, 2016, there are warrants to purchase 1,690 shares of common stock that were issued to the Series A investors in June
2014, in connection with certain modifications of the Series A Warrants. The warrants are currently exercisable at an exercise
price of $30.90 per share and expire in April 2018.
February
2015 Warrants
As
of April 30, 2016, there are warrants to purchase 46,676 shares of common stock that were issued to the Series E investors in
February 2015 in connection with the closing of the Series E preferred stock financing. These warrants originally had an exercise
price of $29.55 per share; however, pursuant to a modification entered into in October 2015, the exercise price of these warrants
was reduced to $16.50. These warrants have a 5½
year term and have a cashless exercise provision in the event
there is no effective registration statement covering the common stock issuable upon exercise of the Series E Warrants. The Series
E Warrants were not exercisable for the first six months following issuance. The Series E Warrants are not subject to price based
anti-dilution protection. Subject to the beneficial ownership limitation described below, if, after the one year anniversary of
the Series E financing, the volume weighted average price of our common stock on The NASDAQ Capital Market exceeds 200% of the
exercise price for ten consecutive trading days, then we have the right to, within one trading day thereafter, call for cancellation
of up to 50% of the Series E Warrants for consideration equal to $0.001 per share of common stock underlying the Series E Warrants.
We may not exercise our call rights if, among other things, there is no effective registration statement registering the shares
of common stock issuable upon exercise of the Series E Warrants or the prospectus contained in the registration statement is not
available for the issuance of the shares of common stock issuable upon exercise of the Series E Warrants.
A
holder has no right to exercise any portion of these warrants, to the extent that, after giving effect to such exercise, such
holder, together with such holder’s affiliates, and any persons acting as a group together with such holder or any such
affiliate, would beneficially own in excess of, at the initial option of the holder thereof, 4.99% (which may be increased, but
not above 9.99%) of the number of shares of common stock outstanding immediately after giving effect to the issuance of the shares
of common stock upon such exercise. Beneficial ownership of the holder and its affiliates will be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
April
2015 Warrants
As
of April 30, 2016, there are warrants to purchase 102,678 shares of common stock that were sold to selected accredited institutional
pre-existing investors substantially concurrently with the closing of the Series E preferred stock financing. These warrants originally
had an exercise price of $32.505 per share; however, pursuant to a modification entered into in October 2015, the exercise price
of 100,847 of these warrants was reduced to $16.50. These warrants have a 5½ year term and have a cashless exercise provision
in the event there is no effective registration statement covering the common stock issuable upon exercise of the warrants. These
warrants were not exercisable for the first six months following issuance. These warrants are not subject to price based anti-dilution
protection. Subject to the beneficial ownership limitation described below, if, after the one year anniversary of entering into
the warrant purchase agreement, the volume weighted average price of our common stock on The NASDAQ Capital Market exceeds 200%
of the exercise price for ten consecutive trading days, then we have the right to, within one trading day thereafter, call for
cancellation of up to 50% of the warrants for consideration equal to $0.001 per share of common stock underlying the warrants.
We may not exercise our call rights if, among other things, there is no effective registration statement registering the shares
of common stock issuable upon exercise of the warrants or the prospectus contained in the registration statement is not available
for the issuance of the shares of common stock issuable upon exercise of the warrants.
We
agreed with the investors in these warrants that while they hold any such warrants, we will not effect or enter into an agreement
to effect a “Variable Rate Transaction,” which means a transaction in which we: (i) issue or sell any convertible
securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading
prices of, or quotations for, the shares of our common stock at any time after the initial issuance of such convertible securities,
or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance
of such convertible securities or upon the occurrence of specified or contingent events directly or indirectly related to our
business; or (ii) enter into any agreement (including, without limitation, an equity line of credit) whereby we may sell securities
at a future determined price. We also agreed that, except under certain permitted circumstances, until the time that less than
7.5% of the warrants remain outstanding, neither we nor our subsidiaries shall issue, or enter into any agreement to issue, common
stock or equivalents thereof at a price below the exercise price of the warrants without the consent of the holders of a majority
of these warrants then outstanding. We also agreed that the terms of the warrant financing may be amended to the reflect the most
favorable terms obtained by us in any of our future equity financings unless the holders of a majority of these warrants then
outstanding otherwise consent.
A
holder has no right to exercise any portion of these warrants, to the extent that, after giving effect to such exercise, such
holder, together with such holder’s affiliates, and any persons acting as a group together with such holder or any such
affiliate, would beneficially own in excess of, at the initial option of the holder thereof, 4.99% (which may be increased, but
not above 9.99%) of the number of shares of common stock outstanding immediately after giving effect to the issuance of the shares
of common stock upon such exercise. Beneficial ownership of the holder and its affiliates will be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
March
2016 Warrants
As
of April 30, 2016, there are March 2016 warrants outstanding to purchase 2,067,183 shares of common stock that we sold and issued
pursuant to a prospectus dated March 21, 2016 in connection with the underwritten public offering that we closed on March 24,
2016. These March 2016 warrants have an initial exercise price per share equal to $5.17. Each March 2016 warrant is exercisable
at any time up to the date that is five years after its original date of issuance. A holder shall have no right to exercise any
portion of a March 2016 warrant, to the extent that, after giving effect to such exercise, such holder, together with such holder’s
affiliates, and any persons acting as a group together with such holder or any such affiliate, would beneficially own in excess
of 4.99% of the number of shares of common stock outstanding immediately after giving effect to the issuance of the shares of
common stock upon such exercise (subject to the right of the holder to increase such beneficial ownership limitation upon not
less than 61 days prior notice provided that such limitation can never exceed 9.99% and such 61 day period cannot be waived).
Beneficial ownership of the holder and its affiliates will be determined in accordance with Section 13(d) of the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder. Holders of March 2016 warrants who are subject
to such beneficial ownership limitation are and will remain responsible for ensuring their own compliance with Regulation 13D-G
promulgated under the Securities Exchange Act of 1934, as amended, consistent with their individual facts and circumstances. In
addition, pursuant to Rule 13d-3(d)(1)(i) promulgated under the Securities Exchange Act of 1934, as amended, any person who acquires
such March 2016 warrants with the purpose or effect of changing or influencing the control of our company, or in connection with
or as a participant in any transaction having such purpose or effect, immediately upon such acquisition will be deemed to be the
beneficial owner of the underlying common stock.
The
March 2016 warrants are exercisable for cash or, solely in the absence of an effective registration statement or prospectus, by
cashless exercise, in which case the holder would receive upon such exercise the net number of shares of common stock determined
according to the formula set forth in the March 2016 warrant. No fractional shares will be issued upon the exercise of a March
2016 warrant. As to any fraction of a share which the holder would otherwise be entitled to purchase upon such exercise, we will,
at our election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the exercise price or round up to the next whole share.
The
exercise price of the March 2016 warrants is subject to adjustment (but not below the par value of our common stock) in the case
of stock dividends or other distributions on shares of common stock or any other equity or equity equivalent securities payable
in shares of common stock, stock splits, stock combinations, reclassifications or similar events affecting our common stock, and
also, subject to limitations, upon any distribution of assets, including cash, stock or other property to our stockholders.
In
addition, if we effect a fundamental transaction, then upon any subsequent exercise of the March 2016 warrants, the holder thereof
shall have the right to receive, for each share of common stock that would have been issuable upon such exercise immediately prior
to the occurrence of such fundamental transaction, the number of shares of the successor’s or acquiring corporation’s
common stock or of our common stock, if we are the surviving corporation, and any additional consideration receivable as a result
of such fundamental transaction by a holder of the number of shares of common stock into which the March 2016 warrants are exercisable
immediately prior to such fundamental transaction. A fundamental transaction means: (i) our merger or consolidation with or into
another entity, (ii) any sale or other disposition of all or substantially all of our assets in one transaction or a series of
related transactions, (iii) any tender offer or exchange offer allowing holders of our common stock to tender or exchange their
shares for cash, property or securities, and has been accepted by the holders of 50% or more of the outstanding common stock (iv)
any reclassification of our common stock or any compulsory share exchange by which common stock is effectively converted into
or exchanged for other securities, cash or property, or (v) consummation of a stock or share purchase agreement or other business
combination with another person whereby such other person acquires more than 50% of the outstanding shares of common stock. Any
successor to us or surviving entity shall assume the obligations under the March 2016 warrants and shall, at the option of the
holder, deliver to the holder in exchange for the March 2016 warrant a security of the successor entity which is exercisable for
a corresponding number of shares of capital stock of such successor entity equivalent to the shares of common stock acquirable
and receivable upon exercise of the March 2016 warrant prior to such fundamental transaction, and with an exercise price which
applies the exercise price under the March 2016 warrant to such shares of capital stock (but taking into account the relative
value of the shares of common stock pursuant to such fundamental transaction and the value of such shares of capital stock, such
number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of the March
2016 warrant immediately prior to the consummation of such fundamental transaction). In addition, as further described in the
March 2016 warrant, in the event of any fundamental transaction completed for cash, as a transaction under Rule 13e-3 of the Exchange
Act, or involving a person not trading on a national securities exchange, the holders of the March 2016 warrants will have the
right to require us to purchase the March 2016 warrants for an amount in cash that is determined in accordance with a formula
set forth in the March 2016 warrant.
Prior
to the exercise of any March 2016 warrants to purchase common stock, holders of the March 2016 warrants will not have any of the
rights of holders of the common stock purchasable upon exercise, including voting rights, however, the holders of the March 2016
warrants will have certain rights to participate in distributions or dividends paid on our common stock to the extent set forth
in the March 2016 warrants.
The
provisions of the March 2016 warrants may be amended as a single class if we have obtained the written consent of holders representing
not less than two-thirds of the shares of our common stock then exercisable under the March 2016 warrants collectively (in which
case such amendments shall be binding on all holders of March 2016 warrants). However, the number of shares of our common stock
exercisable, the exercise price or the exercise period may not be amended without the written consent of the holder of each such
March 2016 warrant. The March 2016 warrants are governed by New York law and if either party commences an action, suit or proceeding
to enforce any provisions of the March 2016 warrants, other than pursuant to federal securities laws, then the prevailing party
in such action, suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs
and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
The
March 2016 warrants were issued in book-entry form under a warrant agent agreement between Computershare as warrant agent, and
us, and are represented by one or more book-entry certificates deposited with The Depository Trust Company, or DTC, and registered
in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC. The March 2016 warrants are listed on The NASDAQ
Capital Market under the symbol “CBMXW”.
All
Other Outstanding Warrants
The
number of shares of common stock issuable upon exercise of all other outstanding warrants may be adjusted in the event of stock
dividends, recapitalizations, stock splits, reorganizations or the like. Further, except as described below, such warrants contain
net exercise provisions that enable holders to exercise the warrants on a cashless basis.
Stock
Incentive Plan
Our
2006 Stock Incentive Plan, as amended, or the Stock Plan, currently has a reserve of 200,000 shares of common stock (subject to
adjustment for stock splits and similar capital changes) in connection with stock option grants and other stock-based awards.
Employees, directors, consultants or other service providers are eligible to receive grants or awards under our Stock Plan. As
of March 31, 2016, 16,914 shares have been issued pursuant to option exercises, RSU vesting and direct stock issuances, options
to purchase 75,163 shares of common stock were issued and outstanding, unvested RSUs representing 27,848 shares of common stock
were issued and outstanding, and 80,075 shares remained available for grant or issuance under our Stock Plan.
Investor
Leak-Out Agreement
Certain
holders of Series F preferred stock are subject to a leak-out agreement that provides that, for so long as they hold shares of
Series F preferred stock or shares of common stock issued upon conversion of Series F preferred stock, such investors and their
affiliates will be restricted from selling, disposing or otherwise transferring, in the aggregate, more than their pro-rata portion
of 40% of the composite trading volume of our common stock on any trading day; provided, however, that such restriction shall
not apply to any sale, disposal or other transfer at a price greater than $5.00 per share (as adjusted for stock splits and the
like). Such investors will not be permitted to accumulate or roll-forward to a subsequent trading day the amount to which such
investor was entitled to sell on such trading day but elected not to sell. These restrictions may be amended or waived by us and
the holders of two-thirds of the outstanding Series F preferred stock (and shares of common stock issued upon conversion thereof).
Authorized
but Unissued Shares
The
authorized but unissued shares of common and preferred stock are available for future issuance without stockholder approval, unless
otherwise required by law or applicable stock exchange rules. These additional shares may be used for a variety of corporate purposes,
including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence
of authorized but unissued shares could hinder or discourage an attempt to obtain control of us by means of a proxy contest, tender
offer, merger or otherwise.
Anti-Takeover
Effects of Certain Provisions of Delaware Law and Our Certificate of Incorporation and Bylaws
Our
certificate of incorporation and bylaws contain a number of provisions that could make our acquisition by means of a tender or
exchange offer, a proxy contest or otherwise more difficult. These provisions are summarized below.
Removal
of Directors.
Our certificate of incorporation provides that our directors may only be removed by the affirmative vote of
holders of at least two-thirds of the shares entitled to vote at a meeting called for that purpose or, where such action is approved
by a majority of the directors, the affirmative vote of the holders of a majority of the shares entitled to vote. Although our
bylaws do not give the Board the power to approve or disapprove stockholder nominations for the election of directors or of any
other business stockholders desire to conduct at an annual or any other meeting, the bylaws may have the effect of precluding
a nomination for the election of directors or precluding the conduct of business at a particular annual meeting if the proper
procedures are not followed, or discouraging or deterring a third party from conducting a solicitation of proxies to elect its
own slate of directors or otherwise attempting to obtain control, even if the conduct of that solicitation or attempt might be
beneficial to our stockholders.
Special
Meetings.
Our bylaws provide that special meetings of stockholders can be called by our President, our Chairman or our Board
at any time.
Undesignated
Preferred Stock.
The ability to authorize undesignated preferred stock makes it possible for our Board to issue preferred
stock with voting or other rights or preferences that could impede the success of any attempt to acquire us. These and other provisions
may have the effect of deferring hostile takeovers or delaying changes in control or management of our company.
Delaware
Anti-Takeover Statute.
We are subject to the provisions of Section 203 of the Delaware General Corporation Law regulating
corporate takeovers. In general, Section 203 prohibits a publicly held Delaware corporation from engaging under certain circumstances
in a business combination with an interested stockholder for a period of three years following the date the person became an interested
stockholder unless:
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Prior
to the date of the transaction, the board of directors of the corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an interested stockholder.
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●
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Upon
completion of the transaction that resulted in the stockholder becoming an interested stockholder, the stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes
of determining the number of shares outstanding (1) shares owned by persons who are directors and also officers and (2) shares
owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer.
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●
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On
or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual
or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66
2
/
3
%
of the outstanding voting stock which is not owned by the interested stockholder.
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Generally,
a business combination includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested
stockholder. An interested stockholder is a person who, together with affiliates and associates, owns or, within three years prior
to the determination of interested stockholder status, did own 15% or more of a corporation’s outstanding voting securities.
We expect the existence of this provision to have an anti-takeover effect with respect to transactions our Board does not approve
in advance. We also anticipate that Section 203 may also discourage attempts that might result in a premium over the market price
for the shares of common stock held by stockholders.
The
provisions of Delaware law, our certificate of incorporation and our bylaws could have the effect of discouraging others from
attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common
stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing
changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders
may otherwise deem to be in their best interests.
Transfer
Agent, Registrar, Warrant Agent and Preferred Stock Agent
Computershare
is (i) the transfer agent and registrar for our common stock and our Series F preferred stock, and (ii) the warrant agent for
the warrants.
Stock
Market Listing
Our
common stock and our March 2016 warrants are listed on The NASDAQ Capital Market under the symbols “CBMX” and “CBMXW”,
respectively.
DESCRIPTION
OF SECURITIES WE ARE OFFERING
We
are offering 1,588,619 shares of our common stock issuable upon the conversion of our outstanding Series F convertible preferred
stock and 2,067,183 shares of our common stock issuable upon the exercise of our outstanding March 2016 warrants. The Series F
convertible preferred stock and the March 2016 warrants were offered and sold by us in an underwritten public offering pursuant
to a prospectus dated March 21, 2016, which prospectus also covered the offer and sale by us of the shares of our common stock
underlying the Series F convertible preferred stock and underlying the March 2016 warrants. The material terms of our common stock
are described in the section of this prospectus entitled “Description of Capital Stock” beginning on page 19 of this
prospectus. The material terms of the Series F preferred stock for which the common stock offered by this prospectus will be issued
when converted are described in the section of this prospectus entitled “Description of Capital Stock — Series F Preferred
Stock” beginning on page 19 of this prospectus. The material terms of the March 2016 warrants for which the common stock
offered by this prospectus will be issued when exercised are described in the section of this prospectus entitled “Description
of Capital Stock — Warrants — March 2016 Warrants” beginning on page 19 of this prospectus.
INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Our
amended certificate of incorporation provides that, to the fullest extent permitted by Delaware law, our directors and officers
shall not be personally liable to us or our stockholders for damages for breach of such directors’ or officers’ fiduciary
duty. The effect of this provision of our certificate of incorporation, as amended, is to eliminate our rights and those of our
stockholders (through stockholders’ derivative suits on behalf of our company) to recover damages against a director or
officer for breach of the fiduciary duty of care as a director or officer (including breaches resulting from negligent or grossly
negligent behavior), except under certain situations defined by statute. We believe that the indemnification provisions in our
certificate of incorporation, as amended, are necessary to attract and retain qualified persons as directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers
or persons controlling us pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the
SEC, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
LEGAL
MATTERS
Certain
legal matters relating to the validity of our securities offered by this prospectus will be passed upon for us by Dorsey &
Whitney LLP, Costa Mesa, California and Minneapolis, Minnesota.
EXPERTS
Our
consolidated financial statements as of December 31, 2015 and 2014 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, 2015, have been so incorporated in reliance on
the report of Haskell & White LLP, an independent registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference information we file with it, which means that we can disclose important information
to you by referring you to other documents. The information incorporated by reference is considered to be a part of this prospectus.
Information contained in this prospectus supersedes information incorporated by reference that we have filed with the SEC prior
to the date of this prospectus.
We
incorporate by reference the following documents under SEC file number 001-33523 listed below (excluding any document or portion
thereof to the extent such disclosure is furnished and not filed):
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Our
Annual Report on Form 10-K for the year ended December 31, 2015 filed with the SEC on February 18, 2016;
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Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2016 filed with the SEC on May 10, 2016;
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●
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Our
Current Reports on Form 8-K as filed with the SEC on January 27, 2016 (other than information furnished pursuant to Item 7.01
thereof and related Exhibit 99.1), January 29, 2016 (other than information furnished pursuant to Item 7.01 thereof), February
5, 2016, February 17, 2016 (other than the information furnished pursuant to Items 2.02 and 7.01 thereof), March 24, 2016
and April 27, 2016; and
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The
description of our common stock contained in our Registration Statement on Form 8-A, filed with the SEC on June 6, 2007 pursuant
to Section 12(b) of the Securities Exchange Act, including any amendment or report filed for the purpose of updating such
description.
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In
addition, we incorporate by reference all reports and other documents that we file with the Securities and Exchange Commission
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, (a) after the initial filing date
of the registration statement of which this prospectus is a part and prior to the effectiveness of the registration statement
and (b) after the effectiveness of the registration statement and prior to the termination of this offering, and all such reports
and documents will be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such reports
and documents (except for information and exhibits furnished under Items 2.02 or 7.01 of our current reports on Form 8-K). Any
document or statement incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus
to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such document or statement. Any document or statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
These
documents contain important information about us, our business and our financial condition. We will provide without charge to
each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request of such person,
a copy of any or all of the foregoing documents incorporated herein by reference. Requests for documents should be submitted to
the Corporate Secretary, at CombiMatrix Corporation, 310 Goddard, Suite 150, Irvine, California 92618, or by telephone at (949)
753-0624. The foregoing documents also may be accessed on the investor relations page of our website at
www.combimatrix.com
.
We
file annual, quarterly, and current reports, proxy statements and other information with the SEC. Our SEC filings are available
to the public over the Internet at the SEC’s web site at www.sec.gov and on the investor relations page of our website at
www.combimatrix.com. Information on our web site is not part of this prospectus. You may also read and copy any document we file
with the SEC at its public reference facilities at 100 F Street N.E., Washington, D.C. 20549. You can also obtain copies of the
documents upon the payment of a duplicating fee to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the public reference facilities.
1,588,619
Shares of Common Stock
Issuable Upon Conversion of Series F Convertible
Preferred Stock
2,067,183
Shares of Common Stock
Issuable Upon Exercise of March 2016 Warrants
PROSPECTUS
,
2016
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
following table sets forth the costs and expenses payable by us relating to the sale of our securities being registered hereby.
All amounts are estimates except the SEC registration fee. In addition, we may be charged additional listing fees by The Nasdaq
Capital Market upon issuance of the shares of common stock being offered by this prospectus.
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SEC registration fees (previously paid)
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$
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1,882
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Printing expenses
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5,000
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Legal fees and expenses
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10,000
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Accounting fees and expenses
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5,000
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Transfer Agent Fees
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5,000
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ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under
Section 145 of the Delaware General Corporation Law, we can indemnify our directors and officers against liabilities they may
incur in such capacities, including liabilities under the Securities Act of 1933.
Our
Certificate of Incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest
extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary
damages for any breach of fiduciary duties as directors, except liability for the following:
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Any
breach of their duty of loyalty to our company or our stockholders.
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Acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of law.
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Unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation
Law.
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Any
transaction from which the director derived an improper personal benefit.
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Our
Bylaws provide that we are required to indemnify our directors and officers to the fullest extent permitted by the Delaware General
Corporation Law. Our Bylaws also provide that we shall advance expenses incurred by a director or officer before the final disposition
of any action or proceeding upon receipt of an undertaking from or on behalf of that director or officer to repay the advance
if it is ultimately determined that he or she is not entitled to be indemnified. We have entered into and expect to continue to
enter into agreements to indemnify our directors and executive officers as determined by the Board. These agreements generally
provide for indemnification for all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred
by these individuals and arising out of the their service as our directors or executive officers (or in certain other capacities
at our request) to the fullest extent permitted by the Delaware General Corporation Law and to any greater extent that such law
may in the future permit. These agreements further provide procedures for the determination of the right to receive indemnification
and the advancement of expenses. We believe that these provisions and indemnification agreements are necessary to attract and
retain qualified persons as directors and officers. We also maintain directors’ and officers’ liability insurance
which reimburses us for expenses which we may incur in connection with the foregoing indemnity provisions and which may provide
direct indemnification to directors and officers where we are unable to do so.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling
persons pursuant to the above, we have been advised that in the opinion of the SEC such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
ITEM
16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The
following exhibits are included as part of this Form S-3. References to “the Company” in this Exhibit List mean CombiMatrix
Corporation, a Delaware corporation.
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Exhibit
Number
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Description
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1.1
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Form
of Underwriting Agreement(66)
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3.1
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Amended
and Restated Certificate of Incorporation(1)
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3.2
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation(2)
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3.3
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation(3)
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3.4
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Second
Amended and Restated Bylaws(4)
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3.5
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Certificate
of Designation of Preferences, Rights and Limitations of Series A 6% Convertible Preferred Stock(5)
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3.6
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Certificate
of Designation of Preferences, Rights and Limitations of Series B 6% Convertible Preferred Stock(6)
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3.7
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|
Certificate
of Designation of Preferences, Rights and Limitations of Series C 6% Convertible Preferred Stock(7)
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3.8
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Certificate
of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock(8)
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3.9
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Certificate
of Designation of Preferences, Rights and Limitations of Series E 6% Convertible Preferred Stock (9)
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3.10
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation(53)
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3.11
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|
Certificate
of Designation of Preferences, Rights and Limitations of Series F Convertible Preferred Stock(61)
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3.12
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation, dated January 29, 2016(60)
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4.1
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Form
of Common Stock Certificate(62)
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4.2
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|
Form
of Series F Preferred Stock Certificate(63)
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4.3
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Form
of Warrant to Purchase Common Stock(64)
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5.1
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Legal
Opinion of Dorsey & Whitney LLP(65)
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10.1†
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Restated
Executive Change in Control Severance Plan, as restated on December 7, 2015(10)
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10.2
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Amendment
No. 3 to Lease dated as of January 11, 2010(11)
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10.3
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Amendment
No. 4 to Lease effective as of October 21, 2012(12)
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10.4†
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2006
Stock Incentive Plan, as amended(13)
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10.5†
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|
Form
of Stock Incentive Plan Agreement(14)
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10.6†
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|
Employment
Agreement for Mark McDonough(15)
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10.7
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Form
of Amended and Restated Indemnification Agreement(16)
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10.8
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Form
of Securities Purchase Agreement dated as of April 1, 2011(17)
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10.9
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|
Form
of Investors Rights Agreement dated as of April 1, 2011(18)
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Exhibit
Number
|
|
Description
|
|
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10.10
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HLM
Rights Agreement dated as of April 1, 2011(19)
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10.11
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Form
of Warrant to Purchase Common Stock issued on April 7, 2011(20)
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10.12
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|
Form
of Indemnity Agreement(21)
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10.13
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|
Form
of Securities Purchase Agreement dated as of September 28, 2012(22)
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10.14
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|
Form
of Warrant to Purchase Common Stock(23)
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10.15
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|
Form
of Registration Rights Agreement dated as of September 28, 2012(24)
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10.16
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|
Form
of Lock-Up Agreement dated as of September 28, 2012(25)
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10.17
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Form
of Voting Agreement dated as of September 28, 2012(26)
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10.18
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|
Consent
and Waiver executed on December 4, 2012(27)
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10.19
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|
Form
of Amendment No. 1 to Common Stock Purchase Warrant dated February 26, 2013(28)
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10.20
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|
Form
of Warrant to Purchase Common Stock(29)
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10.21
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|
Form
of Securities Purchase Agreement dated as of March 19, 2013(30)
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10.22†
|
|
Mark
McDonough Compensation Arrangement(31)
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10.23
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|
Form
of Waiver Regarding HLM Rights Agreement dated April 5, 2013(32)
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10.24
|
|
Form
of Securities Purchase Agreement dated as of May 3, 2013(33)
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10.25
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|
Form
of Warrant to Purchase Common Stock(34)
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10.26
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|
Form
of Registration Rights Agreement dated as of May 3, 2013(35)
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10.27
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|
Form
of Voting Agreement dated as of May 3, 2013(36)
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10.28†
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|
Form
of Stock Incentive Plan Agreement for Performance-Based Options(37)
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10.29†
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2014
Executive Performance Bonus Plan, as amended(38)
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10.30†
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Letter
Agreement dated June 27, 2013 regarding Mark McDonough’s bonus arrangement(39)
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10.31
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Amendment
No. 5 to Lease effective as of July 16, 2013(40)
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10.32
|
|
Form
of Warrant to Purchase Common Stock(41)
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10.33†
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|
Form
of Restricted Stock Unit Award Agreement under the Company’s 2006 Stock Incentive Plan(42)
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10.34
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Form
of Amendment No. 2 to Common Stock Purchase Warrant dated June 4, 2014(43)
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10.35
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|
Form
of Additional Common Stock Purchase Warrant issued June 4, 2014(44)
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|
10.36
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|
Amendment
No. 6 to the Lease effective as of October 24, 2014(45)
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|
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|
10.37
|
|
Form
of Warrant to Purchase Common Stock (Series E Financing)(46)
|
|
|
|
|
|
10.38
|
|
Form
of Amendment of Outstanding Warrants(47)
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
10.39
|
|
Form
of Securities Purchase Agreement dated as of February 13, 2015 (Series E Financing)(48)
|
|
|
|
|
|
10.40
|
|
Form
of Private Placement Securities Purchase Agreement dated as of February 13, 2015 (Warrant Financing)(49)
|
|
|
|
|
|
10.41†
|
|
2015
Executive Performance Bonus Plan(50)
|
|
|
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|
|
10.42
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|
Collaboration
Agreement, effective May 23, 2013, between CombiMatrix and Sequenom Center for Molecular Medicine, LLC(51)
|
|
|
|
|
|
10.43
|
|
Agreement
of Settlement and Release, dated April 23, 2015(52)
|
|
|
|
|
|
10.44
|
|
Form
of Amendment No. 1 to February 2015 Common Stock Purchase Warrant dated October 12, 2015(54)
|
|
|
|
|
|
10.45
|
|
Form
of Amendment No. 1 to April 2015 Common Stock Purchase Warrant dated October 12, 2015(55)
|
|
|
|
|
|
10.46
|
|
Form
of Waiver of Cash Dividends dated October 12, 2015(56)
|
|
|
|
|
|
10.47†
|
|
Transaction
Bonus Plan(57)
|
|
|
|
|
|
10.48
|
|
Form
of Series E 6% Convertible Preferred Stock Repurchase Agreement, dated February 4, 2016(58)
|
|
|
|
|
|
10.49
|
|
Form
of Leak-Out Agreement(67)
|
|
|
|
|
|
10.50†
|
|
2016
Executive Performance Bonus Plan(68)
|
|
|
|
|
|
21.1
|
|
Subsidiaries
of the Registrant(59)
|
|
|
|
|
|
23.1
|
|
Consent
of Haskell & White LLP(*)
|
|
|
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|
|
23.2
|
|
Consent
of Dorsey & Whitney LLP (contained in Exhibit 5.1 to this Registration Statement)(65)
|
|
|
|
|
|
24.1
|
|
Power
of Attorney. Included and previously filed in signature page to original filing of the registration statement on December
22, 2015.
|
|
*
|
Filed
herewith.
|
|
|
|
|
†
|
Denotes
management contract or compensatory plan or arrangement.
|
|
|
|
|
(1)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 (SEC File No. 333-139679), filed with
the SEC on December 26, 2006.
|
|
|
|
|
(2)
|
Incorporated
by reference to Exhibit 3.1A to the Company’s Quarterly Report on Form 10-Q (File No. 001-33523) filed with the SEC
on August 14, 2008.
|
|
|
|
|
(3)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on December
4, 2012.
|
|
|
|
|
(4)
|
Incorporated
by reference to Exhibit 3.2 to the Company’s Annual Report on Form 10-K (File No. 001-33523) filed with the SEC on March
18, 2010.
|
|
|
|
|
(5)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on October
1, 2012.
|
|
|
|
|
(6)
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on March
20, 2013.
|
|
(7)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on May
6, 2013.
|
|
|
|
|
(8)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on December
23, 2013.
|
|
|
|
|
(9)
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on February
13, 2015.
|
|
|
|
|
(10)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
December 7, 2015.
|
|
|
|
|
(11)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
January 15, 2010.
|
|
|
|
|
(12)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 25, 2012.
|
|
|
|
|
(13)
|
Incorporated
by reference to Exhibit 10.4 to the Company’s Annual Report on Form 10-K (File No. 001-33523) filed with the SEC on
February 18, 2016.
|
|
|
|
|
(14)
|
Incorporated
by reference to the Company’s Registration Statement on Form S-1 (SEC File No. 333-139679), which became effective June
8, 2007.
|
|
|
|
|
(15)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q (File No. 001-33523) filed with the SEC
on November 13, 2012.
|
|
|
|
|
(16)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q (File No. 001-33523) filed with the SEC
on August 12, 2011.
|
|
|
|
|
(17)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(18)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(19)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(20)
|
Incorporated
by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(21)
|
Incorporated
by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(22)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
|
|
|
(23)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
|
|
|
(24)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
|
|
|
(25)
|
Incorporated
by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
(26)
|
Incorporated
by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
|
|
|
(27)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
December 7, 2012.
|
|
|
|
|
(28)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 26, 2013.
|
|
|
|
|
(29)
|
Incorporated
by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on March
20, 2013.
|
|
|
|
|
(30)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
March 20, 2013.
|
|
|
|
|
(31)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 3, 2013.
|
|
|
|
|
(32)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 8, 2013.
|
|
|
|
|
(33)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
May 6, 2013.
|
|
|
|
|
(34)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
May 6, 2013.
|
|
|
|
|
(35)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
May 6, 2013.
|
|
|
|
|
(36)
|
Incorporated
by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
May 6, 2013.
|
|
|
|
|
(37)
|
Incorporated
by reference to Exhibit 10.11 to the Company’s Quarterly Report on Form 10-Q (File No. 001-33523) filed with the SEC
on May 13, 2013.
|
|
|
|
|
(38)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
March 10, 2014.
|
|
|
|
|
(39)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
July 1, 2013.
|
|
|
|
|
(40)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
July 19, 2013.
|
|
|
|
|
(41)
|
Incorporated
by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-1/A (File No. 333-191211) filed with the
SEC on December 9, 2013.
|
|
|
|
|
(42)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 24, 2014.
|
|
|
|
|
(43)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
June 10, 2014.
|
|
|
|
|
(44)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
June 10, 2014.
|
|
(45)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 28, 2014.
|
|
|
|
|
(46)
|
Incorporated
by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on February
13, 2015.
|
|
|
|
|
(47)
|
Incorporated
by reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on February
13, 2015.
|
|
|
|
|
(48)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 13, 2015.
|
|
|
|
|
(49)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 13, 2015.
|
|
|
|
|
(50)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
March 5, 2015.
|
|
|
|
|
(51)
|
Incorporated
by reference to Exhibit 10.42 to the Company’s Annual Report on Form 10-K (File No. 001-33523) filed with the SEC on
March 17, 2015.
|
|
|
|
|
(52)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 28, 2015.
|
|
|
|
|
(53)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on April
29, 2015.
|
|
|
|
|
(54)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 13, 2015.
|
|
|
|
|
(55)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 13, 2015.
|
|
|
|
|
(56)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 13, 2015.
|
|
|
|
|
(57)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
December 7, 2015.
|
|
|
|
|
(58)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 5, 2016.
|
|
|
|
|
(59)
|
Incorporated
by reference to Exhibit 21.1 to the Company’s Annual Report on Form 10-K (File No. 001-33523) filed with the SEC on
February 18, 2016.
|
|
|
|
|
(60)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on January
29, 2016.
|
|
|
|
|
(61)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on March
24, 2016.
|
|
|
|
|
(62)
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed with
the SEC on February 19, 2016.
|
|
|
|
|
(63)
|
Incorporated
by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed with
the SEC on March 18, 2016.
|
|
(64)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q (SEC File No. 333-208704) filed with the
SEC on May 10, 2016.
|
|
|
|
|
(65)
|
Incorporated
by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed with
the SEC on March 18, 2016.
|
|
|
|
|
(66)
|
Incorporated
by reference to Exhibit 1.1 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed with
the SEC on March 10, 2016.
|
|
|
|
|
(67)
|
Incorporated
by reference to Exhibit 10.49 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed
with the SEC on March 18, 2016.
|
|
|
|
|
(68)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 27, 2016.
|
ITEM
17. UNDERTAKINGS.
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
to:
(i)
Include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii)
Reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in this 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 SEC 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)
Include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this 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 SEC by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement, or is contained in
a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered herein, 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 that remain unsold at
the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
If the Registrant is relying on Rule 430B:
(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 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;
or
(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 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.
(6)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act each filing
of the Registrant’s Annual Report under Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference into this 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.
(7)
Insofar as indemnification for liabilities arising under the Securities Act 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 SEC 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 and will
be governed by the final adjudication of such issue.
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 this Post-Effective Amendment No. 1 to Form S-1 on Form S-3, File No. 333-208704, and
has duly caused this Post-Effective Amendment No. 1 to Form S-1 on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Irvine, State of California, on May 13, 2016.
|
|
COMBIMATRIX
CORPORATION
|
|
|
|
|
|
Date:
May 13, 2016
|
By:
|
/s/
Mark McDonough
|
|
|
|
Mark
McDonough
|
|
|
|
President
and Chief Executive Officer
|
|
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
Date:
May 13, 2016
|
By:
|
/s/
Scott R. Burell
|
|
|
|
Scott
R. Burell
|
|
|
|
Chief
Financial Officer, Treasurer and Secretary
|
|
|
|
(Principal
Financial and Accounting Officer)
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated:
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/
Mark McDonough
|
|
President,
Chief Executive Officer and
|
|
May
13, 2016
|
|
Mark
McDonough
|
|
Director
(Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Scott R. Burell
|
|
Chief
Financial Officer, Treasurer and
|
|
May
13, 2016
|
|
Scott
R. Burell
|
|
Secretary
(Principal Financial and
|
|
|
|
|
|
Accounting
Officer)
|
|
|
|
|
|
|
|
|
|
*
|
|
Chairman
of the Board
|
|
May
13, 2016
|
|
R.
Judd Jessup
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May
13, 2016
|
|
Scott
Gottlieb, M.D.
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May
13, 2016
|
|
Robert
E. Hoffman
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May
13, 2016
|
|
Jeremy
M. Jones
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
May
13, 2016
|
|
Lâle
White
|
|
|
|
|
|
*By:
|
/s/
Scott R. Burell
|
|
May
13, 2016
|
|
|
Scott
R. Burell,
as
Attorney-in-Fact
|
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
1.1
|
|
Form
of Underwriting Agreement(66)
|
|
|
|
|
|
3.1
|
|
Amended
and Restated Certificate of Incorporation(1)
|
|
|
|
|
|
3.2
|
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation(2)
|
|
|
|
|
|
3.3
|
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation(3)
|
|
|
|
|
|
3.4
|
|
Second
Amended and Restated Bylaws(4)
|
|
|
|
|
|
3.5
|
|
Certificate
of Designation of Preferences, Rights and Limitations of Series A 6% Convertible Preferred Stock(5)
|
|
|
|
|
|
3.6
|
|
Certificate
of Designation of Preferences, Rights and Limitations of Series B 6% Convertible Preferred Stock(6)
|
|
|
|
|
|
3.7
|
|
Certificate
of Designation of Preferences, Rights and Limitations of Series C 6% Convertible Preferred Stock(7)
|
|
|
|
|
|
3.8
|
|
Certificate
of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock(8)
|
|
|
|
|
|
3.9
|
|
Certificate
of Designation of Preferences, Rights and Limitations of Series E 6% Convertible Preferred Stock (9)
|
|
|
|
|
|
3.10
|
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation(53)
|
|
|
|
|
|
3.11
|
|
Certificate
of Designation of Preferences, Rights and Limitations of Series F Convertible Preferred Stock(61)
|
|
|
|
|
|
3.12
|
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation, dated January 29, 2016(60)
|
|
|
|
|
|
4.1
|
|
Form
of Common Stock Certificate(62)
|
|
|
|
|
|
4.2
|
|
Form
of Series F Preferred Stock Certificate(63)
|
|
|
|
|
|
4.3
|
|
Form
of Warrant to Purchase Common Stock(64)
|
|
|
|
|
|
5.1
|
|
Legal
Opinion of Dorsey & Whitney LLP(65)
|
|
|
|
|
|
10.1†
|
|
Restated
Executive Change in Control Severance Plan, as restated on December 7, 2015(10)
|
|
|
|
|
|
10.2
|
|
Amendment
No. 3 to Lease dated as of January 11, 2010(11)
|
|
|
|
|
|
10.3
|
|
Amendment
No. 4 to Lease effective as of October 21, 2012(12)
|
|
|
|
|
|
10.4†
|
|
2006
Stock Incentive Plan, as amended(13)
|
|
|
|
|
|
10.5†
|
|
Form
of Stock Incentive Plan Agreement(14)
|
|
|
|
|
|
10.6†
|
|
Employment
Agreement for Mark McDonough(15)
|
|
|
|
|
|
10.7
|
|
Form
of Amended and Restated Indemnification Agreement(16)
|
|
|
|
|
|
10.8
|
|
Form
of Securities Purchase Agreement dated as of April 1, 2011(17)
|
|
|
|
|
|
10.9
|
|
Form
of Investors Rights Agreement dated as of April 1, 2011(18)
|
|
|
|
|
|
10.10
|
|
HLM
Rights Agreement dated as of April 1, 2011(19)
|
|
|
|
|
|
10.11
|
|
Form
of Warrant to Purchase Common Stock issued on April 7, 2011(20)
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
10.12
|
|
Form
of Indemnity Agreement(21)
|
|
|
|
|
|
10.13
|
|
Form
of Securities Purchase Agreement dated as of September 28, 2012(22)
|
|
|
|
|
|
10.14
|
|
Form
of Warrant to Purchase Common Stock(23)
|
|
|
|
|
|
10.15
|
|
Form
of Registration Rights Agreement dated as of September 28, 2012(24)
|
|
|
|
|
|
10.16
|
|
Form
of Lock-Up Agreement dated as of September 28, 2012(25)
|
|
|
|
|
|
10.17
|
|
Form
of Voting Agreement dated as of September 28, 2012(26)
|
|
|
|
|
|
10.18
|
|
Consent
and Waiver executed on December 4, 2012(27)
|
|
|
|
|
|
10.19
|
|
Form
of Amendment No. 1 to Common Stock Purchase Warrant dated February 26, 2013(28)
|
|
|
|
|
|
10.20
|
|
Form
of Warrant to Purchase Common Stock(29)
|
|
|
|
|
|
10.21
|
|
Form
of Securities Purchase Agreement dated as of March 19, 2013(30)
|
|
|
|
|
|
10.22†
|
|
Mark
McDonough Compensation Arrangement(31)
|
|
|
|
|
|
10.23
|
|
Form
of Waiver Regarding HLM Rights Agreement dated April 5, 2013(32)
|
|
|
|
|
|
10.24
|
|
Form
of Securities Purchase Agreement dated as of May 3, 2013(33)
|
|
|
|
|
|
10.25
|
|
Form
of Warrant to Purchase Common Stock(34)
|
|
|
|
|
|
10.26
|
|
Form
of Registration Rights Agreement dated as of May 3, 2013(35)
|
|
|
|
|
|
10.27
|
|
Form
of Voting Agreement dated as of May 3, 2013(36)
|
|
|
|
|
|
10.28†
|
|
Form
of Stock Incentive Plan Agreement for Performance-Based Options(37)
|
|
|
|
|
|
10.29†
|
|
2014
Executive Performance Bonus Plan, as amended(38)
|
|
|
|
|
|
10.30†
|
|
Letter
Agreement dated June 27, 2013 regarding Mark McDonough’s bonus arrangement(39)
|
|
|
|
|
|
10.31
|
|
Amendment
No. 5 to Lease effective as of July 16, 2013(40)
|
|
|
|
|
|
10.32
|
|
Form
of Warrant to Purchase Common Stock(41)
|
|
|
|
|
|
10.33†
|
|
Form
of Restricted Stock Unit Award Agreement under the Company’s 2006 Stock Incentive Plan(42)
|
|
|
|
|
|
10.34
|
|
Form
of Amendment No. 2 to Common Stock Purchase Warrant dated June 4, 2014(43)
|
|
|
|
|
|
10.35
|
|
Form
of Additional Common Stock Purchase Warrant issued June 4, 2014(44)
|
|
|
|
|
|
10.36
|
|
Amendment
No. 6 to the Lease effective as of October 24, 2014(45)
|
|
|
|
|
|
10.37
|
|
Form
of Warrant to Purchase Common Stock (Series E Financing)(46)
|
|
|
|
|
|
10.38
|
|
Form
of Amendment of Outstanding Warrants(47)
|
|
|
|
|
|
10.39
|
|
Form
of Securities Purchase Agreement dated as of February 13, 2015 (Series E Financing)(48)
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
10.40
|
|
Form
of Private Placement Securities Purchase Agreement dated as of February 13, 2015 (Warrant Financing)(49)
|
|
|
|
|
|
10.41†
|
|
2015
Executive Performance Bonus Plan(50)
|
|
|
|
|
|
10.42
|
|
Collaboration
Agreement, effective May 23, 2013, between CombiMatrix and Sequenom Center for Molecular Medicine, LLC(51)
|
|
|
|
|
|
10.43
|
|
Agreement
of Settlement and Release, dated April 23, 2015(52)
|
|
|
|
|
|
10.44
|
|
Form
of Amendment No. 1 to February 2015 Common Stock Purchase Warrant dated October 12, 2015(54)
|
|
|
|
|
|
10.45
|
|
Form
of Amendment No. 1 to April 2015 Common Stock Purchase Warrant dated October 12, 2015(55)
|
|
|
|
|
|
10.46
|
|
Form
of Waiver of Cash Dividends dated October 12, 2015(56)
|
|
|
|
|
|
10.47†
|
|
Transaction
Bonus Plan(57)
|
|
|
|
|
|
10.48
|
|
Form
of Series E 6% Convertible Preferred Stock Repurchase Agreement, dated February 4, 2016(58)
|
|
|
|
|
|
10.49
|
|
Form
of Leak-Out Agreement(67)
|
|
|
|
|
|
10.50†
|
|
2016
Executive Performance Bonus Plan(68)
|
|
|
|
|
|
21.1
|
|
Subsidiaries
of the Registrant(59)
|
|
|
|
|
|
23.1
|
|
Consent
of Haskell & White LLP(*)
|
|
|
|
|
|
23.2
|
|
Consent
of Dorsey & Whitney LLP (contained in Exhibit 5.1 to this Registration Statement)(65)
|
|
|
|
|
|
24.1
|
|
Power
of Attorney. Included and previously filed in signature page to original filing of the registration statement on December
22, 2015.
|
|
*
|
Filed
herewith.
|
|
|
|
|
†
|
Denotes
management contract or compensatory plan or arrangement.
|
|
|
|
|
(1)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 (SEC File No. 333-139679), filed with
the SEC on December 26, 2006.
|
|
|
|
|
(2)
|
Incorporated
by reference to Exhibit 3.1A to the Company’s Quarterly Report on Form 10-Q (File No. 001-33523) filed with the SEC
on August 14, 2008.
|
|
|
|
|
(3)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on December
4, 2012.
|
|
|
|
|
(4)
|
Incorporated
by reference to Exhibit 3.2 to the Company’s Annual Report on Form 10-K (File No. 001-33523) filed with the SEC on March
18, 2010.
|
|
|
|
|
(5)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on October
1, 2012.
|
|
|
|
|
(6)
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on March
20, 2013.
|
|
(7)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on May
6, 2013.
|
|
(8)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on December
23, 2013.
|
|
|
|
|
(9)
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on February
13, 2015.
|
|
|
|
|
(10)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
December 7, 2015.
|
|
|
|
|
(11)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
January 15, 2010.
|
|
|
|
|
(12)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 25, 2012.
|
|
|
|
|
(13)
|
Incorporated
by reference to Exhibit 10.4 to the Company’s Annual Report on Form 10-K (File No. 001-33523) filed with the SEC on
February 18, 2016.
|
|
|
|
|
(14)
|
Incorporated
by reference to the Company’s Registration Statement on Form S-1 (SEC File No. 333-139679), which became effective June
8, 2007.
|
|
|
|
|
(15)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q (File No. 001-33523) filed with the SEC
on November 13, 2012.
|
|
|
|
|
(16)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q (File No. 001-33523) filed with the SEC
on August 12, 2011.
|
|
|
|
|
(17)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(18)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(19)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(20)
|
Incorporated
by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(21)
|
Incorporated
by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 7, 2011.
|
|
|
|
|
(22)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
|
|
|
(23)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
|
|
|
(24)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
|
|
|
(25)
|
Incorporated
by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
|
|
|
(26)
|
Incorporated
by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 1, 2012.
|
|
(27)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
December 7, 2012.
|
|
|
|
|
(28)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 26, 2013.
|
|
|
|
|
(29)
|
Incorporated
by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on March
20, 2013.
|
|
|
|
|
(30)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
March 20, 2013.
|
|
|
|
|
(31)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 3, 2013.
|
|
|
|
|
(32)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 8, 2013.
|
|
|
|
|
(33)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
May 6, 2013.
|
|
|
|
|
(34)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
May 6, 2013.
|
|
|
|
|
(35)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
May 6, 2013.
|
|
|
|
|
(36)
|
Incorporated
by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
May 6, 2013.
|
|
|
|
|
(37)
|
Incorporated
by reference to Exhibit 10.11 to the Company’s Quarterly Report on Form 10-Q (File No. 001-33523) filed with the SEC
on May 13, 2013.
|
|
|
|
|
(38)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
March 10, 2014.
|
|
|
|
|
(39)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
July 1, 2013.
|
|
|
|
|
(40)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
July 19, 2013.
|
|
|
|
|
(41)
|
Incorporated
by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-1/A (File No. 333-191211) filed with the
SEC on December 9, 2013.
|
|
|
|
|
(42)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 24, 2014.
|
|
|
|
|
(43)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
June 10, 2014.
|
|
|
|
|
(44)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
June 10, 2014.
|
|
|
|
|
(45)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 28, 2014.
|
|
(46)
|
Incorporated
by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on February
13, 2015.
|
|
|
|
|
(47)
|
Incorporated
by reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on February
13, 2015.
|
|
|
|
|
(48)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 13, 2015.
|
|
|
|
|
(49)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 13, 2015.
|
|
|
|
|
(50)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
March 5, 2015.
|
|
|
|
|
(51)
|
Incorporated
by reference to Exhibit 10.42 to the Company’s Annual Report on Form 10-K (File No. 001-33523) filed with the SEC on
March 17, 2015.
|
|
|
|
|
(52)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 28, 2015.
|
|
|
|
|
(53)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on April
29, 2015.
|
|
|
|
|
(54)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 13, 2015.
|
|
|
|
|
(55)
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 13, 2015.
|
|
|
|
|
(56)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
October 13, 2015.
|
|
|
|
|
(57)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
December 7, 2015.
|
|
|
|
|
(58)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
February 5, 2016.
|
|
|
|
|
(59)
|
Incorporated
by reference to Exhibit 21.1 to the Company’s Annual Report on Form 10-K (File No. 001-33523) filed with the SEC on
February 18, 2016.
|
|
|
|
|
(60)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on January
29, 2016.
|
|
|
|
|
(61)
|
Incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on March
24, 2016.
|
|
|
|
|
(62)
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed with
the SEC on February 19, 2016.
|
|
|
|
|
(63)
|
Incorporated
by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed with
the SEC on March 18, 2016.
|
|
|
|
|
(64)
|
Incorporated
by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q (SEC File No. 333-208704) filed with the
SEC on May 10, 2016.
|
|
|
|
|
(65)
|
Incorporated
by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed with
the SEC on March 18, 2016.
|
|
|
|
|
(66)
|
Incorporated
by reference to Exhibit 1.1 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed with
the SEC on March 10, 2016.
|
|
|
|
|
(67)
|
Incorporated
by reference to Exhibit 10.49 to the Company’s Registration Statement on Form S-1/A (SEC File No. 333-208704) filed
with the SEC on March 18, 2016.
|
|
|
|
|
(68)
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-33523) filed with the SEC on
April 27, 2016.
|
Combimatrix Corp. (MM) (NASDAQ:CBMX)
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