As
filed with the Securities and Exchange Commission on September 23, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SENESTECH,
INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
20-2079805 |
(State
or other jurisdiction of |
|
(I.R.S.
Employer |
incorporation
or organization) |
|
Identification
Number) |
23460
N. 19th Ave., Suite 110
Phoenix,
Arizona 85027
(928)
779-4143
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Joel
L. Fruendt
President
and Chief Executive Officer
SenesTech,
Inc.
23460
N. 19th Ave., Suite 110
Phoenix,
Arizona 85027
(928)
779-4143
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Brian
H. Blaney, Esq.
Katherine A. Beck, Esq.
Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 800
Phoenix, Arizona 85016
(602) 445-8000
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement, as
determined by market conditions and other factors.
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 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. ☐
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 that specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the 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
On
July 11, 2024, our stockholders approved a reverse stock split of our common stock, par value $0.001 per share, at a ratio of not less
than 1-for-2 and not more than 1-for-20, with the actual ratio to be determined by our board of directors (the “2024 Reverse Split”).
On July 11, 2024, our board of directors determined that the 2024 Reverse Split should be completed as a 1-for-10 reverse stock split.
Following such approval, we filed an amendment to our amended and restated certificate of incorporation with the Secretary of State of
the State of Delaware to effect the 2024 Reverse Split, with an effective time of 4:01 p.m. Eastern Time on July 24, 2024. The number
of authorized shares of our common stock remains unchanged at 100,000,000 shares after the 2024 Reverse Split. As a result of the 2024
Reverse Split, every 10 shares of our common stock, either issued or outstanding, immediately prior to the filing and effectiveness of
our amendment to amended and restated certificate of incorporation filed with the Secretary of State of the State of Delaware, was automatically
combined and converted (without any further act) into one share of fully paid and nonassessable share of common stock. No fractional
shares were issued in connection with the 2024 Reverse Split. Each fractional share of common stock was either (i) rounded up to the
nearest whole share of common stock, if such shares of common stock were held directly; or (ii) rounded down to the nearest whole share
of common stock, if such shares were subject to an award granted under our 2018 Equity Incentive Plan, as amended, in order to comply
with the requirements of Sections 409A and 424 of the Internal Revenue Code of 1986 (and no consideration paid therefor). The 2024 Reverse
Split had the effect of reducing the aggregate number of outstanding shares of common stock from 5,144,632 shares on a pre-reverse split
basis to a total of 515,340 shares outstanding on a post-reverse split basis and reducing the percentage of common stock held by our
existing stockholders on a post-offering basis from 5.1% of our 100,000,000 authorized shares to 0.5% of our 100,000,000 authorized shares
(assuming that none of the warrants to be issued in connection with this offering are exercised).
All
financial information, share numbers, option numbers, warrant numbers, other derivative security numbers and exercise prices appearing
in this registration statement have been adjusted to give effect to the 2024 Reverse Split. Documents incorporated by reference into
this registration statement that were filed prior to July 24, 2024 do not give effect to the 2024 Reverse Split.
The
information in this prospectus is not complete and may be changed. The Selling Stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and
the Selling Stockholders are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
PROSPECTUS |
SUBJECT
TO COMPLETION, DATED SEPTEMBER 23, 2024 |
SenesTech,
Inc.
1,036,279
Shares of Common Stock
Pursuant
to this prospectus, the selling stockholders identified herein (the “Selling Stockholders”) are offering on a resale basis
an aggregate of 1,011,004 shares (the “Shares”) of our common stock, par value $0.001 per share (“Common Stock”),
representing Shares issuable upon the exercise of outstanding warrants to purchase up to 1,011,004 shares of Common Stock with a per
share exercise price equal to $4.35 (the “Common Stock Warrants”) and placement agent warrants to purchase up to 25,275 shares
of Common Stock with a per share exercise price equal to $5.75 (the “Placement Agent Warrants,” and together with the Common
Stock Warrants, the “Warrants”). Upon any cash exercise of the Warrants by the Selling Stockholders, we will receive cash
proceeds per share equal to the exercise price of the Warrants. If the Warrants are exercised in a cashless exercise, we will not receive
any proceeds from the exercise of the Warrants.
The
Selling Stockholders may sell or otherwise dispose of the Shares in a number of different ways and at varying prices. We provide more
information about how the Selling Stockholders may sell or otherwise dispose of the Shares in the section entitled “Plan of Distribution”
on page 12. Discounts, concessions, commissions and similar selling expenses attributable to the sale of the Shares will be borne by
the Selling Stockholders. We will pay all expenses (other than discounts, concessions, commissions, and similar selling expenses) relating
to the registration of the Shares with the Securities and Exchange Commission (“SEC”).
Our
Common Stock is listed on The Nasdaq Capital Market under the symbol “SNES.” On September 20, 2024 the last reported sale
price for our Common Stock on The Nasdaq Capital Market was $2.50 per share. Our principal executive offices are located at 23460 N. 19th
Ave., Suite 110, Phoenix, Arizona 85027, and our telephone number is (928) 779-4143.
This
prospectus, including such information that is incorporated by reference, 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 the summaries are qualified
in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed or have been incorporated
by reference as exhibits to the registration statement of which this prospectus forms a part, and you may obtain copies of those documents
as described in this prospectus under the heading “Where You Can Find Additional Information.”
Investing
in our securities involves a high degree of risk. Please read “Risk Factors” beginning on page 5 of this prospectus as well
as any other risk factors and other information contained in any other document that is incorporated by reference herein.
Neither
the SEC 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 dated ,
2024.
TABLE
OF CONTENTS
You
should read this prospectus and the information incorporated by reference in this prospectus and any applicable prospectus supplement
before making an investment in our securities. Please read “Where You Can Find Additional Information” for more information.
We have not and the Selling Stockholders have not authorized anyone to provide you with any information or to make any representation,
other than those contained in this prospectus and the documents incorporated by reference or any free writing prospectus we have prepared.
We take no responsibility for, and provide no assurance as to the reliability of, any other information that others may give you. The
information contained in this prospectus or incorporated by reference in this prospectus is accurate only as of its date, or the date
of the applicable document incorporated by reference, regardless of the time of delivery of this prospectus or of any sale of our Common
Stock. Our business, financial condition, results of operations and prospects may have changed since that date.
For
investors outside the United States: We have not done anything that would permit possession or distribution of this prospectus in any
jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into
possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of securities and
the distribution of this prospectus outside the United States.
about
this prospectus
The
registration statement of which this prospectus forms a part that we have filed with the SEC, utilizing a shelf registration process,
includes exhibits that provide more detail of the matters discussed in this prospectus. Under the shelf registration process, the Selling
Stockholders may, from time to time, offer and sell the Shares described in this prospectus in one or more offerings. Information about
the Selling Stockholders may change over time. You should read this prospectus and the related exhibits filed with the SEC, together
with the additional information described under the headings “Where You Can Find Additional Information” and “Incorporation
of Certain Information by Reference” before making your investment decision.
You
should rely only on the information provided in or incorporated by reference in this prospectus, in any prospectus supplement or in a
related free writing prospectus, or documents to which we otherwise refer you. Neither we nor the Selling Stockholders have authorized
anyone else to provide you with different information.
Neither
we nor the Selling Stockholders have authorized any dealer, agent or other person to give any information or to make any representation
other than those contained or incorporated by reference in this prospectus and any accompanying prospectus supplement or any related
free writing prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this
prospectus or an accompanying prospectus supplement or any related free writing prospectus. This prospectus and any accompanying prospectus
supplement and any related free writing prospectus, if any, 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 and any accompanying prospectus supplement
and any related free writing prospectus, if any, 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 and any accompanying prospectus supplement and any related free writing prospectus, if any,
is accurate on any date subsequent to the date set forth on the front of such 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 and any
accompanying prospectus supplement and any related free writing prospectus is delivered or securities are sold on a later date.
Neither
we nor the Selling Stockholders have done anything that would permit this offering or possession or distribution of this prospectus or
any free writing prospectus in any jurisdiction where action for that purpose is required, other than in the United States. You are required
to inform yourself about and to observe any restrictions relating as to this offering and the distribution of this prospectus and any
such free writing prospectus outside the United States.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
You
should also read and consider the information in the documents to which we have referred you under the caption “Where You Can Find
Additional Information” in this prospectus. In addition, 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 Additional Information.”
Unless
the context otherwise requires, references in this prospectus to “SenesTech,” “we,” “us,” “our”
and “our company” refer to SenesTech, Inc., a Delaware corporation. Our registered trademarks currently used in the United
States include SenesTech, our logo, including “Sound science. Effective solutions.”, and Contrapest. Solely for convenience,
trademarks and tradenames referred to in this prospectus may appear without the ® or ™ symbols, but such references are not
intended to indicate in any way that we will not assert, to the fullest extent under applicable law, our rights, or that the applicable
owner will not assert its rights, to these trademarks and tradenames. We do not intend our use or display of other companies’ trade
names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
This
prospectus contains and incorporates by reference market data and industry statistics and forecasts that are based on our own internal
estimates as well as independent industry publications and other publicly available information. Although we believe these sources are
reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information.
Although we are not aware of any misstatements regarding the market and industry data presented in this prospectus or the documents incorporated
herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including those
discussed under the headings “Risk Factors” in this prospectus, and under similar headings in the other documents that are
incorporated herein by reference. Accordingly, investors should not place undue reliance on this information.
FORWARD-LOOKING
STATEMENTS
The
statements contained in this prospectus that are not historical are 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”). All statements other than statements of historical facts contained or incorporated herein by reference
in this prospectus, including statements regarding our future operating results, future financial position, business strategy, objectives,
goals, plans, prospects, markets, and plans and objectives for future operations, are forward-looking statements. In some cases, you
can identify forward-looking statements by terms such as “anticipates,” “believes,” “estimates,”
“expects,” “intends,” “suggests,” “targets,” “contemplates,” “projects,”
“predicts,” “may,” “might,” “plan,” “would,” “should,” “could,”
“can,” “potential,” “continue,” “objective,” or the negative of those terms, or similar
expressions intended to identify forward-looking statements. However, not all forward-looking statements contain these identifying words.
Specific forward-looking statements in this prospectus include statements regarding:
| ● | our
belief that ContraPest is a novel liquid bait in the pest control industry in affecting the
reproductive systems of both male and female Norway and roof rats beginning with the first
breeding cycle following consumption, which can lead to sustained reductions of the rat population; |
| ● | our
expectation to continue to enhance ContraPest to align with the unique needs and environments
of our customers in our target verticals while simultaneously pursuing regulatory approvals
and amendments to the existing U.S. registration for ContraPest to broaden its use and marketability;
|
| ● | our
expectation that when regulatory and financial conditions permit, we will seek regulatory
approval for additional jurisdictions beyond the United States; |
| ● | our
belief that Evolve is a novel soft bait product in the pest control industry targeting the
reproductive systems of both male and female rats, which can lead to sustained reductions
of the rat population, limiting the reproduction of male and female rats within one to two
breeding cycles following consumption; and |
| ● | our
expectation to continue to incur significant expenses and operating losses in the foreseeable
future. |
These
forward-looking statements are not guarantees of future performance and involve known and unknown risks, uncertainties and situations
that are difficult to predict and that may cause our own, or our industry’s, actual results to be materially different from the
future results that are expressed or implied by these statements. Accordingly, actual results may differ materially from those anticipated
or expressed in such statements as a result of a variety of factors, including those discussed in Item 1A-“Risk Factors”
of Part I of our Annual Report on Form 10-K, for the year ended December 31, 2023, filed with the SEC on February 21, 2024, as amended
on April 29, 2024, and those contained from time to time in our other filings with the SEC. A number of factors could cause our actual
results to differ materially from those indicated by the forward-looking statements. Such factors include, among others, the following:
| ● | the
successful commercialization of our products; |
| ● | market
acceptance of our products; |
| ● | our
financial performance, including our ability to fund operations; |
| ● | our
ability to maintain compliance with Nasdaq’s continued listing requirements; and |
| ● | regulatory
approval and regulation of our products and other factors and risks identified from time
to time in our filings with the SEC, including this prospectus. |
All
forward-looking statements included herein are based on information available to us as of the date hereof and speak only as of such date.
Except as required by law, we undertake no obligation to update any forward-looking statements to reflect events or circumstances after
the date of such statements. The forward-looking statements contained in or incorporated by reference into this prospectus reflect our
views as of the date of this prospectus about future events and are subject to risks, uncertainties, assumptions and changes in circumstances
that may cause our actual results, performance or achievements to differ significantly from those expressed or implied in any forward-looking
statement. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee
future events, results, performance or achievements.
PROSPECTUS
SUMMARY
This
summary highlights information contained in other parts of this prospectus or incorporated by reference into this prospectus from our
filings with the SEC, as described later in the prospectus. Because it is only a summary, it does not contain all of the information
that you should consider before investing in our securities and it is qualified in its entirety by, and should be read in conjunction
with, the more detailed information appearing elsewhere in this prospectus, including the information incorporated by reference in this
prospectus. You should read the entire prospectus and the information incorporated by reference herein carefully, including the sections
titled “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
and our audited financial statements and the related notes, which are incorporated herein by reference from our Annual Report on Form
10-K for the year ended December 31, 2023, filed with the SEC on February 21, 2024 and amended on April 29, 2024, and our unaudited financial
statements and the related notes, which are incorporated by reference from our Quarterly Report on Form 10-Q for the three month period
ended March 31, 2024, filed with the SEC on May 9, 2024, and our Quarterly Report on Form 10-Q for the three and six month periods ended
June 30, 2024, filed with the SEC on August 8, 2024. Please read “Where You Can Find Additional Information” on page 13 of
this prospectus.
Our
Company
Overview
We
have developed and are commercializing products for managing animal pest populations, initially rat populations, through fertility control.
We currently have two product lines of fertility control products: ContraPest and Evolve.
As
far back as we can trace, rats have been foe to mankind. Posing threats to human and animal health, food security, and infrastructure
around the world, we have spent centuries trying to solve the problem. Rats carry or can spread at least 35 diseases, globally posing
a dangerous risk to public health and safety and agriculture. Through consumption and contamination, rats destroy at least 20% of the
global stored food supply every year. Additionally, rats cause over $27 billion in damage to public and private infrastructure annually
in the United States alone by burrowing beneath foundations, as well as gnawing on electrical wiring, insulation, fire proofing systems,
electronics and computer equipment.
Over
the centuries, the most prevalent response to rat infestations has been to try to eliminate them through the use of lethal tools such
as traps and rodenticides. However, there are growing concerns about secondary exposure and bioaccumulation of rodenticides. While some
of these challenges are of recent concern, the efficacy of the response to rat infestations has always been limited by the rat’s
extraordinary reproductive rate.
ContraPest®,
our initial product, is a novel liquid bait in the pest control industry, containing the active ingredients 4-vinylcyclohexene diepoxide
(“VCD”) and triptolide. ContraPest targets the reproductive systems of both male and female Norway and roof rats beginning
with the first breeding cycle following consumption, which can lead to sustained reductions of the rat population. ContraPest is a highly
palatable liquid formulation that reduces fertility in both male and female rats. The high fat content and sweet taste of ContraPest
promotes sustained consumption even when other sought-after food sources are present. In both field and laboratory settings, consumption
of ContraPest occurs even in the presence of abundant water sources and plentiful food choices, including animal feed, trash and other
options. Additionally, ContraPest does not cause illness in rats, and, therefore, it does not change behavior or result in bait aversion.
Accordingly, ContraPest offers a new tool used in coordination with rodenticides as part of an integrated pest management program. Additionally,
ContraPest can be successfully used as an alternative to traditional rodenticides altogether, an important option in the increasing number
of jurisdictions that are restricting the use of second-generation anti-coagulant products.
The
registration process with the EPA for ContraPest began on August 23, 2015. On August 2, 2016, the EPA granted an unconditional registration
for ContraPest as a Restricted Use Product (“RUP”), due to the need for applicator expertise for deployment. On October 18,
2018, the EPA approved the removal of the RUP designation and was reclassified as a general-use pesticide. ContraPest is registered in
all 50 states, 49 of which have approved the removal of the RUP designation, as well as the District of Columbia and five major U.S.
territories. In certain cases, our registrations are conditional and require completion of testing. We continue to actively seek to comply
with these requirements. On March 10, 2022, the EPA granted a sub-label for ContraPest allowing for an alternative delivery system in
a hanging bait station designed to target roof rat habitats and infestations, currently marketed as Elevate Bait System™.
We
are continuously enhancing ContraPest to align with the unique needs and environments of our customers in our target verticals while
simultaneously pursuing regulatory approvals and amendments to the existing U.S. registration to broaden its use and marketability. When
regulatory and financial conditions permit, we will seek regulatory approval for additional jurisdictions beyond the United States.
Evolve,
our second product, is a novel soft bait product in the pest control industry. Evolve targets the reproductive systems of both male and
female rats, which can lead to sustained reductions of the rat population. Evolve is a soft bait containing the active ingredient cottonseed
oil. Evolve limits the reproduction of male and female rats within one to two breeding cycles following consumption.
Evolve
has not been registered by the EPA. Evolve qualifies for exemption from registration as a minimum risk pesticide under FIFRA Section
25(b). All applicable requirements for registration, manufacturing, selling, or distributing into designated states and territories have
been met. There are 10 states that accept the federal exemption for pesticide registration with the respective state. For those states
that do not accept the federal exemption, we began the registration process for those states in October 2023. To date, we are authorized
to sell Evolve in 30 states.
Our
intellectual property portfolio supporting ContraPest consists of nine international patent filings (in the United States, Europe, Canada,
Brazil, Russia, Japan, Mexico, South Korea, and Australia) addressing the ContraPest compound. Claims directed toward the compound include
composition-of-matter involving a diterpenoid epoxide or salts thereof in combination with an organic diepoxide, use claims for inducing
follicle depletion and for reducing the reproductive capability of a mammalian animal or non-human mammalian population. Issued claims
will have a patent term extending to 2033 or longer based on patent term determinations in each of the filing countries. The novelty
of ContraPest extends to its method of field distribution and has required innovation to perfect the dosing of our product to rodents.
We have filed U.S. and international patent applications covering our novel bait station device to effectively and efficiently deliver
our rodent bait at individual bait sites that would, if issued, offer patent term protection through at least 2036.
For
a complete description of our business, financial condition, results of operations and other important information, please read our filings
with the SEC that are incorporated by reference in this prospectus, including our Annual Report on Form 10-K for the year ended December
31, 2023, as amended, and our Quarterly Reports on Form 10-Q for the periods ended March 31, 2024 and June 30, 2024. For instructions
on how to find copies of these documents, please read “Where You Can Find Additional Information” and “Incorporation
of Certain Information by Reference.”
Recent
Developments
Warrant
Repricing
On
August 22, 2024, we entered into an inducement offer letter agreement (the “Letter Agreement”) with certain holders (the
“Holders”) who held certain of our existing warrants to purchase up to (i) 48,911 shares of our Common Stock issued on August
21, 2023 at an exercise price of $86.42 per share (the “August 2023 Warrants”), and (ii) 456,591 shares of Common Stock issued
on November 29, 2023 at an exercise price of $13.00 per share (the “November 2023 Warrants,” and together with the August
2023 Warrants, the “Existing Warrants”). Pursuant to the Letter Agreement, the Holders agreed to exercise the Existing Warrants
for cash at a reduced exercise price of $4.60 per share in consideration of our agreement to issue new Common Stock Warrants (the “New
Warrants”). Upon exercise of the Existing Warrants, we issued to the Holders New Warrants to purchase an aggregate of 1,011,004
shares of Common Stock with an exercise price of $4.35 per share (the “Warrant Repricing”). The Common Stock Warrants may
be exercised at all times prior to either the fifth anniversary or eighteen month anniversary of their issuance date, as applicable.
We
engaged H.C. Wainwright & Co., LLC (“Wainwright”) to act as our exclusive placement agent in connection with the
transactions contemplated by the Letter Agreement. We also agreed to issue to Wainwright or its designees warrants (the
“Placement Agent Warrants”) to purchase up to 25,275 shares of common stock (representing 5% of the Existing Warrants
being exercised), which Placement Agent Warrants have the same terms as the New Warrants except that the Placement Agent Warrants
have an exercise price equal to $5.75 per share (125% of the offering price). The Placement Agent Warrants are immediately
exercisable from the date of issuance until the five year anniversary of such date.
The
closing of the transactions contemplated pursuant to the Letter Agreement occurred on August 23, 2024 (the “Closing Date”)
subject to satisfaction of customary closing conditions. We also agreed to file the registration statement of which this prospectus forms
a part (the “Registration Statement”) providing for the resale of the New Warrant Shares issued or issuable upon the exercise
of the New Warrants as soon as practicable (and in any event within 30 calendar days) after the date of the Letter Agreement, and to
use commercially reasonable efforts to have such Registration Statement declared effective by the SEC within 60 calendar days following
the date of the Letter Agreement (or within 90 calendar days following the date of the Letter Agreement in case of a “full review”
of the Registration Statement by the SEC) and to keep the Registration Statement effective at all times until no holder of the New Warrants
owns any New Warrants or New Warrant Shares.
Reverse
Stock Split
Effective
July 24, 2024, we amended our amended and restated certificate of incorporation to effect a 1-for-10 reverse split of our issued and
outstanding shares of Common Stock. All share and per share data in this prospectus gives effect to the reverse stock split. Documents
incorporated by reference into this prospectus that were filed prior to July 24, 2024 do not give effect to the reverse stock split.
Corporate
and Other Information
We
were incorporated in Nevada in July 2004 and reincorporated in Delaware in November 2015. Our principal executive offices are located
at 23460 N. 19th Ave., Suite 110, Phoenix, AZ 85027, and our telephone number is (928) 779-4143. Our corporate website address is www.senestech.com.
The information contained on or accessible through our website is not a part of this prospectus and should not be relied upon in connection
with making an investment decision.
SUMMARY
OF THE OFFERING
The
Selling Stockholders identified in this prospectus are offering on a resale basis an aggregate of 1,036,279 shares of Common Stock issuable
upon the exercise of the Warrants.
Securities
offered by the Selling Stockholders |
|
Up
to 1,036,279 shares of our Common Stock, par value $0.001 per share, consisting of (i) 1,011,004 shares of our Common Stock issuable
upon the exercise of the Common Stock Warrants, and (ii) 25,275 shares of our Common Stock issuable upon the exercise of the Placement
Agent Warrants. |
|
|
|
Use
of proceeds |
|
We
will not receive any of the proceeds from the sale of the Shares covered by this prospectus, except with respect to amounts received
by us due to the exercise of any Warrants for cash. We intend to use the proceeds from the exercise of any Warrants for cash for
general corporate purposes, which may include research and development expenses, capital expenditures, working capital and general
and administrative expenses, and potential acquisitions of or investments in businesses, products and technologies that complement
our business, although we have no present commitments or agreements to make any such acquisitions or investments as of the date of
this prospectus. See “Use of Proceeds.” |
|
|
|
Risk
factors |
|
You
should carefully read and consider the information set forth under “Risk Factors” on page 5 of this prospectus and under
similar headings in the documents incorporated by reference herein before deciding to invest in our securities. |
|
|
|
Market
for Common Stock |
|
Our
Common Stock is listed on The Nasdaq Capital Market under the symbol “SNES.” |
RISK
FACTORS
Investing
in our securities, including our Common Stock, involves a number of risks. You should not invest unless you are able to bear the complete
loss of your investment. You should carefully consider the risks described below and discussed under the section entitled “Risk
Factors” in our most recent Annual Report on Form 10-K, as amended, which is incorporated herein by reference, together with other
information in this prospectus and the information and documents incorporated by reference in this prospectus, including our future reports
on Form 10-K and 10-Q. For a description of these reports and documents, and information about where you can find them, see “Where
You Can Find More Information” and “Incorporation of Certain Documents by Reference.” The risks and uncertainties we
have described below and under the section entitled “Risk Factors” in our most recent Annual Report on Form 10-K incorporated
herein by reference are not the only risks and uncertainties we face. Additional risks and uncertainties not presently known to us or
that we currently deem immaterial also may impair our business operations. If any of the risks actually occur, our business could be
harmed. In such case, the trading price of our Common Stock could decline and investors could lose all or a part of the money paid to
buy our securities. Our actual results could differ materially from those anticipated in these forward-looking statements as a result
of these and other factors.
See
also the statements contained under the heading “Forward-Looking Statements.”
Summary
Risk Factors
Our
business is subject to a number of risks, including risks that may prevent us from achieving our business objectives or may adversely
affect our business, results of operations, financial condition, and prospects. These risks are discussed more fully below and include
risks related to the following:
Risks
Related to this Offering
If
we are unable to continue as a going concern, our securities will have little or no value.
We
have incurred operating losses since our inception, and we expect to continue to incur significant expenses and operating losses for
the foreseeable future. Our financial statements as of December 31, 2023 and 2022 have been prepared under the assumption that we will
continue as a going concern. Our independent registered public accounting firm included in its opinion for the years ended December 31,
2023, and 2022 an explanatory paragraph referring to our net loss from operations and net capital deficiency and expressing substantial
doubt in our ability to continue as a going concern without additional capital becoming available. If we encounter continued issues or
delays in the commercialization of our products or greater than anticipated expenses, our prior losses and expected future losses could
have an adverse effect on our financial condition and negatively impact our ability to fund continued operations, obtain additional financing
in the future and continue as a going concern. There are no assurances that such financing, if necessary, will be available to us at
all or will be available in sufficient amounts or on reasonable terms. Our financial statements do not include any adjustments that may
result from the outcome of this uncertainty. If we are unable to generate additional funds in the future through financings, sales of
our products, licensing fees, royalty payments or from other sources or transactions, we will exhaust our resources and will be unable
to continue operations. If we cannot continue as a going concern, our stockholders would likely lose most or all of their investment
in us.
The
sale of a substantial amount of our shares of common stock including resale of the Shares being registered hereunder in the public market
could adversely affect the prevailing market price of our Common Stock.
We
are registering for resale 1,036,279 shares of Common Stock. Sales of substantial amounts of shares of our Common Stock in the public
market, or the perception that such sales might occur, could adversely affect the market price of our Shares of Common Stock, and the
market value of our other securities. We cannot predict if and when the Selling Stockholders may sell such Shares in the public markets.
Furthermore, in the future, we may issue additional shares of Common Stock or other equity or debt securities convertible into shares
of Common Stock. Any such issuance could result in substantial dilution to our existing shareholders and could cause our stock price
to decline.
We
do not intend to pay any cash dividends on Common Stock in the foreseeable future and, therefore, any return on your investment in Common
Stock must come from increases in the fair market value and trading price of Common Stock.
We
do not intend to pay any cash dividends on Common Stock in the foreseeable future and, therefore, any return on your investment in Common
Stock must come from increases in the fair market value and trading price of Common Stock.
USE
OF PROCEEDS
We
are registering the Shares for resale by the Selling Stockholders. We will not receive any of the proceeds from the sale of the Shares
covered by this prospectus, except with respect to amounts received by us due to the exercise of any Warrants for cash. If the Warrants
are exercised in a cashless exercise, we will not receive any proceeds from the exercise of the Warrants.
We
intend to use the proceeds from the exercise of any Warrants for cash for general corporate purposes, which may include research and
development expenses, capital expenditures, working capital and general and administrative expenses, and potential acquisitions of or
investments in businesses, products and technologies that complement our business, although we have no present commitments or agreements
to make any such acquisitions or investments as of the date of this prospectus.
Dilution
This
offering of the Shares by the Selling Stockholders on a continuous or delayed basis in the future will not result in a change to the
net tangible book value per share before and after the distribution of the Shares by the Selling Stockholders. However, purchasers of
the Shares from the Selling Stockholders will experience dilution to the extent of the difference between the amount per share paid and
the net tangible book value per share of our Common Stock at the time of the purchase.
DESCRIPTION
OF PRIVATE PLACEMENT
On
August 22, 2024, we entered into the Letter Agreement with the Holders who held (i) the August 2023 Warrants to purchase up to 48,911
shares of our Common Stock at an exercise price of $86.42 per share, and (ii) the November 2023 Warrants to purchase up to 456,591 shares
of Common Stock at an exercise price of $13.00 per share. Pursuant to the Letter Agreement, the Holders agreed to exercise the Existing
Warrants for cash at a reduced exercise price of $4.60 per share in consideration of our agreement to issue new Common Stock Warrants.
Upon exercise of the Existing Warrants, we issued to the Holders New Warrants to purchase an aggregate of 1,011,004 shares of Common
Stock with an exercise price of $4.35 per share (the “Private Placement”). The New Warrants may be exercised at all times
prior to either the fifth anniversary or eighteen month anniversary of their issuance date, as applicable. The Holders exercised the
Existing Warrants on August 23, 2024, and the Company received gross proceeds of approximately $2.3 million from the exercise of the
Existing Warrants as a result of such exercises and pursuant to the terms of the Letter Agreement.
We
engaged Wainwright to act as our exclusive placement agent in connection with the transactions contemplated by the Letter Agreement.
We also agreed to issue to Wainwright or its designees the Placement Agent Warrants to purchase up to 25,275 shares of Common Stock
(representing 5% of the Existing Warrants being exercised), which Placement Agent Warrants have the same terms as the New Warrants
except that the Placement Agent Warrants have an exercise price equal to $5.75 per share (125% of the offering price). The Placement
Agent Warrants are immediately exercisable from the date of issuance until the five year anniversary of such date.
Pursuant
to the Letter Agreement, we are required to file the Registration Statement of which this prospectus forms a part under the Securities
Act to register the resale of the Shares as soon as practicable (and in any event within 30 calendar days) after the date of the Inducement
Letter. This prospectus covers the resale of the shares of our Common Stock issuable upon the exercise of the Warrants.
SELLING
STOCKHOLDERS
We
have prepared this prospectus to allow the Selling Stockholders to offer for resale, from time to time, 1,036,279 Shares issuable upon
the exercise of the Warrants. The Selling Stockholders acquired the Warrants in connection with the Letter Agreement and related transactions,
and we are filing the Registration Statement of which this prospectus is a part pursuant to the Letter Agreement.
We
do not know how long the Selling Stockholders will hold the Warrants, whether the Selling Stockholders will exercise the Warrants, and
upon such exercise, how long such Selling Stockholders will hold the Shares before selling them, and we currently have no agreements,
arrangements or understandings with the Selling Stockholders regarding the sale of any of the Shares.
The
following table presents information regarding the Selling Stockholders and the Shares that they may offer and sell from time to time
under this prospectus. The table is prepared based on information supplied to us by the Selling Stockholders, and reflects their holdings
as of September 23, 2024, unless otherwise noted in the footnotes to the table. Beneficial ownership is determined in accordance
with the rules of the SEC, and thus represents voting or investment power with respect to our securities. Under such rules, beneficial
ownership includes any shares over which the Selling Stockholders have sole or shared voting power or investment power as well as any
shares the Selling Stockholders have the right to acquire within 60 days after the date of this table, including the Warrants. To our
knowledge and subject to applicable community property rules, the Selling Stockholders named in the table have sole voting and sole investment
power with respect to all equity interests beneficially owned.
Name of Selling Stockholder | |
Number of Shares of Common Stock Beneficially Owned Prior to Offering(1) |
| |
Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus(2) | | |
Number of Shares of Common Stock Beneficially Owned After Offering(3) | | |
Percentage of Beneficial Ownership After Offering(4) | |
| |
|
| |
| | |
| | |
| |
Armistice, LLC(5) | |
| 738,667 |
(6) | |
| 636,286 | | |
| 102,381 | | |
| 4.98 | % |
Lind Global Fund II, LP(7) | |
| 202,900 |
(8) | |
| 130,436 | | |
| 72,464 | | |
| 3.40 | % |
Sabby Volatility Warrant Master Fund, Ltd.(9) | |
| 243,859 |
(10) | |
| 196,586 | | |
| 47,273 | | |
| 2.30 | % |
PFS Trust(11) | |
| 100,000 |
(12) | |
| 30,000 | | |
| 65,000 | | |
| 3.16 | % |
Intracoastal Capital LLC(13) | |
| 9,011 |
(14) | |
| 7,696 | | |
| 1,315 | | |
| * | |
KBB Asset Management(15) | |
| 10,000 |
(16) | |
| 10,000 | | |
| — | | |
| — | |
Michael Vasinkevich(17) | |
| 39,596 |
(18) | |
| 16,207 | | |
| 23,389 | | |
| 1.12 | % |
Noam Rubinstein(17) | |
| 17,978 |
(19) | |
| 7,962 | | |
| 10,016 | | |
| * | |
Craig Schwabe(17) | |
| 1,926 |
(20) | |
| 853 | | |
| 1,073 | | |
| * | |
Charles Worthman(17) | |
| 571 |
(21) | |
| 253 | | |
| 318 | | |
| * | |
| (1) | Consists
of shares of Common Stock and shares of Common Stock issuable pursuant to the full exercise
of the Warrants issued in the Private Placement and other warrants previously acquired from
us. |
| (2) | Represents
shares of Common Stock underlying the Warrants issued to the Selling Stockholders in the
Private Placement. All of the Warrants that are exercisable for the Shares offered hereby
contain certain beneficial ownership limitations, which provide that a holder of the Warrants
will not have the right to exercise any portion of its Warrants if such holder, together
with its affiliates and attribution parties, would beneficially own in excess of 4.99% of
the number of shares of Common Stock outstanding immediately after giving effect to such
exercise, provided that upon at least 61 days prior notice to us, a holder may increase or
decrease such limitation up to a maximum of 9.99% of the number of shares of Common Stock
outstanding (each such limitation, a “Beneficial Ownership Limitation”). |
| (3) | Assumes
all Shares offered by the Selling Stockholders hereby are sold and that the Selling Stockholders
buy or sell no additional shares of Common Stock prior to the completion of this offering.
We do not know when or in what amounts the Selling Stockholder may offer Shares for sale.
The Selling Stockholder might not sell any or might sell all of the Shares offered by this
prospectus. Because the Selling Stockholder may offer all or some of the Shares pursuant
to this offering, and because there are currently no agreements, arrangements or understandings
with respect to the sale of any of the Shares, we cannot estimate the number of the Shares
that will be held by the Selling Stockholder after completion of the offering. However, for
purposes of this table, we have assumed that, after completion of the offering, none of the
Shares covered by this prospectus will be held by the Selling Stockholders, including Common
Stock issuable upon exercise of the Warrants issued in the Private Placement. |
| (4) | Based
on 2,057,121 shares of Common Stock, consisting of 1,020,842 shares of Common Stock outstanding
as of September 23, 2024, including shares of Common Stock held in abeyance, and 1,036,279
Shares underlying the Warrants (assuming the full exercise of the Warrants). |
| (5) | The
Common Stock and other securities are held by Armistice Capital Master Fund Ltd. (the “Master
Fund”) and may be deemed to be indirectly beneficially owned by: (i) Armistice Capital,
LLC (“Armistice Capital”), as the investment manager of the Master Fund; and
(ii) Steven Boyd, as the Managing Member of Armistice Capital. Armistice Capital and Steven
Boyd disclaim beneficial ownership of the securities except to the extent of their respective
pecuniary interests therein. The address of the Master Fund is c/o Armistice Capital, LLC,
510 Madison Ave, 7th Floor, New York, New York 10022. We do not have a material relationship
with the Selling Stockholder other than as a result of the ownership of our Common Stock
or other securities. |
| (6) | Consists
of (i) 100,000 shares of Common Stock; (ii) 2,381 shares of Common Stock underlying the Existing
Warrants exercised in August 2024, the issuance of which is held in abeyance subject to a
beneficial ownership limitation provision in the warrant; and (iii) 636,286 Shares issuable
upon the exercise of the Warrants issued in connection with the Warrant Repricing and being
registered for resale pursuant to the registration statement of which this prospectus forms
a part. The Selling Stockholder’s warrants prohibit the exercise of such warrants if,
after giving effect to such exercise, it would result in the Selling Stockholder’s,
including any person or entity whose beneficial ownership would be attributable to the Selling
Stockholder, beneficial ownership exceeding the applicable Beneficial Ownership Limitation. |
| (7) | The
Common Stock and other securities are held by Lind Global Fund II, LP. Each of Lind Global Fund II, LP, Lind Global Partners II LLC and
Jeff Easton has sole shared voting and dispositive power over the shares. The address of Lind Global Fund is c/o The Lind Partners, 444
Madison Ave, 41st Floor, New York, New York 10022. We do not have a material relationship with the Selling Stockholder other
than as a result of the ownership of our Common Stock or other securities. |
| (8) | Consists
of 202,900 shares of Common Stock issuable upon the exercise of outstanding warrants, including 130,436 Shares issuable upon the exercise
of the Warrants issued in connection with the Warrant Repricing and being registered for resale pursuant to the registration statement
of which this prospectus forms a part. The Selling Stockholder’s warrants prohibit the exercise of such warrants if, after giving
effect to such exercise, it would result in the Selling Stockholder’s, including any person or entity whose beneficial ownership
would be attributable to the Selling Stockholder, beneficial ownership exceeding the applicable Beneficial Ownership Limitation. |
| (9) | The Common Stock and other securities are held by Sabby Volatility
Warrant Master Fund, Ltd. (“Sabby”). Sabby Management, LLC, the investment manager to Sabby, has discretionary authority to
vote and dispose of the shares held by Sabby and may be deemed to be the beneficial owner of these shares. Hal Mintz (“Mr. Mintz”),
in his capacity as manager of Sabby Management, LLC, may also be deemed to have investment discretion and voting power over the shares
held by Sabby. Sabby Management, LLC and Mr. Mintz each disclaim any beneficial ownership of these shares. The address of Sabby Volatility
Warrant Master Fund, Ltd. is c/o Sabby Management, LLC, 7012 Fisher Island Dr., Miami Beach, Florida 33109. We do not have a material
relationship with the Selling Stockholder other than as a result of the ownership of our Common Stock or other securities. |
| (10) | Consists
of (i) 37,980 shares of Common Stock; (ii) 9,293 shares of Common Stock underlying the Existing
Warrants exercised in August 2024, the issuance of which is held in abeyance subject to a
beneficial ownership limitation provision in the warrant; and (iii) 196,586 Shares issuable
upon the exercise of the Warrants issued in connection with the Warrant Repricing and being
registered for resale pursuant to the registration statement of which this prospectus forms
a part. The Selling Stockholder’s warrants prohibit the exercise of such warrants if,
after giving effect to such exercise, it would result in the Selling Stockholder’s,
including any person or entity whose beneficial ownership would be attributable to the Selling
Stockholder, beneficial ownership exceeding the applicable Beneficial Ownership Limitation. |
| (11) | The Common Stock and other securities are held by PFS Trust. Grover
T. Wickersham holds sole voting and dispositive power and disclaims beneficial ownership. The address of PFS Trust is 2207, Suite B, Bellanca
St., Minden, Nevada 89423. We do not have a material relationship with the Selling Stockholder other than as a result of the ownership
of our Common Stock or other securities. |
| (12) | Consists of (i) 65,000 shares of Common Stock; and (ii) 30,000 Shares
issuable upon the exercise of the Warrants issued in connection with the Warrant Repricing and being registered for resale pursuant to
the registration statement of which this prospectus forms a part. The Selling Stockholder’s warrants prohibit the exercise of such
warrants if, after giving effect to such exercise, it would result in the Selling Stockholder’s, including any person or entity
whose beneficial ownership would be attributable to the Selling Stockholder, beneficial ownership exceeding the applicable Beneficial
Ownership Limitation. |
| (13) | The
Common Stock and other securities are held by Intracoastal Capital LLC. Michael P. Kopin
(“Mr. Kpoin”) and Daniel B. Asher (“Mr. Asher”), each of whom are
managers of Intracoastal Capital LLC (“Intracoastal”), have shared voting control
and investment discretion over the securities reported herein that are held by Intracoastal.
As a result, each of Mr. Kopin and Mr. Asher may be deemed to have beneficial ownership (as
determined under Section 13(d) of the Exchange Act) of the securities reported herein that
are held by Intracoastal. The address of Intracoastal Capital LLC is 245 Palm Trail, Delray
Beach, Florida 33483. We do not have a material relationship with the Selling Stockholder
other than as a result of the ownership of our Common Stock or other securities. |
| (14) | Consists
of 9,011 shares of Common Stock issuable upon the exercise of outstanding warrants, including
7,696 Shares issuable upon the exercise of the Warrants issued in connection with the Warrant
Repricing and being registered for resale pursuant to the registration statement of which
this prospectus forms a part. The Selling Stockholder’s warrants prohibit the exercise
of such warrants if, after giving effect to such exercise, it would result in the Selling
Stockholder’s, including any person or entity whose beneficial ownership would be attributable
to the Selling Stockholder, beneficial ownership exceeding the applicable Beneficial Ownership
Limitation. |
| (15) | The securities are held by KBB Asset Management. The
address of KBB Asset Management is 47 Calle Del Sur, Palm Coast, Florida 32137. We do not have a material relationship with the
Selling Stockholder other than as a result of the ownership of our Common Stock or other securities. |
| (16) | Consists
of 10,000 Shares issuable upon the exercise of the Warrants issued in connection with the Warrant Repricing and being registered for
resale pursuant to the registration statement of which this prospectus forms a part. The Selling Stockholder’s warrants prohibit
the exercise of such warrants if, after giving effect to such exercise, it would result in the Selling Stockholder’s, including
any person or entity whose beneficial ownership would be attributable to the Selling Stockholder, beneficial ownership exceeding the
applicable Beneficial Ownership Limitation. |
| (17) | The
Selling Stockholder is affiliated with Wainwright, a registered broker-dealer with a registered
address of H.C. Wainwright & Co., LLC, 430 Park Ave, 3rd Floor, New York, New York 10022. Wainwright
acted as our placement agent in our August 22, 2024 financing. The Selling Stockholder has
sole voting and dispositive power over the securities held, acquired the securities in the
ordinary course of business and, at the time the securities were acquired, the Selling Stockholder
had no agreement or understanding, directly or indirectly, with any person to distribute
such securities. |
| (18) | Consists
of 39,596 shares of Common Stock issuable upon the exercise of outstanding warrants,
including 16,207 Shares issuable upon the exercise of the Warrants issued in connection
with the Warrant Repricing and being registered for resale pursuant to the registration statement
of which this prospectus forms a part. The Selling Stockholder’s warrants prohibit
the exercise of such warrants if, after giving effect to such exercise, it would result in
the Selling Stockholder’s, including any person or entity whose beneficial ownership
would be attributable to the Selling Stockholder, beneficial ownership exceeding the applicable
Beneficial Ownership Limitation. |
| (19) | Consists
of 17,978 shares of Common Stock issuable upon the exercise of outstanding warrants,
including 7,962 Shares issuable upon the exercise of the Warrants issued in connection with
Warrant Repricing and being registered for resale pursuant to the registration statement
of which this prospectus forms a part. The Selling Stockholder’s warrants prohibit
the exercise of such warrants if, after giving effect to such exercise, it would result in
the Selling Stockholder’s, including any person or entity whose beneficial ownership
would be attributable to the Selling Stockholder, beneficial ownership exceeding the applicable
Beneficial Ownership Limitation. |
| (20) | Consists of 1,926 shares of Common Stock issuable upon the exercise
of outstanding warrants, including 853 Shares issuable upon the exercise of the Warrants issued in connection with the Warrant Repricing
and being registered for resale pursuant to the registration statement of which this prospectus forms a part. The Selling Stockholder’s
warrants prohibit the exercise of such warrants if, after giving effect to such exercise, it would result in the Selling Stockholder’s,
including any person or entity whose beneficial ownership would be attributable to the Selling Stockholder, beneficial ownership exceeding
the applicable Beneficial Ownership Limitation. |
| (21) | Consists
of 571 shares of Common Stock issuable upon the exercise of outstanding warrants,
including 253 Shares issuable upon the exercise of the Warrants issued in connection with
the Warrant Repricing and being registered for resale pursuant to the registration statement
of which this prospectus forms a part. The Selling Stockholder’s warrants prohibit
the exercise of such warrants if, after giving effect to such exercise, it would result in
the Selling Stockholder’s, including any person or entity whose beneficial ownership
would be attributable to the Selling Stockholder, beneficial ownership exceeding the applicable
Beneficial Ownership Limitation. |
PLAN
OF DISTRIBUTION
The
Selling Stockholders and any of their pledges, assignees and successors-in-interest may, from time to time, sell any or all of their
Shares covered hereby on the principal trading market or any other stock exchange, market or trading facility on which the Shares are
traded or in private transactions. These sales may be at fixed or negotiated prices. The Selling Stockholders may use any one or more
of the following methods when selling the Shares:
| ● | ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| ● | block
trades in which the broker-dealer will attempt to sell the shares as agent, but may position
and resell a portion of the block as principal to facilitate the transaction; |
| ● | purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account; |
| ● | an
exchange distribution in accordance with the rules of the applicable exchange; |
| ● | privately
negotiated transactions; |
| ● | short
sales effected after the date the registration statement of which this prospectus is a part
is declared effective by the SEC; |
| ● | through
the writing or settlement of options or other hedging transactions, whether through an options
exchange or otherwise; |
| ● | through
agreements between broker-dealers and the seller stockholder(s) to sell a specified number
of such shares at a stipulated price per share; |
| ● | a
combination of any such methods of sale; and |
| ● | any
other method permitted by applicable law. |
The
Selling Stockholders may also sell the Shares under Rule 144 or any other exemption from registration under the Securities Act, if available,
rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or
markdown in compliance with FINRA Rule 2121.
In
connection with the sale of the Shares or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the Shares in the course of hedging the positions they assume.
The Selling Stockholders may also sell the Shares short and deliver the Shares to close out their short positions, or loan or pledge
the securities to broker-dealers that in turn may sell the Shares. The Selling Stockholders may also enter into option or other transactions
with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer
or other financial institution of the Shares offered by this prospectus, which Shares such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in selling the Shares may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the Shares purchased by them may be deemed to be underwriting commissions or discounts under
the Securities Act. The Selling Stockholders have informed us that they do not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the Shares.
We
agreed to keep this prospectus effective until the Selling Stockholders no longer own any Warrants and all of the Shares have been sold
pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The Shares will be sold only through
registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the Shares
covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the
registration or qualification requirement is available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously
engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the
Common Stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders
and have informed it of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
The
validity of the Shares being offered hereby will be passed upon for us by Greenberg Traurig, LLP, Phoenix, Arizona.
EXPERTS
The
financial statements of the Company as of December 31, 2023 and 2022, and for each of the two years in the period ended December 31,
2023, incorporated by reference in this prospectus have been so incorporated in reliance on the report of M&K CPAS, PLLC, an independent
registered public accounting firm (which report contains an explanatory paragraph describing conditions that raise substantial doubt
about our ability to continue as a going concern, as described in Note 1 to the financial statements), given on the authority
of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains
reports, proxy and information statements and other information regarding companies, such as ours, that file documents electronically
with the SEC. The website address is www.sec.gov. The information on the SEC’s website is not part of this prospectus, and
any references to this website or any other website are inactive textual references only.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
“incorporate by reference” certain information into this registration statement, which means that we disclose important information
to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be
part of this prospectus, and relying on the Fixing America’s Surface Transportation Act, or the FAST Act, as a smaller reporting
company, subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained
in a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus
to the extent that a statement contained in this prospectus modifies or replaces that statement.
We
incorporate by reference our documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the termination of the offering, including documents we may file with the SEC after the date of the
initial registration statement and prior to effectiveness of the registration statement. We are not, however, incorporating by reference
any documents or portions thereof, whether specifically listed below or filed in the future, that are not deemed “filed”
with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to
Item 9.01 of Form 8-K. This prospectus and any amendments or supplements thereto incorporate by reference the documents set forth below
that have previously been filed with the SEC:
| ● | Our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2024 and June 30,
2024, filed with the SEC on May 9, 2024 and August 8, 2024, respectively; |
| ● | Definitive
Proxy Statement on Schedule 14A, filed with the SEC on May 28, 2024; |
| ● | Our
Current Reports on Form 8-K filed with the SEC on February 27, 2024, May 1, 2024, June 20, 2024, July 15, 2024, July 23, 2024, August 5, 2024 and August 23, 2024; and |
| ● | The
description of our capital stock contained in our registration statement on Form 8-A filed
with the SEC on November 7, 2016, including any amendments or reports filed for the purpose
of updating such description (including Exhibit 4.1 to our Amendment No. 1 to the Annual
Report on Form 10-K/A for the fiscal year ended December 31, 2019, filed with the SEC on
April 21, 2020). |
You
should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide
you with any information. You should not assume that the information incorporated by reference or provided in this prospectus is accurate
as of any date other than the date on the front of each document. You may request a free copy of any or all of the reports or documents
incorporated by reference in this prospectus (other than exhibits, unless they are specifically incorporated by reference in the documents)
by writing or telephoning us at the following address:
SenesTech,
Inc.
23460
N. 19th Ave., Suite 110
Phoenix,
AZ 85027
Attn:
Secretary
(928)
779-4143
We
also maintain a website at www.senestech.com where incorporated reports or other documents filed with the SEC may be accessed.
We have not incorporated by reference into this prospectus the information contained in, or that can be accessed through, our website,
and you should not consider it to be part of this prospectus.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. Other Expenses of Issuance and Distribution
The
following table sets forth the anticipated costs and expenses payable by us (other than commissions and fees) in connection with the
sale of the securities being registered. All amounts shown are estimates except for the SEC registration fee.
SEC registration fee | |
$ | 354.86 | |
Legal fees and expenses | |
| 100,000.00 | |
Accounting fees and expenses | |
| 5,000.00 | |
Printing and miscellaneous fees and expenses | |
| 7,645.14 | |
Total | |
$ | 113,000.00 | |
ITEM
15. Indemnification of Directors and Officers
The
Registrant incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a
Delaware corporation may indemnify any persons who were, are, or are threatened to be made, parties to any threatened, pending or completed
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 is or was an officer, director, employee or agent of such corporation, or is or
was serving at the request of such corporation as an officer, director, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnification may include expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in connection with defending or settling such action, suit
or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to
the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer or director
is adjudged to be liable to the corporation. 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 or her against the expenses (including attorneys’ fees) actually
and reasonably incurred.
The
Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide for the indemnification
of its directors and officers to the fullest extent permitted under the Delaware General Corporation Law.
Section 102(b)(7)
of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director,
except for liability for any:
| ● | Breach
of director’s duty of loyalty to the corporation or its stockholders; |
| ● | Act
or omission not in good faith or that involves intentional misconduct or a knowing violation
of law; |
| ● | Unlawful
payment of dividends or unlawful purchase or redemption of shares; or |
| ● | Transaction
from which the director derives an improper personal benefit; |
The
Registrant’s amended and restated certificate of incorporation includes such a provision. Expenses incurred by any officer or director
in defending any such action, suit or proceeding in advance of its final disposition shall be paid by the Registrant upon delivery to
it of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined
that such director or officer is not entitled to be indemnified by the Registrant.
Section
174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an
unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions.
A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his
or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such
action occurred or immediately after such absent director receives notice of the unlawful acts.
As
permitted by the Delaware General Corporation Law, the Registrant has entered into indemnification agreements with each of its directors
and executive officers, that require the Registrant to indemnify such persons against any and all costs and expenses (including attorneys’,
witness or other professional fees) actually and reasonably incurred by such persons in connection with any action, suit or proceeding
(including derivative actions), whether actual or threatened, to which any such person may be made a party by reason of the fact that
such person is or was a director or officer or is or was acting or serving as an officer, director, employee or agent of the Registrant
or any of its affiliated enterprises. Under these agreements, the Registrant is not required to provide indemnification for certain matters,
including:
| ● | Indemnification
for expenses or losses with respect to proceedings initiated by the director or officer,
including any proceedings against the Registrant or its directors, officers, employees or
other indemnitees and not by way of defense, with certain exceptions; |
| ● | Indemnification
for any proceeding if a final decision by a court of competent jurisdiction determines that
such indemnification is prohibited by applicable law; |
| ● | Indemnification
for the disgorgement of profits arising from the purchase or sale by the director or officer
of securities of the Registrant in violation of Section 16(b) of the Exchange Act, or any
similar successor statute; or |
| ● | Indemnification
for the director or officer’s reimbursement to the Registrant of any bonus or other
incentive-based or equity-based compensation previously received by the director or officer
or payment of any profits realized by the director or officer from the sale of securities
of the Registrant, as required in each case under the Exchange Act. |
The
indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.
Except as otherwise disclosed in our periodic reports incorporated by reference herein, there is at present no pending litigation or
proceeding involving any of the Registrant’s directors or executive officers as to which indemnification is required or permitted,
and the Registrant is not aware of any threatened litigation or proceeding that may result in a claim for indemnification.
The
Registrant has an insurance policy in place, with limits of $20.0 million in the aggregate, that covers its officers and directors with
respect to certain liabilities, including liabilities arising under the Securities Act or otherwise. 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.
ITEM
16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit
Number |
|
Description |
4.1 |
|
Form of the Registrant’s Common Stock certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, filed with the SEC on October 7, 2016 (File no. 333-213736)) |
4.2+ |
|
Form of Restricted Stock Unit Agreement (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on December 21, 2016 (File no. 001-37941) |
4.3 |
|
Form of Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, filed with the SEC on November 16, 2017 (File no. 333-221433)) |
4.4 |
|
Form of Underwriter’s Warrant, as amended (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 21, 2017 (File no. 001-37941)) |
4.5 |
|
Form of New Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on June 20, 2018 (File no. 001-37941)) |
4.6 |
|
Form of Warrant issued to investors in Rights Offering (incorporated by reference to Exhibit 4.1 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2018 (File no. 001-37941)) |
4.7 |
|
Form of Warrant issued to dealer-manager in Rights Offering (incorporated by reference to Exhibit 4.2 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2018 (File no. 001-37941)) |
4.8 |
|
Warrant Agency Agreement, dated August 13, 2018, between the Registrant and Transfer Online, Inc. (incorporated by reference to Exhibit 4.3 to the Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on August 14, 2018 (File no. 001-37941)) |
4.9 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on July 17, 2019 (File no. 001-37941)) |
4.10 |
|
Form of Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 28, 2020 (File no. 001-37941)) |
4.11 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on January 28, 2020 (File no. 001-37941)) |
4.12 |
|
Form of Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 6, 2020 (File no. 001-37941)) |
4.13 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 6, 2020 (File no. 001-37941)) |
4.14+ |
|
Form of Restricted Stock Unit Agreement (incorporated by reference to Exhibit 4.6 to the Registrant’s Annual Report on Form 10-K, filed with the SEC on March 17, 2020 (File no. 001-37941)) |
4.15 |
|
Form of New Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 27, 2020 (File no. 001-37941)) |
4.16 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on October 27, 2020 (File no. 001-37941)) |
4.17 |
|
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021 (File no. 001-37941) |
4.18 |
|
Form of Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021 (File no. 001-37941) |
4.19 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021 (File no. 001-37941) |
4.20 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on March 23, 2021 (File no. 001-37941)) |
4.21 |
|
Form of Series A Warrant (incorporated by reference to Exhibit 4.21 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on November 15, 2022 (File no. 333-267991)) |
4.22 |
|
Form of Series B Warrant (incorporated by reference to Exhibit 4.22 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on November 15, 2022 (File no. 333-267991)) |
4.23 |
|
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.23 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on November 15, 2022 (File no. 333-267991)) |
4.24 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.24 to the Registrant’s Registration Statement on Form S-1/A, filed with the SEC on November 15, 2022 (File no. 333-267991)) |
4.25 |
|
Form of SenesTech, Inc. Stock Option Grant Notice and Stand-Alone Option Agreement (incorporated by reference to Exhibit 4.2 to the Registrant’s Registration Statement on Form S-8, filed with the SEC on February 10, 2023 (File no. 333-269686)) |
4.26 |
|
Form
of SenesTech, Inc. Restricted Stock Unit Grant Notice and Stand-Alone Restricted Stock Unit Agreement (incorporated by reference
to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-8, filed with the SEC on February 10, 2023 (File no. 333-269686)) |
4.27 |
|
Form of Series C Warrant (incorporated by reference to Exhibit 4.28 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 12, 2023 (File no. 001-037941)) |
4.28 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.29 to the Registrant’s Current Report on Form 8-K, filed with the SEC on April 12, 2023 (File no. 001-037941)) |
4.29 |
|
Form of New Warrants (incorporated by reference to Exhibit 4.33 to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 22, 2023 (File no. 001-37941)) |
4.30 |
|
Form of Series D Warrant (incorporated by reference to Exhibit 4.34 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 29, 2023 (File no. 001-37941)) |
4.31 |
|
Form of Series E Warrant (incorporated by reference to Exhibit 4.35 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 29, 2023 (File no. 001-37941)) |
4.32 |
|
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.36 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 29, 2023 (File no. 001-37941)) |
4.33 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.37 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 29, 2023 (File no. 001-37941)) |
4.34 |
|
Form of Series F-1 Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 23, 2024 (File no. 001-37941)) |
4.35 |
|
Form of Series F-2 Common Stock Purchase Warrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 23, 2024 (File no. 001-37941)) |
4.36 |
|
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form 8-K, filed with the SEC on August 23, 2024 (File no. 001-37941)) |
5.1* |
|
Legal Opinion of Greenberg Traurig, LLP |
23.1* |
|
Consent of M&K CPAS, PLLC, independent registered public accounting firm |
23.2* |
|
Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1) |
24.1* |
|
Power of Attorney (included on signature page hereof) |
107* |
|
Filing Fee Table |
| + | Indicates
a management contract or compensatory plan. |
(b)
Financial Statement Schedules
No
financial statement schedules are provided because the information called for is not required or is shown either in the financial statements
or the notes thereto.
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(a)(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 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; |
|
(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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 that remain unsold at the termination
of the offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
|
(i) |
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 of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which the 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 of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
|
(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
|
(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
|
|
|
|
(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
|
|
|
|
(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Phoenix, State of Arizona, on the 23rd day of September 2024.
|
SENESTECH,
INC. |
|
|
|
|
By: |
/s/
Joel L. Fruendt |
|
|
Joel
L. Fruendt |
|
|
President
and Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joel L. Fruendt and Thomas C.
Chesterman, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for
him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement
(including post-effective amendments), and to sign any registration statement for the same offering covered by this Registration Statement
that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments
thereto, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, 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 attorneys-in-fact and agents, or their, 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, this Registration Statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Joel L. Fruendt |
|
President
and Chief Executive Officer |
|
September
23, 2024 |
Joel
L. Fruendt |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Thomas C. Chesterman |
|
Executive
Vice President, Chief Financial Officer, |
|
September
23, 2024 |
Thomas
C. Chesterman |
|
Treasurer
and Secretary
(Principal Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Jamie Bechtel |
|
Chair
of the Board |
|
September
23, 2024 |
Jamie
Bechtel |
|
|
|
|
|
|
|
|
|
/s/
Phil Grandinetti |
|
Director |
|
September
23, 2024 |
Phil
Grandinetti |
|
|
|
|
|
|
|
|
|
/s/
Jake Leach |
|
Director |
|
September
23, 2024 |
Jake
Leach |
|
|
|
|
|
|
|
|
|
/s/
Matthew K. Szot |
|
Director |
|
September
23, 2024 |
Matthew
K. Szot |
|
|
|
|
Exhibit 5.1
September 23, 2024
SenesTech,
Inc.
23460
N. 19th Avenue, Suite 100
Phoenix,
Arizona 85027
| Re: | Registration
Statement on Form S-3 SenesTech, Inc. |
Ladies
and Gentlemen:
As
legal counsel to SenesTech, Inc., a Delaware corporation (the “Company”), we have assisted in the preparation of the
Company’s Registration Statement on Form S-3, including the prospectus constituting a part thereof (the “Registration
Statement”), to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating
to the registration for resale under the Registration Statement of an aggregate of 1,036,279 shares (the “Registered Shares”)
of the Company’s common stock, par value $0.001 per share (“Common Stock”), issuable upon the exercise of warrants
originally issued by the Company in connection with the repricing of certain warrants as follows: (i) 1,011,004 shares of Common Stock
issuable upon the exercise of warrants issued to certain holders in connection with a warrant repricing, and (ii) 25,275 shares of Common
Stock issuable upon the exercise of placement agent warrants issued to designees of the placement agent in connection with the warrant
repricing (together, the “Warrants”). The facts, as we understand them, are set forth in the Registration Statement.
With
respect to the opinion set forth below, we have examined originals, certified copies, or copies otherwise identified to our satisfaction
as being true copies, only of the following:
| A. | The
Amended and Restated Certificate of Incorporation of the Company, as amended; |
| B. | The
Amended and Restated Bylaws of the Company, as amended; |
| D. | Resolutions
of the Board of Directors of the Company approving, among other things, the issuance of the
Registered Shares; |
| E. | The
Registration Statement; and |
| F. | Such
other documents and records and other certificates and instruments and matters of law as
we have deemed necessary or appropriate to express the opinion set forth below, subject to
the assumptions, limitations and qualifications stated herein. |
Subject
to the assumptions that (i) the documents and signatures examined by us are genuine and authentic, and (ii) the persons executing the
documents examined by us have the legal capacity to execute such documents, and subject to the further limitations and qualifications
set forth below, based solely upon our review of items A through F above, it is our opinion that the Registered Shares have been duly
authorized and, when issued by the Company upon exercise of the Warrants in accordance with the terms thereof, will be validly issued,
fully paid and nonassessable.
We
express no opinion as to the applicability or effect of any laws, orders, or judgments of any state or other jurisdiction other than
federal securities laws and the substantive laws of the state of Delaware, including judicial interpretations of such laws. Further,
our opinion is based solely upon existing laws, rules, and regulations, and we undertake no obligation to advise you of any changes that
may be brought to our attention after the date hereof.
Greenberg
Traurig, LLP | Attorneys at Law
2375
East Camelback Road | Suite 800 | Phoenix, Arizona 85016 | T +1 602.445.8000 | F +1 602.445.8100
www.gtlaw.com
SenesTech, Inc.
September 23, 2024
Page 2
We
hereby expressly consent to any reference to our firm in the Registration Statement, inclusion of this Opinion as an exhibit to the Registration
Statement, and to the filing of this Opinion with any other appropriate governmental agency.
|
Very
truly yours, |
|
|
|
/s/
Greenberg Traurig, LLP |
Greenberg
Traurig, LLP | Attorneys at Law
2375
East Camelback Road | Suite 800 | Phoenix, Arizona 85016 | T +1 602.445.8000 | F +1 602.445.8100
www.gtlaw.com
Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the inclusion in this Registration Statement on Form S-3 of our report dated February 21, 2024, of SenesTech, Inc.
relating to the audit of the financial statements for the period ending December 31, 2023 and 2022 and the reference to our firm under
the caption “Experts” in the Registration Statement.
/s/
M&K CPAS, PLLC |
|
www.mkacpas.com |
|
The
Woodlands, Texas |
|
|
|
September 23, 2024 |
|
Exhibit 107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
SenesTech,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| |
Security
Type | |
Security
Class Title | |
Fee
Calculation
Rule | | |
Amount
Registered(1) | | |
Proposed
Maximum
Offering
Price Per
Unit | | |
Maximum
Aggregate
Offering
Price | | |
Fee Rate | | |
Amount of
Registration
Fee | |
Fees to Be Paid | |
Equity | |
Common Stock, par value $0.001 per share | |
| 457(c) | | |
| 1,036,279 | (2) | |
$ | 2.32 | (3) | |
$ | 2,404,167.28
| (3) | |
| 0.00014760 | | |
$ | 354.86 | |
| |
Total Offering Amounts | | |
| | | |
| | | |
$ | 2,404,167.28 | | |
| | | |
$ | 354.86 | |
| |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Net Fee Due | | |
| | | |
| | | |
| | | |
| | | |
$ | 354.86 | |
| (1) | Pursuant
to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement shall also cover any additional shares of SenesTech,
Inc. (the “Registrant”) common stock, par value $0.001 per share (“Common
Stock”), that may become issuable by reason of any stock dividend, stock split, recapitalization,
or any other similar transaction that results in an increase in the number of outstanding
shares of Common Stock of the Registrant. |
| (2) | Represents
(i) 1,011,004 shares of Common Stock issuable upon the exercise of new warrants issued to
certain holders in connection with the warrant repricing and (ii) 25,275 shares of common
stock issuable upon the exercise of new warrants issued to designees of the placement agent
in connection with the warrant repricing. |
| (3) | Pursuant
to Rule 457(c) under the Securities Act, the proposed maximum offering price per share and
the proposed maximum aggregate offering price for the shares have been calculated solely
for the purpose of computing the registration fee on the basis of the average high and low
prices of the Registrant’s Common Stock as reported by the Nasdaq Stock Market LLC
on September 20, 2024. |
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