SEC Form S-1 filed by Nuwellis Inc.

*

Indicates beneficial ownership of less than one percent.

(1)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement (as defined below) and consist of 595,238 shares of common stock issuable upon the exercise of 595,238 of the Series I Warrants and 595,238 shares of common stock issuable upon the exercise of 595,238 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The shares of common stock are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (“Master Fund”), and may be deemed to be beneficially owned by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment manager of Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. Armistice Capital has sole voting and dispositive control of the shares reported herein. The address of Master Fund is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022.

(2)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement and consist of 423,809 shares of common stock issuable upon the exercise of 423,809 of the Series I Warrants and 423,809 shares of common stock issuable upon the exercise of 423,809 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of

(3)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement and consist of 145,873 shares of common stock issuable upon the exercise of 145,873 of the Series I Warrants and 145,873 shares of common stock issuable upon the exercise of 145,873 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The shares of common stock are directly held by Bigger Capital Fund, LP, a Delaware limited partnership (“Bigger Capital”), and may be deemed to be beneficially owned by: (i) Bigger Capital GP, LLC, as the general partner of Bigger Capital and (ii) Michael Bigger, as the Managing Member of Bigger Capital GP, LLC. Bigger Capital GP, LLC has sole voting and dispositive control of the shares reported herein. The address of Bigger Capital is 11700 W. Charleston Blvd. #170-659, Las Vegas, Nevada, 89135.

(4)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement and consist of 297,619 shares of common stock issuable upon the exercise of 297,619 of the Series I Warrants and 297,619 shares of common stock issuable upon the exercise of 297,619 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The shares of common stock are directly held by District 2 Capital Fund, LP, a Delaware limited partnership (“District 2 Capital”), and may be deemed to be beneficially owned by: (i) District 2 GP LLC, as the general partner of District 2 Capital and (ii) Michael Bigger, as the Managing Member of District 2 GP LLC. District 2 GP LLC has sole voting and dispositive control of the shares reported herein. The address of District 2 Capital is 14 Wall Street, 2^nd Floor, Huntington, New York, 11743.

(5)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement and consist of 4,835 shares of common stock issuable upon the exercise of 4,835 of the Series I Warrants and 4,835 shares of common stock issuable upon the exercise of 4,835 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The shares of common stock are directly held by Alto Opportunity Master Fund, SPC – Segregated Master Fund Portfolio B, a Cayman Islands exempted company (“Alto Opportunity”), and may be deemed to be beneficially owned by: (i) Ayrton Capital, LLC (“Ayrton Capital”), as the investment manager of the Alto Opportunity; and (ii) Waqas Khatri, as the Managing Member of Ayrton Capital. Ayrton Capital has sole voting and dispositive control of the shares reported herein. The address of Alto Opportunity is c/o Ayrton Capital, 55 Post Road West, 2nd Floor, Westport, Connecticut, 06880.

(6)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement and consist of 160,000 shares of common stock issuable upon the exercise of 160,000 of the Series I Warrants and 160,000 shares of common stock issuable upon the exercise of 160,000 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The shares of common stock are directly held by L1 Capital Global Opportunities Master Fund, a Cayman Islands exempted company (“L1 Capital”), and may be deemed to be beneficially owned by: (i) David Feldman and (ii) Joel Arber, each of whom are directors of L1, and have shared voting and shared dispositive control of the shares reported herein. The address of L1 Capital is 161A Shedden Road, 1 Artillery Court, PO Box 10085, Grand Cayman KY1-1001, Cayman Islands.

(7)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement and consist of 130,000 shares of common stock issuable upon the exercise of 130,000 of the Series I Warrants and 130,000 shares of common stock issuable upon the exercise of 130,000 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The shares of common stock are directly held by Intracoastal Capital, LLC, a Delaware limited liability company (“Intracoastal”). Mitchell P. Kopin (“Mr. Kopin”) and Daniel B. Asher (“Mr. Asher”), each of whom are managers of Intracoastal, have shared voting control and investment discretion over the securities reported herein that are held by Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the securities reported herein that are held by Intracoastal.

(8)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement and consist of 58,393 shares of common stock issuable upon the exercise of 58,393 of the Series I Warrants and 58,393 shares of common stock issuable upon the exercise of 58,393 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The shares of common stock are directly held by Connective Capital Emerging Energy QP LP, a Delaware limited partnership (“Connective Emerging Energy”), and may be deemed to be beneficially owned by: Robert Romero (“Mr. Romero”), who is the Chief Executive Officer of Connective Capital I, and has sole voting and dispositive control of the shares reported herein. The address of Connective Capital is 720 University Avenue, Suite 100, Palo Alto, CA 94301.

(9)

The shares of common stock registered hereby were acquired in the November 2024 Warrant Inducement and consist of 16,750 shares of common stock issuable upon the exercise of 16,750 of the Series I Warrants and 16,750 shares of common stock issuable upon the exercise of 16,750 of the Series II Warrants. The Series I Warrants and Series II Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The shares of common stock are directly held by Connective Capital I QP LP, a Delaware limited partnership (“Connective Capital I”), and may be deemed to be beneficially owned by: Robert Romero (“Mr. Romero”), who is the Chief Executive Officer of Connective Capital I, and has sole voting and dispositive control of the shares reported herein. The address of Connective Capital is 720 University Avenue, Suite 100, Palo Alto, CA 94301.

(10)

The shares of common stock registered hereby were acquired in the (i) August Private Placement (as defined below) and consist of 5,800 shares of common stock issuable upon the exercise of 5,800 of the August PA Warrants and (ii) November 2024 Warrant

(11)

The shares of common stock registered hereby were acquired in the (i) August Private Placement (as defined below) and consist of 6,913 shares of common stock issuable upon the exercise of 6,913 of the August PA Warrants and (ii) November 2024 Warrant Inducement and consist of 24,739 shares of common stock issuable upon the exercise of 24,739 of the November PA Warrants. The August PA Warrants and November PA Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. Mr. Stergis is affiliated with Ladenberg Thalmann & Co. Inc., a registered broker dealer with a registered address 640 Fifth Avenue, 4th Floor, New York, NY 10019, and has sole voting and dispositive power over the securities held. The Selling Stockholder acquired the Placement Agent Warrants in the ordinary course of business and, at the time the Placement Agent Warrants were acquired, the Selling Stockholder had no agreement or understanding, directly or indirectly, with any person to distribute such securities.

(12)

The shares of common stock registered hereby were acquired in the (i) August Private Placement (as defined below) and consist of 894 shares of common stock issuable upon the exercise of 894 of the August PA Warrants and (ii) November 2024 Warrant Inducement and consist of 3,299 shares of common stock issuable upon the exercise of 3,299 of the November PA Warrants. The August PA Warrants and November PA Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. Mr. Coherd is affiliated with Ladenberg Thalmann & Co. Inc., a registered broker dealer with a registered address 640 Fifth Avenue, 4th Floor, New York, NY 10019, and has sole voting and dispositive power over the securities held. The Selling Stockholder acquired the Placement Agent Warrants in the ordinary course of business and, at the time the Placement Agent Warrants were acquired, the Selling Stockholder had no agreement or understanding, directly or indirectly, with any person to distribute such securities.

(13)

The shares of common stock registered hereby were acquired in the (i) August Private Placement (as defined below) and consist of 447 shares of common stock issuable upon the exercise of 447 of the August PA Warrants and (ii) November 2024 Warrant Inducement and consist of 1,649 shares of common stock issuable upon the exercise of 1,649 of the November PA Warrants. The August PA Warrants and November PA Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. Mr. Weinberger is affiliated with Ladenberg Thalmann & Co. Inc., a registered broker dealer with a registered address 640 Fifth Avenue, 4th Floor, New York, NY 10019, and has sole voting and dispositive power over the securities held. The Selling Stockholder acquired the Placement Agent Warrants in the ordinary course of business and, at the time the Placement Agent Warrants were acquired, the Selling Stockholder had no agreement or understanding, directly or indirectly, with any person to distribute such securities.

(14)

The shares of common stock registered hereby were acquired in the (i) August Private Placement (as defined below) and consist of 447 shares of common stock issuable upon the exercise of 447 of the August PA Warrants and (ii) November 2024 Warrant Inducement and consist of 3,299 shares of common stock issuable upon the exercise of 3,299 of the November PA Warrants. The August PA Warrants and November PA Warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Securityholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. Mr. Moorefield is affiliated with Ladenberg Thalmann & Co. Inc., a registered broker dealer with a registered address 640 Fifth Avenue, 4th Floor, New York, NY 10019, and has sole voting and dispositive power over the securities held. The Selling Stockholder acquired the Placement Agent Warrants in the ordinary course of business and, at the time the Placement Agent Warrants were acquired, the Selling Stockholder had no agreement or understanding, directly or indirectly, with any person to distribute such securities.

•

each person, or group of affiliated persons, who we know to beneficially own more than 5% of our common stock;

•

each of our named executive officers and directors; and

•

all of our executive officers and directors as a group.

*

Less than one percent.

(1)

Except as otherwise described below, amounts reflect the number of shares that such holder could acquire through (i) the exercise of outstanding stock options, (ii) the vesting/settlement of outstanding RSUs, (iii) the exercise of outstanding warrants to purchase common stock, and (iv) the conversion of outstanding Series F Preferred Stock, in each case within 60 days after November 8, 2024.

(2)

Based on 4,373,968 shares outstanding as of November 8, 2024.

(3)

Consists of (i) 67 shares issuable upon the exercise of outstanding stock options and (ii) 68,961 shares issuable upon conversion of outstanding shares of Series F Convertible Preferred Stock (assuming all 127 shares of Series F Convertible Preferred Stock held by Mr. Erb are converted at once and rounded up to the nearest whole share).

•

ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

•

block trades in which the broker-dealer will attempt to sell the shares of common stock as agent but may position and resell a portion of the block as principal to facilitate the transaction;

•

purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

•

an exchange distribution in accordance with the rules of the applicable exchange;

•

privately negotiated transactions;

•

settlement of short sales;

•

in transactions through broker-dealers that agree with the Selling Securityholders to sell a specified number of such shares of common stock at a stipulated price per share of common stock;

•

through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;

•

a combination of any such methods of sale; or

•

any other method permitted pursuant to applicable law.

•

the number of directors on our board of directors, the classification of our board of directors and the terms of the members of our board of directors;

•

the limitations on removal of any of our directors described below under “Description of our Capital Stock – Anti-Takeover Effects of Certain Provisions of Our Certificate of Incorporation and Bylaws and Delaware Law;”

•

the ability of our directors to fill any vacancy on our board of directors by the affirmative vote of a majority of the directors then in office under certain circumstances;

•

the ability of our board of directors to adopt, amend or repeal our bylaws and the super-majority vote of our stockholders required to adopt, amend or repeal our bylaws described above;

•

the limitation on action of our stockholders by written action described below under “Description of Capital Stock – Anti-Takeover Effects of Certain Provisions of Our Certificate of Incorporation and Bylaws and Delaware Law;”

•

the choice of forum provision described below under “Description of our Capital Stock – Choice of Forum;”

•

the limitations on director liability and indemnification described below under the heading “Description of our Capital Stock – Limitation on Liability of Directors and Indemnification;” and

•

the super-majority voting requirement to amend our certificate of incorporation described above.

•

providing for our board of directors to be divided into three classes with staggered three-year terms, with only one class of directors being elected at each annual meeting of our stockholders and the other classes continuing for the remainder of their respective three-year terms;

•

authorizing our board of directors to issue from time to time any series of preferred stock and fix the voting powers, designation, powers, preferences and rights of the shares of such series of preferred stock;

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prohibiting stockholders from acting by written consent in lieu of a meeting;

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requiring advance notice of stockholder intention to put forth director nominees or bring up other business at a stockholders’ meeting;

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prohibiting stockholders from calling a special meeting of stockholders;

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requiring a 66²∕3% super-majority stockholder approval in order for stockholders to alter, amend or repeal certain provisions of our certificate of incorporation;

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requiring a 66²∕3% super-majority stockholder approval in order for stockholders to adopt, amend or repeal our bylaws;

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providing that, subject to the rights of the holders of any series of preferred stock to elect additional directors under specified circumstances, neither the board of directors nor any individual director may be removed without cause;

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creating the possibility that our board of directors could prevent a coercive takeover of our Company due to the significant amount of authorized, but unissued shares of our common stock and preferred stock;

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providing that, subject to the rights of the holders of any series of preferred stock, the number of directors shall be fixed from time to time exclusively by our board of directors pursuant to a resolution adopted by a majority of the total number of authorized directors; and

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providing that any vacancies on our board of directors under certain circumstances will be filled only by a majority of our board of directors then in office, even if less than a quorum, and not by the stockholders.

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prior to that date, our board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;

•

upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (i) persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

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on or subsequent to that date, the business combination is approved by our board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 ²∕3% of the outstanding voting stock that is not owned by the interested stockholder.

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any merger or consolidation involving the corporation or a direct or indirect majority-owned subsidiary of the corporation and the interested stockholder;

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any sale, lease, mortgage, pledge transfer, or other disposition of the assets of the corporation or direct or indirect majority-owned a subsidiary of the corporation to or with the interested stockholder, which assets have an aggregate value equal to 10% or more of the fair value of the assets on a consolidated basis or the aggregate market value of the outstanding stock of the corporation;

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subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation or a direct or indirect majority-owned subsidiary of the corporation of any stock of the corporation or subsidiary to the interested stockholder;

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any transaction involving the corporation or direct or indirect majority-owned subsidiary of the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation or the subsidiary beneficially owned by the interested stockholder; or

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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits by or through the corporation or direct or indirect majority-owned subsidiary of the corporation.

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breach of their duty of loyalty to us or our stockholders;

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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

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unlawful payment of dividends or redemption of shares as provided in Section 174 of the DGCL; or

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transaction from which the directors derived an improper personal benefit.

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our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 11, 2024;

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our definitive proxy statement for our 2024 Annual Meeting of Stockholders filed with the SEC on May 17, 2024;

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our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 8, 2024; the quarter ended June 30, 2024, filed with the SEC on August 13, 2024; and the quarter ended September 30, 2024, filed with the SEC on November 12, 2024;

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our Current Reports on Form 8-K filed with the SEC on February 6, 2024, March 26, 2024, May 1, 2024, May 29, 2024, June 6, 2024, June 10, 2024, June 26, 2024, July 3, 2024, July 17, 2024 (as amended on July 17, 2024), July 17, 2024, July 25, 2024, August 12, 2024, August 22, 2024, August 26, 2024, October 23, 2024, and November 7, 2024; and

•

the description of our common stock in our registration statement on Form 10 filed with the SEC on September 30, 2011, including Exhibit 4.14 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023.

Item 13.

Other Expenses of Issuance and Distribution.

*

Except for the SEC registration fee, estimated expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the offering of shares of our common stock under this Registration Statement. To the extent required, any applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable in respect of any offering of shares of our common stock under this Registration Statement.

Item 14.

Indemnification of Directors and Officers.

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from any breach of the director’s duty of loyalty to us or our stockholders;

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from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

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under Section 174 of the DGCL; and

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from any transaction from which the director derived an improper personal benefit.

Item 15.

Recent Sales of Unregistered Securities.

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On June 19, 2023, the registrant granted a warrant to DaVita, Inc. (“DaVita”), pursuant to a Supply and Collaboration Agreement (“Supply Agreement”) dated as of June 19, 2023, pursuant to which DaVita will pilot the Aquadex ultrafiltration therapy system to treat adult patients with congestive heart failure and related conditions within select U.S. markets. The warrant represents the right to purchase up to an aggregate of 36,830 shares of common stock of the Company, par value $0.0001 per share, at an exercise price of $115.49 per share, provided that at no time can it be exercised for an amount of shares that would represent greater than 19.9% ownership in the Company (the “DaVita Warrant”) subject to certain vesting milestones. The DaVita Warrant is expected to vest in four tranches as follows (i): 25% upon the Company’s receipt of notice to extend the Supply Agreement past the initial pilot-term (the “Ultrafiltration Services Approval”); (ii) 25% upon the attainment by the Company of a net revenue achievement from DaVita’s efforts pursuant to the Supply Agreement within twelve months

•

On July 25, 2024, the registrant closed on a private placement of common stock purchase warrants to purchase 200% of the number of shares of common stock purchased by the Selling Securityholders in the offering, equal to up to 938,680 shares of common stock. The common stock purchase warrants have an exercise price of $3.99 per share, are immediately exercisable and expire five years from the date of issuance. If all of the common stock purchase warrants are exercised for cash in full, the gross proceeds would be approximately $3.7 million. This issuance was made in reliance upon the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder.

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On August 26, 2024, the registrant closed on a private placement of common stock purchase warrants to purchase 100% of the number of shares of common stock purchased by the Selling Securityholders in the offering, equal to up to 483,351 shares of common stock. The common stock purchase warrants have an exercise price of $1.72 per share, are immediately exercisable and expire five years following the date of effectiveness of the registration statement for the purposes of registering the shares of common stock underlying such warrants. If all of the common stock purchase warrants are exercised for cash in full, the gross proceeds would be approximately $0.8 million. The registrant also offered, as part compensation to Ladenburg Thalmann & Co. Inc., the placement agent, in connection with the offering, warrants to purchase up to 14,501 shares of common stock. Such warrants have an exercise price of $3.04425 per share and will expire five years following the commencement of sales pursuant to the offering. This issuance was made in reliance upon the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder.

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On November 5, 2024, the Company entered into Inducement Letters with the Selling Securityholders to immediately exercise approximately 1.8 million of the common stock purchase warrants issued by the Company on April 30, 2024 (the “April 2024 Warrants”) held by such investors. In consideration for exercising the April 2024 Warrants, pursuant to the terms of the Inducement Letters, the Company issued to the investors new Series I Warrants and new Series II Warrants, in each case, to purchase up to an aggregate of 1,832,517 shares of common stock, equal to 100% of the number of shares of common stock issued pursuant to the immediate exercise of the corresponding April 2024 Warrants. The Series I Warrant has an exercise price of $1.94, is exercisable six (6) months from the date of issuance and has a term of five (5) years from the date of initial exercise. The Series II Warrant has an exercise price of $1.94, is exercisable six (6) months from the date of issuance and has a term of two (2) years from the date of initial exercise. The registrant also offered, as part compensation to Ladenburg Thalmann & Co. Inc., the placement agent, in connection with the offering, warrants to purchase up to 54,976 shares of common stock. Such warrants have an exercise price of $3.465 per share and will expire five years following the commencement of sales pursuant to the offering. The Series I Warrants, Series II Warrants, and November PA Warrants were issued to the Selling Securityholders, which are institutional accredited investors, in a private placement in reliance upon the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) and Regulation D promulgated under the Securities Act.

Item 16.

Exhibits and Financial Statement Schedules.

(a)