As filed with the Securities and Exchange Commission on May 3, 2018
File No. 333-224621
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Sigma Labs, Inc.
(Exact name of registrant as specified in its charter)
| Nevada | 3990 | 27-1865814 | ||
| (State or other jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer | ||
| incorporation or organization) | Classification Code Number) | Identification No.) |
| John Rice | ||
| Interim Chief Executive Officer | ||
| 3900 Paseo del Sol | Sigma Labs, Inc. | |
| Santa Fe, New Mexico 87507 | 3900 Paseo del Sol | |
| (505) 438-2576 | Santa Fe, New Mexico 87507 | |
| (Address, including zip code and telephone | (505) 438-2576 | |
| number, including area code, of registrant’s | (Name, address, including zip code and telephone | |
| principal executive offices) | number, including area code, of agent for service) |
Copies
to:
William D. Gould
Darren T. Freedman
TroyGould PC
1801 Century Park East, 16th Floor
Los Angeles, California 90067
Approximate date of commencement of proposed sale to public: From time to time after the effective date of this registration statement, as shall be determined by the selling stockholders identified herein.
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, check the following box: [X]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ]
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 (Check one):
| Large accelerated filer [ ] | Accelerated filer [ ] | Non-accelerated filer [ ] (Do not check if a smaller reporting company) |
Smaller reporting company [X]
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 13(a) of the Exchange Act. [ ]
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered | Amount to be Registered(1) | Proposed
Maximum Offering Price Per Share | Proposed
Maximum Aggregate Offering Price | Amount of Registration Fee | ||||||||||||
| Common Stock, par value $0.001 per share, underlying Series B Preferred Stock | 1,000,000 | (2)(3) | $ | 1.15 | (5) | $ | 1,150,000 | $ | 143.18 | |||||||
| Common Stock, par value $0.001 per share, underlying warrants | 890,000 | (2)(4) | $ | 1.47 | (6) | $ | 1,308,300 | $ | 162.88 | |||||||
| Total | 1,890,000 | $ | 1,308,300 | $ | 306.06 | (7) | ||||||||||
| (1) | In the event of a stock split, reverse stock split, stock dividend or similar transaction involving our common stock, the number of shares registered shall automatically be adjusted to cover the additional shares of stock issuable pursuant to Rule 416 under the Securities Act of 1933, as amended. |
| (2) | The shares of common stock are being registered for resale by the selling stockholders named in the registration statement. |
| (3) | Represents the registrant’s estimate of the maximum number of shares issuable upon conversion of the registrant’s Series B Preferred Stock held by the selling stockholders. |
| (4) | Represents the registrant’s estimate of the maximum number of shares issuable upon exercise of warrants held by the selling stockholders. |
| (5) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended. The calculation of the proposed maximum aggregate offering price is based on the average of the high and low sales price for the common stock as reported on The NASDAQ Capital Market on May 1, 2018. |
| (6) | Pursuant to Rule 457(g) under the Securities Act, as amended, calculated based upon the exercise price of the warrants, which is $1.47 per share, held by the selling stockholders. |
| (7) | Previously paid. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Sigma Labs, Inc. is filing this Amendment No. 1 (the “Amendment”) to its Registration Statement on Form S-1, File No. 333-224621 (the “Registration Statement”), as an exhibits only filing to file as exhibits the XBRL documents that inadvertently were omitted from the Registration Statement that was filed on May 2, 2018. Accordingly, this Amendment consists only of the facing page of the Registration Statement, this explanatory note, Part II of the Registration Statement, the signature pages to the Registration Statement and the filed exhibits. The preliminary prospectus has not changed and has been omitted from this Amendment.
PART II – INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
We estimate that expenses in connection with the distribution described in this registration statement (other than brokerage commissions, discounts or other expenses relating to the sale of the shares by the selling stockholders) will be as set forth below. We will pay all of the expenses with respect to the distribution, and such amounts, with the exception of the Securities and Exchange Commission registration fee, are estimates.
| SEC registration fee | $ | 306.06 | ||
| Accounting fees and expenses | 5,000 | |||
| Legal fees and expenses | 10,000 | |||
| Printing and related expenses | 2,500 | |||
| Miscellaneous | 2,500 | |||
| Total | $ | 20,306.06 | ||
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our amended and restated articles of incorporation provide there shall be no personal liability of a director or an officer to the Company or our stockholders for damages for breach of fiduciary duty as a director or an officer, subject to specified exceptions.
Section 78.7502 of the Nevada Revised Statutes permits a corporation to indemnify a present or former director, officer, employee or agent of the corporation, or of another entity or enterprise for which such person is or was serving in such capacity at the request of the corporation, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, except an action by or in the right of the corporation, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection therewith, arising by reason of such person’s service in such capacity if such person (1) is not liable pursuant to Section 78.138 of the Nevada Revised Statutes, which sets forth standards for the conduct of directors and officers, or (2) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to a criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In the case of actions brought by or in the right of the corporation, however, no indemnification may be made for any claim, issue or matter as to which such person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
Section 78.751 of the Nevada Revised Statutes permits any discretionary indemnification under Section 78.7502 of the Nevada Revised Statutes, unless ordered by a court or advanced to a director or officer by the corporation in accordance with the Nevada Revised Statutes, to be made by a corporation only as authorized in each specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. Such determination must be made (1) by the stockholders, (2) by the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding, (3) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion, or (4) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion.
Our amended and restated bylaws require us to indemnify our directors and officers in a manner that is consistent with the provisions of Nevada law described in the preceding two paragraphs. We have entered into indemnification agreements with each of our directors and executive officers. These agreements, among other things, require us to indemnify each director and executive officer to the fullest extent permitted by Nevada law, including indemnification of expenses such as attorneys’ fees, judgments, fines and settlement amounts incurred by the director or executive officer in any action or proceeding, including any action or proceeding by or in the right of us, arising out of the person’s services as a director or executive officer.
Insofar as indemnification for liabilities for damages arising under the Securities Act of 1933 may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provision, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
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ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
On March 17, 2016, we issued 1,540 shares of common stock to a consultant as compensation for services to be rendered valued at $15,000 or $9.74 per share. The foregoing shares were issued in reliance upon an exemption from the registration requirements pursuant to Section 4(2) of the Securities Act.
On April 17, 2016, we issued 1,765 shares of common stock to a consultant as compensation for services to be rendered valued at $15,000 or $8.50 per share. The foregoing shares were issued in reliance upon an exemption from the registration requirements pursuant to Section 4(2) of the Securities Act.
On May 18, 2016, we issued 1,230 shares of common stock to a consultant as compensation for services to be rendered valued at $7,500 or $6.10 per share. The foregoing shares were issued in reliance upon an exemption from the registration requirements pursuant to Section 4(2) of the Securities Act.
On June 18, 2016, we issued 2,515 shares of common stock to a consultant as compensation for services to be rendered valued at $7,500 or $5.96 per share. The foregoing shares were issued in reliance upon an exemption from the registration requirements pursuant to Section 4(2) of the Securities Act.
On July 18, 2016, we issued 2,084 shares of common stock to a consultant as compensation for services to be rendered valued at $12,500 or $6.00 per share. The foregoing shares were issued in reliance upon an exemption from the registration requirements pursuant to Section 4(2) of the Securities Act.
On October 19, 2016, we issued to two accredited investors secured convertible notes in the aggregate principal amount of $1,000,000 and warrants to purchase up to 80,000 shares of our common stock. The foregoing securities were issued in reliance upon an exemption from the registration requirements pursuant to Section 4(2) of the Securities Act.
On October 6, 2017, pursuant to an advisory agreement with the underwriter of our most recent public offering, we issued such underwriter a total of 141,000 shares of our common stock in exchange for the surrender by such underwriter of its Unit Purchase Option to acquire up to 70,500 Units. The foregoing shares were issued in reliance upon an exemption from the registration requirements pursuant to Section 3(a)(9)of the Securities Act.
In December 2017, we issued a total of 260,278 shares of our common stock to two investors upon conversion and exercise of a portion of the convertible notes and warrants, respectively held by such investors. The foregoing securities were issued in reliance upon an exemption from the registration requirements pursuant to Section 4(2) of the Securities Act.
On April 6, 2018, we issued to two accredited investors Series B Preferred Stock that is convertible into up to an aggregate of 1,000,000 shares of our common stock, and we issued warrants to purchase up to 890,000 shares of our common stock. The foregoing securities were issued in reliance upon an exemption from the registration requirements pursuant to Section 4(2) of the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
See the Exhibit Index on the page immediately following the signature page for a list of exhibits filed as part of this Registration Statement on Form S-1.
All financial statement schedules are omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or the notes thereto.
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ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to:
(i) 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(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 securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(4) That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that, (1) for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective, and (2) for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in Santa Fe, New Mexico, on May 3, 2018 .
| SIGMA LABS, INC. | ||
| By: | /s/ John Rice | |
| John Rice | ||
| Interim Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ John Rice |
Interim Chief Executive Officer (Principal Executive Officer) and Director |
May 3, 2018 | ||
| John Rice | ||||
| /s/ Nannette Toups |
Chief Financial Officer (Principal Financial and Accounting Officer) |
May 3, 2018 | ||
| Nannette Toups | ||||
| * | Director | May 3, 2018 | ||
| Salvatore Battinelli | ||||
| * | Director | May 3, 2018 | ||
| Dennis Duitch | ||||
| * | Director | May 3, 2018 | ||
| Frank Garofalo | ||||
| * | Director | May 3, 2018 | ||
| Kent Summers |
| *By: | /s/ John Rice |
| John Rice | |
| Attorney-in-Fact |
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EXHIBIT INDEX
| II-5 |
| II-6 |
| 101.INS++ | XBRL Instance Document. ** | |
| 101.SCH++ | XBRL Taxonomy Extension Schema Document. ** | |
| 101.CAL++ | XBRL Taxonomy Extension Calculation Linkbase Document. ** | |
| 101.DEF++ | XBRL Taxonomy Extension Definition Linkbase Document. ** | |
| 101.LAB++ | XBRL Taxonomy Extension Label Linkbase Document. ** | |
| 101.PRE++ | XBRL Taxonomy Extension Presentation Linkbase Document. ** |
* Indicates a management contract or compensatory plan or arrangement.
** Filed with this Amendment No. 1 to the Registration Statement on Form S-1 .
++ Pursuant to applicable securities laws and regulations, the Registrant is deemed to have complied with the reporting obligation relating to the submission of interactive data files in such exhibits and is not subject to liability under any anti-fraud provisions of the federal securities laws as long as the Registrant has made a good faith attempt to comply with the submission requirements and promptly amends the interactive data files after becoming aware that the interactive data files fails to comply with the submission requirements. These interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under these sections.
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