As filed with the Securities and Exchange Commission on November 4,
2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TOMI Environmental Solutions, Inc.
(Exact name of registrant as specified in its charter)
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Florida
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59-1947988
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incorporation or organization)
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(I.R.S. Employer
Identification Number)
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8430 Spires Way, Suite N
Frederick, Maryland 21701
(800) 525-1698
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(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive
office)
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Halden S. Shane
Chief Executive Officer
8430 Spires Way, Suite N
Frederick, Maryland 21701
(800) 525-1698
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(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copy to:
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Michael
A. Hedge
K&L
Gates LLP
1
Park Plaza, Twelfth Floor
Irvine,
California 92614
(949)
253-0900
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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 ☐ (do
not check if a smaller reporting company)
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Smaller
reporting company ☒
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 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 Aggregate Offering Price Per Unit(1)
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee(2)
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Common
Stock, par value of $0.01 per share
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$50,000,000
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$5,455
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(1)
An indeterminate
aggregate number of shares of common stock of the Registrant is
being registered as may be offered from time to time at currently
indeterminable prices per share with an aggregate initial offering
price not to exceed $50,000,000.
(2)
Calculated in
accordance with to Rule 457(o) under the Securities Act of 1933, as
amended, or the Securities Act.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933, as amended, or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 4, 2020
PROSPECTUS
$50,000,000
Common Stock
We may
offer to the public from time to time in one at prices and on terms
that we will determine at the time of each offering shares of our
common stock. The aggregate initial offering price of all
securities sold by us pursuant to this prospectus will not exceed
$50,000,000.
Our common stock is listed on The Nasdaq Capital Market, or Nasdaq, under the
symbol “TOMZ.” On October 30, 2020, the last reported
sale price of our common stock on Nasdaq was $7.85 per
share.
Investing in our securities involves a high
degree of risk. See “Risk Factors” on page 3 of this
prospectus and in any applicable prospectus supplement and in the
documents incorporated by reference herein and therein for
a discussion of the factors you should carefully
consider before deciding to invest in our
securities.
We will
provide the specific terms of any securities we may offer in
supplements to this prospectus. You should read this prospectus and
any accompanying prospectus supplement carefully before you invest.
This prospectus may not be used to offer and sell any securities
unless accompanied by a prospectus supplement describing the amount
of and terms of the offering of those securities.
We may
offer and sell the securities to or through one or more
underwriters, dealers or agents, or directly to purchasers on an
immediate, continuous or delayed basis. The names of any
underwriters, dealers or agents involved in the sale of any
securities, the specific manner in which they may be offered and
any applicable commissions or discounts will be set forth in an
accompanying prospectus supplement covering the sales of those
securities.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The
date of this prospectus
is
, 2020
TABLE OF CONTENTS
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About This Prospectus
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1
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About The Company
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2
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Risk Factors
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3
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Cautionary Note Regarding Forward-Looking Statements
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4
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Use of Proceeds
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5
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Description of Common Stock
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6
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Plan of Distribution
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9
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Legal Matters
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13
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Experts
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13
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Where You Can Find More Information
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13
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Incorporation of Certain Information by Reference
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13
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You
should rely only on the information contained in or incorporated by
reference into this prospectus, in any accompanying prospectus
supplement or any free writing prospectuses prepared by or on
behalf of us or to which we have referred you. We have not
authorized any person to give any information or to make any
representations other than those contained or incorporated by
reference in this prospectus, any accompanying prospectus
supplement, or any free writing prospectuses prepared by or on
behalf of us or to which we have referred you, and, if given or
made, you must not rely upon the information or representations as
having been authorized. This prospectus, any accompanying
prospectus supplement and any free writing prospectuses prepared by
or on behalf of us or to which we have referred you, do not
constitute an offer to sell or the solicitation of an offer to buy
securities, nor do this prospectus or any accompanying supplement
to this prospectus constitute an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to
whom it is unlawful to make such offer or solicitation. The
information contained in this prospectus, any accompanying
prospectus supplement, and any free writing prospectuses prepared
by or on behalf of us or to which we have referred you, speaks only
as of the date set forth on the cover page and may not reflect
subsequent changes in our business, financial condition, results of
operations and prospects even though this prospectus, any
accompanying prospectus supplement, and any free writing
prospectuses prepared by or on behalf of us or to which we have
referred you, is delivered or securities are sold on a later
date.
ABOUT THIS PROSPECTUS
This
prospectus is 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
sell the securities described in this prospectus in one or more
offerings up to a total dollar amount of proceeds of
$50,000,000. This prospectus
describes the general manner in which our securities may be offered
by this prospectus. Each time we offer and sell our
securities, we will provide one or more prospectus supplements that
will contain specific information about the terms of the 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.
This
prospectus does not contain all of the information included in the
registration statement. For a more complete understanding of the
offering of the securities, you should refer to the registration
statement, including its exhibits. Each prospectus supplement and
any free writing prospectuses prepared by or on behalf of us or to
which we have referred you may also add, update or change
information contained in this prospectus and may include a
discussion of any risk factors or other special considerations that
apply to the offered securities.
Before
making an investment decision, it is important for you to read and
consider the information contained in this prospectus, any
accompanying prospectus supplement, and any free writing
prospectuses prepared by or on behalf of us or to which we have
referred you, together with the additional information described
under the heading “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference”
below.
This prospectus may not be used to offer to
sell, solicit an offer to buy or consummate a sale of securities
unless it is accompanied by a prospectus supplement. If
there is any inconsistency between information in this prospectus
and any accompanying prospectus supplement, you should rely on the
information in the latest supplement and documents incorporated by
reference herein and therein.
This
prospectus includes and incorporates by reference, references to
our trademarks, trade names and service marks, such as Binary
Ionization Technology® and
SteraMist®,
which are protected under applicable intellectual property laws and
are our property. This prospectus may also include trademarks and
trade names that are the property of other organizations. Solely
for convenience, trademarks and trade names referred to in this
prospectus appear without the ® and ™ symbols, but those
references are not intended to indicate that we will not assert, to
the fullest extent under applicable law, our rights, or that the
applicable owner will not assert its rights, to these trademarks
and 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.
Unless otherwise indicated herein, references in this prospectus to
“TOMI,” the “company,” “we,”
“us” and “our” refer to TOMI Environmental
Solutions, Inc., a Florida corporation, together with our
consolidated subsidiaries.
1
ABOUT THE COMPANY
Overview
TOMI
Environmental Solutions, Inc. is a global company that specializes
in disinfection and decontamination essentials using its premier
Binary Ionization Technology platform through the manufacturing,
licensing, servicing, and selling of its SteraMist brand of
products. SteraMist is a hydrogen peroxide-based mist/fog
registered with the U.S. Environmental Protection Agency, or EPA,
as a hospital-healthcare and effective broad-spectrum surface
disinfectant. Our operating structure consists of five divisions:
Hospital-HealthCare, Life Sciences, TOMI Service Network,
Commercial and Food Safety. We provide environmental solutions for
indoor and outdoor surface and air decontamination.
Company Information
We were incorporated as a Florida corporation on September 18, 1979 under
the name Dauphin, Inc. and began our current operations in 2008
following a series of transactions and name changes. On May 14,
2009, we changed our name to TOMI Environmental Solutions, Inc. Our
corporate headquarters are located at 8430 Spires Way, Suite N,
Frederick, Maryland 21701. Our telephone number is (800) 525-1698.
Our website address is www.tomimist.com. The information contained
on our website is not a part of, and should not be construed as
being incorporated by reference into, this
prospectus.
2
RISK FACTORS
Investing in our
securities involves significant risks. Before deciding whether to
invest in our securities, you should consider carefully the risks,
uncertainties and assumptions described in this prospectus and any
accompanying prospectus supplement, including the risk factors set
forth in our filings with the SEC that are incorporated by
reference herein and therein, including the risk factors in our
most recent Annual Report on Form 10-K, as revised or supplemented
by our Quarterly Reports on Form 10-Q, and which may be amended,
supplemented or superseded from time to time by other reports we
file with the SEC in the future. There may be other unknown or
unpredictable economic, business, competitive, regulatory or other
factors that could have material adverse effects on our future
results. If any of these risks actually occurs, our business,
business prospects, financial condition or results of operations
could be seriously harmed. Please also read carefully the section
below entitled “Cautionary Note Regarding Forward-Looking
Statements.”
3
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains or incorporates forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as
amended, or the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, as amended, or the Exchange Act. These
forward-looking statements reflect management’s beliefs and
assumptions. In addition, these forward-looking statements reflect
management’s current views with respect to future events or
our financial performance, and involve certain known and unknown
risks, uncertainties and other factors, including those identified
below, which may cause our or our industry’s actual or future
results, levels of activity, performance or achievements to differ
materially from those expressed or implied by any forward-looking
statements or from historical results. We intend the
forward-looking statements to be covered by the safe harbor
provisions for forward-looking statements contained in Section 27A
of the Securities Act and Section 21E of the Exchange Act.
Forward-looking statements include information concerning our
possible or assumed future results of operations and statements
preceded by, followed by, or that include the words
“may,” “will,” “could,”
“would,” “should,” “believe,”
“expect,” “plan,” “anticipate,”
“intend,” “estimate,”
“predict,” “potential” or similar
expressions.
Forward-looking
statements are inherently subject to risks and uncertainties, many
of which we cannot predict with accuracy and some of which we might
not even anticipate. Although we believe that the expectations
reflected in the forward-looking statements are based upon
reasonable assumptions at the time made, we can give no assurance
that the expectations will be achieved. Future events and actual
results, financial and otherwise, may differ materially from the
results discussed in the forward-looking statements. Readers are
cautioned not to place undue reliance on these forward-looking
statements. We have no duty to update or revise any forward-looking
statements after the date of this prospectus or to conform them to
actual results, new information, future events or
otherwise.
The
factors described under “Risk Factors” in this
prospectus or any accompanying prospectus supplement, and in any
documents incorporated by reference into this prospectus or any
accompanying prospectus supplement, and other factors could cause
our or our industry’s future results to differ materially
from historical results or those anticipated or expressed in any of
our forward-looking statements. We operate in a continually
changing business environment, and new risk factors emerge from
time to time. Other unknown or unpredictable factors also could
have material adverse effects on our future results, performance or
achievements. We cannot assure you that projected results or events
will be achieved or will occur.
4
USE OF PROCEEDS
We will
retain broad discretion over the use of the net proceeds from the
sale of the securities offered hereby. Except as described in any
applicable prospectus supplement we have authorized for use in
connection with a specific offering, we currently intend to use the
net proceeds from the sale of the securities offered by us
hereunder, if any, for working capital and general corporate
purposes, including research and development expenses, sales and
marketing expenses, general and administrative expenses and capital
expenditures. We may also use a portion of the net proceeds to
acquire or invest in businesses, products and technologies that are
complementary to our own, although we have no current commitments
or agreements with respect to any acquisitions as of the date of
this prospectus. We will set forth in the applicable prospectus
supplement our intended use for the net proceeds received from the
sale of any securities sold pursuant to the prospectus supplement.
Pending the use of the net proceeds from any such offering, we may
invest the net proceeds in investment grade, short-term
interest-bearing obligations, such as money-market funds,
certificates of deposit, or direct or guaranteed obligations of the
United States government, or hold the net proceeds as
cash.
5
DESCRIPTION OF COMMON STOCK
The
following description of our common stock and certain provisions of
our amended and restated articles of incorporation and amended
bylaws are summaries and are qualified by reference to our amended
and restated articles of incorporation and amended bylaws. Copies
of these documents are filed with the SEC as exhibits to the
registration statement of which this prospectus forms a
part.
Authorized Capital Stock
We are currently authorized to issue 250,000,000
shares of common stock, par value $0.01 per share, 1,000,000 shares
of convertible $0.01 preferred A stock, par value $0.01 per share,
and 4,000 shares of Series B preferred stock, with a stated value
of $1,000 per share. As of October 30, 2020, we had
approximately 16,748,513 shares of common stock outstanding, held
by approximately 241
shareholders of record, although we believe there to be
approximately 6,771 beneficial owners of our common stock, based on
information regarding our non-objecting beneficial owners and
objecting owners we recently obtained from a third-party financial
solutions provider, 63,750 shares of series A preferred stock
outstanding held by one shareholder, and no shares of the series B
preferred stock outstanding.
Common Stock
The
holders of our common stock are entitled to one vote per share on
all matters submitted to a vote of our shareholders. We have not
provided for cumulative voting for the election of directors in our
amended and restated articles of incorporation or amended bylaws.
The holders of our common stock are entitled to receive ratably the
dividends out of funds legally available if our board of directors,
or Board, in its discretion, determines to issue dividends and then
only at the times and in the amounts that our Board may determine.
The common stock is not entitled to redemption rights, preemptive
rights, conversion rights, and it is not subject to any sinking
fund provisions. The outstanding shares of common stock are fully
paid and non-assessable. The outstanding shares of common stock are
not liable to further call or to assessment by us. If we become
subject to a liquidation event, dissolution or winding-up, the
assets legally available for distribution to our shareholders would
be distributable ratably among the holders of the common stock and
any participating preferred stock outstanding at that time, subject
to prior satisfaction of all outstanding debt and liabilities and
the preferential rights of and the payment of liquidation
preferences, if any, on any outstanding shares of preferred stock.
The rights, powers, preferences and privileges of holders of common
stock are subordinate to, and may be adversely affected by, the
rights of the holders of shares of the preferred stock and any
series of preferred stock which may be designated and issued in the
future. No shareholders hold any registration rights.
Dividend Policy
Our
Board has never declared or paid any cash dividends, and our Board
does not currently intend to pay any cash dividends for the
foreseeable future. Our Board expects to retain future earnings, if
any, to fund the development and growth of the Company’s
business. Any future determination to pay dividends will be at the
discretion of our Board and will depend upon, among other factors,
the Company’s financial condition, operating results, current
and anticipated cash needs, plans for expansion and other factors
that our Board may deem relevant.
6
Anti-Takeover Provisions of the Company’s Organizing
Documents
Our amended and restated articles of incorporation
and our amended bylaws include a number of provisions that could
deter takeovers or delay or prevent changes in control, as well as
changes in our Board or
management team, including the following:
Authorized but Unissued
Shares. The authorized but
unissued shares of the common stock and preferred stock will be
available for future issuance without shareholder approval, subject
to applicable law and the rules of The Nasdaq Stock Market
LLC. These additional shares may be
used for a variety of corporate purposes, including future public
offerings to raise additional capital, acquisitions, and employee
benefit plans. The existence of authorized but unissued shares of
common stock or preferred stock may enable our Board to render more
difficult or to discourage an attempt to obtain control of us by
means of a merger, tender offer, proxy contest or
otherwise.
No Cumulative
Voting. Our shareholders do not
have the right to cumulate votes in the election of directors of
our Board, therefore allowing the holders of a majority of the
shares of common stock entitled to vote in any election of
directors of our Board to elect all of the directors standing for
election, if they should so choose.
Shareholder Action; Special
Meeting of Shareholders.
Special meetings of our shareholders may be called only by a
majority of our Board, thus
prohibiting a shareholder from calling a special meeting, except
that, pursuant to the Florida Business Corporation Act, or FBCA,
§ 607.072, shareholders holding 10% or more of the votes
entitled to be cast may call a special meeting. These limitation
might delay the ability of the Company’s shareholders to
force consideration of a proposal.
Each of the foregoing provisions may make it more
difficult for our existing shareholders to replace our Board as
well as for another party to obtain control of us by replacing
our Board. Since our Board has
the power to retain and discharge our officers, these provisions
could also make it more difficult for existing shareholders or
another party to effect a change in management.
Anti-Takeover Provisions under Florida Law
We
are governed by two provisions of the FBCA, which may deter or
frustrate takeovers of Florida corporations.
The
Florida Control Share Act (FBCA § 607.0902) generally provides
that shares acquired in excess of certain specified thresholds,
without first obtaining the approval of our Board, will not possess
any voting rights unless such voting rights are approved by a
majority of our disinterested shareholders.
The
Florida Affiliated Transactions Act (FBCA § 607.0901) requires
that, subject to certain exceptions, any affiliated transaction
with a shareholder that owns more than 15% of the voting shares of
the corporation, referred to as an “interested
shareholder,” receive the approval of either the
corporation’s disinterested directors or a supermajority vote
of disinterested shareholders, or, absent either such approval,
that a statutory “fair price” be paid to the
shareholders in the transaction. The shareholder vote requirement
is in addition to any shareholder vote required under any other
section of the FBCA or our amended and restated articles of
incorporation.
Limitation of Liability and Indemnification
Florida
law also authorizes us to indemnify directors, officers, employees
and agents under certain circumstances and to limit the personal
liability of corporate directors for monetary damages, except that
we may not indemnify a director or officer or advance expenses to a
director or officer if a judgment or other final adjudication
establishes that his or her actions were material to the cause of
action so adjudicated and constitute: (a) willful or intentional
misconduct or a conscious disregard for the best interests of the
corporation in a proceeding by or in right of the corporation to
procure a judgment in its favor or in a proceeding by or in the
right of a shareholder, (b) a transaction in which the director or
officer derived an improper personal benefit, (c) a violation of
the criminal law, unless the director or officer had reasonable
cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful, or (d) in the
case of a director, a circumstance under which the director would
be liable under the FBCA for an unlawful distribution. Our amended
bylaws do not provide for the indemnification of our current and
former directors and officers, thus the only right of
indemnification that our current and former directors and officers
have is a right of indemnification should such director or officer
succeed against a claim brought against them because they were a
director or officer as set out under FBCA § 607.0852. We have
obtained a directors’ and officers’ liability insurance
policy covering its current and former directors and
officers.
7
Listing
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “TOMZ.”
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Continental
Stock Transfer & Trust Company.
8
PLAN OF DISTRIBUTION
We may
sell the securities covered by this prospectus 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 the
securities from time to time in one or more
transactions:
●
at a fixed price,
or prices, which may be changed from time to time;
●
at market prices
prevailing at the time of sale;
●
at prices related
to such prevailing market prices; or
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at negotiated
prices.
We may
issue securities to other companies or their security holders to
acquire those companies or equity interests in those companies, or
to acquire assets of those companies, through mergers or
consolidations with us or any of our subsidiaries, or through the
exchange of our securities for securities of the other companies,
or through the exchange of assets of other companies for our
securities, or through similar transactions.
We may
also issue our securities to one or more of our subsidiaries,
including subsidiaries that we presently control and subsidiaries
that we may organize or acquire in the future, and those
subsidiaries may resell our securities to raise capital or to
acquire other companies or equity interests in other companies, or
to acquire assets of other companies.
Our
officers and directors, members of their immediate families, and
their respective affiliates may purchase securities that we offer,
subject to compliance with our related person transaction policy,
policies established by our board of directors with regard to
trading in our securities by officers and directors, and applicable
rules of Nasdaq.
In
addition, we may issue the securities being offered by this
prospectus as a dividend or distribution.
Any
applicable prospectus supplement (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 the underwriters, if any;
●
the purchase price
of the securities or other consideration therefor, and the
proceeds, if any, 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.
9
Sales Through Underwriters or Dealers
If we
use an underwriter or underwriters in the sale of securities
offered by this prospectus, the underwriters will acquire the
securities for their own account, including through underwriting,
purchase, security lending or repurchase agreements with us, unless
the underwriters are acting only as our agents for the purpose of
selling our securities as described below under “Sales
Through Agents.” The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions. Underwriters may sell the securities in order to
facilitate transactions in any of our other securities (described
in this prospectus or otherwise), including other public or private
transactions and short sales made by the underwriters in connection
with the distribution of our securities by the underwriters.
Underwriters may offer securities to the public either through
underwriting syndicates represented by one or more managing
underwriters or directly by one or more firms acting as
underwriters. Unless otherwise indicated in any applicable
prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and
the underwriters will be obligated to purchase all the offered
securities if they purchase any of them. The underwriters may
change from time to time any public offering price and any
discounts or concessions allowed or re-allowed or paid to
dealers.
If we
use an underwriter or underwriters in the sale of securities, we
will execute an underwriting agreement with the underwriter or
underwriters at the time we reach an agreement for sale. We will
set forth in any applicable prospectus supplement the names of the
specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers. This compensation may
be in the form of discounts, concessions or
commissions. Only
underwriters named in an applicable prospectus supplement will be
underwriters of the securities offered by such prospectus
supplement.
We may
grant to the underwriters options to purchase additional securities
to cover over-allotments, if any, at the public offering price with
additional underwriting discounts or commissions. If we grant any
over-allotment option, the terms of any over-allotment option will
be set forth in any applicable prospectus supplement relating to
those securities.
Sales Through Dealers
If we
use dealers in the sale of the securities offered by this
prospectus, we or an underwriter will sell the securities to them
as principals. The dealers may then resell those securities to the
public at varying prices to be determined by the dealers at the
time of resale. An applicable prospectus supplement will set forth
the names of the dealers and the terms of the
transactions.
Direct Sales
We may
directly solicit offers to purchase the securities offered by this
prospectus. In this case, no underwriters or agents would be
involved. We may sell the securities directly to institutional
investors or others who may be deemed to be underwriters within the
meaning of the Securities Act with respect to any sale of those
securities. The terms of the sales will be described in any
applicable prospectus supplement.
Sales Through Agents
Securities also may
be offered and sold through agents designated from time to time. An
applicable prospectus supplement will name any agent involved in
the offer or sale of the securities and will describe any
commissions payable to the agent. Unless otherwise indicated in an
applicable prospectus supplement, any agent will agree to use its
reasonable best efforts to solicit purchases for the period of its
appointment. Any agent may be deemed to be an underwriter within
the meaning of the Securities Act with respect to any sale of those
securities.
Delayed Delivery Contracts
If any
applicable prospectus supplement indicates, we may authorize
agents, underwriters or dealers to solicit offers from institutions
to purchase securities at the public offering price under delayed
delivery contracts. These contracts would provide for payment and
delivery on a specified date in the future. Institutions with which
contracts of this type may be made include commercial and savings
banks, insurance companies, pension funds, investment companies,
educational and charitable institutions, but in all cases those
institutions must be approved by us. The obligations of any
purchaser under any contract of this type will be subject to the
condition that the purchase of the securities shall not at the time
of delivery be prohibited under the laws of the jurisdiction to
which the purchaser is subject. Any applicable prospectus
supplement will describe the commission payable for solicitation of
those contracts.
10
Market Making, Stabilization and Other Transactions
Our
common stock is listed on Nasdaq. Any shares of common stock sold
pursuant to an applicable prospectus supplement will be eligible
for listing and trading on Nasdaq, subject to official notice of
issuance. Unless any applicable prospectus supplement states
otherwise, each other class or series of securities issued will be
a new issue and will have no established trading market. We may
elect to list any other class or series of securities on an
exchange, but we are not currently obligated to do so. Any
underwriters that we use in the sale of offered securities may make
a market in the securities, but may discontinue market making at
any time without notice. Therefore, we cannot assure you that the
securities will have a liquid trading market.
Any
underwriter may also engage in stabilizing transactions, syndicate
covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Stabilizing transactions
involve bids to purchase the underlying security in the open market
for the purpose of pegging, fixing or maintaining the price of the
securities. Syndicate covering transactions involve purchases of
the securities in the open market after the distribution has been
completed in order to cover syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a
syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction
to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the
price of the securities to be higher than it would be in the
absence of the transactions. The underwriters may, if they commence
these transactions, discontinue them at any time.
The
effect of these transactions may be to stabilize or maintain the
market price of the securities at a level above that which might
otherwise prevail in the open market. Any such transactions, if
commenced, may be discontinued at any time. We make no
representation or prediction as to the direction or magnitude of
any effect that the transactions described above, if implemented,
may have on the price of our securities.
Derivative Transactions and Hedging
We, the
underwriters or other agents may engage in derivative transactions
involving the securities. These derivatives may consist of short
sales for hedging purposes and any other hedging activities. The
underwriters or agents may acquire a long or short position in the
securities, hold or resell securities acquired and purchase options
or futures on the securities and other derivative instruments with
returns linked to or related to changes in the price of the
securities. In order to facilitate these derivative transactions,
we may enter into security lending or repurchase agreements with
the underwriters or agents. The underwriters or agents may effect
the derivative transactions through sales of the securities to the
public, including short sales, or by lending the securities in
order to facilitate short sale transactions by others.
The
underwriters or agents may also use the securities purchased or
borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to
directly or indirectly settle sales of the securities or close out
any related open borrowings of the securities arising from the
distribution of our securities by the underwriters.
11
Electronic Auctions
We also
may make sales through the Internet or through other electronic
means. Since we may from time to time elect to offer securities
directly to the public, with or without the involvement of agents,
underwriters or dealers, utilizing the Internet or other forms of
electronic bidding or ordering systems for the pricing and
allocation of the securities, you will want to pay particular
attention to the description of that system we will provide in an
applicable prospectus supplement.
The
electronic system may allow bidders to directly participate,
through electronic access to an auction site, by submitting
conditional offers to buy that are subject to acceptance by us, and
which may directly affect the price or other terms and conditions
at which the securities are sold. These bidding or ordering systems
may present to each bidder, on a so-called “real-time”
basis, relevant information to assist in making a bid, such as the
clearing spread at which the offering would be sold, based on the
bids submitted, and whether a bidder’s individual bids would
be accepted, prorated or rejected. Of course, many pricing methods
can and may also be used.
Upon
completion of the electronic auction process, securities will be
allocated based on prices bid, terms of bid or other factors. The
final offering price at which securities would be sold and the
allocation of securities among bidders would be based in whole or
in part on the results of the Internet or other electronic bidding
process or auction.
General Information
Agents,
underwriters, and dealers may be entitled, under agreements entered
into with us, to indemnification by us against specified
liabilities, including liabilities under the Securities Act, or to
contribution by us to payments they may be required to make in
respect to those liabilities. Any applicable prospectus supplement
will describe the terms and conditions of indemnification or
contribution. Some of our agents, underwriters, and dealers, or
their affiliates, may be customers of, engage in transactions with
or perform services for us, in the ordinary course of business. We
will describe in any applicable prospectus supplement the nature of
any such relationship and the name of the parties involved. Any
lockup arrangements will be set forth in any applicable prospectus
supplement.
12
LEGAL MATTERS
The
validity of the securities offered by this prospectus and any
applicable prospectus supplement thereto will be passed upon for us
by K&L Gates LLP, Irvine, California. Additional legal
matters may be passed upon for us or any underwriters, dealers or
agents, by counsel that we name in the applicable prospectus
supplement.
EXPERTS
The
consolidated financial statements incorporated in this prospectus
by reference from TOMI Environmental Solution, Inc.’s Annual
Report on Form 10-K for the year ended December 31, 2019 have been
audited by Wolinetz, Lafazan & Company, P.C., an independent
registered public accounting firm, as stated in their report, which
is incorporated herein by reference. Such financial statements have
been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
This
prospectus and any accompanying prospectus supplement do not
contain all of the information set forth in the registration
statement and its exhibits and schedules in accordance with SEC
rules and regulations. For further information with respect to us
and the securities being offered hereby, you should read the
registration statement, including its exhibits and schedules.
Statements contained in this prospectus and any accompanying
prospectus supplement, including documents that we have
incorporated by reference, as to the contents of any contract or
other document referred to are not necessarily complete, and, with
respect to any contract or other document filed as an exhibit to
the registration statement or any other such document, each such
statement is qualified in all respects by reference to the
corresponding exhibit. You should review the complete document to
evaluate these statements. You may obtain copies of the
registration statement and its exhibits via the SEC’s EDGAR
database or our website, or at the offices of the SEC, where they
may be examined without charge at the Public Reference Room, at the
address listed below.
We file
annual, quarterly and current reports, proxy statements and other
documents with the SEC under the Exchange Act. The SEC maintains a
website that contains reports, proxy and information statements and
other information regarding issuers, including our company, that
file electronically with the SEC. You may obtain documents that we
file with the SEC at http://www.sec.gov and read and copy them at
the SEC’s Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549 (information on operation of the Public
Reference Room is available by calling the SEC at
1-800-SEC-0330).
We also
make these documents available on our website at www.tomimist.com.
Our website and the information contained or connected to our
website is not incorporated by reference in this prospectus or any
accompanying prospectus supplement, and you should not consider it
part of this prospectus or any accompanying prospectus
supplement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC
allows us to “incorporate by reference” in this
prospectus certain of the information we file with the SEC. This
means we can disclose important information to you by referring you
to another document that has been filed separately with the SEC.
The information incorporated by reference is considered to be a
part of this prospectus, and information that we file later with
the SEC will automatically update and supersede information
contained in this prospectus and any accompanying prospectus
supplement. We incorporate by reference the documents listed below
that we have previously filed with the SEC:
●
our Annual Report
on Form 10-K for the fiscal year ended December 31, 2019, filed
with the SEC on March 30, 2020;
●
our Quarterly
Reports on Form 10-Q for the quarter ended March 31, 2020 and June
30, 2020, filed with the SEC on May 14, 2020 and August 14, 2020,
respectively;
●
our Current Reports
on Form 8-K (other than information furnished rather than filed)
filed with the SEC on April 28, 2020, September 14, 2020, and
September 30, 2020; and
●
the description of
our common stock contained in our Registration Statement on Form
8-A (File No. 001-39574) filed with SEC on September 29, 2020,
including any amendment or report filed for the purpose of updating
such description.
We also
incorporate by reference into this prospectus additional documents
that we may file with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the completion or termination of
the offering of the securities described in this prospectus,
including all such documents we may file with the SEC after the
date of the initial registration statement and prior to the
effectiveness of the registration statement, but excluding any
information deemed furnished and not filed with the SEC. Any
statements contained in a previously filed document incorporated by
reference into this prospectus is deemed to be modified or
superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus, or in a subsequently filed
document also incorporated by reference herein, modifies or
supersedes that statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We will
furnish without charge to each person, including any beneficial
owner, to whom a prospectus is delivered, on written or oral
request, a copy of any or all of the documents incorporated by
reference in this prospectus, including exhibits to these
documents. You should direct any requests for documents to TOMI
Environmental Solutions, Inc., 8430 Spires Way, Suite N, Frederick,
Maryland 21701; telephone number: (800) 525-1698. You may also
access the documents incorporated by reference in this prospectus
through our website at www.tomimist.com. Except for the specific
incorporated documents listed above, no information available on or
through our website shall be deemed to be incorporated in this
prospectus or the registration statement of which it forms a
part.
13
$50,000,000
Common Stock
PROSPECTUS
,
2020
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set
forth below are estimates (except in the case of the SEC
registration fee and FINRA filing fee) of the amount of fees and
expenses to be incurred in connection with the issuance and
distribution of the offered securities, other than underwriting
discounts and commissions.
|
SEC Registration
Fee
|
$5,455.00
|
|
FINRA Filing
Fee
|
$8,000.00
|
|
Printing Fees and
Expenses
|
*
|
|
Legal Fees and
Expenses
|
*
|
|
Accounting Fees and
Expenses
|
*
|
|
Transfer
Agent’s Fees and Expenses
|
*
|
|
Miscellaneous
Expenses
|
*
|
|
Total
Expenses:
|
*
|
*These
fees and expenses depend on the types of securities offered and the
number of offerings, and accordingly cannot be estimated at this
time.
Item 15. Indemnification of Directors and Officers
The
FBCA, permits a Florida corporation to indemnify any person who may
be a party to any third party proceeding by reason of the fact that
such person is or was a director or officer of the corporation,
against liability incurred in connection with such proceeding
(including any appeal thereof) if the director or officer acted in
good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the corporation, and, with
respect to any criminal action or proceeding, such director or
officer had no reasonable cause to believe his or her conduct was
unlawful. In addition, a Florida corporation must indemnify against
expenses incurred in connection with a proceeding by an individual
who is or was a director or officer who was wholly successful, on
the merits or otherwise, in the defense of such proceeding to which
the individual was a party because he or she is or was a director
or officer of the corporation.
The
FBCA further permits a Florida corporation to indemnify any person
who may be a party to a derivative action if such person acted in
any of the capacities set forth in the preceding paragraph, against
expenses and amounts paid in settlement not exceeding, in the
judgment of the board of directors, the estimated expenses of
litigating the proceeding to conclusion, actually and reasonably
incurred in connection with the defense or settlement of such
proceeding (including appeals), provided that the person acted
under the standards set forth in the preceding paragraph. However,
no indemnification shall be made for any claim, issue, or matter
for which such person is found to be liable unless, and only to the
extent that, the court determines that, despite the adjudication of
liability, but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for
such expenses which the court deems proper.
Moreover, the FBCA
provides that a Florida corporation may, before final disposition
of a proceeding, advance funds to pay for or reimburse expenses
incurred by a person who is or was a director or officer in
connection with a proceeding described above if the director or
officer in question delivers to the corporation a signed
undertaking to repay any funds advanced if the director or officer
is not entitled to mandatory indemnification on the basis that he
or she was wholly successful or it is ultimately determined that
the director or officer has not met the relevant standard of
conduct, as described further below.
15
The
FBCA provides that any indemnification made under the above
provisions, unless pursuant to a court determination, may be made
only after a determination that the person to be indemnified has
met the standard of conduct described above. This determination is
to be made by a majority vote of a quorum consisting of the
disinterested directors of the board of directors, by duly selected
independent legal counsel, or by a majority vote of the
disinterested stockholders. The board of directors also may
designate a special committee of disinterested directors to make
this determination.
Notwithstanding the
foregoing, the FBCA provides, in general, that no director shall be
personally liable for monetary damages to our company or any other
person for any statement, vote, decision to take or not to take
action, or any failure to take action, as a director, unless: (a)
the director breached or failed to perform his duties as a
director; and (b) the director’s breach of, or failure to
perform, those duties constitutes any of the following: (i) a
violation of criminal law, unless the director had reasonable cause
to believe his conduct was lawful or had no reasonable cause to
believe his conduct was unlawful, (ii) a circumstance under which
the transaction at issue is one from which the director derived an
improper personal benefit, either directly or indirectly, (iii)
unlawful distributions, (iv) with respect to a proceeding by or in
the right of the company to procure a judgment in its favor or by
or in the right of a stockholder, conscious disregard for the best
interest of the company, or willful or intentional misconduct, or
(v) with respect to a proceeding by or in the right of someone
other than the company or a stockholder, recklessness or an act or
omission which was committed in bad faith or with malicious purpose
or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property. The term “recklessness,”
as used above, means the action, or omission to act, in conscious
disregard of a risk: (a) known, or so obvious that it should have
been known, to the directors; and (b) known to the director, or so
obvious that it should have been known, to be so great as to make
it highly probable that harm would follow from such action or
omission.
The
FBCA further provides that the indemnification and advancement of
payment provisions contained therein are not exclusive and it
specifically empowers a corporation to, by means of a provision in
its articles of incorporation, bylaws or any agreement, or by a
vote of shareholders or disinterested directors, or otherwise, to
obligate itself in advance of the act or omission giving rise to a
proceeding to provide for any other or further indemnification or
advancement of expenses, both for actions taken in an official
capacity and for actions taken in other capacities while holding an
office. Any provision that obligates a corporation to provide
indemnification to the fullest extent permitted by law, like the
one we have included in our bylaws, obligates the corporation to
advance funds to pay for or reimburse expenses in accordance with
the FBCA to the fullest extent permitted by law, unless such
provision expressly provides otherwise. However, unless ordered by
a court, a corporation may not indemnify a director or officer or
advance expenses to a director or officer if a judgment or other
final adjudication establishes that his or her actions were
material to the cause of action so adjudicated and constitute: (a)
willful or intentional misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or in right of
the corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder, (b) a transaction
in which the director or officer derived an improper personal
benefit, (c) a violation of the criminal law, unless the director
or officer had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was
unlawful, or (d) in the case of a director, a circumstance under
which the director would be liable under the FBCA for an unlawful
distribution.
We have
not adopted provisions in our amended bylaws providing that our
current and former directors and officers shall be indemnified
beyond the compulsory indemnification set out under the FBCA. The
Company has obtained a directors’ and officers’
liability insurance policy covering its current and former
directors and officers.
Item 16. Exhibits
The
following exhibits are filed as part of this registration statement
and are incorporated herein by reference.
|
Exhibit Number
|
|
Description of Exhibit
|
|
Form
|
|
File No.
|
|
Date
|
|
Exhibit
|
Filed Herewith
|
|
1.1+
|
|
Form of
Underwriting Agreement
|
|
|
|
|
|
|
|
|
|
|
|
Articles
of Restatement of the Registrant, effective October 6,
2009
|
|
S-1
|
|
333-162356
|
|
10/6/2009
|
|
3.1
|
|
|
|
|
Articles
of Amendment of Articles of Incorporation of the Registrant,
effective October 24, 2011
|
|
8-K
|
|
000-09908
|
|
11/07/2011
|
|
3.1(a)
|
|
|
|
|
Articles
of Amendment of Articles of Incorporation of the Registrant,
effective September 10, 2020
|
|
8-K
|
|
000-09908
|
|
09/14/2020
|
|
3.1
|
|
|
|
|
Amended
Bylaws of the Registrant, adopted effective November 2,
2007
|
|
10-Q
|
|
000-09908
|
|
5/16/2016
|
|
3.2
|
|
|
|
|
Amendment
to Amended Bylaws of the Registrant, adopted effective January 29,
2016
|
|
8-K
|
|
000-09908
|
|
2/1/2016
|
|
3.2
|
|
|
|
|
Specimen
Certificate evidencing shares of common stock of the
Registrant
|
|
|
|
|
|
|
|
|
X
|
|
|
|
Opinion
of K&L Gates LLP
|
|
|
|
|
|
|
|
|
X
|
|
|
|
Consent
of Wolinetz, Lafazan &
Company, P.C, independent registered public accounting
firm
|
|
|
|
|
|
|
|
|
X
|
|
|
|
Consent
of K&L Gates LLP (included in Exhibit 5.1)
|
|
|
|
|
|
|
|
|
X
|
|
|
|
Power
of Attorney (included on signature page)
|
|
|
|
|
|
|
|
|
X
|
+
To be filed, if
necessary, by amendment or pursuant to a report to be filed
pursuant to Section 13 or 15(d) of the Exchange Act, if applicable,
and incorporated herein by
reference.
16
Item 17. Undertakings
The
undersigned registrant hereby undertakes:
(a) 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;
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(i),
(a)(ii) and (a)(iii) of this section 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 the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(b) 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.
(c) 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.
(d) 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 this 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;
17
(e) That, for the
purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a
primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(f) 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.
(g) 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 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 Act and will be
governed by the final adjudication of such
issue.
(h) That, for purposes
of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective.
(i) That, for the
purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
18
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 Frederick,
State of Maryland on November 4, 2020.
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TOMI ENVIRONMENTAL
SOLUTIONS, INC.
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By:
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/s/ Halden S.
Shane
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Halden S.
Shane
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Chief Executive
Officer
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POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below hereby constitutes and appoints Halden S. Shane and
Nick Jennings and each of them, as his or her true and lawful
attorney-in-fact and agent with full power of substitution, for him
or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments, including
post-effective amendments, to this registration statement, and to
sign any registration statement for the same offering covered by
this registration statement that is to be effective upon filing
pursuant to Rule 462(b) promulgated under the Securities Act of
1933, as amended, increasing the number of securities for which
registration is sought, and all post-effective amendments thereto,
and to file the same, with all exhibits thereto and all documents
in connection therewith, making such changes in this registration
statement as such attorney-in-fact and agent so acting deem
appropriate, with the SEC, granting unto said
attorney-in-fact and agent, and each of them, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done with respect to the offering of securities
contemplated by this registration statement, 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
agent or any of them, or his, her or their substitute or
substitutes, may lawfully do or cause to be done or by virtue
hereof.
Pursuant to the
requirements of the Securities Act of 1933, as amended, this
Registration Statement on Form S-3 has been signed below 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/
HALDEN S. SHANE
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Chairman of the
Board and Chief Executive Officer (Principal Executive
Officer)
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November
4, 2020
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Halden S. Shane
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/s/
NICK JENNINGS
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Chief
Financial Officer (Principal Financial Officer and Principal
Accounting Officer)
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November
4, 2020
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Nick Jennings
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/s/
HAROLD W. PAUL
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Director
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November
4, 2020
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Harold
W. Paul
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/s/
WALTER C. JOHNSEN
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Director
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November
4, 2020
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Walter
C. Johnsen
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/s/
KELLY J. ANDERSON
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Director
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November
4, 2020
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Kelly
J. Anderson
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/s/ LIM
BOH SOON
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Director
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November
4, 2020
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Lim Boh Soon
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19
