SUMMARY
This
summary highlights information contained elsewhere in this prospectus. You should read the entire prospectus carefully, including
the section entitled “Risk Factors” before deciding to invest in our common stock. The terms “My Size,”
the “Company,” “we,” “our” or “us” in this prospectus refer to My Size, Inc. and
its wholly-owned subsidiaries, unless the context suggests otherwise.
OUR
BUSINESS
ITEM
1. BUSINESS
Overview
The
Company is a technology company whose strategy is based on the development of applications that can be utilized to accurately
take measurements of a variety of items via a smartphone. By downloading the application to a smartphone, the user is then able
to run the smartphone over the surface of an item the user wishes to measure. The information is then automatically sent to a
cloud-based server where the dimensions are calculated through the Company’s proprietary algorithms, and the accurate measurements
(+ or - 2 centimeters) are then sent back to the users smartphone. We believe that the commercial applications for this technology
are significant in many areas.
Currently,
we are focusing on the following market segments:
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E-commerce
apparel industry – our main target-market;
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Do
it yourself (“DIY”) uses; and
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Usage
as a tape measure.
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While
we are currently devoting much of our focus on the applications for the apparel business, management believes that all of the
above mentioned applications will be useful to users, retailers and vendors alike.
The
Market
The
mass adoption of mobile technologies such as tablets and smartphones have led to a surge of online consumer activity. Tasks that
were once primarily brick-and-mortar such as shopping for clothes, shipping a package or purchasing supplies for a DIY home renovation
project have now shifted to being a digital task as consumers seek convenient ways of shopping anytime, anywhere. Due to the foregoing,
there has been an increase in retailers who offer shoppers a simple customer experience through desktop or mobile devices. The
U.S. Census Bureau estimated that total e-commerce sales for 2017 were $453.5 billion, an increase of 16% from the year prior.
While many sectors have found ways to increase revenue through e-commerce, there are several issues that are cutting into profits
and negatively impacting the bottom line, such as returned products due to improper fit.
The
Company has developed innovative applications that address shortcomings in multiple verticals, including apparel, e-commerce,
DIY, and shipping/parcel delivery industries. Utilizing its proprietary algorithms, the Company’s technologies can calculate
and record measurements in a variety of novel ways thereby decreasing costs that negatively impact the bottom line.
Fashion/Apparel
The
fashion and apparel market is one of the fastest growing sectors of online retail. According to Statista, what was an approximately
$72.13 billion apparel and accessories market in 2016 is projected to increase to approximately $116.3 billion U.S. dollars by
2021 (https://www.statista.com/statistics/278890/us-apparel-and-accessories-retail-e-commerce-revenue). However, conveniences
of online shopping, including search filters, not having to try on clothes and free returns, have led consumers to a more free-wheeling
buying style that is costing retailers major dollars. According to Business 2 Community, at least 30% of all products ordered online
are returned, compared to approximately 9% of products purchased from brick-and-mortar shops which is decreasing revenues for
retailers.
One
of the leading factors for product returns is sizing issues because the lack of a universal sizing system leaves consumers to
guess their size or order multiple sizes and return the ones that do not fit. According to Euromonitor International, 80% of online
apparel returns are due to improper sizing.
The
Company addresses the sizing issue for retailers with its
MySizeID
mobile technology.
MySizeID
enables
shoppers to accurately measure their body to find proper fitting clothes and shoes all through the use of their mobile phones.
MySizeID
syncs
the user’s measurement data to a sizing chart integrated through a retailer’s mobile app, and only shows items that
match the measurements to ensure a correct fit each and every time.
Shipping/Parcel
According
to Accenture, the parcel post market is expected to grow by 9% per year and reach over $343 billion by 2020. The dimensions
of a package are critical. Consumers are not just measuring a box, they are purchasing the amount of space that will be required
on the carrier to transport the package. Far too often retailers use packaging unfit for their items, costing them extra in materials
and shipping fees.
The
Company addresses this issue for retailers with its
BoxSizeID
mobile technology.
BoxSizeID
enables
customers to quickly and easily measure the size of a parcel to accurately calculate shipping fees. It also offers shipping companies
a variety of precise logistical data to more efficiently manage the shipping process by providing them with an accurate way to
compare the physical package with the contents of such package.
BoxSizeID
is available for license for apps both
on iOS and Android operating systems.
DIY
Similar
to issues in the apparel and fashion market, big box, hardware, furniture, and DIY stores are plagued by returns due to incorrect
fit and measurements. In an industry where precise measurement for projects is an absolute necessity, e-commerce has not grown
as quickly as other verticals. Consumers continue to be unable to properly measure and purchase the correct amount of materials
online that are required for a particular project.
The
Company addresses this issue for retailers with its
SizeUp
mobile technology.
SizeUp is
a digital
tape measure that allows users to measure the length, width and height of a surface by moving their smartphone from one point
of an object to another point of an object.
SizeUp
is a value-add tool for DIY and home improvement retailers
whose customers struggle to find appropriate sized items, such as blinds and curtains for their homes, due to inaccurate measurements.
SizeUp
replaces
rulers, tape measures and other measuring tools used for DIY projects.
MySizeID
We
are currently in development of MySizeID, an application which assists the consumer to accurately take the measurements of his
or her own body using a smartphone in order to fit clothing in the best way possible without the need to try the clothes on. The
purpose of our application is to simplify the process of clothing acquisition through the internet and to significantly reduce
the rate of returns of ill-fitting clothing which are acquired through the internet.
The
application is the result of a research and development effort that combines:
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Anthropometric
research – analyses of information pertaining to body measurements derived from
a survey and the subsequent determination of correlations between body parts;
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Body measurement
algorithm research – an algorithm created by the Company to measure body parts; and
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Retailers
size chart analyses – adopting a deep understanding of the size charts of retailers
and the corresponding “body to garment size.”
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MySizeID
will operate based on the use of existing sensors in smart phones which enable, through a specific purpose application, the measurement
of the body of any consumer independently by moving the cellular phone along his or her body. The measurements can then be saved
on the Company’s cloud database, enabling the user to search for clothes in various retailer websites without worrying about
size. When a search is made, the retailer will connect to the Company’s cloud database and then provide results based on
the user’s measurements and other parameters as he or she may have defined. This data is also be saved for use when a customer
enters a brick and mortar store to help serve the customer more efficiently and to provide a better shopping experience.
As
soon as the item is found and the acquisition is completed, the retailer will be charged a certain percentage of the acquisition
price. The rate to be charged by My Size for the acquisition has not yet been fixed, and will be determined following negotiations
with fashion companies, in a more advanced stage of the development
.
How
MySizeID Can be Utilized by the Apparel Industry
The
MySizeID application will allow consumers to create a secure, online profile of their personal measurements, which can then be
utilized with partnered online retailers to ensure that no matter the manufacturer or size chart, they will get the right fit.
The MySizeID application will utilize a patent-pending measurement technology that does not rely on user photographs or any additional
hardware; all a user needs to do is scan their body with their smartphone and the app records their measurements.
The
application is being designed to use a person’s body measurements to help determine correct apparel sizes when shopping
on-line. The app measures the hip breadth and uses algorithms to recommend the most appropriate sized trousers.
The
first beta version of the MySizeID app was revealed and demonstrated at the 2018 Consumer Electronics Show, or CES, held in Las
Vegas, Nevada in January 2018.
The
first beta version of the app includes the ability of users to take their own measurement using their smartphone and obtain the
recommended size for retailers according the measurements taken which provides a more personalized shopping experience.
True
Size
In
November 2016, the Company introduced a new product called TrueSize.
TrueSize
is a customizable, white-label, mobile application that empowers retailers to improve the online shopping experience of their
customers by perfectly matching their true measurements with the retailer’s offerings. The level of accuracy and ease of
use integrated into the retailer’s website ensures that the customers will select the right size apparel every time, and
we believe this will significantly reduce the amount of returns.
How
Does TrueSize Work?
TrueSize
has two components: a white label application and a small application located on each page of the retailer’s website. First,
the customer downloads the TrueSize app, branded to a specific retailer’s website, and signs in, using the same credentials
used for the online store. The application will then guide the customer through the process.
Using
the TrueSize app, the customer next takes accurate measurements of an item of clothing from their wardrobe by placing the smartphone
first on one end of the item and then on the other end. The app will then prompt the user to take several different measurements
to get a complete reading. The information pertaining to each item is then saved, and can be updated at any time. Measurements
are next stored in the cloud and a recommended size for the user is calculated. The user may continue shopping directly from the
app by clicking the “Go Shopping” button, which will direct them to the retailer’s mobile website.
The
chart below illustrates how consumers can interact with the prompts from the TrueSize application.
Shopping
with TrueSize
A
“TrueSize” widget in the form of a button is located in proximity to the size selection feature on each product page
of the retailer’s website. If the customer has signed in to the website and has already downloaded the TrueSize app and
taken measurements, a recommended size will automatically appear in the widget. Users then have the option to manually update
their size parameters – height, weight, and an item’s parameters – at any time by simply clicking on the widget.
If the customer has not yet signed into the website, a prompt will appear requesting the customer to do so.
TRUCCO
– RealSize
RealSize
is a white label measurement application developed based on the Company’s TrueSize technology.
The
first customer to use the TrueSize technology is IN SITU S.A., the owner of the rights to the fashion brand-name TRUCCO.
TRUCCO
is a women’s clothing brand and has over 240 points of sale in more than 20 countries all over the world including, but
not limited to, Andorra, Chile, China, Costa Rica, Czech Republic, Dominican Republic, France, Guatemala, Israel, Kuwait, Libya,
Malaysia, Mexico, Panama, Paraguay, Peru, Portugal, Qatar, Russia, Singapore, Slovakia, Spain, Taiwan and Thailand.
The
Market - Courier Services
When
an individual wishes to ship boxes from place to place, they often call a courier service and request a pick up. The individual
is then usually asked about the dimensions of the package to be shipped. Unfortunately, the response given to the courier can
be rather vague (big, medium, small, etc.). This is often the cause of much confusion between the shipper and the courier. This
confusion can lead to the courier sending out the wrong vehicle for the pick-up and/or a large price differential from what was
originally quoted by the courier causing customer dissatisfaction.
How
My Size Can be Utilized for Courier Services
My
Size operates based on the use of existing sensors in smart phones which enable, through a specific purpose application, measurement
of the dimensions of packages by moving the cellular phone along packages (length, height and width) to be sent via courier. The
measurements are then be saved on the Company’s cloud database and shared with the courier. This allows for:
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Courier
services to provide accurate pricing to their consumers with little to no confusion;
and
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Courier
services to send the proper sized vehicle to pick up packages.
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Agreement
with Katz Delivery Services, LTD
On
November 20, 2015, My Size entered into an agreement (the “Katz Agreement”) with Katz Deliveries, LTD (“Katz”),
one of the largest courier services in Israel. Katz delivers approximately five million parcels per year, the most in Israel.
Katz has more than 250 vehicles. Pursuant to the Katz Agreement, the parties have agreed to mutually work together to develop
and integrate My Size technology with the technology of Katz to accurately monitor the volume of all parcels delivered to it for
shipment by its clients. The goal is for Katz to use our technology to help with planning its distribution lines, thus reducing
operational costs by adjusting the distribution vehicles to the volume of the shipments.
KatzID
was developed for Katz and is to be used to measure packages, boxes and pallets at Katz’ logistics center. The app allows
users to scan the barcode of a package and measure the package dimensions using My Size’s SizeIT technology and then subsequently
upload the information directly to Katz’s back office. The technology is being used to control package volumes and charge
Katz’ customers accordingly.
BoxSizeID
BoxSizeID
is an intuitive parcel measurement app that can provide real-time logistic data on package volumes and transportation, resulting
in improved operational efficiency and reduced operating expenses. In addition, BoxSizeID allows customers of package delivery
companies to easily measure the size of their parcel with their smartphone, calculate shipping costs and arrange for a convenient
pick-up time for the package.
OneShot
The
Company is currently developing OneShot, an algorithm that will make package measurement even faster as it will only require a
single movement to measure the height, width and depth of a package rather than three separate measurements.
SizeUp
My
Size is working on additional consumer applications. One of these applications is in the category of DIY. This application is
a smart tape measure for the business to consumer market which allows users to utilize their smartphone as a tape measure. The
application provides measurements with an accuracy of plus or minus 2 centimeters. Through the use of this application users will
be able to visualize how an object or a piece of furniture will fit in an existing room in their home or office. As many people
have difficulty with spatial recognition, the Company hopes this will help alleviate the problem.
In
the third quarter of 2015, My Size launched the SizeUp application for the iOS operating system. In the first quarter of 2016,
a second version of SizeUp for the iOS operating system was released. This release included the ability to measure both horizontal
and vertical measurements. In January 2017, a third version of SizeUp for the iOS operating system was released. This release
included an innovative air measurement algorithm which allows the user to measure over the air without the need to slide the phone
over the surface during the measurement.
The
first version of the SizeUp app for Android was released in March 2016 and included vertical measurement. An update to the app
was released in June 2017 which update includes a one-time calibration process for ensuring high accuracy.
As of March 23, 2018, there have been over
750,000 downloads of the SizeUp app. Currently the SizeUp app for Android and iOS are available for free for the first 30 days,
after which a user will be required to pay a one-time fee of $1.99 to continue using the application. To date, the Company has
accumulated immaterial revenues from the mentioned fee.
SizeIT
The
Company has developed SizeIT, a smart measuring tape standard development kit (“SDK”) for both Android and iOS platforms.
SizeIT provides users with the ability to instantly and accurately measure objects with a quick movement of their smartphone.
SizeIT, the core technology behind the Company’s TrueSize, SizeUp, and BoxSizeID applications, can be embedded into any
company’s existing or white label mobile app in a short period of time, offering an efficient solution to the escalating
costs associated with product sizing issues and returns. SizeIT enables users to measure smooth or rigid surfaced objects by moving
their smartphone from one side of an object to another side of the object. The Company’s algorithm utilizes a smartphone’s
motion sensors to calculate the travelled distance.
Research
and Development
The
Company incurred research and development expenses of $845,000 in 2017 and $727,000 in 2016, relating to the development of its
applications and technologies.
Income
Sources - Projected Income
The
Company’s business model currently contemplates five methods of producing revenue through the use of its products:
1.
Fees - The Company intends to charge sellers a fee for every garment and clothing item purchased using its products. Fees are
currently anticipated to be in the range of 1% to 3% of royalties on product sales, depending on volume, resulting from the use
of the MySizeID platform.
2.
Advertisements - the Company may generate revenue by using specialized ads using its database to identify the user’s exact
needs.
3.
“Offline Shopping” - the Company may offer its services to clothing and fashion stores, for real-time use by their
customers. The service may allow the store to immediately offer the customer a fitting garment suitable for his or her size.
4.
Pay Per application programming interface (“API”) call – every time a user is looking onto an item in the retailers
website and clicks the “what’s My Size” button to find out his size the retailer will be charged a fixed amount
based on the SDK pricing matrix.
5.
SizeUp – SizeUp is the first business to consumer app that MySize has released in the Apple App Store and on Google Play.
The Company charges a one-time fee of $1.99 for every download of the app from either store.
Competition
Management
of the Company believes that its technology and applications are a win-win solution for consumers, retailers, couriers and individuals.
The Company’s technology is protected by three issued patents, one in each of Russia, Japan and the U.S., one patent-pending
submission and an additional patent application which is in process. My Size’s products are designed to allow users to measure
themselves simply by sliding a smartphone over their body, and the measurements are recorded by the My Size application.
Unlike
other products claiming similar capabilities, there is no need for additional accessories (no webcam, photos, measuring tape,
etc.). Users of the My Size apps will have their information protected and a unique identification number is provided that matches
personal sizes with retailer size charts. When consumers get the right sized products, there are fewer returns of such products.
My
Size’s advantage is in its easy to use application in recording body measurements. Using special algorithmic equations,
the software is able to determine which sizes will best fit the customer. The collection of this data, and tracking shoppers’
preferences, allows for a unique shopping experience both online and in brick and mortar stores where the technology can instantly
match clothes the customer likes in sizes that will fit them.
Despite
our competitive advantage, we face competition from other companies which also help retailers increase conversation rate and reduce
shipping costs.
Competitive
Landscape
The
following chart lists some, but not all, of our competitors:
Name
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Technology
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User
Action
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Product
/ Service
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True
Fit
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Algorithm
driven engine matches manufacturer specs and data points with customer profile
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Answer
questions to create profile
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Based
on statistics; doesn’t reflect real measurement
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Rakuten
Fits.me
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Software
solution based on a personal avatar; Algorithm driven engine matches manufacturer specs and data points with customer profile
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Answer
questions to create profile
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Virtual
fitting room size
Recommendations
based on statistics
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Virtusize
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Compares
a reference item the silhouette of the garment they are looking to buy
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Reference
items: a previous purchase or a favorite item. Measure it manually and enter results to the app
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Garment-to-garment
comparison with tape measure (manually)
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EasyMeasure
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Uses
camera and motion sensors
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User
needs to photograph according to the instructions and conditions of the app. (i.e. certain lighting conditions)
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Allows
the user to measure large objects and from far away (i.e. a building). Low accuracy requires optimal lighting conditions
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Only
on iOS platform
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Very
intuitive
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Name
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Technology
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User
Action
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Product
/ Service
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AR
MeasureKit
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AR
kit and motion sensors
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Allows
the user to measure objects from a distance with the camera
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Requires
bright light, and a contrast between the object and the background
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When
measuring small objects it can be difficult to “mark” them
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Only
on iOS platform
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Smart
Measure
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Camera
and motion sensors
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Allows
the user to measure objects from a distance
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Easy
to use
Requires
the user to know the height of the device
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Requires
optimal lighting conditions
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●
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Only
on Android platform
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Some
of our competitors have significantly greater financial, marketing, personnel and other resources than we do, and many of our
competitors are well established in markets in which we have existing retailers or intend to locate new retailers. We may also
need to evolve our concepts in order to compete with popular new retail formats or concepts that develop from time to time, and
we cannot offer any assurance that we will be successful in doing so or that modifications to our concepts will not reduce our
profitability.
Legal
Proceedings
On
May 3, 2017, Lightcom (Israel) Ltd., an Israeli company, alleging that it is a shareholder of the Company, filed a motion with
the Tel Aviv District Court (Financial Division) to approve an action against the Company and the Company’s officers and
directors, as a shareholders’ class action. The complaint alleges, inter alia, that the Company’s report dated April
19, 2017 regarding its engagement with the Israeli Post was false and misleading, and that as a result thereof financial damages
have been incurred by two purported classes of shareholders: (i) any shareholder who sold Company’s shares as of April 20,
2017 and until April 27, 2017, with respect to damage directly caused by such sale and (ii) any shareholder which held shares
on April 20, 2017 and subsequent to April 27, 2017 with respect to damage caused by permanent adverse effect to the shares’
value. The alleged financial damage caused to members of both classes is estimated to be NIS 18.8 million. The Company reviewed
the motion initially with its legal counsel and retained an expert to review and analyze the allegations and data upon which the
motion is based. After considering the conclusions of a report issued by a third party expert and an opinion of U.S. legal counsel,
management is of the opinion that the chances that the class motion will be denied exceed the risk that it will be approved, In
the event that the class motion will be approved, the complaint will become a class action which will be heard by the court on
its merits. Should this occur, the Company will respond to the class motion in the time frame ordered by the court. On November
15, 2017 the Company filed its response to the class motion and a motion to dismiss the class motion.
On
November 15, 2017, the court ordered the respondent (the original plaintiff) to respond to the motion to dismiss within 30 days,
which response was filed by the respondent on November 29, 2017. On December 28, 2017, the court ordered that a hearing on the
foregoing matter will be held after the ruling on the Company’s appeal before the Nasdaq Hearings Panel regarding the delisting
of the Company’s securities from The Nasdaq Capital Market. On January 25, 2018, Nasdaq concluded that the Company is in
compliance with all applicable listing standards and as a result, the scheduled hearing before the Hearings Panel was cancelled
and the Company’s common stock continues to trade on The Nasdaq Capital Market under the symbol “MYSZ”. On January
28, 2018, the Company informed the court accordingly.
A
hearing on the Company’s motion to dismiss is currently scheduled to be held on April 26, 2018. As of the date of this Annual
Report on Form 10-K, the motion to dismiss is still pending.
On
September 9, 2015, fourteen shareholders filed a complaint against the Company and its Chief Executive Officer, Ronen Luzon, alleging
that in accordance with agreements signed between plaintiffs and the Company, the plaintiffs are entitled to register their shares
for sale with the stock market, while the Company allegedly breached its obligation to register the plaintiffs’ shares.
On November 5, 2015, the Company filed its defense and a counter claim against the plaintiffs and against two additional defendants
(who are not plaintiffs) Mr. Asher Shmuelevitch and Mr. Eitan Nahum. In its counter claim, the Company alleged that the agreements
by force of which the counter defendants hold their shares are defunct, based on fraud, as the counter defendants never paid and
never intended to pay the agreed upon consideration for their shares. The Company further alleged that Mr. Shmuelevitch used his
position as a director and controlling stockholder of the Company to knowingly cause the Company to enter such defunct agreements.
On September 5, 2017, the court rendered a judgment pursuant to which the complaint against the Company was accepted, the complaint
against Ronen Luzon was rejected and the Company’s counter-claim was rejected. The judgment included: (1) a declaratory
remedy under which the Company breached its contractual undertakings toward the plaintiffs to list their shares both on TASE and
on The Nasdaq Capital Market; (2) an order that the Company take any and all actions required for the listing of the plaintiffs’
shares, including instructing the Company’s transfer agent to remove the legend or any other restriction from the plaintiffs
stock certificate and issue the plaintiff new stock certificates free and clear from any restriction; (3) an order that the registration
company of Bank Hapoalim electronically list all of the plaintiffs’ shares detailed in the complaint on the electronic trading
system; and (4) an order that the Company pay the plaintiffs’ costs in the amount of NIS 70,000. On October 3, 2017, the
Company appealed the judgment with the Supreme Court of Israel, and simultaneously, filed with the Supreme Court a Motion for
Stay of Execution of the judgement, pending the outcome of the appeal. On November 8, 2017, the Supreme Court upheld the Motion
to Stay and ordered that the execution of the judgment be stayed pending the outcome of the appeal, provided that the Company
deposit in the Supreme Court’s treasury an autonomous Israeli CPI linked bank guarantee in an amount of NIS 1,700,000, to
cover the respondents’ potential damages should the appeal be ultimately denied. The Company did not deposit the bank guarantee
in the amount of NIS 1,700,000 and will instead register the shares held by the plaintiffs on TASE and on The Nasdaq Capital Market.
The registration of the shares is ongoing and has not been completed yet. In the event that the Company is successful in its appeal,
the Company may seek relief from the shareholders which have sold their shares either in private or public sales in the amount
of the proceeds from such sales. Although the Company has appealed such matter, there can be no assurance that the appeal will
result in a judgment favorable to the Company. If the judgment rendered on appeal is not favorable to the Company, the Company
may be ordered to pay the respondents legal costs in connection with the appeal. On November 16, 2017, the Company deposited NIS
45,000 with the Supreme Court to cover respondents’ potential legal costs if the appeal is ultimately denied. A hearing
on the Company’s appeal is scheduled to be held on December 10, 2018.
The
Company received legal advice from its counsel that the burden of proof that the judgment is wrong and should be reversed lies
with the appellant. Consequently, the Company believes that it is more likely than not that the appeal will be denied rather than
being accepted. In the event that the appeal is denied, no direct financial liability will be imposed on the Company (other than
legal costs which the court may order the non-prevailing party to pay).
It
should be noted that the plaintiffs may file a complaint against the Company seeking reimbursement of economic loss or damages
due to the fact that their shares remained restricted, in breach of the Company’s contractual undertakings. A formal demand
has not yet been filed, but in their response to the Company’s motion to stay the judgment, the plaintiffs argued, that
they suffered economic loss in the sum of NIS 12,100,000. As of the date of this filing no formal request or complaint were filed;
however, we are unable to assess the financial risk inherent in such a claim since, among other things, the estimate of alleged
damage is dependent upon the actual revenues to be received by the plaintiffs from the future sale of the shares, the method of
calculating the damage and data relating to the Company’s share price and trading volume of stock. In the event that the
Company is successful in its appeal, there will be no grounds to such reimbursement.
On
December 15, 2015, a legal complaint was filed naming the following as defendants: the Company, all the members of the Board of
Directors, Mrs. Shoshana Zigdon, a shareholder and related party in the Company, as well as two additional defendants who are
not shareholders, officers or directors of the Company. The plaintiff alleges that the Company violated its obligation to register
his shares (the “Original Shares”) for trade with the TASE causing a total of NIS 2,622,500 ($756,418 as of December
31, 2017) damage. The plaintiff seeks relief against the defendants through financial compensation at the rate of the aforementioned
alleged damage; additional compensation of NIS 400,000 ($115,374 as of December 31, 2017) due to mental anguish; if and to the
extent that until the time the plaintiff can sell its shares on the TASE (the “Exercise Date”), if the price of a
Company common stock rises above NIS 20.98 (the “Base Rate”), an additional amount at the rate of the difference between
the Base Rate and the highest rate of a share of Company common stock between the time the claim was submitted and the Exercise
Date; and court costs and attorney’s fees.
All
pre-trial preliminary proceedings as well as submission of all evidentiary affidavits and expert opinions by both parties have
been completed.
On
June 20, 2017, the Company and plaintiff entered into a settlement agreement (the “Settlement Agreement”) following
a mediation process. Pursuant to the Settlement Agreement, the Company agreed to pay the plaintiff NIS 325,000 ($93,741 as of
December 31, 2017) (the “Payment”) within 30 days of the date of the Settlement Agreement. Additionally, the Company
was obligated to register the Original Shares within a specified time frame. Moreover, pursuant to the Settlement Agreement, the
Company agreed to issue, within 60 days, 80,358 additional shares of common stock to the plaintiff (the “New Shares”),
which New Shares shall be registered, to be deposited in escrow and sold for the benefit of plaintiff. To the extent the Company
does not issue the unrestricted New Shares within 60 days of the date of the Settlement Agreement, the plaintiff has a right,
at his sole discretion, to resume the legal proceedings pursuant to the complaint, provided he deposits the Payment in an escrow
account, pending the court’s final adjudication of the complaint. Furthermore, the Settlement Agreement provides that to
the extent the aggregate proceeds from the sale of the Original Shares and the New Shares is less than NIS 1,600,000, the Company
will either pay the difference in cash or shall issue to the plaintiff additional shares of common stock in lieu thereof, at the
Company’s sole discretion. If the Company does not comply with the terms of the Settlement Agreement, the plaintiff
may resume the legal proceedings which could result in substantial costs, diversion of management’s attention and diversion
of the Company’s resources.
During
the year ended December 31, 2017, the Company registered the Original Shares, issued the New Shares and paid the plaintiff the
Payment. As of December 31, 2017, the Company recorded a derivative liability in the amount of $194 with respect to the amount
payable pursuant to the terms of the Settlement Agreement, and $60 in equity with respect to the issuance of the New Shares.
On
January 25, 2018, the court rendered the Settlement Agreement a status of a judgment. On January 30, 2018, the plaintiff informed
the Company that all the shares (the Original Shares and the New Shares), were sold for an aggregate of NIS 1,061,533. Accordingly,
the plaintiff was entitled to receive an additional NIS 213,467 from the Company payable either in cash or in kind, by the issuance
of additional shares of the Company’s common stock (the “Additional Amount”).
Pursuant
to the Settlement Agreement, the payment of the Additional Amount was due and payable no later than March 16, 2018. On March 13,
2018, the Company paid the plaintiff the Additional Amount.
Employees
and Independent Contractors
We
currently have 12 employees and 8 independent contractors.
Company
Information
The
Company was incorporated in the State of Delaware and commenced operations in September 1999 under the name Topspin Medical, Inc.
In December 2013, the Company changed its name to Knowledgetree Ventures Inc. Subsequently, in February 2014, the Company changed
its name to My Size, Inc. Our principal executive offices are located at 3 Arava St., pob 1026, Airport City, Israel 7010000,
and our telephone number is +972-3-600-9030. Our website address is
www.mysizeid.com
. Any information contained
on, or that can be accessed through, our website is not incorporated by reference into, nor is it in any way a part of, this Annual
Report on Form 10-K.
Background
The
Company (under the name Topspin Medical, Inc.) was a privately held company that was engaged, through 2012, in research and development
of a medical magnetic resonance imaging (“MRI”) technology for interventional cardiology and in the development of
MRI technology for use in the diagnosis and treatment of prostate cancer.
On
September 1, 2005, the Company issued securities to the public in Israel according to a prospectus and became publicly traded
on the Tel Aviv Stock Exchange (“TASE”). In 2007, and until August 2012, the Company registered some of its securities
with the U.S. Securities and Exchange Commission (“SEC”).
In
January 2012, after having received the approval at the general meeting of shareholders of the Company, the Company consummated
a transaction whereby it acquired Metamorefix Ltd. (“Metamorefix”). Pursuant to such transaction, Metamorefix became
wholly-owned by the Company. Metamorefix was incorporated in 2007, and was engaged in the development of innovative solutions
for the rehabilitation of tissues, particularly skin tissues.
On
August 21, 2012, the Company’s board of directors (the “Board” or “Board of Directors”) approved
the suspension of the Company’s reporting obligations under Section 13(a) and 15(d) of the Securities Exchange Act of 1934
(the “De-Registration”). The Company thereafter filed a Form 15 with the SEC on September 5, 2012 to effect the De-Registration.
Upon the filing of the Form 15, the Company’s obligation to file periodic and current reports with the SEC, including Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on form 8-K, was immediately suspended.
By
the end of 2012, in view of the Company’s cash flow, the Company ceased its above operations and shortly thereafter the
Company’s employees were laid off. In January 2013, the Company sold its entire ownership interest in Metamorefix.
Change
in Control Transaction
In
September 2013, Ronen Luzon, the Company’s current Chief Executive Officer, purchased control of the Company from Mr. Asher
Shmuelevitch (the “Transaction”). Mr. Luzon purchased 1,755,950 shares of common stock from Mr. Shmuelevitch, which
shares represented approximately 40% of the issued and outstanding capital stock of the Company at such time, and thus Mr. Luzon
became a controlling shareholder of the Company.
Within
the framework of the Transaction, Mr. Luzon reached a settlement with the Company’s creditors pursuant to which the main
creditor, Mr. Asher Shmuelevitch, was paid a total sum of New Israeli Shekel (“NIS”) 0.5 million (approximately $140,000)
in consideration for a full and final waiver of any and all his claims that he may have relating to any monetary indebtedness
of the Company to the creditors.
As
a result of the various investment rounds in the Company, Mr. Luzon’s beneficial ownership in the Company has been diluted
and currently represent approximately 6.98% of the issued and outstanding shares of common stock of the Company on a fully diluted
basis.
In
January, 2014, the Board approved a transaction with Shoshana Zigdon, a related party, with respect to a technology venture through
a new subsidiary, as discussed below.
February
2014 Purchase Agreement
In
February 2014, the Company entered into a Purchase Agreement (the “Purchase Agreement’) with Shoshana Zigdon (“Seller”),
with respect to the acquisition of certain rights in a venture for the accumulation of physical data of human beings by portable
electronic devices (including smart phones, tablets and other portable devices) for the purpose of locating, based on the accumulated
data, articles of clothing in internet apparel stores, which will fit the person whose measurements were so accumulated (the “Venture”).
Prior to entering into the Purchase Agreement, in January 2014, the Purchase Agreement was approved by shareholders of the Company
as the Seller was also a beneficial owner of over 20% of the outstanding capital of the Company.
Pursuant
to the Purchase Agreement, the Company purchased the all of Seller’s rights, title and interest in and to the Venture, including,
but not limited to, the method (the “Method”) and the certain patent application that had been filed by Seller (PCT/IL2013/050056)
(the “Patent”, and collectively with the Method, the “Assets”).
In
consideration for the sale of the Assets, the Company agreed to pay to Seller, 18% of the Company’s operating profit, directly
or indirectly connected with the Venture and/or the Method and/or the commercialization of the Patent together with value-added
tax (“VAT”) in accordance with the law (the “Consideration”) for a period of seven years from the end
of the development period of the Venture. The parties further agreed that Seller’s right to receive the Consideration will
apply even in the event the Patent is revoked/rejected/expires and/or the non-receipt of the Patent for any reason. Down payments
on account of the Consideration are to be paid to the Seller quarterly, within 14 days from the approval of the reviewed financial
reports of the Company, with the exception of the fourth quarter which will be paid after the approval of the audited financial
reports of the Company. Payment will be made against a duly issued tax invoice as prescribed by law.
The
Agreement may be terminated by either party in the event of a breach of the obligations of the other party and the failure to
cure a default within a specified period of time. The Agreement further provides that Seller is entitled to repurchase the Assets
from the Company upon the occurrence of one or more of the following events: (a) if an application for liquidation of the Company
and/or an application for appointment of a receiver for the Company and/or for a significant part of its assets has been filed,
and/or an attachment has been imposed on a significant part of the Company’s assets, and the application or attachment –
as the case may be – has not been not canceled within 60 days from the date on which they are filed; or (b) if upon the
date that is seven years from the date of execution of the Agreement, the amount of Company’s income, directly and/or indirectly
accumulated from the Venture and/or the Method and/or the commercialization of the Patent is less than NIS 3.6 million (approximately
$1 million) (a “Repurchase Event”).
If
a Repurchase Event occurs, Seller shall have a 90 day right, subject to delivery of written notice to the Company of Seller’s
intention to exercise such right, to repurchase the Assets from the Company. The repurchase price will be based upon a market
price to be determined by an external and independent valuer, who shall be chosen by agreement by the parties, and the Audit Committee
shall conduct the negotiations on behalf of the Company to determine the identity of the valuer. In the absence of agreement on
the identity of the valuer, the valuer shall be appointed by the President of the Institute of Certified Public Accountants in
Israel. If one of the parties appeals against the valuation, with the Company’s decision to appeal being made by the Audit
Committee of the Company, the parties shall approach another agreed valuer from one of the four large accounting firms in Israel
(and in the absence of agreement he shall be chosen by the President of the Institute of Certified Public Accountants) and an
average shall be taken of the two valuations which are received. The parties shall bear the valuers’ fees and all the expenses
of the valuation in equal shares. Unless Seller gives the Company written notice of the retraction of Seller’s intention
to repurchase the Assets, the Seller shall be obligated to repurchase the Assets within 60 days from the date of receipt of the
valuation. Seller shall have the right to retract its intention to repurchase the Assets, provided Seller gives written notice
to the Company within 30 days of receiving the valuation and subject to Seller refunding the Company the expenses borne by the
Company in respect of the valuation (provided that the Company gives Seller details of the expenses borne by it).
In
addition to the foregoing, the Agreement provides that all developments, improvements knowledge and know-how developed and/or
accumulated by the Company after the execution of the Agreement will be owned by the Company. Further, the Seller agreed not to
compete, directly or indirectly, with the Company in any matter relating to the Assets and/or the Venture and/or the Method for
a period of seven years from the end of the development period of the Venture.
On
July 25, 2016, the Company’s common stock began publicly trading on The Nasdaq Capital Market under the symbol “MYSZ”.
Recent
Developments
December
2017 Public Offering
On
December 22, 2017, we completed a public offering of 3,832,500 shares of our common stock and five-year warrants to purchase an
aggregate of 2,874,375 shares of common stock at an exercise price of $0.851 per share. The gross proceeds to us were approximately
$2.5 million, before deducting placement agent fees and other offering expenses.
February
2018 Public Offering
On
February 2, 2018, we completed a public offering of 3,000,000 shares of our common stock and five-year warrants to purchase an
aggregate of 1,500,000 shares of common stock at an exercise price of $2.65 per share. The gross proceeds to us were approximately
$6.0 million, before deducting placement agent fees and other offering expenses.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. This prospectus contains a discussion of the risks applicable to
an investment in our securities. Prior to making a decision about investing in our securities, you should carefully consider the
specific factors discussed under the heading “Risk Factors” in this prospectus, together with all of the other information
contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus.
You should also consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in our
Annual Report on Form 10-K for the fiscal year ended December 31, 2016 and any updates described in our Quarterly Reports on Form
10-Q, all of which are incorporated herein by reference, and may be amended, supplemented or superseded from time to time by other
reports we file with the SEC in the. The risks and uncertainties we have described are not the only ones we face. Additional risks
and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. The occurrence
of any of these known or unknown risks might cause you to lose all or part of your investment in the offered securities.
Risks
Related To Our Company And Our Business
We
may never successfully develop any products or generate revenues.
We
are a pre-revenue stage company with research, development, marketing and general and administrative expenses. We may be unable
to successfully develop or market any of our current or proposed products or technologies, those products or technologies may
not generate any revenues, and any revenues generated may not be sufficient for us to become profitable or thereafter maintain
profitability. We have only generated very minimal revenues to date.
We
have historically incurred significant losses and there can be no assurance when, or if, we will achieve or maintain profitability.
During the twelve months ended December
31, 2017, the Company realized a net loss of $5,404,000 compared with a net loss of $4,334,000 for the year ended December 31,
2016. Because of the numerous risks and uncertainties associated with the development of the Company’s products and business,
we are unable to predict the extent of any future losses or when we will become profitable, if at all. Expected future operating
losses will have an adverse effect on our cash resources, shareholders’ equity and working capital. Our failure to become
and remain profitable could depress the value of our stock and impair our ability to raise capital, expand our business, maintain
our development efforts, diversify our portfolio of staffing companies, or continue our operations. A decline in our value could
also cause you to lose all or part of your investment in our Company.
Subsequent to December 31, 2017 the
Company received additional cash proceeds in an amount of approximately $8,900,000 from the exercise of outstanding securities
and from the sale of equity securities. Based on the projected cash flows and the cash balances as of the date of
t
his
Annual Report on Form 10-K, management’s plans consider that the cash generated from the recent exercise of outstanding
securities and sale of equity securities will be sufficient to meet its obligations for a period which is longer than 12 months
from the date of this report.
Management’s plans include the
continued commercialization of our products, growth and securing sufficient financing through the sale of additional equity securities,
debt or capital inflows from strategic partnerships. There can be no assurances, however, that we will be successful in obtaining
the level of financing needed for our future growth of operations. If we are unsuccessful in commercializing our products and
securing sufficient financing, we may need to cease operations.
We
will need to raise additional capital to meet our business requirements in the future, which is likely to be challenging, could
be highly dilutive and may cause the market price of our common stock to decline.
In order to meet our business objectives
in the future, we may need to raise additional capital, which may not be available on reasonable terms or at all. Additional capital
would be used to accomplish the following:
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finance our current
operating expenses;
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pursue growth opportunities;
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hire and retain
qualified management and key employees;
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respond to competitive
pressures;
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comply with regulatory
requirements; and
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maintain compliance
with applicable laws.
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To
the extent that we raise additional capital through the sale of equity or convertible debt securities, the issuance of such securities
could result in substantial dilution for our current stockholders. The terms of any securities issued by us in future capital
transactions may be more favorable to new investors, and may include preferences, superior voting rights and the issuance of warrants
or other derivative securities, which may have a further dilutive effect on the holders of any of our securities then-outstanding.
We may issue additional shares of our common stock or securities convertible into or exchangeable or exercisable for our common
stock in connection with hiring or retaining personnel, option or warrant exercises, future acquisitions or future placements
of our securities for capital-raising or other business purposes. The issuance of additional securities, whether equity or debt,
by us, or the possibility of such issuance, may cause the market price of our common stock to decline and existing stockholders
may not agree with our financing plans or the terms of such financings.
In
addition, we may incur substantial costs in pursuing future capital financing, including investment banking fees, legal fees,
accounting fees, securities law compliance fees, printing and distribution expenses and other costs. We may also be required to
recognize non-cash expenses in connection with certain securities we issue, such as convertible notes and warrants, which may
adversely impact our financial condition.
Furthermore,
any additional debt or equity financing that we may need may not be available on terms favorable to us, or at all. If we are unable
to obtain such additional financing on a timely basis, we may have to curtail our development activities and growth plans and/or
be forced to sell assets, perhaps on unfavorable terms, which would have a material adverse effect on our business, financial
condition and results of operations.
The
success of our business is highly dependent on being able to predict which applications and technologies will be successful, and
on the market acceptance and timely release of those applications and technologies. If we do not accurately predict which applications
and technologies will be successful, our financial performance will be materially adversely affected.
We
expect to derive most of our revenue by charging fees in connection with the usage of our applications and technologies. We must
make product development decisions and commit significant resources well in advance of the anticipated introduction of new applications
and technologies. The release of our applications and technologies may be delayed, may not succeed or may have a shorter life
cycle than anticipated. If the applications are not released when anticipated or do not attain wide market acceptance, our revenue
growth may never materialize, we may be unable to fully recover the resources we have committed, and our financial performance
will be harmed.
We
are substantially dependent on assets we purchased from an affiliated party, and if we lose the rights to such assets or the assets
are repurchased for any reason, our ability to develop existing and new applications based upon these assets would be harmed,
and our business, financial condition and results of operations would be materially and adversely affected.
In
February 2014, we entered into the Purchase Agreement with Shoshana Zigdon pursuant to which we acquired certain rights in a venture
for the accumulation of physical data of human beings by portable electronic devices (including smart phones, tablets and other
portable devices) for the purpose of locating, based on the accumulated data, articles of clothing in internet apparel stores,
which will fit the person whose measurements were so accumulated. In addition, pursuant to the Purchase Agreement, we acquired
the right, title and interest to the method and the certain patent application that had been filed by Shoshana Zigdon (PCT/IL2013/050056).
Our business is substantially dependent upon the assets we acquired pursuant to the Purchase Agreement. Therefore, our ability
to develop and commercialize our applications depends upon the effectiveness and continuation of the Purchase Agreement. If we
lose the right to the Method or Patent application described above, our ability to develop existing and new applications would
be harmed.
In
consideration for the sale of the Method and Patent application, we agreed to pay to Shoshana Zigdon, 18% of the Company’s
operating profit, directly or indirectly connected with the Venture and/or the Method and/or the commercialization of the Patent
together with value-added tax in accordance with the law for a period of seven years from the end of the development period of
the Venture. Shoshana Zigdon’s right to receive such consideration will apply even in the event the Patent is revoked/rejected/expires
and/or the non-receipt of the Patent for any reason.
The
Purchase Agreement may be terminated by either party in the event of a breach of the obligations of the other party and the failure
to cure the default within a specified period of time. Further, Shoshana Zigdon has the right to repurchase the Method and Patent
application from us upon the occurrence of one or more of the following events: (a) if an application for liquidation of the Company
and/or an application for appointment of a receiver for the Company and/or for a significant part of its assets has been filed,
and/or an attachment has been imposed on a significant part of the Company’s assets, and the application or attachment –
as the case may be – has not been not canceled within 60 days from the date on which they are filed; or (b) if upon the
date that is seven years from the date of execution of the Purchase Agreement, the amount of Company’s income, directly
and/or indirectly accumulated from the Venture and/or the method and/or the commercialization of the Patent is less than New Israeli
Shekel (“NIS”) 3.6 million (approximately $1 million). If Shoshana Zigdon repurchases the Method and Patent application,
our ability to develop our proposed products would be significantly harmed. Furthermore, we may lose the ability to commercialize
any products that we have already developed.
Changes
in economic conditions could materially affect our business, financial condition and results of operations.
Because
our target customers are retailers, we, together with the rest of the retail industry, will depend upon consumer discretionary
spending once we develop our proposed products. Increases in unemployment rates, reductions in home values, increases in home
foreclosures, investment losses, personal bankruptcies and reductions in access to credit and reduced consumer confidence, may
impact consumers’ ability and willingness to spend discretionary dollars. In addition, volatile economic conditions may
repress consumer confidence and discretionary spending. Any of the foregoing may have an adverse effect on our business, financial
condition and results of operations.
Damage
to our reputation or lack of acceptance of our brand in existing and new markets could negatively impact our business, financial
condition and results of operations.
We
intend to build a strong reputation for the quality of our technology, and we must protect and grow the value of our brand to
be successful. Any incident that erodes consumer affinity for our brand could significantly reduce our brand value and damage
our business. If consumers perceive or experience a reduction in quality, or in any way believe we fail to deliver a consistently
positive experience, our brand value could suffer and our business may be adversely affected.
In
addition, our ability to successfully develop new retailers in new markets may be adversely affected by a lack of awareness or
acceptance of our brand in these new markets. To the extent that we are unable to foster name recognition and affinity for our
brand in new markets, our growth may be significantly delayed or impaired.
As
a result, adverse economic conditions in any of these areas could have a material adverse effect on our overall results of operations.
In recent years, certain of these markets have been more negatively impacted by the housing decline, high unemployment rates and
the overall economic crisis than other geographic areas. In addition, given our geographic concentration, negative publicity regarding
any of our retailers in these areas could have a material adverse effect on our business and operations, as could other regional
occurrences such as local strikes, terrorist attacks, increases in energy prices, adverse weather conditions, hurricanes, droughts
or other natural or man-made disasters.
In
particular, adverse weather conditions can impact guest traffic at our retailers, and, in more severe cases, cause temporary retail
closures, sometimes for prolonged periods. Our business is subject to seasonal fluctuations, with retail sales typically higher
during certain months, such as December. Adverse weather conditions during our most favorable months or periods may exacerbate
the effect of adverse weather on consumer traffic and may cause fluctuations in our operating results from quarter-to-quarter
within a fiscal year.
Technology
changes rapidly in our business, and if we fail to anticipate new technologies, the quality, timeliness and competitiveness of
our products will suffer.
Rapid
technology changes require us to anticipate which technologies and/or distribution platforms our products must take advantage
of in order to make them competitive in the market at the time they are released. Therefore, we usually start our product development
with a range of technical development goals that we hope to be able to achieve. We may not be able to achieve these goals, or
our competition may be able to achieve them more quickly than we can. In either case, our products may be technologically inferior
to competitive products, or less appealing to consumers, or both. If we cannot achieve our technology goals within the original
development schedule of our products, then we may delay products until these technology goals can be achieved, which may delay
or reduce revenue and increase our development expenses.
We
rely upon third parties to provide distribution for our applications, and disruption in these services could harm our business.
We
currently utilize, and plan on continuing to utilize over the current fiscal year, third-party networking providers and distribution
through companies including, but not limited to, Apple and Google to distribute our technologies. If disruptions or capacity constraints
occur, the Company may have no means of replacing these services, on a timely basis or at all. This could cause a material adverse
condition for our operations and financial earnings.
We
rely on third-party hosting and cloud computing providers to operate certain aspects of our business. any failure, disruption
or significant interruption in our network or hosting and cloud services could adversely impact our operations and harm our business.
Our
technology infrastructure is critical to the performance of our mobile applications and customer satisfaction. Our mobile applications
run on a complex distributed system, or what is commonly known as cloud computing. We own, operate and maintain elements of this
system, but significant elements of this system are operated by third-parties that we do not control and which would require significant
time to replace. We expect this dependence on third-parties to continue. In particular, a significant portion, if not almost all
data storage, data processing and other computing services and systems is hosted by cloud computing providers. Any disruptions,
outages and other performance problems relating to such services, including infrastructure changes, human or software errors and
capacity constraints, could adversely impact our business, financial condition or results of operations.
We
could be harmed by improper disclosure or loss of sensitive or confidential Company, employee, associate or customer data, including
personal data.
In
connection with the operation of our business, we plan to store, process and transmit data, including personal and payment information,
about our employees, customers, associates and candidates, a portion of which is confidential and/or personally sensitive. Unauthorized
disclosure or loss of sensitive or confidential data may occur through a variety of methods. These include, but are not limited
to, systems failure, employee negligence, fraud or misappropriation, or unauthorized access to or through our information systems,
whether by our employees or third parties, including a cyberattack by computer programmers, hackers, members of organized crime
and/or state-sponsored organizations, who may develop and deploy viruses, worms or other malicious software programs.
Such
disclosure, loss or breach could harm our reputation and subject us to government sanctions and liability under our contracts
and laws that protect sensitive or personal data and confidential information, resulting in increased costs or loss of revenues.
It is possible that security controls over sensitive or confidential data and other practices we and our third-party vendors follow
may not prevent the improper access to, disclosure of, or loss of such information. The potential risk of security breaches and
cyberattacks may increase as we introduce new services and offerings, such as mobile technology. Further, data privacy is subject
to frequently changing rules and regulations, which sometimes conflict among the various jurisdictions in which we provide services.
Any failure or perceived failure to successfully manage the collection, use, disclosure, or security of personal information or
other privacy related matters, or any failure to comply with changing regulatory requirements in this area, could result in legal
liability or impairment to our reputation in the marketplace.
We
might not be able to successfully market our products.
We
expend significant resources in our marketing efforts, using a variety of media, including social media venues such as Facebook,
LinkedIn and Twitter. In addition, we use targeted marketing on certain websites and have engaged two sales people in Europe and
three sales people in the U.S. to market our products. We expect to continue to conduct brand awareness programs and guest initiatives
to attract potential users. These initiatives may not be successful, resulting in expenses incurred without the benefit of substantial
revenues. Additionally, some of our competitors have greater financial resources, which enable them to purchase significantly
more advertising than we are able to purchase. Should our competitors increase spending on advertising and promotions or our advertising
funds decrease for any reason, or should our advertising and promotions be less effective than our competitors, there could be
a material adverse effect on our results of operations and financial condition.
Our business operations and future
development could be significantly disrupted if we lose key members of our management team.
The success of our business continues to
depend to a significant degree upon the continued contributions of our senior officers and key employees, both individually and
as a group. Our future performance will be substantially dependent in particular on our ability to retain and motivate Ronen Luzon,
our Chief Executive Officer, and certain of our other senior executive officers. We currently do not have an employment agreement
in place with these officers. The loss of the services of our Chief Executive Officer, senior officers or other key employees could
have a material adverse effect on our business and plans for future development. We have no reason to believe that we will lose
the services of any of these individuals in the foreseeable future; however, we currently have no effective replacement for any
of these individuals due to their experience, reputation in the industry and special role in our operations. We also do not maintain
any key man life insurance policies for any of our employees.
Our growth may strain our infrastructure
and resources, which could slow our development of new retailers and adversely affect our ability to manage our existing retailers.
Our future growth may strain our retail
management systems and resources, financial controls and information systems. Those demands on our infrastructure and resources
may also adversely affect our ability to manage our existing retailers. If we fail to continue to improve our infrastructure or
to manage other factors necessary for us to meet our expansion objectives, our operating results could be materially and adversely
affected. Likewise, if sales decline, we may be unable to reduce our infrastructure quickly enough to prevent sales deleveraging,
which would adversely affect our profitability.
Our business operations are conducted in multiple languages
and could be disrupted due to miscommunications or translation errors.
The success of our business continues
to depend on our marketing efforts in the United States, Europe and Israel, each of which is conducted in the local language. Miscommunications
or inaccurate foreign language translations could have a material adverse effect on our business operations and financial conditions.
Additionally, contracts, communications and complex technical information must be accurately translated into foreign languages.
We do not maintain theft or casualty
insurance and only maintain modest liability and property insurance coverage and therefore could incur losses as a result of an
uninsured loss.
We do not maintain theft or casualty insurance
and only maintain modest liability and property insurance coverage. We cannot provide any assurance that we will not incur uninsured
liabilities and losses as a result of the conduct of our business. Any such uninsured loss or liability could have a material adverse
effect on our results of operations.
We may not be able to adequately
protect our intellectual property, which, in turn, could harm the value of our brands and adversely affect our business.
Our ability to implement our business plan
successfully depends in part on our ability to build brand recognition using our trademarks, service marks and other proprietary
intellectual property, including our names and logos. We plan to register a number of our trademarks; however, no assurance can
be given that our trademark applications will be approved. We have been issued three patents, one of each in of Russia, Japan and
the U.S., have one patent-pending submission and an additional patent application which is in process. No assurance can be given
that our patent-pending submission or the additional patent application which is in process will be approved. If our patent-pending
submission or the additional patent application which is in process are not approved, our ability to expand or develop our business
may be negatively affected.
Third parties may also oppose our trademark
or patent applications, or otherwise challenge our use of the trademarks or patents. In the event that our trademarks or patents
are successfully challenged, we could be forced to rebrand our goods and services or redesign our technology, which could result
in loss of brand recognition, and could require us to devote resources to advertising and marketing new brands and products.
If our efforts to register, maintain and
protect our intellectual property are inadequate, or if any third party misappropriates, dilutes or infringes on our intellectual
property, the value of our brands may be harmed, which could have a material adverse effect on our business and might prevent our
brands from achieving or maintaining market acceptance. We may also face the risk of claims that we have infringed third parties’
intellectual property rights. If third parties claim that we infringe upon their intellectual property rights, our operating profits
could be adversely affected. Any claims of intellectual property infringement, even those without merit, could be expensive and
time consuming to defend, require us to rebrand our services, if feasible, divert management’s attention and resources or
require us to enter into royalty or licensing agreements in order to obtain the right to use a third party’s intellectual
property.
Any royalty or licensing agreements, if
required, may not be available to us on acceptable terms or at all. A successful claim of infringement against us could result
in our being required to pay significant damages, enter into costly license or royalty agreements, or stop the sale of certain
products or services, any of which could have a negative impact on our operating profits and harm our future prospects.
Information technology system failures
or breaches of our network security could interrupt our operations and adversely affect our business.
We will rely on our computer systems and
network infrastructure across our operations. Our operations depend upon our ability to protect our computer equipment and systems
against damage from physical theft, fire, power loss, telecommunications failure or other catastrophic events, as well as from
internal and external security breaches, viruses, worms and other disruptive problems. Any damage or failure of our computer systems
or network infrastructure that causes an interruption in our operations could have a material adverse effect on our business and
subject us to litigation or actions by regulatory authorities. Although we employ both internal resources and external consultants
to conduct auditing and testing for weaknesses in our systems, controls, firewalls and encryption and intend to maintain and upgrade
our security technology and operational procedures to prevent such damage, breaches or other disruptive problems, there can be
no assurance that these security measures will be successful.
A material breach in security relating to our information
systems and regulation related to such breaches could adversely affect us.
Information security risks have generally increased in recent years, in part
because of the proliferation of new technologies and the use of the Internet, and the increased sophistication and activity of
organized crime, hackers, terrorists, activists, cybercriminals and other external parties, some of which may be linked to terrorist
organizations or hostile foreign governments. For example, a cybercriminal could use cybersecurity threats to gain access to sensitive
information about another company or to alter or disrupt news or information to be distributed by PR Newswire. Cybersecurity attacks
are becoming more sophisticated and include malicious software, ransomware, attempts to gain unauthorized access to data and other
electronic security breaches that could lead to disruptions in critical systems, unauthorized release of confidential or otherwise
protected information and corruption of data, substantially damaging our reputation. Any person who circumvents our security measures
could steal proprietary or confidential customer information or cause interruptions in our operations. We incur significant costs
to protect against security breaches, and may incur significant additional costs to alleviate problems caused by any breaches.
Our failure to prevent security breaches, or well-publicized security breaches affecting the Internet in general, could significantly
harm our reputation and business and financial results
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We will continue to incur costs and
be subject to various obligations as a result of being a public company, listed in the united states and in Israel.
We will continue to incur significant legal,
accounting and other expenses as a result of being a public company, listed in the United States and in Israel. Although we will
incur costs each year associated with being a publicly-traded company, it is possible that our actual costs of being a publicly-traded
company will vary from year to year and may be different than our estimates. In estimating these costs, we take into account expenses
related to insurance, legal, accounting and compliance activities.
Furthermore, the need to maintain the corporate
infrastructure demanded of a public company may divert management’s attention from implementing our growth strategy, which
could prevent us from improving our business, results of operations and financial condition. We have made, and will continue to
make, changes to our internal controls and procedures for financial reporting and accounting systems to meet our reporting obligations
as a U.S. publicly traded company. However, the measures we take may not be sufficient to satisfy our obligations as a publicly
traded company.
We may require additional capital
to finance our operations in the future, but that capital may not be available when it is needed and could be dilutive to existing
stockholders.
We may require additional capital for future
operations. We plan to finance anticipated ongoing expenses and capital requirements with funds generated from the following sources:
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cash provided by operating activities;
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available cash and cash investments; and
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capital raised through debt and equity offerings.
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Current conditions in the capital markets
are such that traditional sources of capital may not be available to us when needed or may be available only on unfavorable terms.
Our ability to raise additional capital, if needed, will depend on conditions in the capital markets, economic conditions and a
number of other factors, many of which are outside our control, and on our financial performance. Accordingly, we cannot assure
you that we will be able to successfully raise additional capital at all or on terms that are acceptable to us. If we cannot raise
additional capital when needed, it may have a material adverse effect on our liquidity, financial condition, results of operations
and prospects. Further, if we raise capital by issuing stock, the holdings of our existing stockholders will be diluted.
If we raise capital by issuing debt securities,
such debt securities would rank senior to our common stock upon our bankruptcy or liquidation. In addition, we may raise capital
by issuing equity securities that may be senior to our common stock for the purposes of dividend and liquidating distributions,
which may adversely affect the market price of our common stock. Finally, upon bankruptcy or liquidation, holders of our debt securities
and lenders with respect to other borrowings will receive a distribution of our available assets prior to the holders of our common
stock. Additional equity offerings may dilute the holdings of our existing stockholders or reduce the market price of our common
stock, or both.
Our business is dependent upon continued
market acceptance by consumers.
We are substantially dependent on continued
market acceptance of our products by customers, and such customers are dependent upon regulatory and legislative forces. We cannot
predict the future growth rate and size of this market. If we do not gain market acceptance of our applications, our business may
be materially affected.
If we are able to expand our operations,
we may be unable to successfully manage our future growth.
Since inception, we have been planning
for the expansion of our brand. Any such growth could place increased strain on our management, operational, financial and other
resources, and we will need to train, motivate, and manage employees, as well as attract management, sales, finance and accounting,
international, technical, and other professionals. Any failure to expand these areas and implement appropriate procedures and controls
in an efficient manner and at a pace consistent with our business objectives could have a material adverse effect on our business
and results of operations.
Any future or current litigation
could have a material adverse impact on our results of operations, financial condition and liquidity.
From time to time we may be subject
to litigation, including, among others, potential stockholder derivative actions. Risks associated with legal liability are difficult
to assess and quantify, and their existence and magnitude can remain unknown for significant periods of time. Subject to certain
exceptions, our Amended and Restated Certificate of Incorporation (“Certificate of Incorporation”) and Amended and
Restated Bylaws (“Bylaws”) require us to indemnify and advance expenses to our officers and directors involved in
legal proceedings. To date we have obtained directors and officers liability (“D&O”) insurance to cover some of
the risk exposure for our directors and officers
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Such insurance generally pays the expenses (including amounts paid to
plaintiffs, fines, and expenses including attorneys’ fees) of officers and directors who are the subject of a lawsuit as
a result of their service to the Company. There can be no assurance that we will be able to continue to maintain this insurance
at reasonable rates or at all, or in amounts adequate to cover such expenses should such a lawsuit occur. Without D&O insurance,
the amounts we would pay to indemnify our officers and directors should they be subject to legal action based on their service
to the Company could have a material adverse effect on our financial condition, results of operations and liquidity. Such lawsuits,
and any related publicity, may result in substantial costs and, among other things, divert the attention of management and our
employees. An unfavorable outcome in any claim or proceeding against us could have a material adverse impact on our financial
position and results of operations for the period in which the unfavorable outcome occurs, and potentially in future periods.
Further, any settlement announced by us may expose us to further claims against us by third parties seeking monetary or other
damages which, even if unsuccessful, would divert management attention from the business and cause us to incur costs, possibly
material, to defend such matters, which could have a material adverse impact on our financial position. See “Legal Proceedings”
on page 10 for more information regarding the Company’s involvement in ongoing litigation matters.
Our prior operating results may not
be indicative of our future results.
You should not consider prior operating
results to be indicative of our future operating results. The timing and amount of future revenues will depend almost entirely
on our ability to engage new retailers while maintaining a relationship with our existing retailers. Our future operating results
will depend upon many other factors, including, but not limited to:
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the level of product and price competition;
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our success in expanding our business network and managing our growth;
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the ability to hire qualified employees; and
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the timing of such hiring and our ability to control costs.
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Federal,
state and local or Israeli tax rules may adversely impact our results of operations and financial position.
We are subject to federal, state and local
taxes in the U.S., as well as local taxes in Israel in respect to our operations in Israel. Although we believe our tax estimates
are reasonable, if the Internal Revenue Service or other taxing authority disagrees with the positions we have taken on our tax
returns, we could face additional tax liability, including interest and penalties. If material, payment of such additional amounts
upon final adjudication of any disputes could have a material impact on our results of operations and financial position. In addition,
complying with new tax rules, laws or regulations could impact our financial condition, and increases to federal or state statutory
tax rates and other changes in tax laws, rules or regulations may increase our effective tax rate. Any increase in our effective
tax rate could have a material impact on our financial results.
Concentration of ownership of
our stock may enable one stockholder or a small number of stockholders to significantly influence matters requiring stockholder
approval.
As of the date of this prospectus,
members of our management team beneficially own approximately 8.23% of our outstanding common stock. In addition, one stockholder
owns approximately 12% of our outstanding common stock. As such, management and the stockholder own approximately, in the aggregate,
20.23 % of our voting power. As a result, management and the stockholder may have the ability to control substantially all
matters submitted to our stockholders for approval including:
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election of our board of directors;
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removal of any of our directors;
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amendment of our Certificate of Incorporation or Bylaws; and
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adoption of measures that could delay or prevent a change in control or impede a merger, takeover or other business combination involving us.
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In addition, management’s and the stockholder’s stock ownership may discourage a potential acquirer from making a tender offer or otherwise attempting
to obtain control of us, which in turn could reduce our stock price or prevent our stockholders from realizing a premium over our
stock price. Any additional investors will own a minority percentage of our common stock and will have minority voting rights.
Tax reform may affect the Company
and its stockholders.
On December 22, 2017, President
Trump signed into law the “Tax Cuts and Jobs Act” (TCJA) that significantly reforms the Internal Revenue Code of 1986,
as amended (the “Code”). The TCJA, among other things, includes changes to U.S. federal tax rates, imposes significant
additional limitations on the deductibility of interest and restricts the use of net operating loss carryforwards arising after
December 31, 2017, allows for the expensing of capital expenditures, and puts into effect the migration from a “worldwide”
system of taxation to a territorial system. We do not expect tax reform to have a material impact to our net operating losses.
The impact of this tax reform on holders of our securities is uncertain. This prospectus does not discuss any such tax legislation
or the manner in which it might affect purchasers of our securities. We urge our stockholders, including purchasers of securities
in this offering, to consult with their legal and tax advisors with respect to such legislation and the potential tax consequences
of investing in our securities.
Risks Related To Our Operations In Israel
The Company
has facilities located in Israel, and therefore, political conditions in Israel may affect the Company’s operations and results.
The Company has
facilities located in Israel. Accordingly, political, economic and military conditions in Israel will directly or indirectly affect
the Company’s operations and results. Since the establishment of the State of Israel, a number of armed conflicts have taken
place between Israel and its Arab neighbors. An ongoing state of hostility, varying in degree and intensity has led to security
and economic problems for Israel. For a number of years there have been continuing hostilities between Israel and the Palestinians.
This includes hostilities with the Islamic movement Hamas in the Gaza Strip, which have adversely affected the peace process and
at times resulted in armed conflicts. Such hostilities have negatively influenced Israel’s economy as well as impaired Israel’s
relationships with several other countries. Israel also faces threats from Hezbollah militants in Lebanon, from ISIS and rebel
forces in Syria, from the government of Iran and other potential threats from additional countries in the region. Moreover, some
of Israel’s neighboring countries have recently undergone or are undergoing significant political changes. These political,
economic and military conditions in Israel could have a material adverse effect on the Company’s business, financial condition,
results of operations and future growth.
Israel’s
economy may become unstable.
From time to time,
Israel’s economy may experience inflation or deflation, low foreign exchange reserves, fluctuations in world commodity prices,
military conflicts and civil unrest. For these and other reasons, the government of Israel has intervened in the economy employing
fiscal and monetary policies, import duties, foreign currency restrictions, controls of wages, prices and foreign currency exchange
rates and regulations regarding the lending limits of Israeli banks to companies considered to be in an affiliated group. The Israeli
government has periodically changed its policies in these areas. Reoccurrence of previous destabilizing factors could make it more
difficult for the Company to operate its business and could adversely affect its business.
Some of
the Company’s employees and officers are obligated to perform military reserve duty in Israel.
Generally, Israeli
adult male citizens and permanent residents are obligated to perform annual military reserve duty up to a specified age. They also
may be called to active duty at any time under emergency circumstances, which could have a disruptive impact on the Company’s
workforce
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It may be
difficult to enforce a non-Israeli judgment against the Company or its officers and directors.
The operating
subsidiary of the Company is incorporated in Israel. All of the Company’s executive officers and directors are not residents
of the United States, and a substantial portion of the Company’s assets and the assets of its executive officers and directors
are located outside the United States. Therefore, a judgment obtained against the Company, or any of these persons, including a
judgment based on the civil liability provisions of the U.S. federal securities laws, may not be collectible in the United States
and may not necessarily be enforced by an Israeli court. It also may be difficult to affect service of process on these persons
in the United States or to assert U.S. securities law claims in original actions instituted in Israel. Additionally, it may be
difficult for an investor, or any other person or entity, to initiate an action with respect to U.S. securities laws in Israel.
Israeli courts may refuse to hear a claim based on an alleged violation of U.S. securities laws reasoning that Israel is not the
most appropriate forum in which to bring such a claim. In addition, even if an Israeli court agrees to hear a claim, it may determine
that Israeli law and not U.S. law is applicable to the claim. If U.S. law is found to be applicable, the content of applicable
U.S. law often involves the testimony of expert witnesses, which can be a time consuming and costly process. Certain matters of
procedure will also be governed by Israeli law. There is little binding case law in Israel that addresses the matters described
above. As a result of the difficulty associated with enforcing a judgment against the Company in Israel, it may be impossible to
collect any damages awarded by either a U.S. or foreign court.
Our international operations could
expose us to additional risks, including exchange rate fluctuations, legal regulations and political or economic instability that
could harm our business and operating results.
Our international
operations expose us to the following risks which may have a material adverse effect on our business and operating results:
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devaluations and fluctuations in currency exchange rates including fluctuations between the U.S. dollar and the NIS;
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costs of compliance with local laws, including labor laws and intellectual property laws;
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compliance with domestic and foreign government policies, including compliance with Israeli securities laws and TASE;
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changes in trade regulations and procedures affecting approval, production, pricing, marketing, reimbursement for and access to, our products;
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compliance with applicable foreign anti-corruption laws, anti-trust/competition laws, anti-Boycott Israel law and anti-money laundering laws; and
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economic and geopolitical developments and conditions, including ongoing instability in global economies and financial markets, international hostilities, acts of terrorism and governmental reactions, inflation, and military and political alliances.
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Risks Related To Our Common Stock
A more active, liquid trading market
for our common stock may not develop, and the price of our common stock may fluctuate significantly.
Although our common stock is listed on
The Nasdaq Capital Market, it has only been traded on The Nasdaq Capital Market since July 25, 2016. There has been relatively
limited trading volume in the market for our common stock, and a more active, liquid public trading market may not develop or may
not be sustained. Limited liquidity in the trading market for our common stock may adversely affect a stockholder’s ability
to sell its shares of common stock at the time it wishes to sell them or at a price that it considers acceptable. If a more active,
liquid public trading market does not develop, we may be limited in our ability to raise capital by selling shares of common stock
and our ability to acquire other companies or assets by using shares of our common stock as consideration. In addition, if there
is a thin trading market or “float” for our stock, the market price for our common stock may fluctuate significantly
more than the stock market as a whole. Without a large float, our common stock would be less liquid than the stock of companies
with broader public ownership and, as a result, the trading prices of our common stock may be more volatile and it would be harder
for you to liquidate any investment in our common stock. Furthermore, the stock market is subject to significant price and volume
fluctuations, and the price of our common stock could fluctuate widely in response to several factors, including:
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our quarterly or annual operating results;
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changes in our earnings estimates;
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investment recommendations by securities analysts following our business or our industry;
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additions or departures of key personnel;
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changes in the business, earnings estimates or market perceptions of our competitors;
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our failure to achieve operating results consistent with securities analysts’ projections;
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changes in industry, general market or economic conditions; and
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announcements of legislative or regulatory changes.
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The stock market has experienced extreme
price and volume fluctuations in recent years that have significantly affected the quoted prices of the securities of many companies.
The changes often appear to occur without regard to specific operating performance. The price of our common stock could fluctuate
based upon factors that have little or nothing to do with us and these fluctuations could materially reduce our stock price.
Sales by our stockholders of a substantial
number of shares of our common stock in the public market could adversely affect the market price of our common stock.
A substantial portion of our total
outstanding shares of common stock may be sold into the market at any time. A substantial portion of these shares are held by
two stockholders, one of which is also an executive officer of the Company. Although we believe that such executive officer has
no current intention to sell a significant number of shares of our stock, we cannot provide any such assurance. In addition, we
cannot provide assurance that the other large stockholder of the Company has no current intention to sell a significant number
of shares of our stock. If any of the two stockholders which hold most of our shares were to decide to sell large amounts of stock
over a short period of time (presuming such sales were permitted) such sales could cause the market price of our common stock
to drop significantly, even if our business is doing well.
Further, the market price of our common
stock could decline as a result of the perception that such sales could occur. These sales, or the possibility that these sales
may occur, also might make it more difficult for us to sell equity securities in the future at a time and price that we deem appropriate.
Our securities are traded on more
than one market which may result in price variations
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Our securities have been trading on
The Nasdaq Capital Market since July 2016 and on TASE since September 2005. Trading in our securities on such exchanges occurs
in different currencies (U.S. dollars on The Nasdaq Capital Market and NIS on the TASE), and at different times (due to different
time zones, trading days and public holidays in the United States and Israel). The trading prices of our securities on the two
exchanges may differ due to the foregoing and other factors. Any decrease in the price of our shares on the TASE could cause a
decrease in the trading price of our shares on The Nasdaq Capital Market and vice versa.
We are a smaller reporting company
and, as a result of the reduced disclosure and governance requirements applicable to such companies, our common stock may be less
attractive to investors.
We are a smaller reporting company, (i.e.
a company with “public float” held by non-affiliates with a market value of less than $75 million) and we are eligible
to take advantage of certain exemptions from various reporting requirements applicable to other public companies. We have elected
to adopt these reduced disclosure requirements. We cannot predict if investors will find our common stock less attractive as a
result of our taking advantage of these exemptions. If some investors find our common stock less attractive as a result of our
choices, there may be a less active trading market for our common stock and our stock price may be more volatile.
We do not expect to pay any cash
dividends in the foreseeable future
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We have never declared or paid cash
dividends on our common stock. We intend to retain our future earnings, if any, in order to reinvest in the development and growth
of our business and, therefore, do not intend to pay dividends on our common stock for the foreseeable future. Any future determination
to pay dividends will be at the discretion of our Board and will depend on our financial condition, results of operations, capital
requirements, and such other factors as our Board deems relevant. Investors should not purchase our common stock expecting to
receive cash dividends. Because we do not pay dividends, and there may be limited trading, investors may not have any manner to
liquidate or receive any payment on their investment. Therefore, our failure to pay dividends may cause investors to not see any
return on investment even if we are successful in our business operations. In addition, because we do not pay dividends we may
have trouble raising additional funds, which could affect our ability to expand our business operations.
We can sell additional shares
of common stock without consulting stockholders and without offering shares to existing stockholders, which would result in dilution
of stockholders’ interests in the company and could depress our stock price.
Our Certificate of Incorporation currently
authorizes 100,000,000 shares of common stock, of which 29,145,927 are currently outstanding, and our Board is authorized to issue
additional shares of our common stock.
Although our Board intends to utilize
its reasonable business judgment to fulfill its fiduciary obligations to our then existing stockholders in connection with any
future issuance of our capital stock, the future issuance of additional shares of our capital stock could cause immediate, and
potentially substantial, dilution to our existing stockholders, which could also have a material effect on the market value of
the shares.
Further, our shares do not have preemptive
rights, which means we can sell shares of our capital stock to other persons without offering purchasers in this offering the
right to purchase their proportionate share of such offered shares. Therefore, any additional sales of stock by us could dilute
your ownership interest in our Company.
Our quarterly operating results may
fluctuate significantly
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We expect our operating results to be subject
to quarterly fluctuations. Our net loss and other operating results will be affected by numerous factors, including:
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variations in the level of expenses related to our development programs;
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any intellectual property infringement lawsuit in which we may become involved;
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regulatory developments affecting our products; and
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our execution of any collaborative, licensing or similar arrangements, and the timing of payments under these arrangements.
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If our quarterly operating results fall
below the expectations of investors or securities analysts, the price of our common stock could decline substantially. Furthermore,
any quarterly fluctuations in our operating results may, in turn, cause the price of our common stock to fluctuate substantially.
If we fail to comply with the rules
under the Sarbanes Oxley Act of 2002 related to accounting controls and procedures, or if we discover material weaknesses and deficiencies
in our internal control and accounting procedures, our stock price could decline significantly and raising capital could be more
difficult.
If we fail to comply with the rules under
the Sarbanes-Oxley Act of 2002 related to disclosure controls and procedures, or, if we discover material weaknesses and other
deficiencies in our internal control and accounting procedures, our stock price could decline significantly and raising capital
could be more difficult. Section 404 of the Sarbanes-Oxley Act requires annual management assessments of the effectiveness of our
internal control over financial reporting and a report by our independent auditors addressing these assessments. If material weaknesses
or significant deficiencies are discovered or if we otherwise fail to achieve and maintain the adequacy of our internal control,
we may not be able to ensure that we can conclude on an ongoing basis that we have effective internal controls over financial reporting
in accordance with Section 404 of the Sarbanes-Oxley Act. Moreover, effective internal controls are necessary for us to produce
reliable financial reports and are important to helping prevent financial fraud. If we cannot provide reliable financial reports
or prevent fraud, our business and operating results could be harmed, investors could lose confidence in our reported financial
information, and the trading price of our common stock could drop significantly.
Our Certificate of Incorporation,
Bylaws and Delaware law may have anti-takeover effects that could discourage, delay or prevent a change in control, which may cause
our stock price to decline.
Our Certificate of Incorporation, Bylaws
and Delaware law could make it more difficult for a third party to acquire us, even if closing such a transaction would be beneficial
to our stockholders. Provisions of our Certificate of Incorporation, Bylaws and Delaware law also could have the effect of discouraging
potential acquisition proposals or making a tender offer or delaying or preventing a change in control, including changes a stockholder
might consider favorable. Such provisions may also prevent or frustrate attempts by our stockholders to replace or remove our management.
In particular, the Certificate of Incorporation, Bylaws and Delaware law, as applicable, among other things:
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provide the Board with the ability to alter the Bylaws without stockholder approval;
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place limitations on the removal of directors; and
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provide that vacancies on the board of directors may be filled by a majority of directors in office, although less than a quorum.
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We are subject to Section 203 of the Delaware
General Corporation Law which, subject to certain exceptions, prohibits “business combinations” between a publicly-held
Delaware corporation and an “interested stockholder,” which is generally defined as a stockholder who becomes a beneficial
owner of 15% or more of a Delaware corporation’s voting stock for a three-year period following the date that such stockholder
became an interested stockholder. These provisions are expected to discourage certain types of coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to acquire control of us to first negotiate with our Board. These provisions
may delay or prevent someone from acquiring or merging with us, which may cause the market price of our common stock and the value
of our securities to decline. In addition, rules applicable to TASE listed companies also limit the terms permitted with respect
to a new class of shares and prohibit any such new class of shares from having superior voting rights to the rights of the class
of shares listed on TASE.
If we
fail to comply with the continued listing requirements of The Nasdaq Capital Market, our common stock may be delisted and the
price of our common stock and our ability to access the capital markets could be negatively impacted.
On September 26, 2017, the Company was
notified by The Nasdaq Stock Market, LLC (“Nasdaq”) that it was not in compliance with the minimum bid price requirements
set forth in Nasdaq Listing Rule 5550(a)(2) for continued listing on The Nasdaq Capital Market. Nasdaq Listing Rule 5550(a)(2)
requires listed securities to maintain a minimum bid price of $1.00 per share, and Nasdaq Listing Rule 5810(c)(3)(A) provides that
a failure to meet the minimum bid price requirement exists if the deficiency continues for a period of 30 consecutive business
days. The notification provided that the Company had 180 calendar days, or until March 26, 2018, to regain compliance with Nasdaq
Listing Rule 5550(a)(2).
In addition, on June 5, 2017, the Company
received written notice from the Nasdaq Listing Qualifications Department notifying the Company that for the preceding 30 consecutive
business days, the Company’s common stock did not maintain a minimum Market Value of Listed Securities of $35 million per
share as required by Nasdaq Listing Rule 5550(b)(2). The notification provided that the Company had 180 calendar days, or until
December 4, 2017, to regain compliance with Nasdaq Listing Rule 5550(b)(2). On December 5, 2017, the Company received a second
written notice from the Listing Qualifications Department of Nasdaq notifying the Company that its failure to regain compliance
with Nasdaq Listing Rule 5550(b)(2) by December 4, 2017 would result in the Company’s securities being delisted from The
Nasdaq Capital Market effective as of the open of business on December 14, 2017 unless the Company requested an appeal of such
determination. The Company thereafter requested an appeal before the Hearings Panel, thereby staying the delisting of the Company’s
securities pending the Hearings Panel’s decision.
On January 22, 2018, the Nasdaq Staff
concluded that the Company had regained compliance with its Rule 5550(a)(2) based on the closing bid price of the Company’s
common stock having been at $1.00 per share or greater for 10 consecutive business days from January 5, 2018 to January 19, 2018.
In addition, on January 26, 2018, the Nasdaq
Hearings Advisor informed the Company that the Nasdaq Staff had informed them that the Company’s Market Value of Listed Securities
deficiency (as set forth in its Rule 5550(b)(2)) had been cured, and that the Company is in compliance with all applicable listing
standards. As a result, the scheduled hearing before the Hearings Panel was cancelled.
No assurance can be given that we will
continue to meet applicable Nasdaq continued listing standards. Failure to meet applicable Nasdaq continued listing standards could
result in a delisting of our common stock. A delisting of our common stock from Nasdaq could materially reduce the liquidity of
our common stock and result in a corresponding material reduction in the price of our common stock. In addition, delisting could
harm our ability to raise capital through alternative financing sources on terms acceptable to us, or at all, and may result in
the potential loss of confidence by investors, employees and fewer business development opportunities.
The exercise of outstanding warrants
and stock options will have a dilutive effect on the percentage ownership of our capital stock by existing stockholders.
As of March
23, 2018, we had outstanding warrants to acquire 2,826,961 shares of our common stock and stock options to purchase 3,341,996
shares of our common stock, which warrants and options are exercisable for prices ranging between $0.04 and $5.28. The expiration
of the term of such options and warrants range from March 2018 to July 2022. If a significant number of such warrants and stock
options are exercised by the holders, the percentage of our common stock owned by our existing stockholders will be diluted.
Our
common stock is subject to the penny stock rules which could result in U.S. broker-dealers becoming discouraged from effecting
transactions in shares of our common stock.
Rule 15g-9
under the Exchange Act establishes the definition of a “penny stock,” for the purposes relevant to us, as any equity
security that has a market price of less than $5.00 per share or with an exercise price of less than $5.00 per share, subject
to certain exceptions. For any transaction involving a penny stock, unless exempt, the rules require: (a) that a broker or dealer
approve a person’s account for transactions in penny stocks; and (b) the broker or dealer receive from the investor a written
agreement to the transaction, setting forth the identity and quantity of the penny stock to be purchased.
In order to
approve a person’s account for transactions in penny stocks, the broker or dealer must: (a) obtain financial information
and investment experience objectives of the person and (b) make a reasonable determination that the transactions in penny stocks
are suitable for that person and the person has sufficient knowledge and experience in financial matters to be capable of evaluating
the risks of transactions in penny stocks. The broker or dealer must also deliver, prior to any transaction in a penny stock,
a disclosure schedule prescribed by the SEC relating to the penny stock market, which: (a) sets forth the basis on which the broker
or dealer made the suitability determination; and (b) confirms that the broker or dealer received a signed, written agreement
from the investor prior to the transaction. Generally, brokers may be less willing to execute transactions in securities subject
to the “penny stock” rules. This may make it more difficult for investors to dispose of our common stock and cause
a decline in the market value of our common stock.
Disclosure also has to be made about
the risks of investing in penny stocks in both public offerings and in secondary trading and about the commissions payable to
both the broker or dealer and the registered representative, current quotations for the securities and the rights and remedies
available to an investor in cases of fraud in penny stock transactions. Finally, monthly statements have to be sent disclosing
recent price information for the penny stock held in the account and information on the limited market in penny stocks.
Sales of our currently issued and
outstanding stock may become freely tradable pursuant to rule 144 and may dilute the market for your shares and have a depressive
effect on the price of the shares of our common stock
A substantial majority of our outstanding
shares of common stock are “restricted securities” within the meaning of Rule 144 under the Securities Act. As restricted
shares, these shares may be resold only pursuant to an effective registration statement or under the requirements of Rule 144
or other applicable exemptions from registration under the Securities Act and as required under applicable state securities laws.
Rule 144 provides in essence that an Affiliate (as such term is defined in Rule 144(a)(1)) of an issuer who has held restricted
securities for a period of at least six months (one year after filing Form 10 information with the SEC for shell companies and
former shell companies) may, under certain conditions, sell every three months, in brokerage transactions, a number of shares
that does not exceed the greater of 1% of a company’s outstanding shares of common stock or the average weekly trading volume
during the four calendar weeks prior to the sale (the four calendar week rule does not apply to companies quoted on the OTC Markets).
Rule 144 also permits, under certain circumstances, the sale of securities, without any limitation, by a person who is not an
Affiliate of the Company and who has satisfied a one-year holding period. A sale under Rule 144 or under any other exemption from
the Securities Act, if available, or pursuant to subsequent registrations of our shares of common stock, may have a depressive
effect upon the price of our shares of common stock in any active market that may develop.
You may experience dilution of your
ownership interest because of the future issuance of additional shares of our common stock.
In the future, we may issue our authorized
but previously unissued equity securities, resulting in the dilution of the ownership interests of our present stockholders. We
are currently authorized to issue an aggregate of 100,000,000 shares of common stock.
We may also issue additional shares of
our common stock or other securities that are convertible into or exercisable for common stock in connection with hiring or retaining
employees or consultants, future acquisitions, future sales of our securities for capital raising purposes, or for other business
purposes. The future issuance of any such additional shares of our common stock or other securities may create downward pressure
on the trading price of our common stock. There can be no assurance that we will not be required to issue additional shares, warrants
or other convertible securities in the future in conjunction with hiring or retaining employees or consultants, future acquisitions,
future sales of our securities for capital raising purposes or for other business purposes, including at a price (or exercise prices)
below the price at which shares of our common stock are trading.