Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3 Filing Table of Contents
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2: EX-1.2 Underwriting Agreement HTML 184K
4: EX-4.10 Instruments Defining the Rights of Security HTML 258K
Holders, Including Indentures Instruments Defining
the Rights of Security Holders, Including
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5: EX-4.13 Instruments Defining the Rights of Security HTML 97K
Holders, Including Indentures Instruments Defining
the Rights of Security Holders, Including
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6: EX-4.14 Instruments Defining the Rights of Security HTML 87K
Holders, Including Indentures Instruments Defining
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7: EX-5.1 Opinion on Legality HTML 29K
3: EX-23.1 Consents of Experts and Counsel HTML 8K
From time to time after the effective date of this Registration
Statement
(Approximate
date of commencement of proposed sale to the public)
If the
only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If any
of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. ☒
If this
Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities
Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ☐
If this
Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering.
☐
If this
Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Securities and Exchange
Commission pursuant to Rule 462(e) under the Securities
Act, check the following box. ☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the
following box. ☐
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,”“accelerated
filer,”“smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the
Exchange Act.
Large
accelerated filer ☐
Accelerated
filer ☒
Non-accelerated
filer ☐
Smaller
reporting company ☒
Emerging
growth company ☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be
registered
Amount to be
Registered
Proposed
Maximum
Offering
Price
per Unit
Proposed
Maximum
Aggregate
Offering Price
Amount of
Registration Fee(1)
Common Stock, par value $0.001 per
share
(2)
(3)
(3)
—
Debt Securities
(2)
(3)
(3)
—
Warrants
(2)
(3)
(3)
—
Total
(2)
$125,000,000
$16,225
(1)
Calculated pursuant
to Rule 457(o) under the Securities Act of 1933, as
amended (the “Securities Act”).
(2)
There are being
registered hereunder such indeterminate number of shares of common
stock, such indeterminate principal amount of debt securities and
such indeterminate number of warrants to purchase common stock or
debt securities as shall have an aggregate initial offering price
not to exceed $125,000,000. If any debt securities are issued at an
original issue discount, then the principal amount of such debt
securities shall be in such greater amount as shall result in an
aggregate initial offering price not to exceed $125,000,000, less
the aggregate dollar amount of all securities previously issued
hereunder. The securities registered also include such
indeterminate number of shares of common stock and amount of debt
securities as may be issued upon conversion of or exchange for debt
securities that provide for conversion or exchange, upon exercise
of warrants or pursuant to the antidilution provisions of any such
securities. In addition, pursuant to Rule 416 under the
Securities Act, the shares being registered hereunder include such
indeterminate number of shares of common stock as may be issuable
with respect to the shares being registered hereunder as a result
of stock splits, stock dividends or similar
transactions.
(3)
The proposed
maximum aggregate offering price per class of security will be
determined from time to time by the registrant in connection with
the issuance by the registrant of the securities registered
hereunder and is not specified as to each class of security
pursuant to General Instruction II.D. of Form S-3 under the
Securities Act.
The
registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or
until this registration statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
EXPLANATORY NOTE
This
registration statement contains:
●
a base
prospectus which covers the offering, issuance and sale by the
registrant of up to a maximum aggregate offering price of
$125,000,000 of the registrant’s common stock, debt
securities and/or warrants; and
●
a sales
agreement prospectus covering the offering, issuance and sale of up
to $50,000,000 of shares of the registrant’s common stock
that may be issued and sold under the At Market Issuance Sales
Agreement, dated June 12, 2020 (the “Sales Agreement”),
by and among the registrant, B. Riley FBR, Inc. and Raymond James
& Associates, Inc.
The base prospectus immediately follows this
explanatory note. The specific terms of any securities to be
offered pursuant to the base prospectus will be specified in a
prospectus supplement to the base prospectus. The sales agreement
prospectus immediately follows the base prospectus. The common
stock that may be offered, issued and sold by the registrant under
the sales agreement prospectus is included in the
$125,000,000 of securities that
may be offered, issued and sold by the registrant under the base
prospectus. Upon termination of the Sales Agreement, any portion of
the $50,000,000 included in the
sales agreement prospectus that is not sold pursuant to the Sales
Agreement will be available for sale in other offerings pursuant to
the base prospectus.
The information in this
prospectus is not complete and may be changed. We may not
sell these securities or accept an offer to buy these securities
until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an
offer to sell these securities, and it is not soliciting offers to
buy these securities in any state where such offer or sale is not
permitted.
From
time to time, we may offer up to $125,000,000 of any combination of
the securities described in this prospectus in one or more
offerings. We may also offer securities as may be issuable upon
conversion, redemption, repurchase, exchange or exercise of any
securities registered hereunder, including any applicable
antidilution provisions.
This
prospectus provides a general description of the securities we may
offer. Each time we offer securities, we will provide
specific terms of the securities offered in a supplement to this
prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these
offerings. The prospectus supplement and any related free
writing prospectus may also add, update or change information
contained in this prospectus. You should carefully read this
prospectus, the applicable prospectus supplement and any related
free writing prospectus, as well as any documents incorporated by
reference, before you invest in any of the securities being
offered.
This
prospectus may not be used to consummate a sale of any securities
unless accompanied by a prospectus supplement.
Our
common stock is traded on The Nasdaq Capital Market under the
symbol “CDXC.” On June 10, 2020, the last reported
sales price of our common stock was $4.52 per share. The
applicable prospectus supplement will contain information, where
applicable, as to any other listing on The Nasdaq Capital Market or
any securities market or other exchange of the securities, if any,
covered by the applicable prospectus supplement.
We will
sell these securities directly to investors, through agents
designated from time to time or to or through underwriters or
dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section
entitled “Plan of Distribution” in this
prospectus. If any agents or underwriters are involved in the
sale of any securities with respect to which this prospectus is
being delivered, the names of such agents or underwriters and any
applicable fees, commissions, discounts or options to purchase additional securities
will be set forth in a prospectus supplement. The price to
the public of such securities and the net proceeds we expect to
receive from such sale will also be set forth in a prospectus
supplement.
Investing in our securities involves a high degree of risk. You
should review carefully the risks and uncertainties described under
the heading “Risk Factors” on page 4 of this prospectus
as well as those contained in the applicable prospectus supplement
and any related free writing prospectus, and under similar headings
in the other documents that are incorporated by reference into 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.
This
prospectus is a part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission (the
“SEC”), utilizing a “shelf” registration
process. Under this shelf registration process, we may sell any
combination of the securities described in this prospectus in one
or more offerings up to a total aggregate offering price of
$125,000,000. This prospectus provides you with a general
description of the securities we may offer.
Each
time we sell securities under this prospectus, we will provide a
prospectus supplement that will contain specific information about
the terms of that offering. We may also authorize one or more
free writing prospectuses to be provided to you that may contain
material information relating to these offerings. The
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you may also add, update or
change information contained in this prospectus or in any documents
that we have incorporated by reference into this prospectus. You
should read this prospectus, any applicable prospectus supplement
and any related free writing prospectus, together with the
information incorporated herein by reference as described under the
heading “Incorporation of Certain Information by
Reference,” before investing in any of the securities
offered.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES
UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither
we, nor any agent, underwriter or dealer has authorized any person
to give any information or to make any representation other than
those contained or incorporated by reference in this prospectus,
any applicable prospectus supplement or any related free writing
prospectus prepared by or on behalf of us or to which we have
referred you. This prospectus, any applicable supplement to this
prospectus or any related free writing prospectus do not constitute
an offer to sell or the solicitation of an offer to buy any
securities other than the registered securities to which they
relate, nor do this prospectus, any applicable supplement to this
prospectus or any related free writing prospectus constitute an
offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
You
should not assume that the information contained in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus is accurate on any date subsequent to the
date set forth on the front of the document or that any information
we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though
this prospectus, any applicable prospectus supplement or any
related free writing prospectus is delivered, or securities are
sold, on a later date.
This
prospectus contains summaries of certain provisions contained in
some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “Where You Can Find More
Information.”
This
summary highlights selected information from this prospectus and
does not contain all of the information that you need to consider
in making your investment decision. You should carefully read the
entire prospectus, the applicable prospectus supplement and any
related free writing prospectus, including the risks of investing
in our securities discussed under the heading “Risk
Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and under similar headings
in the other documents that are incorporated by reference into this
prospectus. You should also carefully read the information
incorporated by reference into this prospectus, including our
financial statements, and the exhibits to the registration
statement of which this prospectus is a part.
Unless
the context requires otherwise, references in this prospectus to
“ChromaDex,”“the Company,”“we,”“us” and “our” refer to
ChromaDex Corporation.
Company Overview
ChromaDex is a
science-based integrated nutraceutical company devoted to improving
the way people age. ChromaDex scientists partner with leading
universities and research institutions worldwide to discover,
develop and create solutions to deliver the full potential of
nicotinamide adenine dinucleotide (“NAD”) and its
impact on human health.
NAD is
an essential coenzyme and a key regulator of cellular metabolism.
Best known for its role in cellular energy production, NAD is now
thought to play an important role in healthy aging. Many cellular
functions related to health and healthy aging are sensitive to
levels of locally available NAD and this represents an active area
of research in the field of NAD.
NAD
levels are not constant, and in humans, NAD levels have been shown
to decline by more than 50% from young adulthood to middle age. NAD
continues to decline as humans grow older. There are other causes
of reduced NAD levels such as over-nutrition, alcohol consumption
and a number of disease states. NAD may also be increased,
including through calorie restriction and exercise. Healthy aging,
mitochondria and NAD continue to be areas of focus in the research
community. As of 2019, there were over 250 published human clinical
studies on NAD. The areas of study include Alzheimer’s
disease, Parkinson’s disease, neuropathy and heart
failure.
In
2013, ChromaDex commercialized NIAGEN® nicotinamide riboside
(“NR”), a novel form of vitamin B3. Data from numerous
animal studies, and confirmed in human clinical trials, show that
NR is a highly efficient NAD precursor that significantly raises
NAD levels. NIAGEN® is safe for human consumption.
NIAGEN® has twice been successfully reviewed under FDA’s
new dietary ingredient notification program, has been successfully
notified to the FDA as generally recognized as safe, and has been
approved by Health Canada, the European Commission and the
Therapeutic Goods Administration of Australia. Animal studies of
NIAGEN® have demonstrated a variety of outcomes ranging from
increased NAD levels, increased cellular metabolism and energy
production to improvements in insulin sensitivity. NIAGEN® is
the trade name for our proprietary ingredient NR, and is protected
by patents to which we are the exclusive licensee.
ChromaDex is the
world leader in the emerging NAD space. ChromaDex has approximately
195 partnerships with leading universities and research
institutions around the world including the National Institutes of
Health, Cornell, Dartmouth, Harvard, Massachusetts Institute of
Technology, University of Cambridge and the Mayo Clinic. Other
relationships are currently being developed.
Our
scientific advisory board is led by Chairman Dr. Roger Kornberg,
Nobel Laureate Stanford Professor, Dr. Charles Brenner, one of the
world’s recognized experts in NAD and inventor of
nicotinamide riboside, Dr. Rudi Tanzi, the co-chair of the
department of neurology at Harvard Medical School and one of the
world’s leading experts in food and nutrition, Sir John
Walker, Nobel Laureate and Emeritus Director, MRC Mitochondrial
Biology Unit in the University of Cambridge, England, Dr. Bruce
German, Chairman of food, nutrition and health at the University of
California, Davis, and Dr. Brunie Felding, Associate Professor,
Department of Molecular Medicine at Scripps Research Institute,
California Campus.
Corporate Information
On May 21,2008, Cody Resources, Inc., a Nevada corporation and a public
company, (“Cody”) entered into an Agreement and Plan of
Merger (the “Merger Agreement”), by and among Cody, CDI
Acquisition, Inc., a California corporation and wholly-owned
subsidiary of Cody, and ChromaDex, Inc. Subsequent to the signing
of the Merger Agreement, Cody merged with and into a Delaware
corporation. On June 20, 2008, Cody amended its certificate of
incorporation to change its name to ChromaDex Corporation. Our
principal executive offices are located at 10900 Wilshire Blvd.,
Suite 600, Los Angeles, California90024. Our telephone number at
that address is (310) 388-6706. Our website address is
www.chromadex.com. The information contained in, or that can be
accessed through, our website is not part of this
prospectus.
All
brand names or trademarks appearing in this prospectus are the
property of their respective holders. Use or display by us of other
parties’ trademarks, trade dress, or products in this
prospectus is not intended to, and does not, imply a relationship
with, or endorsements or sponsorship of, us by the trademark or
trade dress owners.
We may
offer shares of our common stock, various series of debt securities
and warrants to purchase any of such securities, up to a total
aggregate offering price of $125,000,000 from time to time in one
or more offerings under this prospectus, together with any
applicable prospectus supplement and any related free writing
prospectus, at prices and on terms to be determined by market
conditions at the time of the relevant offering. This
prospectus provides you with a general description of the
securities we may offer. Each time we offer a type or series
of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and
other important terms of the securities, including, to the extent
applicable:
●
designation or
classification;
●
aggregate principal
amount or aggregate offering price;
●
maturity, if
applicable;
●
original issue
discount, if any;
●
rates and times of
payment of interest or dividends, if any;
●
redemption,
conversion, exchange or sinking fund terms, if any;
●
conversion or
exchange prices or rates, if any, and, if applicable, any
provisions for changes to or adjustments in the conversion or
exchange prices or rates and in the securities or other property
receivable upon conversion or exchange;
●
ranking, if
applicable;
●
restrictive
covenants, if any;
●
voting or other
rights, if any; and
●
important U.S.
federal income tax considerations.
The
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you may also add, update or
change information contained in this prospectus or in documents we
have incorporated by reference. However, no prospectus
supplement or free writing prospectus will offer a security that is
not registered and described in this prospectus at the time of the
effectiveness of the registration statement of which this
prospectus is a part.
This
prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
We may
sell the securities directly to investors or through underwriters,
dealers or agents. We, and our underwriters or agents,
reserve the right to accept or reject all or part of any proposed
purchase of securities. If we do offer securities through
underwriters or agents, we will include in the applicable
prospectus supplement:
●
the names of those
underwriters or agents;
●
applicable fees,
discounts and commissions to be paid to them;
●
details regarding
options to purchase additional securities, if any; and
●
the estimated net
proceeds to us.
Common Stock.
We may issue shares of our common stock from time to time. Holders
of our common stock are entitled to one vote per share for the
election of directors and on all other matters that require
stockholder approval. In the event of our liquidation, dissolution
or winding up, holders of our common stock are entitled to share
ratably in the assets remaining after payment of liabilities. Our
common stock does not carry any preemptive rights enabling a holder
to subscribe for, or receive shares of, our common stock or any
other securities convertible into shares of common stock, or any
redemption rights.
Debt
Securities. We may issue debt securities from time to
time, in one or more series, as either senior or subordinated debt
or as senior or subordinated convertible debt. The senior debt
securities will rank equally with any other unsecured and
unsubordinated debt. The subordinated debt securities will be
subordinate and junior in right of payment, to the extent and in
the manner described in the instrument governing the debt, to all
of our senior indebtedness. Convertible debt securities will be
convertible into our common stock. Conversion may be mandatory or
at the holder’s option and would be at prescribed conversion
rates.
The
debt securities will be issued under one or more documents called
indentures, which are contracts between us and a national banking
association or other eligible party, as trustee. In this
prospectus, we have summarized certain general features of the debt
securities. We urge you, however, to read the applicable prospectus
supplement (and any free writing prospectus that we may authorize
to be provided to you) related to the series of debt securities
being offered, as well as the complete indentures that contain the
terms of the debt securities. A form of indenture has been filed as
an exhibit to the registration statement of which this prospectus
is a part, and supplemental indentures and forms of debt securities
containing the terms of the debt securities being offered will be
filed as exhibits to the registration statement of which this
prospectus is a part or will be incorporated by reference from
reports that we file with the SEC.
Warrants. We may issue warrants for the
purchase of common stock and/or debt securities in one or more
series. We may issue warrants independently or together with common
stock and/or debt securities, and the warrants may be attached to
or separate from these securities. In this prospectus, we have
summarized certain general features of the warrants. We urge you,
however, to read the applicable prospectus supplement (and any free
writing prospectus that we may authorize to be provided to you)
related to the particular series of warrants being offered, as well
as the complete warrant agreements and warrant certificates that
contain the terms of the warrants. Forms of the warrant agreements
and forms of warrant certificates containing the terms of the
warrants being offered have been filed as exhibits to the
registration statement of which this prospectus is a part, and
supplemental warrant agreements and forms of warrant certificates
will be filed as exhibits to the registration statement of which
this prospectus is a part or will be incorporated by reference from
reports that we file with the SEC.
We will
evidence each series of warrants by warrant certificates that we
will issue. Warrants may be issued under an applicable warrant
agreement that we enter into with a warrant agent. We will indicate
the name and address of the warrant agent, if applicable, in the
prospectus supplement relating to the particular series of warrants
being offered.
An
investment in our securities involves a high degree of risk. Prior
to making a decision about investing in our securities, you should
consider carefully the specific risk factors discussed in the
sections entitled “Risk Factors” contained in our most
recent Annual Report on Form 10-K for the year ended December 31,2019, as filed with the SEC on March 10, 2020 and as amended on May18, 2020, or Quarterly Report on Form 10-Q for the quarter ended
March 31, 2020, as filed with the SEC on May 18, 2020, which are
incorporated in this prospectus by reference in their entirety, as
well as any amendment or updates to our risk factors reflected in
subsequent filings with the SEC, including any prospectus
supplement hereto. These risks and uncertainties are not the only
risks and uncertainties we face. Additional risks and uncertainties
not presently known to us, or that we currently view as immaterial,
may also impair our business. Past
financial performance may not be a reliable indicator of future
performance, and historical trends should not be unduly relied upon
to anticipate results or trends in future periods. If any of
the risks or uncertainties described in our SEC filings or any
additional risks and uncertainties actually occur, our business,
financial condition, results of operations and cash flow could be
materially and adversely affected. In that case, the trading price
of our common stock could decline and you might lose all or part of
your investment. Please also read carefully the section below
titled “Special Note Regarding Forward-Looking
Statements.”
This
prospectus, each prospectus supplement and the information
incorporated by reference in this prospectus and each prospectus
supplement contain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the
“Securities Act”), and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that involve a number of risks and uncertainties.
Although our forward-looking statements reflect the good faith
judgment of our management, these statements can only be based on
facts and factors currently known by us. Consequently, these
forward-looking statements are inherently subject to risks and
uncertainties, and actual results and outcomes may differ
materially from results and outcomes discussed in the
forward-looking statements.
Forward-looking
statements can be identified by the use of forward-looking words
such as “believes,”“expects,”“hopes,”“may,”“will,”“plan,”“intends,”“estimates,”“could,”“should,”“would,”“continue,”“seeks,”“pro
forma,” or “anticipates,” or other similar words
(including their use in the negative), or by discussions of future
matters such as our business, business strategy, products and
services we may offer in the future, the outcome and impact of
litigation, the timing and results of future regulatory filings,
our ability to collect from major customers, our sales and
marketing strategy and capital outlook, our estimates regarding our
capital requirements, future expenses and need for additional
financing, our use of the net proceeds from any offering and other
statements that are not historical. These statements include but
are not limited to statements under the captions
“Business,”“Risk Factors” and
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and in other sections
incorporated by reference from our Annual Report on Form 10-K
and Quarterly Reports on Form 10-Q, as applicable, as well as
our other filings with the SEC. You should be aware that the
occurrence of any of the events discussed under the heading
“Risk Factors” in this prospectus, any applicable
prospectus supplement and any documents incorporated by reference
herein or therein could substantially harm our business, operating
results and financial condition and that if any of these events
occurs, it could adversely affect the value of an investment in our
securities.
The
cautionary statements made in this prospectus are intended to be
applicable to all related forward-looking statements wherever they
may appear in this prospectus or in any prospectus supplement or
any documents incorporated by reference herein or therein. We urge
you not to place undue reliance on these forward-looking
statements, which speak only as of the date they are made. Except
as required by law, we assume no obligation to update our
forward-looking statements, even if new information becomes
available in the future.
We will
retain broad discretion over the use of the net proceeds from the
sale of the securities offered hereby. Except as described in any
prospectus supplement or any related free writing prospectus that
we may authorize to be provided to you, we currently intend to use
the net proceeds from the sale of the securities offered hereby for
general corporate purposes, which may include capital expenditures,
working capital and general and administrative expenses. We may
also use a portion of the net proceeds to acquire or invest in
businesses and products that are complementary to our own, although
we have no current plans, commitments or agreements with respect to
any acquisitions as of the date of this prospectus. We will set
forth in the applicable prospectus supplement or free writing
prospectus our intended use for the net proceeds received from the
sale of any securities sold pursuant to the prospectus supplement
or free writing prospectus. Pending these uses, we intend to invest
the net proceeds primarily in money market mutual funds, obligations of the
U.S. government and its agencies, money market instruments
including commercial paper and negotiable certificates of deposit
and corporate bonds.
As of
the date of this prospectus, our amended and restated certificate
of incorporation, as amended, authorizes us to issue 150,000,000
shares of common stock, par value $0.001 per share. As of March 31,2020, 59,787,897 shares of common stock were
outstanding.
The
following summary describes the material terms of our common stock.
The description of common stock is qualified by reference to our
amended and restated certificate of incorporation, as amended, and
our bylaws, as amended, which are incorporated by reference as
exhibits into the registration statement of which this prospectus
is a part.
Common Stock
Voting. Our common stock is entitled to
one vote for each share held of record on all matters submitted to
a vote of the stockholders, including the election of directors,
and does not have cumulative voting rights. Accordingly, the
holders of a majority of the shares of our common stock entitled to
vote in any election of directors can elect all of the directors
standing for election.
Dividends. The holders of common stock
are entitled to receive dividends, if any, as may be declared from
time to time by our board of directors out of legally available
funds.
Liquidation. In the event of our
liquidation, dissolution or winding-up, holders of our common stock
will be entitled to share ratably in the net assets legally
available for distribution to stockholders after the payment of all
of our debts and other liabilities.
Rights and Preferences. Holders of our
common stock have no preemptive, conversion or subscription rights,
and there are no redemption or sinking fund provisions applicable
to our common stock.
Our
amended and restated certificate of incorporation, as amended, and
our bylaws, as amended, contain certain provisions that could have
the effect of delaying, deterring or preventing another party from
acquiring control of us, and therefore could adversely affect the
market price of our common stock. These provisions and certain
provisions of Delaware General Corporation Law (the
“DGCL”), which are summarized below, may also
discourage coercive takeover practices and inadequate takeover
bids, and are designed, in part, to encourage persons seeking to
acquire control of us to negotiate first with our board of
directors. We believe that the benefits of increased protection of
our potential ability to negotiate more favorable terms with an
unfriendly or unsolicited acquirer outweigh the disadvantages of
potentially discouraging a proposal to acquire us.
Delaware Anti-Takeover Law
We are
subject to Section 203 of the DGCL
(“Section 203”). Section 203 generally
prohibits a public Delaware corporation from engaging in a
“business combination” with an “interested
stockholder” for a period of three years following the time
that such stockholder became an interested stockholder,
unless:
●
prior to such time
the board of directors of the corporation approved either the
business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
●
upon consummation
of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time
the transaction commenced, excluding for purposes of determining
the voting stock outstanding (but not the outstanding voting stock
owned by the interested stockholder) those shares owned (i) by
persons who are directors and also officers and (ii) employee
stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer; or
●
at or subsequent to
such time the business combination is approved by the board of
directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote
of at least 66 2/3% of the outstanding voting stock which is not
owned by the interested stockholder.
Section 203
defines a business combination to include:
●
any merger or
consolidation involving the corporation and the interested
stockholder;
●
any sale, transfer,
pledge or other disposition involving the interested stockholder of
10% or more of the assets of the corporation;
●
subject to
exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
●
subject to
exceptions, any transaction involving the corporation that has the
effect of increasing the proportionate share of the stock of any
class or series of the corporation beneficially owned by the
interested stockholder; and
●
the receipt by the
interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or
through the corporation.
In
general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by the entity or
person.
Among
other things, our amended and restated certificate of
incorporation, as amended, and bylaws, as amended:
●
provide that the
authorized number of directors may be changed only by resolution of
our board of directors;
●
provide that
directors may be removed with or without cause by the holders of at
least a majority of the voting power of all of our then-outstanding
shares of the capital stock then entitled to vote;
●
provide that all
vacancies, including newly created directorships, may, except as
otherwise required by law, be filled by the affirmative vote of a
majority of directors then in office, even if less than a
quorum;
●
require that any
action to be taken by our stockholders must be effected at a duly
called annual or special meeting of stockholders and not be taken
by written consent or electronic transmission;
●
provide that
stockholders seeking to present proposals before a meeting of
stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide advance notice in writing,
and also specify requirements as to the form and content of a
stockholder’s notice;
●
provide that
special meetings of our stockholders may be called only by the
chairman of our board of directors, our chief executive officer or
by our board of directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or
not there exists any vacancies);
●
do not provide for
cumulative voting rights (therefore allowing the holders of a
majority of the shares of common stock entitled to vote in any
election of directors to elect all of the directors standing for
election, if they should so choose); and
●
provide that the
Court of Chancery of the State of Delaware will be the sole and
exclusive forum for the following types of actions or proceedings
under Delaware statutory or common law: (1) any derivative action
or proceeding brought on our behalf; (2) any action or proceeding
asserting a claim of breach of a fiduciary duty owed by any of our
current or former directors, officers or other employees to us or
our stockholders; (3) any action or proceeding asserting a claim
against us or any of our current or former directors, officers or
other employees, arising out of or pursuant to any provision of the
DGCL, our amended and restated certificate of incorporation, as
amended, or our bylaws, as amended; or (4) any action asserting a
claim against us governed by the internal affairs doctrine, in all
cases to the fullest extent permitted by law and subject to the
court’s having personal jurisdiction over the indispensable
parties named as defendants; provided these provisions will not
apply to suits brought to enforce a duty or liability created by
the Securities Act, the Exchange Act or any other claim for which
the federal courts have exclusive jurisdiction.
The
amendment of any of these provisions would require the affirmative
vote of the holders of at least a majority of the voting power of
all of our then outstanding common stock.
The
provisions of the DGCL and the provisions of our amended and
restated certificate of incorporation, as amended, and bylaws, as
amended, could have the effect of discouraging others from
attempting hostile takeovers and, as a consequence, they might also
inhibit temporary fluctuations in the market price of our common
stock that often result from actual or rumored hostile takeover
attempts. These provisions might also have the effect of preventing
changes in our management. It is possible that these provisions
could make it more difficult to accomplish transactions that
stockholders might otherwise deem to be in their best
interests.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare
Inc. The transfer agent and registrar’s address is 462 South
4th Street, Suite 1600, Louisville, Kentucky40202.
Listing on The Nasdaq Capital Market
Our
common stock is listed on The Nasdaq
Capital Market under the symbol
“CDXC”.
We may
issue debt securities from time to time, in one or more series, as
either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will
apply generally to any debt securities that we may offer under this
prospectus, we will describe the particular terms of any debt
securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities offered
under a prospectus supplement may differ from the terms described
below. Unless the context requires otherwise, whenever we refer to
the indenture, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt
securities.
We will
issue the debt securities under the indenture that we will enter
into with the trustee named in the indenture. The indenture will be
qualified under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”). We have filed the form of
indenture as an exhibit to the registration statement of which this
prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of the debt securities being
offered will be filed as exhibits to the registration statement of
which this prospectus is a part or will be incorporated by
reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and
the indenture is subject to, and qualified in its entirety by
reference to, all of the provisions of the indenture applicable to
a particular series of debt securities. We urge you to read the
applicable prospectus supplements and any related free writing
prospectuses related to the debt securities that we may offer under
this prospectus, as well as the complete indenture that contains
the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may
issue. It provides that we may issue debt securities up to the
principal amount that we may authorize and may be in any currency
or currency unit that we may designate. Except for the limitations
on consolidation, merger and sale of all or substantially all of
our assets contained in the indenture, the terms of the indenture
do not contain any covenants or other provisions designed to give
holders of any debt securities protection against changes in our
operations, financial condition or transactions involving
us.
We may
issue the debt securities issued under the indenture as
“discount securities,” which means they may be sold at
a discount below their stated principal amount. These debt
securities, as well as other debt securities that are not issued at
a discount, may be issued with “original issue
discount,” or OID, for U.S. federal income tax purposes
because of interest payment and other characteristics or terms of
the debt securities. Material U.S. federal income tax
considerations applicable to debt securities issued with OID will
be described in more detail in any applicable prospectus
supplement.
We will
describe in the applicable prospectus supplement the terms of the
series of debt securities being offered, including:
●
the title of the
series of debt securities;
●
any limit upon the
aggregate principal amount that may be issued;
●
the maturity date
or dates;
●
the form of the
debt securities of the series;
●
the applicability
of any guarantees;
●
whether or not the
debt securities will be secured or unsecured, and the terms of any
secured debt;
●
whether the debt
securities rank as senior debt, senior subordinated debt,
subordinated debt or any combination thereof, and the terms of any
subordination;
●
if the price
(expressed as a percentage of the aggregate principal amount
thereof) at which such debt securities will be issued is a price
other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the
principal amount of such debt securities that is convertible into
another security or the method by which any such portion shall be
determined;
the interest rate
or rates, which may be fixed or variable, or the method for
determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for
interest payment dates or the method for determining such
dates;
●
our right, if any,
to defer payment of interest and the maximum length of any such
deferral period;
●
if applicable, the
date or dates after which, or the period or periods during which,
and the price or prices at which, we may, at our option, redeem the
series of debt securities pursuant to any optional or provisional
redemption provisions and the terms of those redemption
provisions;
●
the date or dates,
if any, on which, and the price or prices at which we are
obligated, pursuant to any mandatory sinking fund or analogous fund
provisions or otherwise, to redeem, or at the holder’s option
to purchase, the series of debt securities and the currency or
currency unit in which the debt securities are
payable;
●
the denominations
in which we will issue the series of debt securities, if other than
denominations of $1,000 and any integral multiple
thereof;
●
any and all terms,
if applicable, relating to any auction or remarketing of the debt
securities of that series and any security for our obligations with
respect to such debt securities and any other terms which may be
advisable in connection with the marketing of debt securities of
that series;
●
whether the debt
securities of the series shall be issued in whole or in part in the
form of a global security or securities; the terms and conditions,
if any, upon which such global security or securities may be
exchanged in whole or in part for other individual securities; and
the depositary for such global security or securities;
●
if applicable, the
provisions relating to conversion or exchange of any debt
securities of the series and the terms and conditions upon which
such debt securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or
optional (at our option or the holders’ option) conversion or
exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or
exchange;
●
if other than the
full principal amount thereof, the portion of the principal amount
of debt securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
●
additions to or
changes in the covenants applicable to the particular debt
securities being issued, including, among others, the
consolidation, merger or sale covenant;
●
additions to or
changes in the events of default with respect to the securities and
any change in the right of the trustee or the holders to declare
the principal, premium, if any, and interest, if any, with respect
to such securities to be due and payable;
●
additions to or
changes in or deletions of the provisions relating to covenant
defeasance and legal defeasance;
●
additions to or
changes in the provisions relating to satisfaction and discharge of
the indenture;
●
additions to or
changes in the provisions relating to the modification of the
indenture both with and without the consent of holders of debt
securities issued under the indenture;
●
the currency of
payment of debt securities if other than U.S. dollars and the
manner of determining the equivalent amount in U.S.
dollars;
●
whether interest
will be payable in cash or additional debt securities at our or the
holders’ option and the terms and conditions upon which the
election may be made;
the terms and
conditions, if any, upon which we will pay amounts in addition to
the stated interest, premium, if any and principal amounts of the
debt securities of the series to any holder that is not a
“United States person” for federal tax
purposes;
●
any restrictions on
transfer, sale or assignment of the debt securities of the series;
and
●
any other specific
terms, preferences, rights or limitations of, or restrictions on,
the debt securities, any other additions or changes in the
provisions of the indenture, and any terms that may be required by
us or advisable under applicable laws or regulations.
Conversion or Exchange Rights
We will
set forth in the applicable prospectus supplement the terms on
which a series of debt securities may be convertible into or
exchangeable for our common stock or our other securities. We will
include provisions as to settlement upon conversion or exchange and
whether conversion or exchange is mandatory, at the option of the
holder or at our option. We may include provisions pursuant to
which the number of shares of our common stock or our other
securities that the holders of the series of debt securities
receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a
particular series of debt securities, the indenture will not
contain any covenant that restricts our ability to merge or
consolidate, or sell, convey, transfer or otherwise dispose of our
assets as an entirety or substantially as an entirety. However, any
successor to or acquirer of such assets (other than a subsidiary of
ours) must assume all of our obligations under the indenture or the
debt securities, as appropriate.
Unless
we provide otherwise in the prospectus supplement applicable to a
particular series of debt securities, the following are events of
default under the indenture with respect to any series of debt
securities that we may issue:
●
if we fail to pay
any installment of interest on any series of debt securities, as
and when the same shall become due and payable, and such default
continues for a period of 90 days; provided, however, that a valid
extension of an interest payment period by us in accordance with
the terms of any indenture supplemental thereto shall not
constitute a default in the payment of interest for this
purpose;
●
if we fail to pay
the principal of, or premium, if any, on any series of debt
securities as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise,
or in any payment required by any sinking or analogous fund
established with respect to such series; provided, however, that a
valid extension of the maturity of such debt securities in
accordance with the terms of any indenture supplemental thereto
shall not constitute a default in the payment of principal or
premium, if any;
●
if we fail to
observe or perform any other covenant or agreement contained in the
debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our
failure continues for 90 days after we receive written notice
of such failure, requiring the same to be remedied and stating that
such is a notice of default thereunder, from the trustee or holders
of at least 25% in aggregate principal amount of the outstanding
debt securities of the applicable series; and
●
if specified events
of bankruptcy, insolvency or reorganization occur.
If an
event of default with respect to debt securities of any series
occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid
principal of, premium, if any, and accrued interest, if any, due
and payable immediately. If an event of default specified in the
last bullet point above occurs with respect to us, the principal
amount of and accrued interest, if any, of each issue of debt
securities then outstanding shall be due and payable without any
notice or other action on the part of the trustee or any
holder.
The
holders of a majority in principal amount of the outstanding debt
securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except
defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or
event of default in accordance with the indenture. Any waiver shall
cure the default or event of default.
Subject
to the terms of the indenture, if an event of default under an
indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such
indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have
offered the trustee reasonable indemnity. The holders of a majority
in principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with
respect to the debt securities of that series, provided
that:
●
the direction so
given by the holder is not in conflict with any law or the
applicable indenture; and
●
subject to its
duties under the Trust Indenture Act, the trustee need not take any
action that might involve it in personal liability or might be
unduly prejudicial to the holders not involved in the
proceeding.
A
holder of the debt securities of any series will have the right to
institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
●
the holder has
given written notice to the trustee of a continuing event of
default with respect to that series;
●
the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of that series have made written request,
●
such holders have
offered to the trustee indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred by the trustee in
compliance with the request; and
●
the trustee does
not institute the proceeding, and does not receive from the holders
of a majority in aggregate principal amount of the outstanding debt
securities of that series other conflicting directions within
90 days after the notice, request and offer.
These
limitations do not apply to a suit instituted by a holder of debt
securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We will
periodically file statements with the trustee regarding our
compliance with specified covenants in the indenture.
We and
the trustee may change an indenture without the consent of any
holders with respect to specific matters:
●
to cure any
ambiguity, defect or inconsistency in the indenture or in the debt
securities of any series;
●
to comply with the
provisions described above under “Description of Debt
Securities—Consolidation, Merger or Sale;”
●
to provide for
uncertificated debt securities in addition to or in place of
certificated debt securities;
●
to add to our
covenants, restrictions, conditions or provisions such new
covenants, restrictions, conditions or provisions for the benefit
of the holders of all or any series of debt securities, to make the
occurrence, or the occurrence and the continuance, of a default in
any such additional covenants, restrictions, conditions or
provisions an event of default or to surrender any right or power
conferred upon us in the indenture;
●
to add to, delete
from or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication and
delivery of debt securities, as set forth in the
indenture;
to make any change
that does not adversely affect the interests of any holder of debt
securities of any series in any material respect;
●
to provide for the
issuance of and establish the form and terms and conditions of the
debt securities of any series as provided above under
“Description of Debt Securities—General” to
establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt
securities, or to add to the rights of the holders of any series of
debt securities;
●
to evidence and
provide for the acceptance of appointment under any indenture by a
successor trustee; or
●
to comply with any
requirements of the SEC in connection with the qualification of any
indenture under the Trust Indenture Act.
In
addition, under the indenture, the rights of holders of a series of
debt securities may be changed by us and the trustee with the
written consent of the holders of at least a majority in aggregate
principal amount of the outstanding debt securities of each series
that is affected. However, unless we provide otherwise in the
prospectus supplement applicable to a particular series of debt
securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities
affected:
●
extending the fixed
maturity of any debt securities of any series;
●
reducing the
principal amount, reducing the rate of or extending the time of
payment of interest, or reducing any premium payable upon the
redemption of any series of any debt securities; or
●
reducing the
percentage of debt securities, the holders of which are required to
consent to any amendment, supplement, modification or
waiver.
Discharge
Each
indenture provides that we can elect to be discharged from our
obligations with respect to one or more series of debt securities,
except for specified obligations, including obligations
to:
●
provide for
payment;
●
register the
transfer or exchange of debt securities of the series;
●
replace stolen,
lost or mutilated debt securities of the series;
●
pay principal of
and premium and interest on any debt securities of the
series;
●
maintain paying
agencies;
●
hold monies for
payment in trust;
●
recover excess
money held by the trustee;
●
compensate and
indemnify the trustee; and
●
appoint any
successor trustee.
In
order to exercise our rights to be discharged, we must deposit with
the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on, the debt
securities of the series on the dates payments are
due.
Form, Exchange and Transfer
We will
issue the debt securities of each series only in fully registered
form without coupons and, unless we provide otherwise in the
applicable prospectus supplement, in denominations of $1,000 and
any integral multiple thereof. The indenture provides that we may
issue debt securities of a series in temporary or permanent global
form and as book-entry securities that will be deposited with, or
on behalf of, The Depository Trust Company (“DTC”), or
another depositary named by us and identified in the applicable
prospectus supplement with respect to that series. To the extent
the debt securities of a series are issued in global form and as
book-entry, a description of terms relating to any book-entry
securities will be set forth in the applicable prospectus
supplement.
At the
option of the holder, subject to the terms of the indenture and the
limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities
of any series can exchange the debt securities for other debt
securities of the same series, in any authorized denomination and
of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to
global securities set forth in the applicable prospectus
supplement, holders of the debt securities may present the debt
securities for exchange or for registration of transfer, duly
endorsed or with the form of transfer endorsed thereon duly
executed if so required by us or the security registrar, at the
office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided
in the debt securities that the holder presents for transfer or
exchange, we will impose no service charge for any registration of
transfer or exchange, but we may require payment of any taxes or
other governmental charges.
We will
name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security
registrar, that we initially designate for any debt securities. We
may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment for
the debt securities of each series.
If we
elect to redeem the debt securities of any series, we will not be
required to:
●
issue, register the
transfer of, or exchange any debt securities of that series during
a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of any debt securities
that may be selected for redemption and ending at the close of
business on the day of the mailing; or
●
register the
transfer of or exchange any debt securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part.
Information Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an
event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable
indenture. Upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this
provision, the trustee is under no obligation to exercise any of
the powers given it by the indenture at the request of any holder
of debt securities unless it is offered reasonable security and
indemnity against the costs, expenses and liabilities that it might
incur.
Payment and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we
will make payment of the interest on any debt securities on any
interest payment date to the person in whose name the debt
securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the
interest.
We will
pay principal of and any premium and interest on the debt
securities of a particular series at the office of the paying
agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest
payments by check that we will mail to the holder or by wire
transfer to certain holders. Unless we otherwise indicate in the
applicable prospectus supplement, we will designate the corporate
trust office of the trustee as our sole paying agent for payments
with respect to debt securities of each series. We will name in the
applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series.
We will maintain a paying agent in each place of payment for the
debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of
the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be
repaid to us, and the holder of the debt security thereafter may
look only to us for payment thereof.
Governing Law
The
indenture and the debt securities will be governed by and construed
in accordance with the internal laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
The
following description, together with the additional information we
may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus, which may
consist of warrants to purchase common stock or debt securities and
may be issued in one or more series. Warrants may be issued
independently or together with common stock or debt securities
offered by any prospectus supplement, and may be attached to or
separate from those securities. While the terms we have summarized
below will apply generally to any warrants that we may offer under
this prospectus, we will describe the particular terms of any
series of warrants that we may offer in more detail in the
applicable prospectus supplement and any applicable free writing
prospectus. The terms of any warrants offered under a prospectus
supplement may differ from the terms described below. However, no
prospectus supplement will fundamentally change the terms that are
set forth in this prospectus or offer a security that is not
registered and described in this prospectus at the time of its
effectiveness.
We have
filed forms of the warrant agreements and forms of warrant
certificates containing the terms of the warrants being offered as
exhibits to the registration statement of which this prospectus is
a part. We will file as exhibits to the registration statement of
which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of warrant
agreement, if any, including a form of warrant certificate, that
describes the terms of the particular series of warrants we are
offering. The following summaries of material provisions of the
warrants and the warrant agreements are subject to, and qualified
in their entirety by reference to, all the provisions of the
warrant agreement and warrant certificate applicable to the
particular series of warrants that we may offer under this
prospectus. We urge you to read the applicable prospectus
supplements related to the particular series of warrants that we
may offer under this prospectus, as well as any related free
writing prospectuses, and the complete warrant agreements and
warrant certificates that contain the terms of the
warrants.
General
We will
describe in the applicable prospectus supplement the terms relating
to a series of warrants being offered, including:
●
the title of such
securities;
●
the offering price
or prices and aggregate number of warrants offered;
●
the currency or
currencies for which the warrants may be purchased;
●
if applicable, the
designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or
each principal amount of such security;
●
if applicable, the
date on and after which the warrants and the related securities
will be separately transferable;
●
if applicable, the
minimum or maximum amount of such warrants which may be exercised
at any one time;
●
in the case of
warrants to purchase debt securities, the principal amount of debt
securities purchasable upon exercise of one warrant and the price
at which, and currency in which, this principal amount of debt
securities may be purchased upon such exercise;
●
in the case of
warrants to purchase common stock, the number of shares of common
stock purchasable upon the exercise of one warrant and the price at
which, and the currency in which, these shares may be purchased
upon such exercise;
●
the effect of any
merger, consolidation, sale or other disposition of our business on
the warrant agreements and the warrants;
●
the terms of any
rights to redeem or call the warrants;
●
the terms of any
rights to force the exercise of the warrants;
●
any provisions for
changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants;
the dates on which
the right to exercise the warrants will commence and
expire;
●
the manner in which
the warrant agreements and warrants may be modified;
●
a discussion of any
material or special U.S. federal income tax consequences of holding
or exercising the warrants;
●
the terms of the
securities issuable upon exercise of the warrants; and
●
any other specific
terms, preferences, rights or limitations of or restrictions on the
warrants.
Before
exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such
exercise, including:
●
in the case of
warrants to purchase debt securities, the right to receive payments
of principal of, or premium, if any, or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
●
in the case of
warrants to purchase common stock, the right to receive dividends,
if any, or, payments upon our liquidation, dissolution or winding
up or to exercise voting rights, if any.
Exercise of Warrants
Each
warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement.
Unless we otherwise specify in the applicable prospectus
supplement, holders of the warrants may exercise the warrants at
any time up to the specified time on the expiration date that we
set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will
become void.
Unless
we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants by delivering the
warrant certificate representing the warrants to be exercised
together with specified information, and paying the required amount
to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the
reverse side of the warrant certificate and in the applicable
prospectus supplement the information that the holder of the
warrant will be required to deliver to the warrant agent in
connection with the exercise of the warrant.
Upon
receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of the
warrants represented by the warrant certificate are exercised, then
we will issue a new warrant certificate for the remaining amount of
warrants. If we so indicate in the applicable prospectus
supplement, holders of the warrants may surrender securities as all
or part of the exercise price for warrants.
Governing Law
Unless
we provide otherwise in the applicable prospectus supplement, the
warrants and warrant agreements, and any claim, controversy or
dispute arising under or related to the warrants or warrant
agreements, will be governed by and construed in accordance with
the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any
warrant. A single bank or trust company may act as warrant
agent for more than one issue of warrants. A warrant agent
will have no duty or responsibility in case of any default by us
under the applicable warrant agreement or warrant, including any
duty or responsibility to initiate any proceedings at law or
otherwise, or to make any demand upon us. Any holder of a
warrant may, without the consent of the related warrant agent or
the holder of any other warrant, enforce by appropriate legal
action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
We can
issue securities in registered form or in the form of one or more
global securities. We describe global securities in greater
detail below. We refer to those persons who have securities
registered in their own names on the books that we or any
applicable trustee or depositary maintain for this purpose as the
“holders” of those securities. These persons are
the legal holders of the securities. We refer to those
persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as
“indirect holders” of those securities. As we
discuss below, indirect holders are not legal holders, and
investors in securities issued in book-entry form or in street name
will be indirect holders.
Book-Entry Holders
We may
issue securities in book-entry form only, as we will specify in the
applicable prospectus supplement. This means securities may
be represented by one or more global securities registered in the
name of a financial institution that holds them as depositary on
behalf of other financial institutions that participate in the
depositary’s book-entry system. These participating
institutions, which are referred to as participants, in turn, hold
beneficial interests in the securities on behalf of themselves or
their customers.
Only
the person in whose name a security is registered is recognized as
the holder of that security. Global securities will be
registered in the name of the depositary or its participants.
Consequently, for global securities, we will recognize only the
depositary as the holder of the securities, and we will make all
payments on the securities to the depositary. The depositary
passes along the payments it receives to its participants, which in
turn pass the payments along to their customers who are the
beneficial owners. The depositary and its participants do so
under agreements they have made with one another or with their
customers; they are not obligated to do so under the terms of the
securities.
As a
result, investors in a global security will not own securities
directly. Instead, they will own beneficial interests in a
global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry
system or holds an interest through a participant. As long as
the securities are issued in global form, investors will be
indirect holders, and not legal holders, of the
securities.
Street Name Holders
We may
terminate a global security or issue securities in non-global form.
In these cases, investors may choose to hold their securities in
their own names or in “street name.” Securities held by
an investor in street name would be registered in the name of a
bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that
institution.
For
securities held in street name, we or any applicable trustee or
depositary will recognize only the intermediary banks, brokers and
other financial institutions in whose names the securities are
registered as the holders of those securities, and we or any such
trustee or depositary will make all payments on those securities to
them. These institutions pass along the payments they receive
to their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they
are legally required to do so. Investors who hold securities
in street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our
obligations, as well as the obligations of any applicable trustee
or third party employed by us or a trustee, run only to the legal
holders of the securities. We do not have obligations to
investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the
case whether an investor chooses to be an indirect holder of a
security or has no choice because we are issuing the securities
only in global form.
For
example, once we make a payment or give a notice to the legal
holder, we have no further responsibility for the payment or notice
even if that legal holder is required, under agreements with its
participants or customers or by law, to pass it along to the
indirect holders but does not do so. Similarly, we may want
to obtain the approval of the holders to amend an indenture, to
relieve us of the consequences of a default or of our obligation to
comply with a particular provision of an indenture, or for other
purposes. In such an event, we would seek approval only from
the legal holders, and not the indirect holders, of the
securities. Whether and how the legal holders contact the
indirect holders is up to the legal holders.
If you
hold securities through a bank, broker or other financial
institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you
should check with your own institution to find out:
●
how it handles
securities payments and notices;
●
whether it imposes
fees or charges;
●
how it would handle
a request for the holders’ consent, if ever
required;
●
whether and how you
can instruct it to send you securities registered in your own name
so you can be a holder, if that is permitted in the
future;
●
how it would
exercise rights under the securities if there were a default or
other event triggering the need for holders to act to protect their
interests; and
●
if the securities
are in book-entry form, how the depositary’s rules and
procedures will affect these matters.
Global Securities
A
global security is a security that represents one or any other
number of individual securities held by a depositary.
Generally, all securities represented by the same global securities
will have the same terms.
Each
security issued in book-entry form will be represented by a global
security that we issue to, deposit with and register in the name of
a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC will be the depositary for all
securities issued in book-entry form.
A
global security may not be transferred to or registered in the name
of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We
describe those situations below under “—Special
Situations When a Global Security Will Be Terminated.” As a
result of these arrangements, the depositary, or its nominee, will
be the sole registered owner and legal holder of all securities
represented by a global security, and investors will be permitted
to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a
broker, bank or other financial institution that in turn has an
account with the depositary or with another institution that
does. Thus, an investor whose security is represented by a
global security will not be a legal holder of the security, but
only an indirect holder of a beneficial interest in the global
security.
If the
prospectus supplement for a particular security indicates that the
security will be issued as a global security, then the security
will be represented by a global security at all times unless and
until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry
clearing system or decide that the securities may no longer be held
through any book-entry clearing system.
Special Considerations for Global Securities
As an
indirect holder, an investor’s rights relating to a global
security will be governed by the account rules of the
investor’s financial institution and of the depositary, as
well as general laws relating to securities transfers. We do
not recognize an indirect holder as a holder of securities and
instead deal only with the depositary that holds the global
security.
If
securities are issued only as global securities, an investor should
be aware of the following:
●
an investor cannot
cause the securities to be registered in his or her name, and
cannot obtain non-global certificates for his or her interest in
the securities, except in the special situations we describe
below;
●
an investor will be
an indirect holder and must look to his or her own bank or broker
for payments on the securities and protection of his or her legal
rights relating to the securities, as we describe
above;
an investor may not
be able to sell interests in the securities to some insurance
companies and to other institutions that are required by law to own
their securities in non-book-entry form;
●
an investor may not
be able to pledge his or her interest in the global security in
circumstances where certificates representing the securities must
be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective;
●
the
depositary’s policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in the global
security;
●
we and any
applicable trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership
interests in the global security, nor will we or any applicable
trustee supervise the depositary in any way;
●
the depositary may,
and we understand that DTC will, require that those who purchase
and sell interests in the global security within its book-entry
system use immediately available funds, and your broker or bank may
require you to do so as well; and
●
financial
institutions that participate in the depositary’s book-entry
system, and through which an investor holds its interest in the
global security, may also have their own policies affecting
payments, notices and other matters relating to the
securities.
There
may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those
intermediaries.
Special Situations When a Global Security Will Be
Terminated
In a
few special situations described below, a global security will
terminate and interests in it will be exchanged for physical
certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or in
street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their
interests in securities transferred to their own names, so that
they will be direct holders. We have described the rights of
holders and street name investors above.
A
global security will terminate when the following special
situations occur:
●
if the depositary
notifies us that it is unwilling, unable or no longer qualified to
continue as depositary for that global security and we do not
appoint another institution to act as depositary within 90
days;
●
if we notify any
applicable trustee that we wish to terminate that global security;
or
●
if an event of
default has occurred with regard to securities represented by that
global security and has not been cured or waived.
The
applicable prospectus supplement may also list additional
situations for terminating a global security that would apply only
to the particular series of securities covered by the applicable
prospectus supplement. When a global security terminates, the
depositary, and neither we nor any applicable trustee, is
responsible for deciding the names of the institutions that will be
the initial direct holders.
We may
sell the securities covered hereby from time to time pursuant to
underwritten public offerings, direct sales to the public,
negotiated transactions, block trades or a combination of these
methods. A distribution of these securities offered by this
prospectus may also be effected through the issuance of derivative
securities, including without limitation, warrants. We may sell the
securities to or through underwriters or dealers, through agents,
or directly to one or more purchasers. We may distribute securities
from time to time in one or more transactions:
●
at a fixed price or
prices, which may be changed;
●
at market prices
prevailing at the time of sale;
●
at prices related
to such prevailing market prices; or
●
at negotiated
prices.
We may
also sell equity securities covered by this registration statement
in an “at the market offering” as defined in
Rule 415(a)(4) under the Securities Act. Such offering
may be made into an existing trading market for such securities in
transactions at other than a fixed price, either:
●
on or through the
facilities of The Nasdaq Capital
Market or any other securities exchange or quotation or
trading service on which such securities may be listed, quoted or
traded at the time of sale; and/or
●
to or through a
market maker other than on The Nasdaq
Capital Market or such other securities exchanges or
quotation or trading services.
Such
at-the-market offerings, if any, may be conducted by underwriters
acting as principal or agent.
A
prospectus supplement or supplements (and any related free writing
prospectus that we may authorize to be provided to you) will
describe the terms of the offering of the securities, including, to
the extent applicable:
●
the name or names
of any underwriters, dealers or agents, if any;
●
the purchase price
of the securities and the proceeds we will receive from the
sale;
●
any options
pursuant to which underwriters may purchase additional securities
from us;
●
any agency fees or
underwriting discounts and other items constituting agents’
or underwriters’ compensation;
●
any public offering
price;
●
any discounts or
concessions allowed or reallowed or paid to dealers;
and
●
any securities
exchange or market on which the securities may be
listed.
Only
underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the securities
for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price
or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain
conditions, the underwriters will be obligated to purchase all of
the securities offered by the prospectus supplement, other than
securities covered by any option to purchase additional
securities. Any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may change from
time to time. We may use underwriters with whom we have a
material relationship. We will describe in the prospectus
supplement, naming the underwriter, the nature of any such
relationship.
We may
sell securities directly or through agents we designate from time
to time. We will name any agent involved in the offering and
sale of securities, and we will describe any commissions and other
compensation we will pay the agent in the prospectus
supplement. Unless the prospectus supplement states
otherwise, our agent will act on a best-efforts basis for the
period of its appointment.
We may
authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe
the conditions to these contracts and the commissions we must pay
for solicitation of these contracts in the prospectus
supplement.
We may
provide agents and underwriters with indemnification against civil
liabilities related to this offering, including liabilities under
the Securities Act, or contribution with respect to payments that
the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in
transactions with, or perform services for, us in the ordinary
course of business.
All
securities we may offer, other than common stock, will be new
issues of securities with no established trading market. Any
agents or underwriters may make a market in these securities, but
will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot guarantee the
liquidity of the trading markets for any securities. There is
currently no market for any of the offered securities, other than
our common stock which is listed on The Nasdaq Capital Market. We
have no current plans for listing of the debt securities or
warrants on any securities exchange or quotation system; any such
listing with respect to any particular debt securities or warrants
will be described in the applicable prospectus supplement or other
offering materials, as the case may be.
Any
underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with
Rule 103 of Regulation M under the Exchange Act.
Overallotment involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. Short covering
transactions involve purchases of the securities in the open market
after the distribution is completed to cover short positions.
Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the securities originally sold by the
dealer are purchased in a stabilizing or covering transaction to
cover short positions. Those activities may cause the price
of the securities to be higher than it would otherwise be. If
commenced, the underwriters may discontinue any of the activities
at any time. These transactions may be effected on any
exchange or over-the-counter market or otherwise.
Any
agents and underwriters who are qualified market makers on The
Nasdaq Capital Market may
engage in passive market making transactions in the securities on
The Nasdaq Capital Market in
accordance with Rule 103 of Regulation M, during the business
day prior to the pricing of the offering, before the commencement
of offers or sales of the securities. Passive market makers
must comply with applicable volume and price limitations and must
be identified as passive market makers. In general, a passive
market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids
are lowered below the passive market maker’s bid, however,
the passive market maker’s bid must then be lowered when
certain purchase limits are exceeded. Passive market making may
stabilize the market price of the securities at a level above that
which might otherwise prevail in the open market and, if commenced,
may be discontinued at any time.
Unless
otherwise indicated in the applicable prospectus supplement,
certain legal matters in connection with the offering and the
validity of the securities offered by this prospectus, and any
supplement thereto, will be passed upon by Cooley LLP, San Diego,
California.
EXPERTS
The
financial statements, schedule and management’s assessment of
the effectiveness of internal control over financial reporting
incorporated by reference in this prospectus and elsewhere in the
registration statement of which this prospectus is a part have been
so incorporated by reference in reliance upon the reports of Marcum
LLP, independent registered public accountants, upon the authority
of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This
prospectus, which constitutes a part of the registration statement,
does not contain all of the information set forth in the
registration statement or the exhibits which are part of the
registration statement. For further information with respect to us
and the securities offered by this prospectus, we refer you to the
registration statement and the exhibits filed as part of the
registration statement. Neither we nor any agent, underwriter or
dealer has authorized any person to provide you with information
that is different from that contained in this prospectus, any
applicable prospectus supplement or in any free writing prospectus
we may authorize to be delivered or made available to you. We take
no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. We
are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information
contained in this prospectus, any applicable prospectus supplement
or any related free writing prospectus is accurate on any date
subsequent to the date set forth on the front of the document or
that any information we have incorporated by reference is correct
on any date subsequent to the date of the document incorporated by
reference, even though this prospectus, any applicable prospectus
supplement or any related free writing prospectus is delivered, or
securities are sold, on a later date.
We file
annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the
public at the SEC's website at www.sec.gov. You may obtain a copy
of these filings at no cost by writing us at the following address:
ChromaDex Corporation, 10900 Wilshire Blvd., Suite 600, LosAngeles, California90024, Attention: Corporate Secretary. We also
maintain a website at www.chromadex.com. The information contained
in, or that can be accessed through, our website is not part of
this prospectus.
The SEC
allows us to “incorporate by reference” into this
prospectus the information we file with them, which means that we
can disclose important information to you by referring you to those
documents. In accordance with Rule 412 of the Securities Act, any
statement contained or incorporated by reference in this prospectus
shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein, or in
any subsequently filed document which also is incorporated by
reference herein, modifies or supersedes such earlier statement.
Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
prospectus.
the information
specifically incorporated by reference into our Annual Report on
Form 10-K for the fiscal year ended December 31, 2019 from our
definitive proxy statement on Schedule 14A (other than information
furnished rather than filed) filed with the SEC on April 21,2020;
●
our Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2020,
filed with the SEC on May 18, 2020;
●
our Current Reports
on Form 8-K (other than information furnished rather than filed)
filed with the SEC on January 10, 2020, April 29, 2020, and May 7,2020; and
●
the description of
our Common Stock in our registration statement on Form 8-A filed
with the SEC on April 21, 2016, including any amendments or reports
filed for the purpose of updating such description.
We also
incorporate by reference into this prospectus all documents (other
than Current Reports furnished under Item 2.02 or Item 7.01 of Form
8-K and exhibits filed on such form that are related to such items)
that are subsequently filed by us with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the securities made by this
prospectus (including documents filed after the date of the initial
registration statement of which this prospectus is a part and prior
to the effectiveness of the registration statement).
You may
request a copy of these filings at no cost, by contacting us at the
following address or telephone number:
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES OR ACCEPT AN OFFER
TO BUY THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE
OFFER OR SALE IS NOT PERMITTED.
We
have entered into an At Market Issuance Sales Agreement (the
“Sales Agreement”), dated as of June 12, 2020, with B.
Riley FBR, Inc. (“B. Riley FBR”) and Raymond James
& Associates, Inc. (“Raymond James” and together
with B. Riley FBR, the “Sales Agents”), relating to the
sale of shares of our common stock offered by this prospectus. In
accordance with the terms of the Sales Agreement, under this
prospectus we may offer and sell shares of our common stock, $0.001
par value per share, having an aggregate offering price of up to
$50,000,000 from time to time through or to the Sales Agents,
acting as our agents or principals.
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “CDXC.” On June 10, 2020, the last reported sale
price of our common stock on The Nasdaq Capital Market was $4.52
per share.
Sales
of our common stock, if any, under this prospectus may be made by
any method deemed to be an “at the market offering” as
defined in Rule 415(a)(4) promulgated under the Securities Act of
1933, as amended (the “Securities Act”). The Sales
Agents will act as our sales agents, using commercially reasonable
efforts to sell on our behalf all of the shares of common stock
requested to be sold by us, consistent with their normal trading
and sales practices, on mutually agreed terms set forth in the
Sales Agreement. There is no arrangement for funds to be received
in any escrow, trust or similar arrangement.
The
compensation to the Sales Agents for sales of common stock sold
pursuant to the Sales Agreement is equal to up to 3.0% of the gross
proceeds of the sales price per share. In connection with the sale
of the common stock on our behalf, the Sales Agents will be deemed
to be “underwriters” within the meaning of the
Securities Act, and the compensation of the Sales Agents will be
deemed to be underwriting commissions or discounts. We have also
agreed to provide indemnification and contribution to the Sales
Agents with respect to certain liabilities, including liabilities
under the Securities Act.
____________________
Investing in our common stock involves a high degree of risk.
Please read the information contained in and incorporated by
reference under the heading “Risk Factors” beginning on
page 4 of this prospectus, and under similar headings in the other
documents that are filed after the date hereof and incorporated by
reference into 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.
This
prospectus relates to the offering of our common stock. Before
buying any of the common stock that we are offering, we urge you to
carefully read this prospectus, together with the information
incorporated by reference as described under the heading
“Incorporation of Certain Information by Reference” in
this prospectus and the information in any free writing prospectus
that we may authorize for use in connection with this offering.
These documents contain important information that you should
consider when making your investment decision.
This
prospectus describes the specific terms of the common stock we are
offering and also adds to and updates information contained in the
documents incorporated by reference into this prospectus. To the
extent there is a conflict between the information contained in
this prospectus, on the one hand, and the information contained in
any document incorporated by reference into this prospectus that
was filed with the Securities and Exchange Commission, or SEC,
before the date of this prospectus, on the other hand, you should
rely on the information in this prospectus. If any statement in one
of these documents is inconsistent with a statement in another
document having a later date — for example, a document
incorporated by reference into this prospectus — the
statement in the document having the later date modifies or
supersedes the earlier statement.
You
should rely only on the information contained in, or incorporated
by reference into this prospectus and in any free writing
prospectus that we may authorize for use in connection with this
offering. We have not, and the Sales Agents have not, authorized
any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you
should not rely on it. We are not, and the Sales Agents are not,
making an offer to sell or soliciting an offer to buy our common
stock in any jurisdiction in which an offer or solicitation is not
authorized or in which the person making that offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to
make an offer or solicitation. You should assume that the
information appearing in this prospectus, the documents
incorporated by reference into this prospectus, and in any free
writing prospectus that we may authorize for use in connection with
this offering, is accurate only as of the date of those respective
documents. Our business, financial condition, results of operations
and prospects may have changed since those dates. You should read
this prospectus, the documents incorporated by reference into this
prospectus, and any free writing prospectus that we may authorize
for use in connection with this offering, in their entirety before
making an investment decision. You should also read and consider
the information in the documents to which we have referred you in
the sections of this prospectus entitled “Where You Can Find
More Information” and “Incorporation of Certain
Information by Reference.”
This
summary highlights certain information about us, this offering and
selected information contained elsewhere in or incorporated by
reference into this prospectus. This summary is not complete and
does not contain all of the information that you should consider
before deciding whether to invest in our common stock. For a more
complete understanding of our company and this offering, we
encourage you to read and consider carefully the more detailed
information in this prospectus, including the information
incorporated by reference into this prospectus, and the information
included in any free writing prospectus that we may authorize for
use in connection with this offering, including the information
contained in and incorporated by reference under the heading
“Risk Factors” beginning on page 4 of this prospectus,
and under similar headings in the other documents that are filed
after the date hereof and incorporated by reference into this
prospectus.
Unless
the context requires otherwise, references in this prospectus to
“ChromaDex,”“the Company,”“we,”“us” and “our” refer to
ChromaDex Corporation.
Company Overview
ChromaDex is a
science-based integrated nutraceutical company devoted to improving
the way people age. ChromaDex scientists partner with leading
universities and research institutions worldwide to discover,
develop and create solutions to deliver the full potential of
nicotinamide adenine dinucleotide (“NAD”) and its
impact on human health.
NAD is
an essential coenzyme and a key regulator of cellular metabolism.
Best known for its role in cellular energy production, NAD is now
thought to play an important role in healthy aging. Many cellular
functions related to health and healthy aging are sensitive to
levels of locally available NAD and this represents an active area
of research in the field of NAD.
NAD
levels are not constant, and in humans, NAD levels have been shown
to decline by more than 50% from young adulthood to middle age. NAD
continues to decline as humans grow older. There are other causes
of reduced NAD levels such as over-nutrition, alcohol consumption
and a number of disease states. NAD may also be increased,
including through calorie restriction and exercise. Healthy aging,
mitochondria and NAD continue to be areas of focus in the research
community. As of 2019, there were over 250 published human clinical
studies on NAD. The areas of study include Alzheimer’s
disease, Parkinson’s disease, neuropathy and heart
failure.
In
2013, ChromaDex commercialized NIAGEN® nicotinamide riboside
(“NR”), a novel form of vitamin B3. Data from numerous
animal studies, and confirmed in human clinical trials, show that
NR is a highly efficient NAD precursor that significantly raises
NAD levels. NIAGEN® is safe for human consumption.
NIAGEN® has twice been successfully reviewed under FDA’s
new dietary ingredient notification program, has been successfully
notified to the FDA as generally recognized as safe, and has been
approved by Health Canada, the European Commission and the
Therapeutic Goods Administration of Australia. Animal studies of
NIAGEN® have demonstrated a variety of outcomes ranging from
increased NAD levels, increased cellular metabolism and energy
production to improvements in insulin sensitivity. NIAGEN® is
the trade name for our proprietary ingredient NR, and is protected
by patents to which we are the exclusive licensee.
ChromaDex is the
world leader in the emerging NAD space. ChromaDex has approximately
195 partnerships with leading universities and research
institutions around the world including the National Institutes of
Health, Cornell, Dartmouth, Harvard, Massachusetts Institute of
Technology, University of Cambridge and the Mayo Clinic. Other
relationships are currently being developed.
Our
scientific advisory board is led by Chairman Dr. Roger Kornberg,
Nobel Laureate Stanford Professor, Dr. Charles Brenner, one of the
world’s recognized experts in NAD and inventor of
nicotinamide riboside, Dr. Rudi Tanzi, the co-chair of the
department of neurology at Harvard Medical School and one of the
world’s leading experts in food and nutrition, Sir John
Walker, Nobel Laureate and Emeritus Director, MRC Mitochondrial
Biology Unit in the University of Cambridge, England, Dr. Bruce
German, Chairman of food, nutrition and health at the University of
California, Davis, and Dr. Brunie Felding, Associate Professor,
Department of Molecular Medicine at Scripps Research Institute,
California Campus.
Corporate Information
On May 21,2008, Cody Resources, Inc., a Nevada corporation and a public
company, (“Cody”) entered into an Agreement and Plan of
Merger (the “Merger Agreement”), by and among Cody, CDI
Acquisition, Inc., a California corporation and wholly-owned
subsidiary of Cody, and ChromaDex, Inc. Subsequent to the signing
of the Merger Agreement, Cody merged with and into a Delaware
corporation. On June 20, 2008, Cody amended its certificate of
incorporation to change its name to ChromaDex Corporation. Our
principal executive offices are located at 10900 Wilshire Blvd.,
Suite 600, Los Angeles, California90024. Our telephone number at
that address is (310) 388-6706. Our website address is
www.chromadex.com. The information contained in, or that can be
accessed through, our website is not part of this
prospectus.
All
brand names or trademarks appearing in this prospectus are the
property of their respective holders. Use or display by us of other
parties’ trademarks, trade dress, or products in this
prospectus is not intended to, and does not, imply a relationship
with, or endorsements or sponsorship of, us by the trademark or
trade dress owners.
In
accordance with the terms of the Sales Agreement, we may offer and
sell shares of our common stock from time to time through or to B.
Riley FBR and Raymond James having an aggregate offering price of
up to $50,000,000 pursuant to this prospectus.
Plan of
Distribution
“At
the market offering” that may be made from time to time
through or to B. Riley FBR and Raymond James as our sales agents or
principals. See “Plan of Distribution” on page
8.
Use of
Proceeds
We
currently intend to use the net proceeds from this offering, if
any, for working capital and general corporate purposes, including
but not limited to, capital expenditures and general and
administrative expenses. See “Use of Proceeds” on page
6 of this prospectus.
Risk
Factors
Investing
in our common stock involves a high degree of risk. Please read the
information contained in and incorporated by reference under the
heading “Risk Factors” beginning on page 4 of this
prospectus, and under similar headings in the other documents that
are filed after the date hereof and incorporated by reference into
this prospectus, before deciding whether to invest in our common
stock.
Nasdaq
Capital Market Listing
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “CDXC.”
An
investment in our common stock involves a high degree of risk.
Prior to making a decision about investing in our common stock, you
should consider carefully the specific risk factors discussed in
the sections entitled “Risk Factors” contained in our
most recent Annual Report on Form 10-K for the year ended December31, 2019, as filed with the SEC on March 10, 2020 and as amended on
May 18, 2020, or Quarterly Report on Form 10-Q for the quarter
ended March 31, 2020, as filed with the SEC on May 18, 2020, which
are incorporated in this prospectus by reference in their
entirety, as updated or superseded by
the risks and uncertainties described under similar headings in the
other documents that are filed after the date hereof and
incorporated by reference into this prospectus, together with other
information in this prospectus, the documents incorporated by
reference and any free writing prospectus that we may authorize for
use in connection with this offering. These risks and
uncertainties are not the only risks and uncertainties we face.
Additional risks and uncertainties not presently known to us, or
that we currently view as immaterial, may also impair our business.
Past financial performance may not be
a reliable indicator of future performance, and historical trends
should not be unduly relied upon to anticipate results or trends in
future periods. If any of the risks or uncertainties
described in our SEC filings or any additional risks and
uncertainties actually occur, our business, financial condition,
results of operations and cash flow could be materially and
adversely affected. In that case, the trading price of our common
stock could decline and you might lose all or part of your
investment. Please also read carefully the section below titled
“Special Note Regarding Forward-Looking
Statements.”
Additional Risks Related to This Offering
Management will have broad discretion as to the use of the proceeds
from this offering and may not use the proceeds
effectively.
Because
we have not designated the amount of net proceeds from this
offering to be used for any particular purpose, our management will
have broad discretion as to the application of the net proceeds
from this offering and could use them for purposes other than those
contemplated at the time of the offering. Our management may use
the net proceeds for corporate purposes that may not improve our
financial condition or market value.
You may experience immediate and substantial dilution.
The
offering prices per share in this offering may exceed the net
tangible book value per share of our common stock. Assuming that an
aggregate of 11,061,947 shares of our common stock are sold at a
price of $4.52 per share pursuant to this prospectus, which was the
last reported sale price of our common stock on The Nasdaq Capital
Market on June 10, 2020, for aggregate gross proceeds of
approximately $50.0 million, after deducting commissions and
estimated aggregate offering expenses payable by us, you would
experience immediate dilution of $3.62 per share, representing the
difference between our as adjusted net tangible book value per
share as of March 31, 2020 after giving effect to this offering and
the assumed offering price. The exercise of outstanding stock
options may result in further dilution of your investment. See the
section titled “Dilution” below for a more detailed
illustration of the dilution you would incur if you participate in
this offering.
You may experience future dilution as a result of future equity
offerings.
In
order to raise additional capital, we may in the future offer
additional shares of our common stock or other securities
convertible into or exchangeable for our common stock at prices
that may not be the same as the price per share paid by any
investor in this offering. We may sell shares or other securities
in any other offering at a price per share that is less than the
price per share paid by any investor in this offering, and
investors purchasing shares or other securities in the future could
have rights superior to you. The price per share at which we sell
additional shares of our common stock, or securities convertible or
exchangeable into common stock, in future transactions may be
higher or lower than the price per share paid by any investor in
this offering.
We do not intend to pay dividends in the foreseeable
future.
We
have never paid cash dividends on our common stock and currently do
not plan to pay any cash dividends in the foreseeable
future.
This
prospectus and the information incorporated by reference contain
forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933 (the “Securities Act”),
and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), that involve a number of
risks and uncertainties. Although our forward-looking statements
reflect the good faith judgment of our management, these statements
can only be based on facts and factors currently known by us.
Consequently, these forward-looking statements are inherently
subject to risks and uncertainties, and actual results and outcomes
may differ materially from results and outcomes discussed in the
forward-looking statements.
Forward-looking
statements can be identified by the use of forward-looking words
such as “believes,”“expects,”“hopes,”“may,”“will,”“plan,”“intends,”“estimates,”“could,”“should,”“would,”“continue,”“seeks,”“pro
forma,” or “anticipates,” or other similar words
(including their use in the negative), or by discussions of future
matters such as our business, business strategy, products and
services we may offer in the future, the outcome and impact of
litigation, the timing and results of future regulatory filings,
our ability to collect from major customers, our sales and
marketing strategy and capital outlook, our estimates regarding our
capital requirements, future expenses and need for additional
financing, our use of the net proceeds from any offering and other
statements that are not historical. These statements include but
are not limited to statements under the captions
“Business,”“Risk Factors” and
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and in other sections
incorporated by reference from our Annual Report on Form 10-K
and Quarterly Reports on Form 10-Q, as applicable, as well as
our other filings with the SEC. You should be aware that the
occurrence of any of the events discussed under the heading
“Risk Factors” in this prospectus, any applicable
prospectus supplement and any documents incorporated by reference
herein or therein could substantially harm our business, operating
results and financial condition and that if any of these events
occurs, it could adversely affect the value of an investment in our
securities.
The
cautionary statements made in this prospectus are intended to be
applicable to all related forward-looking statements wherever they
may appear in this prospectus or in any prospectus supplement or
any documents incorporated by reference herein or therein. We urge
you not to place undue reliance on these forward-looking
statements, which speak only as of the date they are made. Except
as required by law, we assume no obligation to update our
forward-looking statements, even if new information becomes
available in the future.
We currently intend to use the
net proceeds from this offering, if any, for working capital and
general corporate purposes, including but not limited to,
for capital
expenditure and general and administrative
expenses.
The
amounts and timing of our use of the net proceeds from this
offering, if any, will depend on a number of factors, such as the
timing and progress of any partnering efforts, any strategic
transactions in which we may engage, and the competitive
environment for our product. As of the date of this prospectus, we
cannot specify with certainty all of the particular uses for the
net proceeds to us from this offering. Accordingly, our management
will have broad discretion in the timing and application of these
proceeds. Pending application of the net proceeds as described
above, we intend to temporarily invest the proceeds in short-term,
interest-bearing instruments.
If
you invest in this offering, your ownership interest will be
diluted to the extent of the difference between the public offering
price per share and the as adjusted net tangible book value per
share after giving effect to this offering. We calculate net
tangible book value per share by dividing the net tangible book
value, which is tangible assets less total liabilities, by the
number of outstanding shares of our common stock. Dilution
represents the difference between the price per share paid by
purchasers of shares in this offering and the as adjusted net
tangible book value per share of our common stock immediately after
giving effect to this offering. Our net tangible book value as of
March 31, 2020 was approximately $15.3 million, or $0.26 per
share.
After
giving effect to the sale of our common stock during the remaining
term of the Sales Agreement in the aggregate amount of $50.0
million at an assumed offering price of $4.52 per share, the last
reported sale price of our common stock on The Nasdaq Capital
Market on June 10, 2020 and after deducting commissions and
estimated aggregate offering expenses payable by us, our net
tangible book value as of March 31, 2020 would have been $63.5
million, or $0.90 per share of common stock. This represents an
immediate increase in the net tangible book value of $0.64 per
share to our existing stockholders and an immediate dilution in net
tangible book value of $3.62 per share to new investors. The
following table illustrates this per share dilution:
Increase in net
tangible book value per share attributable to this
offering
$0.64
As adjusted net
tangible book value per share as of March 31, 2020, after giving effect to this
offering
$0.90
Dilution per share
to new investors purchasing shares in this offering
$3.62
The
table above assumes for illustrative purposes that an aggregate of
11,061,947 shares of our common stock are sold during the term of
the Sales Agreement at a price of $4.52 per share, the last
reported sale price of our common stock on The Nasdaq Capital
Market on June 10, 2020, for aggregate gross proceeds of $50.0
million. The shares subject to the Sales Agreement are being sold
from time to time at various prices. An increase of $0.50 per share
in the price at which the shares are sold from the assumed offering
price per share shown in the table above, to $5.02 per share,
assuming all of our common stock in the aggregate amount of $50.0
million during the remaining term of the Sales Agreement is sold at
that price, would increase our adjusted net tangible book value per
share after the offering to $0.91 per share and would increase the
dilution in net tangible book value per share to new investors in
this offering to $4.11 per share, after deducting commissions and
estimated aggregate offering expenses payable by us. A decrease of
$0.50 per share in the price at which the shares are sold from the
assumed offering price per share shown in the table above, to $4.02
per share, assuming all of our common stock in the aggregate amount
of $50.0 million during the term of the Sales Agreement is sold at
that price, would decrease our adjusted net tangible book value per
share after the offering to $0.88 per share and would
decrease the dilution in net tangible book value per share to new
investors in this offering to $3.14 per share, after
deducting commissions and estimated aggregate offering expenses
payable by us. This information is supplied for illustrative
purposes only.
The
above discussion and table are based on 59,787,897 shares of our
common stock issued and outstanding as of March 31, 2020, and
exclude the following, all as of March 31, 2020:
●
12,194,125
shares of common stock issuable upon the exercise of outstanding
stock options with a weighted-average exercise price of $3.86 per
share; and
●
up
to an aggregate of approximately 1,205,698 shares of common stock
reserved for future issuance under our 2017 Equity Incentive Plan,
as amended.
To
the extent that options outstanding as of March 31, 2020 have been
or are exercised, or other shares are issued, investors purchasing
shares in this offering could experience further dilution. In
addition, we may choose to raise additional capital due to market
conditions or strategic considerations, including for potential
acquisition or in-licensing opportunities, even if we believe we
have sufficient funds for our current or future operating plans. To
the extent that additional capital is raised through the sale of
equity or convertible debt securities, the issuance of these
securities could result in further dilution to our
stockholders.
We
have entered into the Sales Agreement with B. Riley FBR and Raymond
James, under which we may issue and sell shares of our common stock
from time to time up to an aggregate sales price of $50,000,000
through or to the Sales Agents as agents or principals. The Sales
Agreement is filed as Exhibit 1.2 to our registration statement on
Form S-3 of which this prospectus forms a part, and is incorporated
by reference in this prospectus. Sales of our common stock, if any,
under this prospectus will be made by any method that is deemed an
“at the market offering” as defined in Rule 415(a)(4)
under the Securities Act.
Each
time we wish to issue and sell common stock under the Sales
Agreement, we will notify a Sales Agent of the number or dollar
value of shares to be issued, the dates on which such sales are
anticipated to be made and any minimum price below which sales may
not be made. Once we have so instructed such Sales Agent, unless
the Sales Agent declines to accept the terms of such notice, the
Sales Agent has agreed to use its commercially reasonable efforts
consistent with its normal trading and sales practices to sell such
shares up to the amount specified on such terms. The obligations of
the Sales Agent under the Sales Agreement to sell our common stock
are subject to a number of conditions that we must
meet.
The
settlement between us and the Sales Agents is generally anticipated
to occur on the second trading day following the date on which the
sale was made. Sales of our common stock as contemplated in this
prospectus will be settled through the facilities of The Depository
Trust Company or by such other means as we and the Sales Agents may
agree upon. There is no arrangement for funds to be received in an
escrow, trust or similar arrangement.
We
will pay the Sales Agents a commission equal to up to 3.0% of the
gross proceeds we receive from the sales of our common stock. In
addition, we have agreed to reimburse the Sales Agents for their
reasonable and documented out-of-pocket expenses,
including fees and disbursements of their counsel, in an amount not
to exceed $50,000 initially, plus an additional amount of up to
$7,500 per annum thereafter. Because there is no minimum
offering amount required as a condition to close this offering, the
actual total public offering amount, commissions and proceeds to
us, if any, are not determinable at this time. In connection with
the sale of the common stock on our behalf, the Sales Agents will
be deemed to be “underwriters” within the meaning of
the Securities Act, and the compensation of the Sales Agents will
be deemed to be underwriting commissions or discounts. We have
agreed to provide indemnification and contribution to the Sales
Agents with respect to certain civil liabilities, including
liabilities under the Securities Act. We estimate that the total
expenses for the offering, excluding compensation payable to the
Sales Agents under the terms of the Sales Agreement, will be
approximately $250,000.
The
offering of our common stock pursuant to the Sales Agreement will
terminate upon the earlier of (i) the sale of all of our common
stock provided for in this prospectus, or (ii) termination of the
Sales Agreement as permitted therein.
To
the extent required by Regulation M under the Exchange Act, the
Sales Agents will not engage in any market making activities
involving our common stock while the offering is ongoing under this
prospectus.
The
Sales Agents and their affiliates have provided, and may in the
future provide, various investment banking and other financial
services for us. They have received, or may in the future receive,
customary fees and commissions for these transactions.
Cooley
LLP, San Diego, California, has passed upon the validity of the
common stock offered by this prospectus. The Sales Agents are being
represented in connection with this offering by Duane Morris LLP,
New York, New York.
EXPERTS
The
financial statements, schedule and management’s assessment of
the effectiveness of internal control over financial reporting
incorporated by reference in this prospectus and elsewhere in the
registration statement of which this prospectus is a part have been
so incorporated by reference in reliance upon the reports of Marcum
LLP, independent registered public accountants, upon the authority
of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This
prospectus, which constitutes a part of the registration statement
on Form S-3 we filed with the SEC under the Securities Act, does
not contain all of the information set forth in the registration
statement or the exhibits which are part of the registration
statement. For further information with respect to us and the
securities offered by this prospectus, we refer you to the
registration statement and the exhibits filed as part of the
registration statement. Neither we nor any agent, underwriter or
dealer has authorized any person to provide you with information
that is different from that contained in this prospectus, any
applicable prospectus supplement or in any free writing prospectus
we may authorize to be delivered or made available to you. We take
no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. We
are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information
contained in this prospectus, any applicable prospectus supplement
or any related free writing prospectus is accurate on any date
subsequent to the date set forth on the front of the document or
that any information we have incorporated by reference is correct
on any date subsequent to the date of the document incorporated by
reference, even though this prospectus, any applicable prospectus
supplement or any related free writing prospectus is delivered, or
securities are sold, on a later date.
We file
annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the
public at the SEC's website at www.sec.gov. You may obtain a copy
of these filings at no cost by writing us at the following address:
ChromaDex Corporation, 10900 Wilshire Blvd., Suite 600, LosAngeles, California90024, Attention: Corporate Secretary. We also
maintain a website at www.chromadex.com. The information contained
in, or that can be accessed through, our website is not part of
this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC
allows us to “incorporate by reference” into this
prospectus the information we file with them, which means that we
can disclose important information to you by referring you to those
documents. In accordance with Rule 412 of the Securities Act, any
statement contained or incorporated by reference in this prospectus
shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein, or in
any subsequently filed document which also is incorporated by
reference herein, modifies or supersedes such earlier statement.
Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
prospectus.
the information
specifically incorporated by reference into our Annual Report on
Form 10-K for the fiscal year ended December 31, 2019 from our
definitive proxy statement on Schedule 14A (other than information
furnished rather than filed) filed with the SEC on April 21,2020;
●
our Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2020,
filed with the SEC on May 18, 2020;
●
our Current Reports
on Form 8-K (other than information furnished rather than filed)
filed with the SEC on January 10, 2020, April 29, 2020, and May 7,2020; and
●
the description of
our Common Stock in our registration statement on Form 8-A filed
with the SEC on April 21, 2016, including any amendments or reports
filed for the purpose of updating such description.
We also
incorporate by reference into this prospectus all documents (other
than Current Reports furnished under Item 2.02 or Item 7.01 of Form
8-K and exhibits filed on such form that are related to such items)
that are subsequently filed by us with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the securities made by this
prospectus (including documents filed after the date of the initial
registration statement of which this prospectus is a part and prior
to the effectiveness of the registration statement).
You may
request a copy of these filings at no cost, by contacting us at the
following address or telephone number:
Item 14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses, other
than underwriting discounts and commissions, payable by us in
connection with the offering of the securities being
registered. All the amounts shown are estimates, except for
the SEC registration fee.
SEC registration fee
$16,225
Accounting fees and
expenses
*
Legal fees and
expenses
*
Transfer agent fees
and expenses
*
Trustee fees and
expenses
*
Printing and
miscellaneous expenses
*
Total
$*
*
These fees are
calculated based on the securities offered and the number of
issuances and accordingly cannot be estimated at this
time.
Item 15. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law (the
“DGCL”) empowers a Delaware corporation to indemnify
any persons who are, or are threatened to be made, parties to any
threatened, pending, or completed legal action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer
or director of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee, or
agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys’ fees), judgments,
fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit, or
proceeding, provided that such officer or director acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the corporation’s best interests, and, for
criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers
and directors in an action by or in the right of the corporation
under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is
adjudged to be liable to the corporation in the performance of his
duty. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such
officer or director actually and reasonably incurred.
Our
certificate of incorporation and bylaws provide that we will
indemnify our directors and officers to the fullest extent
permitted by Delaware law, except that no indemnification will be
provided to a director, officer, employee, or agent if the
indemnification sought is in connection with a proceeding initiated
by such person without the authorization of our board of directors.
The bylaws also provide that the right of directors and officers to
indemnification shall be a contract right and shall not be
exclusive of any other right now possessed or hereafter acquired
under any statute, provision of the certificate of incorporation,
bylaw, agreement, vote of stockholders or disinterested directors
or otherwise. The bylaws also permit us to secure insurance on
behalf of any officer, director, employee, or other agent for any
liability arising out of his or her actions in such capacity,
regardless of whether the bylaws would permit indemnification of
any such liability.
Section
102(b)(7) of the DGCL provides that directors shall not be
personally liable for monetary damages for breaches of their
fiduciary duty as directors except for (i) breaches of their duty
of loyalty to us or our stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or knowing
violations of law, (iii) certain transactions under Section 174 of
the DGCL (unlawful payment of dividends or unlawful stock purchases
or redemptions), or (iv) transactions from which a director derives
an improper personal benefit. Our certificate of incorporation
includes such a provision. The effect of this provision is to
eliminate the personal liability of directors for monetary damages
or actions involving a breach of their fiduciary duty of care,
including any actions involving gross negligence.
In
addition, we have entered into indemnification agreements with our
directors and officers that require us, among other things, to
indemnify them against certain liabilities that may arise by reason
of their status or service, so long as the indemnitee acted in good
faith and in a manner the indemnitee reasonably believed to be in
or not opposed to the best interests of us, and, with respect to
any criminal action or proceeding, the indemnitee had no reasonable
cause to believe his or her conduct was unlawful. We also maintain
director and officer liability insurance to insure our directors
and officers against the cost of defense, settlement or payment of
a judgment under specified circumstances.
Asset
Purchase Agreement, dated as of August 21, 2017, by and among the
Registrant, Covance Laboratories Inc., ChromaDex, Inc. and
ChromaDex Analytics, Inc. (incorporated by reference to Exhibit 2.2
to the Registrant’s Quarterly Report on Form 10-Q filed with
the SEC on November 9, 2017).
Tag-Along
Agreement, effective as of December 31, 2005, by and among the
Registrant, Frank Louis Jaksch, Snr. & Maria Jaksch, Trustees
of the Jaksch Family Trust, Margery Germain, Lauren Germain, Emily
Germain, Lucie Germain, Frank Louis Jaksch, Jr., and the University
of Mississippi Research Foundation (incorporated by reference to
Exhibit 4.2 to the Registrant’s Current Report on Form 8-K
filed with the SEC on June 24, 2008).
Schedules have been
omitted pursuant to Item 601(a)(5) of Regulation S-K. The
Registrant undertakes to furnish supplemental copies of any of such
omitted schedules upon request by the SEC.
+
This Exhibit has
been granted confidential treatment and has been filed separately
with the SEC. The confidential portions of this Exhibit have been
omitted and are marked by an
asterisk.
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:
(i)
To include any
prospectus required by Section 10(a)(3) of the Securities
Act;
(ii)
To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the 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)
To include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that the undertakings set forth in
paragraphs (1)(i), (1)(ii) and (1)(iii) of this section
do not apply if the registration statement is on Form S-3 and 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 are 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 therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
II-3
(4)
That, for the purpose of determining liability under the Securities
Act to any purchaser:
(i)
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
(ii)
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.
(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) That,
for purposes of determining any liability under the Securities Act,
each filing of the registrant’s annual report pursuant to
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 in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering
thereof.
(7) To
file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the SEC under
Section 305(b)(2) of the Trust Indenture
Act.
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.
II-4
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Los Angeles, State of California, on the 12th day of June,
2020.
KNOW
ALL PERSONS BY THESE PRESENTS, THAT each person whose signature
appears below constitutes and appoints Robert Fried and Kevin M.
Farr, and each of them, as his or her true and lawful
attorney-in-fact and agent, each acting alone, with full power of
substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any or
all amendments (including post-effective amendments, exhibits
thereto and other documents in connection therewith) to this
Registration Statement and any subsequent registration statement
filed by the Registrant pursuant to Rule 462(b) of the Securities
Act of 1933, as amended, which relates to this Registration
Statement, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the
requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
