As
filed with the Securities and Exchange Commission on August 26,
2021
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
Zivo Bioscience, Inc.
(Exact
name of registrant as specified in its charter)
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Nevada
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87-0699977
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(State
or other jurisdiction of incorporation or
organization)
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(I.R.S.
Employer Identification Number)
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2804 Orchard Lake Rd., Suite 202
Keego Harbor, MI 48320
(248) 452 9866
(Address,
including zip code, and telephone number, including area code of
registrant’s principal executive offices)
Keith R. Marchiando
Chief Financial Officer
ZIVO Bioscience, Inc.
2804 Orchard Lake Rd., Suite 202
Keego Harbor, MI 48320
(248) 452 9866
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Donald J. Kunz, Esq.
Emily J. Johns, Esq.
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226-3506
(313) 465-7454
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes
effective.
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.
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☒
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Smaller
reporting company ☒
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Emerging
growth company ☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
CALCULATION OF REGISTRATION FEE
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Title of Each
Class of Securities to be Registered
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Amount to be
Registered(1)
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Proposed Maximum
Offering Price per Unit(2)
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Proposed Maximum
Aggregate Offering Price(2)
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Amount of
Registration Fee(3)
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Common Stock, par
value $0.001 per share
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Warrants
to purchase
common stock
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-
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Total
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$125,000,000
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$13.637.50
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(1)
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There
are being registered hereunder such indeterminate number of shares
of common stock and such indeterminate number of warrants to
purchase common stock as shall have an aggregate initial offering
price not to exceed $125,000,000. Any securities registered
hereunder may be sold separately or in combination with other
securities registered hereunder. The securities registered also
include such indeterminate number of shares of common stock, upon
exercise of warrants or pursuant to the antidilution provisions of
any such securities. In addition, pursuant to Rule 416 under the
Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such
indeterminate number of shares of common stock as may be issuable
with respect to the shares being registered hereunder as a result
of stock splits, stock dividends or similar
transactions.
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(2)
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The
proposed maximum aggregate offering price per class of security
will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities
registered hereunder and is not specified as to each class of
security pursuant to General Instruction II.D. of Form S-3 under
the Securities Act.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act based
on the proposed maximum aggregate offering price of all securities
listed.
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The
registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or
until the registration statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
i
The information in this prospectus is not complete and may be
changed. We may not sell these securities or accept an offer to buy
these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities, and it is not soliciting
offers to buy these securities in any state or other jurisdiction
where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED August 26, 2021
PROSPECTUS
$125,000,000
Common Stock
Warrants
From
time to time, we may offer and sell an aggregate amount of up to
$125,000,000 of any combination
of the securities described in this prospectus, either individually
or in combination, in one or more offerings. We may also offer
securities as may be issuable upon conversion, redemption,
repurchase, exchange or exercise of any securities registered
hereunder, including any applicable antidilution
provisions.
This
prospectus describes some of the general terms that may apply to an
offering of our securities that we may offer. Each time we offer
securities, we will provide specific terms of the securities in one
or more supplements to this prospectus. We may also authorize one
or more free writing prospectuses to be provided to you in
connection with these offerings. The prospectus supplement and any
related free writing prospectus may also add, update or change
information contained in this prospectus. You should carefully read
this prospectus, the applicable prospectus supplement and any
related free writing prospectus, as well as any documents
incorporated by reference, before you invest in any of the
securities being offered.
This
prospectus may not be used to consummate a sale of any securities
unless accompanied by a prospectus supplement.
As of
August 19, 2021, the aggregate market value of our outstanding
common stock held by non-affiliates, or public float, was
approximately $17.8 million based on 5,828,981 shares of
outstanding common stock, at a price of $3.06 per share, which was
the last reported sale price of our common stock on the Nasdaq
Capital Market on August 19, 2021. We have not offered any
securities pursuant to General Instruction I.B.6 of Form S-3 during
the prior 12 calendar month period that ends on and includes the
date of this prospectus. Pursuant to General Instruction I.B.6 of
Form S-3, in no event will we sell securities registered on this
registration statement in a public primary offering with a value
exceeding more than one-third of our public float in any 12-month
period so long as our public float remains below $75.0
million.
The
applicable prospectus supplement will contain information, where
applicable, as to any other listing on Nasdaq or any securities
market or other exchange of the securities, if any, covered by the
applicable prospectus supplement.
We will
sell these securities directly to investors, through agents
designated from time to time or to or through underwriters or
dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section
titled “Plan of Distribution” in this prospectus. If
any agents or underwriters are involved in the sale of any
securities with respect to which this prospectus is being
delivered, the names of such agents or underwriters and any
applicable fees, commissions, discounts or over-allotment options
will be set forth in a prospectus supplement. The price to the
public of such securities and the net proceeds we expect to receive
from such sale will also be set forth in a prospectus
supplement.
Investing
in our securities involves a high degree of risk. You should review
carefully the risks and uncertainties described under the heading
“Risk Factors” contained in the applicable prospectus
supplement and any related free writing prospectus, and under
similar headings in the other documents that are incorporated by
reference into this prospectus as described on page 4 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The
date of this prospectus is ,
2021.
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TABLE OF CONTENTS
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iii
ABOUT THIS PROSPECTUS
This
prospectus is a part of a registration statement on Form S-3 that
we filed with the Securities and Exchange Commission, or the SEC,
utilizing a “shelf” registration process. Under this
shelf registration statement, we may offer and sell, either
individually or in any combination, the securities described in
this prospectus in one or more offerings from time to time up to a
total aggregate offering price of $125,000,000. This prospectus
provides you with a general description of the securities we may
offer.
Each
time we offer securities under this prospectus, we will provide a
prospectus supplement that will contain specific information about
the terms of that offering. We may also authorize one or more free
writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus
supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change
information contained in this prospectus or in any documents that
we have incorporated by reference into this prospectus. You should
carefully read this prospectus, any applicable prospectus
supplement and any related free writing prospectus, together with
the information incorporated herein by reference as described under
the heading “Incorporation of Certain Information by
Reference,” before investing in any of the securities
offered.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES
UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
You
should rely only on the information contained in, or incorporated
by reference into, this prospectus and any applicable prospectus
supplement, along with the information contained in any free
writing prospectuses we may authorize for use in connection with a
specific offering. We have not authorized anyone to provide you
with different or additional information. You must not rely upon
any information or representation not contained or incorporated by
reference in this prospectus, the accompanying prospectus
supplement or any related free writing prospectus that we may
authorize to be provided to you. This prospectus is an offer to
sell only the securities offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do
so.
The
information appearing in this prospectus, any applicable prospectus
supplement or any related free writing prospectus is accurate only
as of the date on the front of the document and any information we
have incorporated by reference is accurate only as of the date of
the document incorporated by reference, regardless of the time of
delivery of this prospectus, any applicable prospectus supplement
or any related free writing prospectus, or the time of any sale of
a security. Our business, financial condition, results of
operations and prospects may have changed since those
dates.
This
prospectus contains and/or incorporates by reference market data
and industry statistics and forecasts that are based on independent
industry publications and other publicly available information.
Although we believe that 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 and/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 heading “Risk
Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and under similar headings
in the other documents that are incorporated by reference into this
prospectus. Accordingly, investors should not place undue reliance
on this information.
This
prospectus and the information incorporated herein by reference
contain 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
section entitled “Where You Can Find More
Information.”
This
prospectus contains references to trademarks belonging to us and
other entities. Solely for convenience, trademarks and trade names
referred to in this prospectus, including logos, artwork and other
visual displays, 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 the rights of the applicable licensor to these trademarks
and trade names. 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.
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SUMMARY
The
following summary highlights
information contained elsewhere in this prospectus or incorporated
by reference into this prospectus. This summary is not complete and
does not contain all of the information that you need to consider
in making your investment decision. You should carefully read the
entire prospectus, the applicable prospectus supplement and any
related free writing prospectus, including the risks of investing
in our securities discussed under the heading “Risk
Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and under similar headings
in the other documents that are incorporated by reference into this
prospectus. You should also carefully read the information
incorporated by reference into this prospectus, including our
financial statements, and the exhibits to the registration
statement of which this
prospectus is a part.
As used in this
prospectus, unless otherwise indicated, the
terms “we,”
“us,” “our” “the
Company” and “ZIVO” refer
to Zivo Bioscience, Inc., a Nevada corporation.
Business Overview
We
are a research and development company operating in both the
biotech and agtech sectors, with an intellectual property portfolio
comprised of proprietary algal and bacterial strains, biologically
active molecules and complexes, production techniques, cultivation
techniques and patented or patent-pending inventions for
applications in human and animal health.
Biotech – ZIVO Product Candidates
ZIVO
has developed bioactive compounds derived from its proprietary
algal culture, targeting human and animal diseases, such as poultry
coccidiosis, bovine mastitis, human cholesterol, and rheumatoid
arthritis. As part of its strategy, ZIVO will continue to seek
strategic partners for late stage development, regulatory
preparation and commercialization of its products in key global
markets.
Agtech – ZIVO’s Algal Biomass
ZIVO’s
algal biomass is currently produced in Arizona, India and Peru.
ZIVO’s algal biomass contains Vitamin A, protein, iron,
important fatty acids, non-starch polysaccharides and other
micronutrients that position the product as a viable functional
food ingredient and nutritional enhancement for human and animal
use. The Company currently has contracts with NutriQuest, Grekin
Laboratories, and others for the sale of its algal
biomass.
ZIVO Pipeline
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Biotech:
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Poultry Gut
Health: ZIVO has conducted
multiple poultry clinical trials to develop and refine a treatment
for coccidiosis, a condition that inflames the digestive tracts of
poultry, currently treated with various antibiotics, antimicrobials
and chemicals.
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Bovine
Mastitis: ZIVO is developing a
treatment for bovine mastitis derived from its proprietary algal
culture and the bioactive agents contained
within.
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Canine Joint
Health: Studies have indicated
the potential of a chondroprotective property when our lead
compound fraction was introduced into ex vivo canine joint
tissues.
o
Human Immune
Modulation: Early human immune
cell in vitro and in vivo studies have indicated that one of the
isolated and characterized biologically active molecules in the
Company’s portfolio may serve as an immune
modulator.
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●
Agtech:
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Human Food
Ingredient: ZIVO algal biomass
was GRAS affirmed in late 2018 and is therefore available and
suitable for human consumption as an ingredient in foods and
beverages.
o
Joint/Exertion
Recovery: Previous animal
studies involving ZIVO’s algal biomass supported some early
evidence that ZIVO’s algal biomass may have potential health
benefits in animals, but further testing and validation is required
to make specific structure/function claims for human sports
nutrition applications, if any, per regulatory
requirements.
o
Poultry Feed: ZIVO anticipates that following
commercialization, dried ZIVO algal biomass would be mixed directly
into poultry feed at an estimated ratio of 1kg to 1000kg at the
feed mill and may be fed continuously from hatch to harvest, or at
certain time periods in the grow cycle.
o
Aquaculture: A third party aquafeed laboratory has
indicated to ZIVO that early research yielded positive results
regarding the suitability of ZIVO’s algal biomass for the
aquafeed market.
o
Skin Health: ZIVO is developing its algal biomass as a
skin health ingredient, with topical skin product testing started
in the third quarter of 2020, and pre-clinical efficacy claims
studies planned for ingestible and topical products.
Corporate
Information
We
were incorporated under the laws of the State of Nevada on March
28, 1983, under the name of “L. Peck Enterprises, Inc.”
On May 27, 1999, we changed our name to “Western Glory Hole,
Inc.” From 1990 until October 2003, we had no business
operations; we were in the development stage and were seeking
profitable business opportunities. On October 30, 2003, we acquired
100% of the outstanding shares of Health Enhancement Corporation
(“HEC”) in exchange for 9,000,000 of our shares, making
HEC our wholly-owned subsidiary. In connection with this
transaction, we changed our name to Health Enhancement Products,
Inc. On October 14, 2014, at the annual meeting of the stockholders
of the Company, a proposal was passed to change the name of the
Company from Health Enhancement Products, Inc. to ZIVO Bioscience,
Inc. (“ZIVO”). On October 30, 2014, the Financial
Industry Regulatory Authority (“FINRA”) approved the
name ZIVO Bioscience, Inc. for trading purposes and the symbol
change to ZIVO effective November 10, 2014.
The
Securities We May Offer
We may
offer shares of our common stock and warrants to purchase any of
such securities, up to a total aggregate offering price of
$125,000,000 from time to time in one or more offerings under this
prospectus, together with any applicable prospectus supplement and
any related free writing prospectus, at prices and on terms to be
determined by market conditions at the time of the relevant
offering. This prospectus provides you with a general description
of the securities we may offer. Each time we offer a type or series
of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and
other important terms of the securities, including, to the extent
applicable:
●
designation or
classification;
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aggregate principal
amount or aggregate offering price;
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maturity, if
applicable;
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original issue
discount, if any;
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rates and times of
payment of interest or dividends, if any;
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redemption,
conversion, exchange or sinking fund terms, if any;
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ranking, if
applicable;
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restrictive
covenants, if any;
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voting or other
rights, if any;
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conversion or
exchange prices or rates, if any, and, if applicable, any
provisions for changes to or adjustments in the conversion or
exchange prices or rates and in the securities or other property
receivable upon conversion or exchange; and
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important U.S.
federal income tax considerations.
The
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you may also add, update or
change information contained in this prospectus or in documents we
have incorporated by reference. However, no prospectus supplement
or free writing prospectus will offer a security that is not
registered and described in this prospectus at the time of the
effectiveness of the registration statement of which this
prospectus is a part.
We may
sell the securities directly to investors or through underwriters,
dealers or agents. We, and our underwriters or agents, reserve the
right to accept or reject all or part of any proposed purchase of
securities. If we do offer securities through underwriters or
agents, we will include in the applicable prospectus
supplement:
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the names of those
underwriters or agents;
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applicable fees,
discounts and commissions to be paid to them;
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details regarding
over-allotment options, if any; and
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the estimated net
proceeds to us.
This
prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
Common Stock.
Holders of our common stock are
entitled to one vote per share for the election of directors and on
all other matters that require stockholder approval, as further set
forth herein under the heading “Description of Common
Stock.” Our common stock does not carry any preemptive
rights enabling a holder to subscribe for, or receive shares of,
any class of our common stock or any other securities convertible
into shares of any class of our common stock, or any redemption
rights. We urge you, however, to read the applicable prospectus
supplement (and any related free writing prospectus) related to any
common stock being offered.
Warrants. From time
to time, we may issue warrants for the purchase of common stock, in
one or more series, from time to time. We may issue warrants
independently or in combination with common stock, and the warrants
may be attached to or separate from these securities. In this
prospectus, we have summarized certain general features of the
warrants under the heading “Description of Warrants.”
We urge you, however, to read the applicable prospectus supplement
(and any free writing prospectus that we may authorize to be
provided to you) related to the particular series of warrants being
offered, as well as the complete warrant agreements and warrant
certificates that contain the terms of the warrants. We have filed
forms of the warrant agreements and forms of warrant certificates
containing the terms of the warrants that we may offer as exhibits
to the registration statement of which this prospectus is a part.
We will file as exhibits to the registration statement of which
this prospectus is a part, or will be incorporated by reference
from reports that we file with the SEC, the form of warrant or the
warrant agreement and warrant certificate, as applicable, that
contain the terms of the particular series of warrants we are
offering, and any supplemental agreements, before the issuance of
such warrants.
Any
warrants issued under this prospectus may be evidenced by warrant
certificates. Warrants may be issued under a warrant agreement that
we enter into with a warrant agent. We will indicate the name and
address of the warrant agent, if applicable, in the prospectus
supplement relating to the particular series of warrants being
offered.
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RISK FACTORS
Investing in our securities
involves a high degree of risk. Before making an investment
decision, you should carefully consider the risks described under
“Risk Factors” in the applicable prospectus supplement,
together with all of the other information under similar headings
appearing in this prospectus or incorporated by reference into this
prospectus and any applicable prospectus supplement, in light of
your particular investment objectives and financial
circumstances. Our business, financial condition or results
of operations could be materially adversely affected by any of
these risks. The trading price of our securities could
decline due to any of these risks, and you may lose all or part of
your investment. This prospectus and the incorporated
documents also contain forward-looking statements that involve
risks and uncertainties. Our actual results could differ
materially from those anticipated in these forward-looking
statements as a result of certain factors, including the risks
mentioned elsewhere in this prospectus. You should also
consider the risks, uncertainties and assumptions discussed under
the heading “Risk Factors” included in our most
recent
Annual Report on Form 10-K, which is on file with the
SEC and incorporated herein by reference, and which may be amended,
supplemented or superseded from time to time by other reports we
file with the SEC in the future.
This
prospectus, including the documents that we incorporate by
reference, contains 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
Exchange Act of 1934, as amended (the “Exchange
Act”). Any statements about our expectations, beliefs, plans,
objectives, assumptions or future events or performance are not
historical facts and may be forward-looking. These statements are
often, but are not always, made through the use of words or phrases
such as “anticipates,” “could,”
“should,” “will,” “would,”
“may,” “potential,”
“contemplates,” “estimates,”
“plans,” “projects,”
“predicts,” “targets,”
“continuing,” “ongoing,”
“expects,” “management believes,” “we
believe,” “we intend” and similar words or
phrases. Accordingly, these statements involve estimates,
assumptions and uncertainties which could cause actual results to
differ materially from those expressed in them. Any forward-looking
statements are qualified in their entirety by reference to the
factors discussed throughout this prospectus, and in particular
those factors included in the sections entitled “Risk
Factors” in this prospectus and our most recent
Annual Report on Form 10-K, which is on file with the SEC and
incorporated herein by reference.
Because
the factors referred to in the preceding paragraph could cause
actual results or outcomes to differ materially from those
expressed in any forward-looking statements we make, you should not
place undue reliance on any such forward-looking statements.
Further, any forward-looking statement speaks only as of the date
on which it is made, and we undertake no obligation to update any
forward-looking statement or statements to reflect events or
circumstances after the date on which such statement is made or to
reflect the occurrence of unanticipated events. New factors emerge
from time to time, and it is not possible for us to predict which
factors will arise. In addition, we cannot assess the impact of
each factor on our business or the extent to which any factor, or
combination of factors, may cause actual results to differ
materially from those contained in any forward-looking
statements.
You
should carefully read this prospectus, any applicable prospectus
supplement and any related free writing prospectus, together
with the information incorporated herein or therein by reference as
described under the section titled “Incorporation of Certain
Information by Reference,” and with the understanding that
our actual future results may materially differ from what we
expect.
Except
as required by law, forward-looking statements speak only as of the
date they are made, and we assume no obligation to update any
forward-looking statements publicly, or to update the reasons why
actual results could differ materially from those anticipated in
any forward-looking statements, even if new information becomes
available.
4
We will retain broad
discretion over the use of the net proceeds from our sale of
securities offered hereby. Except as described in any applicable
prospectus supplement or in any related free writing prospectus
that we may authorize to be provided to you in connection with a
specific offering, we currently anticipate using the net proceeds
from our sale of securities offered hereby, if any, primarily for
general corporate purposes. We may also use a portion of
such net proceeds to in-license, acquire or invest in businesses or
products that we believe are complementary to our own, although we
have no current plans, commitments or agreements with respect to
any acquisitions of the date of this prospectus. We will set forth in the
applicable prospectus supplement or free writing prospectus our
intended use for the net proceeds received from the sale of any
securities sold pursuant to the prospectus supplement or free
writing prospectus.
5
The
following is a brief description of shares of common stock
(“common stock”) of ZIVO Bioscience, Inc. (the
“Company,” “we,” “us,” or
“our”). The brief description is based upon our
Articles of Incorporation, including the Certificate of Amendment
to our Articles of Incorporation, (as amended, our “Articles
of Incorporation”), our Bylaws (our “Bylaws”),
and provisions of applicable Nevada law. This summary does not
purport to be complete and is subject to, and qualified in its
entirety by, the full text of our Articles of Incorporation and
Bylaws, each of which is incorporated by reference as an exhibit to
our Annual Report on Form 10-K.
General
Our
Articles of Incorporation authorizes us to issue up to 150,000,000
shares of capital stock, par value $0.001 per share. Our Articles
of Incorporation authorizes our Board of Directors (our
“Board”) to determine, at any time and from time to
time, the number of authorized shares, as described
below.
Common Stock
Holders
of common stock are entitled to one vote per share on all matters
submitted to a vote of the stockholders. Our holders of common
stock do not have cumulative voting rights. Holders of common stock
will be entitled to receive ratably such dividends as may be
declared by the Board out of funds legally available therefor,
which may be paid in cash, property, or in shares of the
Company’s capital stock. Upon liquidation, dissolution or
winding up of the Company, either voluntarily or involuntarily, the
holders of common stock will be entitled to receive their ratable
share of the net assets of the Company legally available for
distribution after payment of all debts and other liabilities.
There are no conversion, preemptive or other subscription rights
and there are no sinking fund or redemption provisions applicable
to the common stock.
Dividends
We
have not declared or paid any dividends on our common stock since
our inception and do not anticipate paying dividends for the
foreseeable future. The payment of dividends is subject to the
discretion of our Board and will depend, among other things, upon
our earnings, our capital requirements, our financial condition,
and other relevant factors. We intend to reinvest any earnings in
the development and expansion of our business. Any cash dividends
in the future to common stockholders will be payable when, as and
if declared by our Board, based upon the board’s assessment
of our financial condition and performance, earnings, need for
funds, capital requirements, and other factors, including income
tax consequences, restrictions and applicable laws. There can be no
assurance, therefore, that any dividends on our common stock will
ever be paid.
Anti-Takeover Effects
The
following is a brief description of the provisions in our Articles
of Incorporation, Bylaws and Nevada Law that could have an effect
of delaying, deferring, or preventing a change in control of the
Company.
Business Combinations
We
are a Nevada corporation and are generally governed by the Nevada
Private Corporations Code, Title 78 of the Nevada Revised Statutes,
or NRS.
The
“business combination” provisions of Sections 78.411 to
78.444, inclusive, of the NRS, generally prohibit a Nevada
corporation with at least 200 stockholders from engaging in various
“combination” transactions with any interested
stockholder for a period of two years after the date of the
transaction in which the person became an interested stockholder,
unless the transaction is approved by the board of directors prior
to the date the interested stockholder obtained such status or the
combination is approved by the board of directors and thereafter is
approved at a meeting of the stockholders by the affirmative vote
of stockholders representing at least 60% of the outstanding voting
power held by disinterested stockholders, and extends beyond the
expiration of the two-year period, unless:
●
the
combination was approved by the board of directors prior to the
person becoming an interested stockholder or the transaction by
which the person first became an interested stockholder was
approved by the board of directors before the person became an
interested stockholder or the combination is later approved by a
majority of the voting power held by disinterested stockholders;
or
●
consideration
to be paid by the interested stockholder is at least equal to the
highest of: (a) the highest price per share paid by the interested
stockholder within the two years immediately preceding the date of
the announcement of the combination or in the transaction in which
it became an interested stockholder, whichever is higher, (b) the
market value per share of common stock on the date of announcement
of the combination and the date the interested stockholder acquired
the shares, whichever is higher, or (c) for holders of preferred
stock, the highest liquidation value of the preferred stock, if it
is higher.
6
A
“combination” is generally defined to include mergers
or consolidations or any sale, lease exchange, mortgage, pledge,
transfer, or other disposition, in one transaction or a series of
transactions, with an “interested stockholder” having:
(a) an aggregate market value equal to 5% or more of the aggregate
market value of the assets of the corporation, (b) an aggregate
market value equal to 5% or more of the aggregate market value of
all outstanding shares of the corporation, (c) 10% or more of the
earning power or net income of the corporation, and (d) certain
other transactions with an interested stockholder or an affiliate
or associate of an interested stockholder.
In
general, an “interested stockholder” is a person who,
together with affiliates and associates, owns (or within two years,
did own) 10% or more of a corporation’s voting stock. The
statute could prohibit or delay mergers or other takeover or change
in control attempts and, accordingly, may discourage attempts to
acquire our Company even though such a transaction may offer our
stockholders the opportunity to sell their stock at a price above
the prevailing market price.
Control Share Acquisitions
The
“control share” provisions of Sections 78.378 to
78.3793, inclusive, of the NRS apply to “issuing
corporations” that are Nevada corporations with at least 200
stockholders, including at least 100 stockholders of record who are
Nevada residents, and that conduct business directly or indirectly
in Nevada. The control share statute prohibits an acquirer, under
certain circumstances, from voting its shares of a target
corporation’s stock after crossing certain ownership
threshold percentages, unless the acquirer obtains approval of the
target corporation’s disinterested stockholders. The statute
specifies three thresholds: one-fifth or more but less than
one-third, one-third but less than a majority, and a majority or
more, of the outstanding voting power.
Generally,
once an acquirer crosses one of the above thresholds, those shares
in an offer or acquisition and acquired within 90 days thereof
become “control shares” and such control shares are
deprived of the right to vote until disinterested stockholders
restore the right. These provisions also provide that if control
shares are accorded full voting rights and the acquiring person has
acquired a majority or more of all voting power, all other
stockholders who do not vote in favor of authorizing voting rights
to the control shares are entitled to demand payment for the fair
value of their shares in accordance with statutory procedures
established for dissenters’ rights.
A
corporation may elect to not be governed by, or “opt
out” of, the control share provisions by making an election
in its articles of incorporation or bylaws, provided that the
opt-out election must be in place on the 10th day following the
date an acquiring person has acquired a controlling interest, that
is, crossing any of the three thresholds described above. We have
not opted out of the control share statutes, and will be subject to
these statutes if we are an “issuing corporation” as
defined in such statutes.
The
effect of the Nevada control share statutes is that the acquiring
person, and those acting in association with the acquiring person,
will obtain only such voting rights in the control shares as are
conferred by a resolution of the stockholders at an annual or
special meeting. The Nevada control share law, if applicable, could
have the effect of discouraging takeovers of our
Company.
Number of Directors; Vacancies; Removal
Our
Bylaws provide that our Board may increase or decrease the number
of directors or by stockholders at any meeting. Any vacancy on the
Board may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the Board. A
director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office, and shall hold such
office until his successor is duly elected and qualified. Any
directorship to be filled by reason of an increase in the number of
directors shall be filled by the affirmative vote of a majority of
the directors then in office or by an election at an annual
meeting, or at a special meeting of stockholders called for that
purpose. A director chosen to fill a position resulting from an
increase in the number of directors shall hold office only until
the next election of directors by the stockholder.
Our
Bylaws provide that any director or directors of the corporation
may be removed from office at any time, with or without cause, by
the vote or written consent of stockholders representing not less
than a majority of the issued and outstanding capital stock
entitled to voting power.
Authorized Shares
Without
any action by our shareholders, we may increase or decrease the
aggregate number of shares or the number of shares of any class we
have authority to issue at any time. The board shall have authority
to establish more than one class or series of shares of this
corporation, and the different classes and series shall have such
relative rights and preferences, with such designations, as the
board may by resolution provide. Issuance of such a new class or
series could, depending upon the terms of the class or series,
delay, defer, or prevent a change of control of the
Company.
Advance Notice Requirements for Stockholder Proposals and Director
Nominations
Our
Bylaws contain advance notice provisions that a stockholder must
follow if it intends to bring business proposals or director
nominations, as applicable, before a meeting of stockholders. These
provisions may preclude our stockholders from bringing matters
before the annual meeting of stockholders or from making
nominations at the annual meeting of stockholders.
7
No Cumulative Voting
Holders
of our common shares do not have cumulative voting rights in the
election of Directors. The absence of cumulative voting may make it
more difficult for shareholders owning less than a majority of our
common shares to elect any Directors to our Board.
LIMITATION ON LIABILITY AND INDEMNIFICATION OF DIRECTORS AND
OFFICERS
Section
78.138 of the NRS provides that, unless the corporation’s
articles of incorporation provide otherwise, a director or officer
will not be individually liable unless it is proven that (i) the
director’s or officer’s acts or omissions constituted a
breach of his or her fiduciary duties, and (ii) such breach
involved intentional misconduct, fraud, or a knowing violation of
the law.
Section
78.7502 of the NRS permits a company to indemnify its directors and
officers against expenses, judgments, fines, and amounts paid in
settlement actually and reasonably incurred in connection with a
threatened, pending, or completed action, suit, or proceeding, if
the officer or director (i) is not liable pursuant to NRS 78.138,
or (ii) acted in good faith and in a manner the officer or director
reasonably believed to be in or not opposed to the best interests
of the corporation and, if a criminal action or proceeding, had no
reasonable cause to believe the conduct of the officer or director
was unlawful. Section 78.7502 of the NRS requires a corporation to
indemnify a director or officer that has been successful on the
merits or otherwise in defense of any action or suit. Section
78.7502 of the NRS precludes indemnification by the corporation if
the officer or director has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals, to be liable to the
corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court determines that in
view of all the circumstances, the person is fairly and reasonably
entitled to indemnity for such expenses and requires a corporation
to indemnify its officers and directors if they have been
successful on the merits or otherwise in defense of any claim,
issue, or matter resulting from their service as a director or
officer.
Section
78.751 of the NRS permits a Nevada company to indemnify its
officers and directors against expenses incurred by them in
defending a civil or criminal action, suit, or proceeding as they
are incurred and in advance of final disposition thereof, upon
determination by the stockholders, the disinterested board members,
or by independent legal counsel. If so provided in the
corporation’s articles of incorporation, bylaws, or other
agreement, Section 78.751 of the NRS requires a corporation to
advance expenses as incurred upon receipt of an undertaking by or
on behalf of the officer or director to repay the amount if it is
ultimately determined by a court of competent jurisdiction that
such officer or director is not entitled to be indemnified by the
company. Section 78.751 of the NRS further permits the company to
grant its directors and officers additional rights of
indemnification under its articles of incorporation, bylaws, or
other agreement.
Section
78.752 of the NRS provides that a Nevada company may purchase and
maintain insurance or make other financial arrangements on behalf
of any person who is or was a director, officer, employee, or agent
of the company, or is or was serving at the request of the company
as a director, officer, employee, or agent of another company,
partnership, joint venture, trust, or other enterprise, for any
liability asserted against him and liability and expenses incurred
by him in his capacity as a director, officer, employee, or agent,
or arising out of his status as such, whether or not the company
has the authority to indemnify him against such liability and
expenses.
We
have entered into indemnification agreements with each of our
officers and directors to provide indemnification to the fullest
extent permitted by the NRS against expense, liability, and loss
reasonably incurred or suffered by them in connection with their
service as an officer or director. The agreements provide for
advance costs and expenses incurred with respect to any proceeding
to which a person is made a party as a result of being a director
or officer prior to or after final disposition of such proceeding
upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it is ultimately determined that
such person is not entitled to indemnification. We may purchase and
maintain liability insurance, or make other arrangements for such
obligations or otherwise, to the extent permitted by the
NRS.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to the Company’s directors, officers or
controlling persons pursuant to the provisions described above, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission (the “Commission”)
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
TRANSFER AGENT AND REGISTRAR
The
transfer agent and registrar for our common stock is Issuer Direct
Corporation.
LISTING
Our
common stock is currently quoted on The Nasdaq Capital Market under
the ticker symbol “ZIVO.”
8
The
following description, together with the additional information we
may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus, which may
consist of warrants to purchase common stock and may be issued in
one or more series. Warrants may be issued independently or
together with common stock offered by any prospectus supplement,
and may be attached to or separate from those securities. While the
terms we have summarized below will apply generally to any warrants
that we may offer under this prospectus, we will describe the
particular terms of any series of warrants that we may offer in
more detail in the applicable prospectus supplement and any
applicable free writing prospectus. The terms of any warrants
offered under a prospectus supplement may differ from the terms
described below. However, no prospectus supplement will
fundamentally change the terms that are set forth in this
prospectus or offer a security that is not registered and described
in this prospectus at the time of its effectiveness.
We have
filed forms of the warrant agreements as exhibits to the
registration statement of which this prospectus is a part. We will
file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of warrant agreement, if any,
including a form of warrant certificate, that describes the terms
of the particular series of warrants we are offering. The following
summaries of material provisions of the warrants and the warrant
agreements are subject to, and qualified in their entirety by
reference to, all the provisions of the warrant agreement and
warrant certificate applicable to the particular series of warrants
that we may offer under this prospectus. We urge you to read the
applicable prospectus supplements related to the particular series
of warrants that we may offer under this prospectus, as well as any
related free writing prospectuses, and the complete warrant
agreements and warrant certificates that contain the terms of the
warrants.
General
In the
applicable prospectus supplement, we will describe the terms of the
series of warrants being offered, including, to the extent
applicable:
●
the title of such
securities;
●
the offering price
or prices and aggregate number of warrants offered;
●
the currency or
currencies for which the warrants may be purchased;
●
the designation and
terms of the securities with which the warrants are issued and the
number of warrants issued with each such security or each principal
amount of such security;
●
the date on and
after which the warrants and the related securities will be
separately transferable;
●
the minimum or
maximum amount of such warrants which may be exercised at any one
time;
●
the effect of any
merger, consolidation, sale or other disposition of our business on
the warrant agreements and the warrants;
●
the terms of any
rights to redeem or call the warrants;
●
the terms of any
rights to force the exercise of the warrants;
●
any provisions for
changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants;
●
the dates on which
the right to exercise the warrants will commence and
expire;
●
the manner in which
the warrant agreements and warrants may be modified;
●
a discussion of any
material or special U.S. federal income tax considerations of
holding or exercising the warrants;
●
the terms of the
securities issuable upon exercise of the warrants; and
●
any other specific
terms, preferences, rights or limitations of or restrictions on the
warrants.
9
Before
exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such
exercise, including:
●
in the case of
warrants to purchase common stock, the right to receive dividends,
if any, or payments upon our liquidation, dissolution or winding up
or to exercise voting rights, if any.
Exercise of Warrants
Each
warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement.
Unless we otherwise specify in the applicable prospectus
supplement, holders of the warrants may exercise the warrants at
any time up to the specified time on the expiration date that we
set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will
become void.
Unless
we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants by delivering the
warrant certificate representing the warrants to be exercised
together with specified information, and paying the required amount
to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the
reverse side of the warrant certificate and in the applicable
prospectus supplement the information that the holder of the
warrant will be required to deliver to the warrant agent in
connection with the exercise of the warrant.
On
receipt of payment and the warrant or warrant certificate, as
applicable, properly completed and duly executed at the corporate
trust office of the warrant agent, if any, or any other office,
including ours, indicated in the prospectus supplement, we will, as
soon as practicable, issue and deliver the securities purchasable
on such exercise. If less than all of the warrants (or the warrants
represented by such warrant certificate) are exercised, a new
warrant or a new warrant certificate, as applicable, will be issued
for the remaining warrants.
Governing Law
Unless
we provide otherwise in the applicable prospectus supplement, the
warrants and warrant agreements, and any claim, controversy or
dispute arising under or related to the warrants or warrant
agreements, will be governed by and construed in accordance with
the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each
warrant agent, if any, will act solely as our agent under the
applicable warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than
one issue of warrants. A warrant agent will have no duty or
responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a warrant may, without the consent of
the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and
receive the securities purchasable upon exercise of, its
warrants.
10
We can
issue securities in registered form or in the form of one or more
global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in
their own names on the books that we or any applicable trustee or
depositary maintain for this purpose as the “holders”
of those securities. These persons are the legal holders of the
securities. We refer to those persons who, indirectly through
others, own beneficial interests in securities that are not
registered in their own names, as “indirect holders” of
those securities. As we discuss below, indirect holders are not
legal holders, and investors in securities issued in book-entry
form or in street name will be indirect holders.
Book-Entry Holders
We may
issue securities in book-entry form only, as we will specify in the
applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name
of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the
depositary’s book-entry system. These participating
institutions, which are referred to as participants, in turn, hold
beneficial interests in the securities on behalf of themselves or
their customers.
Only
the person in whose name a security is registered is recognized as
the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently,
for global securities, we will recognize only the depositary as the
holder of the securities, and we will make all payments on the
securities to the depositary. The depositary passes along the
payments it receives to its participants, which in turn pass the
payments along to their customers who are the beneficial owners.
The depositary and its participants do so under agreements they
have made with one another or with their customers; they are not
obligated to do so under the terms of the securities.
As a
result, investors in a global security will not own securities
directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution
that participates in the depositary’s book-entry system or
holds an interest through a participant. As long as the securities
are issued in global form, investors will be indirect holders, and
not legal holders, of the securities.
Street Name Holders
We may
terminate a global security or issue securities that are not issued
in global form. In these cases, investors may choose to hold their
securities in their own names or in “street name.”
Securities held by an investor in street name would be registered
in the name of a bank, broker or other financial institution that
the investor chooses, and the investor would hold only a beneficial
interest in those securities through an account he or she maintains
at that institution.
For
securities held in street name, we or any applicable trustee or
depositary will recognize only the intermediary banks, brokers and
other financial institutions in whose names the securities are
registered as the holders of those securities, and we or any such
trustee or depositary will make all payments on those securities to
them. These institutions pass along the payments they receive to
their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they
are legally required to do so. Investors who hold securities in
street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our
obligations, as well as the obligations of any applicable trustee
or third party employed by us or a trustee, run only to the legal
holders of the securities. We do not have obligations to investors
who hold beneficial interests in global securities, in street name
or by any other indirect means. This will be the case whether an
investor chooses to be an indirect holder of a security or has no
choice because we are issuing the securities only in global
form.
For
example, once we make a payment or give a notice to the legal
holder, we have no further responsibility for the payment or notice
even if that legal holder is required, under agreements with its
participants or customers or by law, to pass it along to the
indirect holders but does not do so. Similarly, we may want to
obtain the approval of the holders to amend an indenture, to
relieve us of the consequences of a default or of our obligation to
comply with a particular provision of an indenture, or for other
purposes. In such an event, we would seek approval only from the
legal holder, and not the indirect holders, of the securities.
Whether and how the legal holders contact the indirect holders is
up to the legal holders.
Special Considerations for Indirect Holders
If you
hold securities through a bank, broker or other financial
institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you
should check with your own institution to find out:
●
how it handles
securities payments and notices;
●
whether it imposes
fees or charges;
●
how it would handle
a request for the holders’ consent, if ever
required;
11
●
whether and how you
can instruct it to send you securities registered in your own name
so you can be a holder, if that is permitted in the
future;
●
how it would
exercise rights under the securities if there were a default or
other event triggering the need for holders to act to protect their
interests; and
●
if the securities
are in book-entry form, how the depositary’s rules and
procedures will affect these matters.
Global Securities
A
global security is a security that represents one or any other
number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have
the same terms.
Each
security issued in book-entry form will be represented by a global
security that we issue to, deposit with and register in the name of
a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC, New York, New York, will be the
depositary for all securities issued in book-entry
form.
A
global security may not be transferred to or registered in the name
of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We
describe those situations below under “—Special
Situations When a Global Security Will Be Terminated.” As a
result of these arrangements, the depositary, or its nominee, will
be the sole registered owner and legal holder of all securities
represented by a global security, and investors will be permitted
to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank
or other financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor
whose security is represented by a global security will not be a
legal holder of the security, but only an indirect holder of a
beneficial interest in the global security.
If the
prospectus supplement for a particular security indicates that the
security will be issued as a global security, then the security
will be represented by a global security at all times unless and
until the global security is terminated. If termination occurs, we
may issue the securities through another book-entry clearing system
or decide that the securities may no longer be held through any
book-entry clearing system.
Special Considerations for Global Securities
As an
indirect holder, an investor’s rights relating to a global
security will be governed by the account rules of the
investor’s financial institution and of the depositary, as
well as general laws relating to securities transfers. We do not
recognize an indirect holder as a holder of securities and instead
deal only with the depositary that holds the global
security.
If
securities are issued only as global securities, an investor should
be aware of the following:
●
an investor cannot
cause the securities to be registered in his or her name, and
cannot obtain non-global certificates for his or her interest in
the securities, except in the special situations we describe
below;
●
an investor will be
an indirect holder and must look to his or her own bank or broker
for payments on the securities and protection of his or her legal
rights relating to the securities, as we describe
above;
●
an investor may not
be able to sell interests in the securities to some insurance
companies and to other institutions that are required by law to own
their securities in non-book-entry form;
●
an investor may not
be able to pledge his or her interest in the global security in
circumstances where certificates representing the securities must
be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective;
●
the
depositary’s policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in the global
security;
●
we and any
applicable trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership
interests in the global security, nor will we or any applicable
trustee supervise the depositary in any way;
●
the depositary may,
and we understand that DTC will, require that those who purchase
and sell interests in the global security within its book-entry
system use immediately available funds, and your broker or bank may
require you to do so as well; and
●
financial
institutions that participate in the depositary’s book-entry
system, and through which an investor holds its interest in the
global security, may also have their own policies affecting
payments, notices and other matters relating to the
securities.
12
There
may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those
intermediaries.
Special Situations When a Global Security Will Be
Terminated
In a
few special situations described below, a global security will
terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the
choice of whether to hold securities directly or in street name
will be up to the investor. Investors must consult their own banks
or brokers to find out how to have their interests in securities
transferred to their own names, so that they will be direct
holders. We have described the rights of holders and street name
investors above.
Unless
we provide otherwise in the applicable prospectus supplement, the
global security will terminate when the following special
situations occur:
●
if the depositary
notifies us that it is unwilling, unable or no longer qualified to
continue as depositary for that global security and we do not
appoint another institution to act as depositary within 90
days;
●
if we notify any
applicable trustee that we wish to terminate that global security;
or
●
if an event of
default has occurred with regard to securities represented by that
global security and has not been cured or waived.
The
applicable prospectus supplement may also list additional
situations for terminating a global security that would apply only
to the particular series of securities covered by the prospectus
supplement. When a global security terminates, the depositary, and
neither we nor any applicable trustee, is responsible for deciding
the names of the institutions that will be the initial direct
holders.
13
We may
sell the securities from time to time pursuant to underwritten
public offerings, negotiated transactions, block trades or a
combination of these methods. We may sell the securities to or
through underwriters or dealers, through agents or directly to one
or more purchasers. We may distribute securities from time to time
in one or more transactions:
●
at a fixed price or
prices, which may be changed;
●
at market prices
prevailing at the time of sale;
●
at prices related
to such prevailing market prices; or
●
at negotiated
prices.
We may
also sell equity securities covered by this registration statement
in an “at the market offering” as defined in Rule 415
under the Securities Act. Such offering may be made into an
existing trading market for such securities in transactions at
other than a fixed price, either:
●
on or through the
facilities of Nasdaq or any other securities exchange or quotation
or trading service on which such securities may be listed, quoted
or traded at the time of sale; and/or
●
to or through a
market maker other than on Nasdaq or such other securities
exchanges or quotation or trading services.
Such at
the market offerings, if any, may be conducted by underwriters
acting as principal or agent.
A
prospectus supplement or supplements (and any related free writing
prospectus that we may authorize to be provided to you) will
describe the terms of the offering of the securities, including, to
the extent applicable:
●
the name or names
of any underwriters, dealers or agents, if any;
●
the purchase price
of the securities and the proceeds we will receive from the
sale;
●
any over-allotment
options under which underwriters may purchase additional securities
from us;
●
any agency fees or
underwriting discounts and other items constituting agents’
or underwriters’ compensation;
●
any public offering
price;
●
any discounts or
concessions allowed or reallowed or paid to dealers;
and
●
any securities
exchange or market on which the securities may be
listed.
Only
underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
14
If
underwriters are used in the sale, they will acquire the securities
for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price
or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement. Any public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement, naming the underwriter, the
nature of any such relationship.
We may
sell securities directly or through agents we designate from time
to time. We will name any agent involved in the offering and sale
of securities, and we will describe any commissions we will pay the
agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the
conditions to these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus
supplement.
We may
provide agents and underwriters with indemnification against civil
liabilities related to this offering, including liabilities under
the Securities Act, or contribution with respect to payments that
the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in transactions
with, or perform services for, us in the ordinary course of
business.
All
securities we offer, other than common stock, will be new issues of
securities with no established trading market. Any underwriters may
make a market in these securities, but will not be obligated to do
so and may discontinue any market making at any time without
notice. We cannot guarantee the liquidity of the trading markets
for any securities.
Any
underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids. Overallotment
involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of
the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the
securities originally sold by the dealer are purchased in a
stabilizing or covering transaction to cover short positions. Those
activities may cause the price of the securities to be higher than
it would otherwise be. If commenced, the underwriters may
discontinue any of the activities at any time. These transactions
may be effected on any exchange or over-the-counter market or
otherwise.
Any
underwriters who are qualified market makers on Nasdaq may engage
in passive market making transactions in the securities on Nasdaq
in accordance with Rule 103 of Regulation M, during the business
day prior to the pricing of the offering, before the commencement
of offers or sales of the securities. Passive market makers must
comply with applicable volume and price limitations and must be
identified as passive market makers. In general, a passive market
maker must display its bid at a price not in excess of the highest
independent bid for such security; if all independent bids are
lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded. Passive market making may stabilize
the market price of the securities at a level above that which
might otherwise prevail in the open market and, if commenced, may
be discontinued at any time.
15
Unless otherwise
indicated in the applicable prospectus supplement, the validity of
the securities offered by this prospectus, and any supplement
thereto, will be passed upon for us by Fennemore Craig,
P.C., Reno, Nevada. Additional legal matters may be
passed upon for us or any underwriters, dealers or agents, by
counsel that we will name in the applicable prospectus
supplement.
The
financial statements of the Company as of December 31, 2020 and
2019, and for each of the two years in the period ended December
31, 2020, incorporated by reference in this prospectus have been so
incorporated in reliance on the report of Wolinetz, Lafazan &
Co., P.C., an independent registered public accounting firm,
incorporated herein by reference, given on the authority of said
firm as experts in auditing and accounting. The report on the
financial statements contains an explanatory paragraph regarding
the Company’s ability to continue as a going
concern.
This prospectus is part
of the registration statement on Form S-3 we filed with the SEC
under the Securities Act and does not contain all the information
set forth in the registration statement. Whenever a reference is
made in this prospectus to any of our contracts, agreements or
other documents, the reference may not be complete and you should
refer to the exhibits that are a part of the registration statement
or the exhibits to the reports or other documents incorporated by
reference into this prospectus for a copy of such contract,
agreement or other document. We file reports, proxy statements and
other information with the SEC in accordance with the Exchange Act.
You may read and copy our reports, proxy statements and other
information filed with the SEC on the SEC’s website
at http://www.sec.gov.
We “incorporate
by reference” certain documents and information that we have
filed with the SEC into this prospectus, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is deemed to
be part of this prospectus, except for any information superseded
by information contained directly in this prospectus. This
prospectus incorporates by reference:
|
|
●
|
our Annual Report on Form 10-K for the fiscal year ended
December 31, 2020, filed with the SEC on February
25, 2021, as
amended on April
30, 2021;
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|
|
●
|
our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2021, filed with
the SEC on
May 17, 2021, and the quarter ended June 30, 2021, filed with
the SEC on
August 16, 2021;
|
|
|
●
|
our Current Reports on Form 8-K filed with the SEC
on January
7, 2021,
February 12, 2021, and
June 2, 2021; and
|
|
|
●
|
the description of our Common Stock in Exhibit 4.2 to our Annual
Report on Form 10-K for the fiscal year ended December 31, 2020,
filed with the SEC on March
26, 2020.
|
All documents we file
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, except as to any portion of any report or document
that is not deemed filed under such provisions, (i) on or after the
date of filing of the registration statement containing this
prospectus and prior to the effectiveness of the registration
statement and (ii) on or after the date of this prospectus until
the earlier of the date on which all of the securities registered
hereunder have been sold or the registration statement of which
this prospectus is a part has been withdrawn, shall be deemed
incorporated by reference in this prospectus and to be a part of
this prospectus from the date of filing of those documents.
Nothing in this prospectus shall be deemed to incorporate
information furnished but not filed with the SEC pursuant to Item
2.02 or 7.01 of Form 8-K.
These documents may also be accessed on our
website at www.n1mtc.com. Information contained in, or
accessible through, our website is not a part of this prospectus.
The SEC also maintains a website at www.sec.gov that contains reports, proxy and information
statements, and information regarding issuers that file
electronically with the SEC.
We
will provide without charge to each person, including any
beneficial owners, to whom this prospectus is delivered, upon his
or her written or oral request, a copy of any or all reports or
documents referred to above which have been or may be incorporated
by reference into this prospectus but not delivered with this
prospectus, excluding exhibits to those reports or documents unless
they are specifically incorporated by reference into those
documents. You may request a copy of these documents by writing or
telephoning us at the following address:
Zivo Bioscience, Inc.
2804 Orchard Lake Rd., Suite 202
Keego Harbor, MI 48320
Attn: Keith Marchiando
Phone: (248) 452
9866
E-mail: investors@zivobioscience.com
Any statements contained in a document
incorporated by reference in this prospectus shall be deemed to be
modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus (or in any
other subsequently filed document which also is incorporated by
reference in this prospectus) modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed to constitute a part of this prospectus except as so
modified or superseded.
16
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses, other
than underwriting discounts and commissions, payable by us in
connection with the offering of the securities being registered.
All the amounts shown are estimates, except for the SEC
registration fee.
|
SEC registration
fee
|
$13.637.50
|
|
FINRA filing
fee
|
*
|
|
Accounting fees and
expenses
|
*
|
|
Legal fees and
expenses
|
*
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|
Transfer agent fees
and expenses
|
*
|
|
Trustee fees and
expenses
|
*
|
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Printing and
miscellaneous expenses
|
*
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Total
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$*
|
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*
|
These
fees are calculated based on the securities offered and the number
of issuances and, accordingly, cannot be estimated at this
time.
|
||||
Item 15. Indemnification of Directors and Officers
We are
incorporated in Nevada. Section 78.7502(1) of the NRS, provides
that a corporation may indemnify, pursuant to that statutory
provision, any person who was or is a party or is threatened to be
made a party 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 the
corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
or her in connection with such action, suit or proceeding if he is
not liable pursuant to NRS 78.138 or if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. NRS 78.138(7) provides that,
subject to limited statutory exceptions and unless the articles of
incorporation or an amendment thereto (in each case filed on or
after October 1, 2003) provide for greater individual liability, a
director or officer is not individually liable to the corporation
or its stockholders or creditors for any damages as a result of any
act or failure to act in his or her capacity as a director or
officer unless the presumption established by NRS 78.138(3) has
been rebutted and it is proven that (i) his or her act or failure
to act constituted a breach of his or her fiduciary duties as a
director or officer, and (ii) such breach involved intentional
misconduct, fraud or a knowing violation of the law.
NRS
78.7502(2) permits a corporation to indemnify, pursuant to that
statutory provision, any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above against
expenses, including amounts paid in settlement and attorneys’
fees actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he acted
under similar standards, except that no indemnification pursuant to
NRS 78.7502 may be made in respect of any claim, issue or matter as
to which such person shall have been adjudged by a court of
competent jurisdiction, after any appeals taken therefrom, to be
liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which
such action or suit was brought or other court of competent
jurisdiction determines that, in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper. NRS
78.751(1) provides that a corporation shall indemnify any person
who is a director, officer, employee or agent of the corporation,
against expenses actually and reasonably incurred by the person in
connection with defending an action (including, without limitation,
attorney’s fees), to the extent that the person is successful
on the merits or otherwise in defense of any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including, without limitation, an
action by or in the right of the corporation, by reason of the fact
that the person is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
or any claim, issue or matter in such action.
NRS
78.751 provides that the indemnification pursuant to NRS 78.7502
shall not be deemed exclusive or exclude any other rights to which
the indemnified party may be entitled (except that indemnification
may not be made to or on behalf of any director or officer finally
adjudged by a court of competent jurisdiction, after exhaustion of
any appeals taken therefrom, to be liable for intentional
misconduct, fraud or a knowing violation of the law and such
intentional misconduct, fraud or a knowing violation of the law was
material to the cause of action) and that the indemnification shall
continue as to directors, officers, employees or agents who have
ceased to hold such positions, and to their heirs, executors and
administrators. NRS 78.752 permits a corporation to purchase and
maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him
or her or incurred by him or her in any such capacity or arising
out of his or her status as such whether or not the corporation
would have the power to indemnify him or her against such
liabilities.
II-1
Bylaws
Our
bylaws include express provisions providing for the indemnification
of our directors and officers to the fullest extent permitted under
the NRS, and the mandatory payment by us of expenses incurred by
such persons in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of the action, suit
or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately
determined that such person is not entitled to be indemnified by
us. Our bylaws also permit us to purchase and maintain insurance or
make other financial arrangements on behalf of any such person for
certain liability and expenses, whether or not we have the
authority to indemnify such person against such liability and
expenses.
See
also the undertakings set out in response to Item 17
herein.
II-2
Item 16. Exhibits
The
following exhibits are incorporated by reference or filed herewith
and made a part of this registration statement.
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EXHIBIT NUMBER
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DESCRIPTION OF DOCUMENT
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1
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*
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Form of
Underwriting Agreement
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Articles
of Incorporation of the Registrant as amended (incorporated by
reference to Exhibit 3.1 to the Registrant’s Quarterly Report
on Form 10-Q filed on August 22, 2011)
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Certificate
of Amendment to Articles of Incorporation dated October 16, 2014
(incorporated by reference to Exhibit 3.12 to the
Registrant’s Quarterly Report on Form 10-Q filed on November
14, 2014)
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Certificate
to Amendment dated May 28, 2021 (incorporated by reference to
Exhibit 3.1 to the Registrant’s Current Report on Form 8-K
filed on June 2, 2021)
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Amended
and Restated By-laws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant’s Current Report on Form
10-Q filed on May 17, 2010)
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**
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Form of Common Stock Certificate
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**
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Form of Common Stock Warrant
Agreement and Warrant Certificate
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**
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Opinion of Fennemore Craig,
P.C.
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**
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Consent of Wolinetz, Lafazan
& Company, P.C.
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**
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Consent of Fennemore Craig,
P.C. (included in Exhibit 5.1 filed herewith)
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**
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Power of Attorney (included
on signature page)
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*
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If
required, to be filed by amendment or as an exhibit to a report
filed under the Exchange Act and incorporated herein by
reference.
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**
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Filed
herewith.
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II-3
Item 17. Undertakings
The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i)
To include any
prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
To include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that paragraphs
(1)(i), (1)(ii) and (1)(iii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement or are contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of
this registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i)
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 that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(5)
That, for the purpose of determining liability of the registrant
under the Securities Act 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;
II-4
(iii)
The portion of any
other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
(iv)
Any other
communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the
Securities Act 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.
Insofar
as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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 Keego
Harbor, State of Michigan, on August 26, 2021.
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Zivo Bioscience, Inc.
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By:
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/s/ Keith Marchiando
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Keith Marchiando
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Chief Financial Officer
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POWER OF ATTORNEY
Each
person whose signature appears below constitutes and appoints
Andrew Dahl and Keith Marchiando, or either of them, as his or her
true and lawful attorneys-in-fact and agents, with the full power
of substitution and resubstitution, 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 file the same, with all 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 connection therewith, 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 any of them, or their or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following
persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Andrew Dahl
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August
26, 2021
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Andrew
Dahl
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President,
Chief Executive
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Officer,
and Director (Principal Executive Officer)
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/s/ Keith Marchiando
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Keith
Marchiando
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Chief
Financial Officer (Principal
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August
26, 2021
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Accounting
and Financial Officer)
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/s/ Christopher Maggiore
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Christopher
Maggiore
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Director
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August
26, 2021
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/s/ Nola Masterson
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Nola
Masterson
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Director
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August
26, 2021
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/s/ John Payne
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John
Payne
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Director
|
August
26, 2021
|
|
|
|
|
|
/s/ Robert Rondeau
|
|
|
|
Robert
Rondeau
|
Director
|
August
26, 2021
|
|
/s/ Alison Cornell
|
|
|
|
Alison
Cornell
|
Director
|
August
26, 2021
|
