Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-251679
PROSPECTUS
SUPPLEMENT
(To
the Prospectus dated December 30, 2020)
My
Size, Inc.
162,000
Shares of Common Stock
Pre-Funded
Warrants to Purchase up to 279,899 Shares of Common
Stock
We
are offering 162,000 shares of common stock to a certain
institutional investor at an offering price of $3.055 per share and
pre-funded warrants to purchase up to 279,899 shares of common
stock at an offering price of $3.054 per pre-funded warrant,
pursuant to this prospectus supplement and the accompanying
prospectus. Each registered pre-funded warrant will be exercisable
for one share of common stock at an exercise price of $0.001 per
share, will be immediately exercisable, and will not expire until
fully exercised. We are also offering pursuant to this prospectus
supplement and the accompanying prospectus the shares of common
stock issuable upon the exercise of the pre-funded
warrants.
In
concurrent private placements to the same institutional investor,
we are issuing (i) unregistered pre-funded warrants to purchase an
aggregate of 540,098 shares of common stock at an offering price of
$3.054 per pre-funded warrant, and (ii) unregistered Series A
warrants to purchase up to an aggregate of 981,997 shares of common
stock and Series B warrants to purchase up to an aggregate of
981,997 shares of common stock, in which for each share or
pre-funded warrant issued in this offering and the private
placement, an associated Series A and Series B warrant is being
issued. The unregistered pre-funded warrants have an exercise price
of $0.001 per share, will be immediately exercisable upon issuance,
and will not expire until fully exercised. Each Series A warrant
and Series B warrant will be exercisable for one share of common
stock at an exercise price of $2.805 per share and will be
immediately exercisable upon issuance. The Series A warrants will
expire five and one-half years from the initial exercise date and
the Series B warrants will expire 28 months from the initial
exercise date. The unregistered pre-funded warrants, the
unregistered Series A and B warrants and the shares of common stock
issuable upon the exercise of such unregistered warrants are being
offered pursuant to the exemptions provided in Section 4(a)(2)
under the Securities Act of 1933, as amended, or the Securities
Act, and Rule 506(b) promulgated thereunder, and they are not being
offered pursuant to this prospectus supplement and the accompanying
prospectus. The registered and unregistered warrants are not and
will not be listed for trading on any national securities
exchange.
Our
common stock is listed on the Nasdaq Capital Market under the
symbol “MYSZ” and on the Tel Aviv Stock Exchange, or the TASE,
under the symbol “MYSZ”. On January 9, 2023, the last reported sale
price of our common stock on the Nasdaq Capital Market was $2.84
per share.
The
aggregate market value of our outstanding common stock held by
non-affiliates pursuant to General Instruction I.B.6 of Form S-3
was approximately $1.84 million, which was calculated based on
1,464,117 shares of common stock outstanding of which 1,163,674
shares were held by non-affiliates, and a price per share of $4.75
which was the closing sale price of our common stock on the Nasdaq
Capital Market on December 8, 2022. We have not sold any of our
securities pursuant to General Instruction I.B.6. of Form S-3
during the prior 12 calendar month period that ends on and includes
the date hereof (but excluding this offering).
Investing
in our securities involves a high degree of risk. You should read
this prospectus supplement and the accompanying prospectus as well
as the information incorporated herein and therein by reference
carefully before you make your investment decision. See “Risk
Factors” beginning on page S-6 of this prospectus supplement and on
page 3 of the accompanying prospectus.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the accuracy or adequacy of this prospectus supplement.
Any representation to the contrary is a criminal
offense.
We
have engaged H.C. Wainwright & Co., LLC, or the placement
agent, as our exclusive placement agent in connection with this
offering. The placement agent has no obligation to buy any of the
securities from us or to arrange for the purchase or sale of any
specific number or dollar amount of securities. We have agreed to
pay the placement agent the placement agent fees set forth in the
table below. See “Plan of Distribution” beginning on page S-12 of
this prospectus supplement for more information regarding these
arrangements.
|
|
Per Share |
|
|
Per Pre-Funded Warrant |
|
|
Total |
|
Offering price |
|
$ |
3.055 |
|
|
$ |
3.054 |
|
|
$ |
1,349,721.55 |
|
Placement agent fees (1) |
|
$ |
0.2139 |
|
|
$ |
0.2139 |
|
|
$ |
94,500.10 |
|
Proceeds, before expenses, to us
(2) |
|
$ |
2.8411 |
|
|
$ |
2.8401 |
|
|
$ |
1,255,221.45 |
|
(1) |
In
addition, we have agreed to pay the placement agent a management
fee equal to 1.0% of the gross proceeds raised in this offering and
to pay a non-accountable expense allowance of $85,000. In addition,
we have agreed to issue to the placement agent unregistered
warrants to purchase a number of shares of common stock equal to 7%
of the aggregate number of shares of common stock and pre-funded
warrants sold in this offering. See “Plan of Distribution”
beginning on page S-12 of this prospectus supplement. |
(2) |
The
amount of the offering proceeds to us presented in this table does
not include proceeds from the sale of the unregistered pre-funded
warrants and warrants in the concurrent private placements nor does
it give effect to any exercise of any such warrants. |
Delivery
of the securities issued pursuant to this prospectus supplement and
accompanying prospectus is expected to be made on or about January
12, 2023, subject to the satisfaction of certain closing
conditions.
H.C.
Wainwright & Co.
The
date of this prospectus supplement is January 10,
2023
TABLE
OF CONTENTS
Prospectus
Supplement
Prospectus
ABOUT THIS PROSPECTUS
SUPPLEMENT
This
document is in two parts. The first part is this prospectus
supplement, which describes the terms of this offering and also
adds to and updates information contained in the accompanying
prospectus and the documents incorporated by reference into this
prospectus supplement and the accompanying prospectus concerning My
Size, Inc. The second part is the accompanying prospectus, dated
December 30, 2020, including the documents incorporated by
reference therein, which provides more general information, some of
which may not apply to this offering. Generally, when we refer to
this prospectus, we are referring to both parts of this document
combined together with all documents incorporated by reference. If
the description of the offering varies between this prospectus
supplement, on the one hand, and the accompanying prospectus, or in
any document incorporated by reference that was filed with the
Securities and Exchange Commission, or SEC, before the date of this
prospectus supplement, on the other hand, you should rely on the
information contained in this prospectus supplement. However, if
any statement in one of these documents is inconsistent with a
statement in another document having a later date — for example, a
document incorporated by reference into this prospectus supplement
or the accompanying prospectus — the statement in the document
having the later date modifies or supersedes the earlier
statement.
We
further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference herein were made solely
for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to
such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when
made. Accordingly, such representations, warranties and covenants
should not be relied on as accurately representing the current
state of our affairs.
You
should rely only on the information contained in or incorporated by
reference into this prospectus supplement or contained in or
incorporated by reference into the accompanying prospectus to which
we have referred you. Neither we nor the placement agent have
authorized anyone to provide you with information that is
different. If anyone provides you with different or inconsistent
information, you should not rely on it. We may authorize one or
more “free writing prospectuses” (i.e. written communications
concerning the offering that are not part of this prospectus
supplement) that may contain certain material information relating
to this offering. The information contained in, or incorporated by
reference into, this prospectus supplement and contained in, or
incorporated by reference into, the accompanying prospectus is
accurate only as of the respective dates thereof, regardless of the
time of delivery of this prospectus supplement and the accompanying
prospectus or of any sale of securities. It is important for you to
read and consider all information contained in this prospectus
supplement and the accompanying prospectus, including the documents
incorporated by reference herein and therein, in making your
investment decision. You should also read and consider the
information in the documents to which we have referred you under
the captions “Where You Can Find More Information” and
“Incorporation of Documents by Reference” in this prospectus
supplement and in the accompanying prospectus.
We
are offering to sell, and are seeking offers to buy, securities
only in jurisdictions where such offers and sales are permitted.
The distribution of this prospectus supplement and the accompanying
prospectus and the offering of securities in certain jurisdictions
or to certain persons within such jurisdictions may be restricted
by law. Persons outside the United States who come into possession
of this prospectus supplement and the accompanying prospectus must
inform themselves about and observe any restrictions relating to
the offering of securities and the distribution of this prospectus
supplement and the accompanying prospectus outside the United
States. This prospectus supplement and the accompanying prospectus
do not constitute, and may not be used in connection with, an offer
to sell, or a solicitation of an offer to buy, any securities
offered by this prospectus supplement and the accompanying
prospectus by any person in any jurisdiction in which it is
unlawful for such person to make such an offer or
solicitation.
These
securities are not being offered in Israel. This offering or this
prospectus are not, and under no circumstances are to be construed
as, an advertisement or a public offering of securities in Israel.
Any public offer or sale of securities in Israel may be made only
in accordance with the Israeli Securities Law 5728-1968, or the
Israeli Securities Law (which requires, among other things, the
filing of a prospectus in Israel or an exemption therefrom).
This document does not constitute a prospectus under the Israeli
Securities Law and has not been filed with or approved by the
Israel Securities Authority.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This
prospectus supplement and any accompanying prospectus, including
the documents that we incorporate by reference, contain
forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, or the Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as amended, or
the Exchange Act. Such forward-looking statements include those
that express plans, anticipation, intent, contingency, goals,
targets or future development and/or otherwise are not statements
of historical fact. These forward-looking statements are based on
our current expectations and projections about future events and
they are subject to risks and uncertainties known and unknown that
could cause actual results and developments to differ materially
from those expressed or implied in such statements.
In
some cases, you can identify forward-looking statements by
terminology, such as “expects,” “anticipates,” “intends,”
“estimates,” “plans,” “believes,” “seeks,” “may,” “should,” “could”
or the negative of such terms or other similar expressions.
Accordingly, these statements involve estimates, assumptions and
uncertainties that could cause actual results to differ materially
from those expressed in such statements. Any forward-looking
statements are only estimates or predictions of future events based
on information currently available to our management and
management’s current beliefs about the potential outcome of future
events.
You
should read this prospectus supplement, the accompanying prospectus
and the documents that we reference herein and therein and have
filed as exhibits to the registration statement, of which this
prospectus supplement forms a part, completely and with the
understanding that our actual future results may be materially
different from what we expect. You should assume that the
information appearing in this prospectus supplement and any
accompanying prospectus is accurate as of the date on the front
cover of this prospectus supplement. Because the risk factors
referred to above, as well as the risk factors referred to on page
S-6 of this prospectus supplement and incorporated herein by
reference, could cause actual results or outcomes to differ
materially from those expressed in any forward-looking statements
made by us or on our behalf, you should not place undue reliance on
any forward-looking statements. Further, any forward-looking
statement speaks only as of the date on which it is made, and
except as may be required under applicable securities laws, we
undertake no obligation to update any forward-looking statement to
reflect events or circumstances after the date on which the
statement is made or to reflect the occurrence of unanticipated
events. New factors emerge from time to time, and it is not
possible for us to predict which factors will arise. In addition,
we cannot assess the impact of each factor on our business or the
extent to which any factor, or combination of factors, may cause
actual results to differ materially from those contained in any
forward-looking statements. We qualify all of the information
presented in this prospectus supplement and the accompanying
prospectus, and particularly our forward-looking statements, by
these cautionary statements.
PROSPECTUS SUPPLEMENT
SUMMARY
The
following summary highlights certain information contained
elsewhere in or incorporated by reference into this prospectus.
Because this is only a summary, however, it does not contain all
the information you should consider before investing in our
securities and it is qualified in its entirety by, and should be
read in conjunction with, the more detailed information included
elsewhere in or incorporated by reference into this prospectus.
Before you make an investment decision, you should read this entire
prospectus carefully, including the risks of investing in our
securities discussed under the section of this prospectus entitled
“Risk Factors” and similar headings in the other documents that are
incorporated by reference into this prospectus. You should also
carefully read the information incorporated by reference into this
prospectus, including our financial statements, and the exhibits to
the registration statement of which this prospectus is a
part.
Unless
the context otherwise requires, references to “we,” “our,” “us,”
“My Size” or the “Company” in this prospectus mean My Size, Inc. on
a consolidated basis with its wholly-owned subsidiaries, My Size
(Israel) 2014 Ltd., Orgad International Marketing Ltd, and Naiz
Bespoke Technologies, S.L., as applicable.
Overview
We
are a creator of mobile device measurement solutions that has
developed innovative solutions designed to address shortcomings in
multiple verticals, including the e-commerce fashion/apparel,
shipping/parcel and do it yourself, or DIY, industries. Utilizing
our sophisticated algorithms within our proprietary technology, we
can calculate and record measurements in a variety of novel ways,
and most importantly, increase revenue for businesses across the
globe.
Our
solutions can be utilized to accurately take measurements of a
variety of items via a mobile device. By downloading the
application to a smartphone, the user is then able to run the
mobile device 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 our
proprietary algorithms, and the accurate measurements (+ or - 2
centimeters) are then sent back to the user’s mobile device. We
believe that the commercial applications for this technology are
significant in many areas.
Currently,
we are mainly focusing on the e-commerce fashion/apparel industry.
In addition, our solutions address the shipping/parcel and DIY uses
markets.
While
we rollout our products to major retailers and apparel companies,
there is a lead time for new customers to ramp up before we can
recognize revenue. This lead time varies between customers,
especially when the customer is a tier 1 retailer, where the
integration process may take longer. Generally, first we integrate
our product into a customer’s online platform, which is followed by
piloting and implementation, and, assuming we are successful,
commercial roll-out, all of which takes time before we expect it to
impact our financial results in a meaningful way. While we have
begun generating initial sales revenue, we do not expect to
generate meaningful revenue during the upcoming quarters. Because
of the numerous risks and uncertainties associated with the success
of our market penetration and our dependence on the extent to which
MySizeID is adopted and utilized, we are unable to predict the
extent to which we will recognize revenue. 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.
Recent
Developments
Orgad
Acquisition
On
February 7, 2022, My Size Israel 2014 Ltd, or My Size Israel,
entered into a Share Purchase Agreement, or the Orgad Agreement,
with Amar Guy Shalom and Elad Bretfeld, or the Orgad Sellers,
pursuant to which the Orgad Sellers agreed to sell to My Size
Israel all of the issued and outstanding equity of Orgad
International Marketing Ltd., or Orgad.
Orgad
operates an omnichannel e-commerce platform engaged in online
retailing in the global market. It operates as a third-party seller
on Amazon.com, eBay and others. Orgad currently manages more than
1,000 stock-keeping units, or SKUs, mainly in fashion, apparel and
shoes, but is capable of managing tens of thousands of
SKUs.
The
Orgad Sellers are the sole title and beneficial owners of 100% of
the shares of Orgad. In consideration of the shares of Orgad, the
Orgad Sellers are entitled to receive (i) up to $1,000,000 in cash,
or the Orgad Cash Consideration, (ii) an aggregate of 2,790,049
shares, or the Orgad Equity Consideration, of our common stock, and
(iii) earn-out payments of 10% of the operating profit of Orgad for
the years 2022 and 2023. The transaction closed on the same
day.
The
Orgad Cash Consideration is payable to the Orgad Sellers in three
installments, according to the following payment schedule: (i)
$300,000 which we paid upon closing, (ii) $350,000 payable on the
two-year anniversary of the closing, and (iii) $350,000 payable on
the three-year anniversary of the closing, provided that in the
case of the second and third installments certain revenue targets
are met and subject further to certain downward post-closing
adjustment.
The
Equity Consideration is payable to the Orgad Sellers according to
the following payment schedule: (i) 1,395,025 shares were issued at
closing, and (ii) 1,395,024 shares will be issued in eight equal
quarterly installments until the lapse of two years from closing,
subject to certain downward post-closing adjustment.
The
payment of the second and third cash installments, the equity
installments and the earn out are further subject in each case to
the Orgad Sellers being actively engaged with Orgad at the date
such payment is due (except if the Orgad Sellers resign due to
reasons relating to material reduction of salary or adverse change
in their position with Orgad or its affiliates).
In
connection with the Orgad Agreement, each of the Orgad Sellers
entered into employment agreements with Orgad and six-month lock-up
agreements with us.
Naiz
Bespoke Technologies Acquisition
On October 7, 2022, we entered into a Share Purchase Agreement, or
the Naiz Agreement, with Borja Cembrero Saralegui, or Borja, Aritz
Torre Garcia, or Aritz, Whitehole, S.L., or Whitehole, Twinbel,
S.L., or Twinbel and EGI Acceleration, S.L., or EGI. Each of Borja,
Aritz, Whitehole, Twinbel and EGI shall be referred to as the Naiz
Sellers herein. Pursuant to the Naiz Agreement, the Naiz Sellers
agreed to sell to My Size all of the issued and outstanding equity
of Naiz Bespoke Technologies, S.L., or Naiz, a limited
liability company incorporated under the laws of Spain. The
acquisition of Naiz was completed on October 11, 2022.
In consideration of the purchase of the shares of Naiz, the Naiz
Agreement provided that the Naiz Sellers are entitled to receive
(i) an aggregate of 6,000,000 shares, or the Naiz Equity
Consideration, of My Size common stock, or the Shares, representing
in the aggregate, immediately prior to the issuance of such shares
at the closing of the transaction, not more than 19.9% of the
issued and outstanding Shares and (ii) up to $2,050,000 in cash,
the Naiz Cash Consideration.
The Naiz Equity Consideration was issued to the Naiz Sellers at
closing of the transaction of which 2,365,800 shares of My Size
common stock were issued to Whitehole constituting 6.6% of our
outstanding shares following such issuance. The Naiz Agreement also
provides that, in the event that the actual value of the Naiz
Equity Consideration (based on the average closing price of the
Shares on the Nasdaq Capital Market over the 10 trading days prior
to the closing of the transaction, or the Equity Value Averaging
Period) is less than $1,650,000, My Size shall make an additional
cash payment, or the Shortfall Value to the Naiz Sellers within 45
days of our receipt of Naiz’s 2025 audited financial statements;
provided that certain revenue targets are met. Following the Equity
Value Averaging Period, it was determined that the Shortfall Value
is $459,240.
The Naiz Cash Consideration is payable to the Naiz Sellers in five
installments, according to the following payment schedule: (i)
US$500,000 at closing, (ii) up to US$500,000 within 45 days of My
Size’s receipt of Naiz’s 2022 audited financial statements, (iii)
up to US$350,000 within 45 days of My Size’s receipt of Naiz’s
unaudited financial statements for the six months ended June 30,
2023, (iv) up to $350,000 within 45 days of My Size’s receipt of
Naiz’s unaudited financial statements for the six months ended
December 31, 2023, and (v) up to $350,000 within 45 days of My
Size’s receipt of Naiz’s 2024 audited financial statements;
provided that in the case of the second, third, fourth and fifth
installments certain revenue targets are met.
The payment of the second, third, fourth and fifth cash
installments are further subject to the continuing employment or
involvement of Borja and Aritz, or the Key Persons, by or with Naiz
at the date such payment is due (except if a Key Person is
terminated from Naiz due to a Good Reason (as defined in the Naiz
Agreement).
The Naiz Agreement contains customary representations, warranties
and indemnification provisions. In addition, the Naiz Sellers will
be subject to non-competition and non-solicitation provisions
pursuant to which they agree not to engage in competitive
activities with respect to My Size’s business.
In connection with the Naiz Agreement, (i) each of the Naiz Sellers
entered into six-month lock-up agreements, or the Lock-Up
Agreement, with My Size, (ii) Whitehole, Twinbel and EGI entered
into a voting agreement, or the Voting Agreement, with My Size and
(iii) each of the Key Persons entered into employment agreements
and services agreements with Naiz.
The Lock-Up Agreement provides that each Naiz Seller will not, for
the six-month period following the closing of the transaction, (i)
offer, pledge, sell, contract to sell, sell any option, warrant or
contract to purchase, purchase any option, warrant or contract to
sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any Shares or any
securities convertible into or exercisable or exchangeable for
Shares in each case, that are currently or hereafter owned of
record or beneficially (including holding as a custodian) by such
Naiz Seller, or publicly disclose the intention to make any such
offer, sale, pledge, grant, transfer or disposition; or (ii) enter
into any swap, short sale, hedge or other agreement that transfers,
in whole or in part, any of the economic consequences of ownership
of such Naiz Seller’s Shares regardless of whether any such
transaction described in clause (i) or this clause (ii) is to be
settled by delivery of Shares or such other securities, in cash or
otherwise. The Lock-Up Agreement also contains an additional
three-month “dribble-out” provision that provides following the
expiration of the initial six-month lock-up period, without My
Size’s prior written consent (which My Size shall be permitted to
withhold at its sole discretion), each Naiz Seller shall not sell,
dispose of or otherwise transfer on any given day a number of
Shares representing more than the average daily trading volume of
the Shares for the rolling 30 day trading period prior to the date
on which such Seller executes a trade of the Shares.
The Voting Agreement provides that the voting of any Shares held by
each of Whitehole, Twinbel and EGI, or the Naiz Acquisition
Stockholders, will be exercised exclusively by a proxy designated
by My Size’s board of directors from time to time, or the Proxy,
and that each Naiz Acquisition Stockholder will irrevocably
designate and appoint the then-current Proxy as its sole and
exclusive attorney-in-fact and proxy to vote and exercise all
voting right with respect to the Shares held by each Naiz
Acquisition Stockholder. The Voting Agreement also provides that,
if the voting power held by the Proxy, taking into account the
proxies granted by the Naiz Acquisition Stockholders and the Shares
owned by the Proxy, represents 20% or more of the voting power of
My Size’s stockholders that will vote on an item, or the Voting
Power, then the Proxy shall vote such number of Shares in excess of
19.9% of the Voting Power in the same proportion as the Shares that
are voted by My Size’s other stockholders. The Voting Agreement
will terminate on the earliest to occur of (i) such time that such
Naiz Acquisition Stockholder no longer owns the Shares, (ii) the
sale of all or substantially all of the assets of My Size or the
consolidation or merger of My Size with or into any other business
entity pursuant to which stockholders of My Size prior to such
consolidation or merger hold less than 50% of the voting equity of
the surviving or resulting entity, (iii) the liquidation,
dissolution or winding up of the business operations of My Size,
and (iv) the filing or consent to filing of any bankruptcy,
insolvency or reorganization case or proceeding involving My Size
or otherwise seeking any relief under any laws relating to relief
from debts or protection of debtors.
Reverse
Stock Split
On
December 7, 2022, our board approved a 1-for-25 reverse stock split
of our issued and outstanding shares of common stock, or the
Reverse Stock Split, and on the same day, we filed with the
Secretary of State of the State of Delaware a Certificate of
Amendment to our Certificate of Incorporation to effect the Reverse
Stock Split. The Reverse Stock Split became effective on December
8, 2022.
Warehouse
Fire
On
January 2, 2023, Orgad experienced a fire at its warehouse in
Israel. At this time, we are not aware of any casualties or
injuries associated with the fire. We are working to assess the
damage and to determine when operations may be resumed at this
warehouse or potentially shifted to another location. As of the
date of this prospectus, it is too early to determine the potential
impact of this incident on our results of operations and financial
condition or the scope of insurance coverage related to this
incident. However, we do not believe that this incident will affect
the future sales results of Orgad.
Company
Information
We
were incorporated in the State of Delaware and commenced operations
in September 1999 under the name Topspin Medical, Inc. In December
2013, we changed our name to Knowledgetree Ventures Inc.
Subsequently, in February 2014 we changed our name to My Size, Inc.
Our principal executive offices are located at 4 Hayarden St., pob
1026, Airport City, Israel 7010000, and our telephone number is
+972-3-600-9030. Our website address is www.MySizeID.com. The
information on our website is not part of this prospectus. We have
included our website address as a factual reference and do not
intend it to be an active link to our website
THE
OFFERING
Shares
of common stock offered by us |
|
162,000
shares of common stock. |
|
|
|
Pre-funded
warrants offered by us
|
|
Registered
pre-funded warrants to purchase up to 279,899 shares of common
stock. We are also offering pursuant to this prospectus
supplement and the accompanying prospectus the shares of common
stock issuable upon the exercise of the registered pre-funded
warrants.
|
|
|
|
Offering
price per share |
|
$3.055 |
|
|
|
Offering
price per pre-funded warrant |
|
$3.054 |
|
|
|
Shares
of common stock to be outstanding immediately after this
offering |
|
1,906,016
shares of common stock (assuming full exercise of the registered
pre-funded warrants). |
|
|
|
Concurrent
private placements of shares and warrants |
|
In
concurrent private placements, we are issuing (i) an aggregate of
540,098 unregistered pre-funded warrants at an offering price of
$3.054 per pre-funded warrant, and (ii) unregistered Series A
warrants to purchase up to an aggregate of 981,997 shares of common
stock and Series B warrants to purchase up to an aggregate of
981,997 shares of common stock, in which for each share or
pre-funded warrant issued in this offering and the private
placement, an associated Series A and Series B warrant is being
issued. Each warrant will be exercisable for one share of common
stock at an exercise price of $2.805 per share and will be
immediately exercisable upon issuance. The Series A warrants will
expire five and one-half years from the initial exercise date and
the Series B warrants will expire 28 months from the initial
exercise date. The unregistered pre-funded warrants, the
unregistered Series A and B warrants and the shares of common stock
issuable upon the exercise of such warrants are being offered
pursuant to the exemptions provided in Section 4(a)(2) under the
Securities Act of 1933, as amended, or the Securities Act, and Rule
506(b) promulgated thereunder, and they are not being offered
pursuant to this prospectus supplement and the accompanying
prospectus. The registered and unregistered warrants are not and
will not be listed for trading on any national securities
exchange. |
|
|
|
Use
of proceeds |
|
We
intend to use the net proceeds of this offering for general
corporate purposes and working capital. See “Use of Proceeds” on
page S-8. |
|
|
|
Risk
factors |
|
Investing
in our securities is highly speculative and involves a high degree
of risk. You should carefully consider the information set forth in
the “Risk Factors” section beginning on page S-6 of this prospectus
supplement and other information included or incorporated by
reference into this prospectus supplement before deciding to invest
in our securities. |
|
|
|
Listing |
|
Our
common stock is listed on the Nasdaq Capital Market under the
symbol “MYSZ” and on the Tel Aviv Stock Exchange, or the TASE,
under the symbol “MYSZ.TA”. |
The
number of shares of common stock to be outstanding immediately
after this offering is based on 1,464,117 shares of common stock
outstanding as of January 10, 2023, and excludes as of such
date:
|
● |
42,339
shares of common stock issuable upon exercise of outstanding
options under our 2017 Equity Incentive Plan at a weighted exercise
price of $22.18; |
|
|
|
|
● |
1,890
shares of common stock issuable upon exercise of outstanding
options under our 2017 Consultant Equity Incentive Plan and
non-plan options at a weighted exercise price of
$74.88; |
|
|
|
|
● |
76,793
shares of common stock reserved for potential future issuance
pursuant to our 2017 Equity Incentive Plan and 2017 Consultant
Incentive Plan, combined; and |
|
|
|
|
● |
270,063
shares of common stock issuable upon the exercise of warrants
outstanding at a weighted exercise price of $30.21 per share, prior
to giving effect to the price-based anti-dilution adjustment of
warrants to purchase an aggregate of 3,682 shares of common stock
as a result of this offering, under which the exercise price of
such warrants will be decreased to a price per share that is equal
to the lower of (x) the offering price per share and (y) the lowest
volume weighted average price of our common stock on any trading
day during the four trading day period immediately following the
public announcement of this offering. |
Unless
otherwise indicated, all information in this prospectus supplement
(i) excludes pre-funded warrants to purchase up to an aggregate of
540,098 shares of common stock to be issued in the concurrent
private placements at an exercise price of $0.001 per share and
unregistered Series A warrants to purchase up to an aggregate of
981,997 shares of common stock and Series B warrants to purchase up
to an aggregate of 981,997 shares of common stock to be issued in
the concurrent private placements at an exercise price of $2.805
per share, (ii) excludes 68,740 shares of our common stock issuable
upon exercise of warrants to be issued to the placement agent (or
its designees) as compensation in connection with this offering and
the concurrent private placements at an exercise price of $3.8188
per share, (iii) assumes no exercise of the outstanding options or
warrants described above, and (iv) gives retroactive effect to the
1-for-25 reverse stock split effected on December 8,
2022.
RISK FACTORS
You
should carefully consider the risks described below before making
an investment decision. The risks described below are not the only
ones we face. Additional risks we are not presently aware of or
that we currently believe are immaterial may also impair our
business operations. Our business could be harmed by any of these
risks. The trading price of our common stock could decline due to
any of these risks, and you may lose all or part of your
investment. In assessing these risks, you should also refer to the
risk factors and other information contained or incorporated by
reference into this prospectus supplement and the accompanying
prospectus, specifically including the risk factors contained in
our Annual Report on Form 10-K for the year ended December 31,
2021, filed with the SEC on March 18, 2022, and the financial
statements and related notes filed therewith.
Risks Relating to this Offering
Management will have broad discretion as to the use of the net
proceeds from this offering, and we may not use the proceeds
effectively.
Our
management will have broad discretion as to the application of the
net proceeds and could use them for purposes other than those
contemplated at the time of this offering. Our stockholders may not
agree with the manner in which our management chooses to allocate
and spend the net proceeds. Moreover, our management may use the
net proceeds for corporate purposes that may not increase our
results of operations or the market value of our common stock. Our
failure to apply these funds effectively could have a material
adverse effect on our business, delay the development of our
products and cause the price of our common stock to
decline.
You may experience future dilution as a result of future equity
offerings and other issuances of our shares of common stock or
other securities. In addition, this offering and future equity
offerings and other issuances of our shares of common stock or
other securities may adversely affect our shares of common
stock.
In
order to raise additional capital, we may in the future offer
additional shares of common stock or other securities convertible
into or exchangeable for shares of common stock at prices that may
not be the same as the price per share in this offering. We cannot
assure you that we will be able to sell shares or other securities
in any other offering at a price per share that is equal to or
greater than the price per share paid by investors in this
offering, and investors purchasing shares or other securities in
the future could have rights superior to existing shareholders. The
price per share at which we sell additional shares of common stock
or securities convertible into shares of common stock in future
transactions may be higher or lower than the price per share in
this offering.
In
addition, the sale of shares in this offering and any future sales
of a substantial number of shares of common stock in the public
market, or the perception that such sales may occur, could
adversely affect the price of our shares of common stock. We cannot
predict the effect, if any, that market sales of those shares of
common stock or the availability of those shares of common stock
for sale will have on the market price of our shares of common
stock.
Sales of a substantial number of our shares of common stock in the
public market could cause our stock price to
fall.
We
may issue and sell additional shares of common stock in the public
markets, including during this offering. As a result, a substantial
number of our shares of common stock may be sold in the public
market. Sales of a substantial number of our shares of common stock
in the public markets, including during this offering, or the
perception that such sales could occur, could depress the market
price of our shares of common stock and impair our ability to raise
capital through the sale of additional equity
securities.
The shares of common stock offered pursuant to this offering will
be subject to TASE approval.
New
issuances of shares of common stock by us must be approved by TASE
prior to issuance. Accordingly, the shares of common stock offered
hereby are subject to TASE approval. In the event that we do not
receive TASE approval for the issuance of the shares of common
stock offered hereby, we may not issue such shares of common
stock.
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.
Nasdaq
has established certain standards for the continued listing of a
security on the Nasdaq Capital Market. The standards for continued
listing include, among other things, that the minimum bid price for
the listed securities not fall below $1.00 per share for a period
of 30 consecutive trading days and that we maintain a minimum of
$2,500,000 in shareholders’ equity.
On
January 3, 2022, we were notified by the Nasdaq Stock Market that
we were not in compliance with the minimum bid price requirements
set forth in Nasdaq Listing Rule 5550(a)(2), or the Rule, for
continued listing on the Nasdaq Capital Market. We regained
compliance with the Rule on December 22, 2022, and this matter is
now closed.
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.
Because we do not currently intend to declare cash dividends on our
shares of common stock in the foreseeable future, stockholders must
rely on appreciation of the value of our common stock for any
return on their investment.
We
have never declared or paid cash dividends on our capital stock. We
currently intend to retain all of our future earnings, if any, to
finance the operation, development and growth of our business.
Furthermore, any future debt agreements may also preclude us from
paying or place restrictions on our ability to pay dividends. As a
result, capital appreciation, if any, of our common stock will be
your sole source of gain with respect to your investment for the
foreseeable future.
The exercise of our outstanding options and warrants will dilute
stockholders and could decrease our stock price.
The
exercise of our outstanding options and warrants may adversely
affect our stock price due to sales of a large number of shares or
the perception that such sales could occur. These factors also
could make it more difficult to raise funds through future
offerings of our securities, and could adversely impact the terms
under which we could obtain additional equity capital. Exercise of
outstanding options and warrants, vesting of outstanding restricted
stock units or any future issuance of additional shares of common
stock or other equity securities, including but not limited to
options, warrants, restricted stock units or other derivative
securities convertible into our common stock, may result in
significant dilution to our stockholders and may decrease our stock
price.
There is no public market for the pre-funded warrants being
offered by us in this offering.
There is no established public trading market for the pre-funded
warrants being sold in this offering, and we do not expect a market
to develop. In addition, we do not intend to apply to list the
pre-funded warrants on any securities exchange or recognized
trading system. Without an active market, the liquidity of the
pre-funded warrants will be limited.
Holders of the pre-funded warrants will have no rights as
common stockholders until they acquire our common
stock.
Until you acquire shares of our common stock upon exercise of the
pre-funded warrants, you will have no rights with respect to our
common stock issuable upon exercise of the pre-funded warrants,
including the right to receive dividend payments, vote or respond
to tender offers. Upon exercise of your pre-funded warrants, you
will be entitled to exercise the rights of a common stockholder
only as to matters for which the record date occurs after the
exercise date.
We will not receive any meaningful amount of additional funds
upon the exercise of the pre-funded warrants.
Each pre-funded warrant will be exercisable until it is fully
exercised and by means of payment of the nominal cash purchase
price upon exercise or by means of a “cashless exercise” according
to a formula set forth in the pre-funded warrant. Accordingly, we
will not receive any meaningful additional funds upon the exercise
of the pre-funded warrants.
A number of our outstanding warrants contain anti-dilution
provisions that, if triggered, could cause substantial dilution to
our then-existing stockholders and adversely affect our stock
price.
A
number of our outstanding warrants contain anti-dilution
provisions. As a result, upon issuance of securities in this
offering, the exercise price of certain of such warrants will be
reduced and as such you may experience dilution, which may be
substantial and which could lower the market price of our
securities. Further, the potential application of such
anti-dilution rights may prevent us from seeking additional
financing, which would adversely affect our ability to finance our
operations and continue to support our growth
initiatives.
USE
OF PROCEEDS
We
estimate that the net proceeds from this offering and the
concurrent private placements, after deducting placement agent fees
and estimated offering expenses payable by us, will be
approximately $2.5 million and excluding the exercise of warrants
issued in the private placements and the warrants issued as
compensation to the placement agent.
We
intend to use the net proceeds from the sale of the securities
offered under this prospectus supplement and the concurrent private
placement for general corporate purposes and working
capital.
Our
management will have broad discretion in the application of the net
proceeds from this offering and the concurrent private placement
could use them for purposes other than those contemplated at the
time of this offering. Our stockholders may not agree with the
manner in which our management chooses to allocate and spend the
net proceeds. Moreover, our management may use the net proceeds for
corporate purposes that may not result in our being profitable or
increase our market value.
Pending
any use, as described above, we intend to invest the net proceeds
in high-quality, short-term, interest-bearing
securities.
DIVIDEND
POLICY
We
have never declared or paid cash dividends on our capital stock. We
currently intend to retain our future earnings, if any, for use in
our business and therefore do not anticipate paying cash dividends
in the foreseeable future. Payment of future dividends, if any,
will be at the discretion of our board of directors after taking
into account various factors, including our financial condition,
operating results, current and anticipated cash needs and plans for
expansion.
DESCRIPTION OF THE SECURITIES WE ARE
OFFERING
We
are offering 162,000 shares of our common stock, par value $0.001
per share and registered pre-funded warrants to purchase 279,899
shares of common stock.
Common
Stock
The
material terms and provision of our common stock are described
under the caption “Description of Capital Stock” in the accompany
prospectus.
Registered
Pre-Funded Warrants
The
following summary of certain terms and provisions of the pre-funded
warrants that are being offered hereby is not complete and is
subject to, and qualified in its entirety by, the provisions of the
pre-funded warrants, the form of which will be filed with the
Securities and Exchange Commission by us as an exhibit to a Current
Report on Form 8-K in connection with this offering. Prospective
investors should carefully review the terms and provisions of the
form of Registered Pre-Funded Warrant for a complete description of
the terms and conditions of the pre-funded warrants.
Duration
and Exercise Price. Each Registered Pre-Funded Warrant offered
hereby has an initial exercise price per share equal to $0.001. The
pre-funded warrants are immediately exercisable and may be
exercised at any time until the pre-funded warrants are exercised
in full. The exercise price and number of shares of common stock
issuable upon exercise is subject to appropriate adjustment in the
event of stock dividends, stock splits, reorganizations, or similar
events affecting our common stock and the exercise price. The
pre-funded warrants will be issued separately and may be
transferred separately immediately thereafter.
Exercisability.
The pre-funded warrants are exercisable, at the option of each
holder, in whole or in part, by delivering to us a duly executed
exercise notice accompanied by payment in full for the number of
shares of our common stock purchased upon such exercise (except in
the case of a cashless exercise as discussed below). The purchaser
of the pre-funded warrants in this offering may elect to deliver
its exercise notice following the pricing of the offering and prior
to the issuance of the pre-funded warrants at closing to have its
pre-funded warrants exercised immediately upon issuance and receive
shares of common stock underlying the pre-funded warrants upon
closing of this offering. A holder (together with its affiliates)
may not exercise any portion of the pre-funded warrant to the
extent that the holder would own more than 4.99% of the outstanding
common stock immediately after exercise, which percentage may be
changed at the holder’s election to a lower percentage at any time
or to a higher percentage not to exceed 9.99% upon 61 days’ notice
to us. The purchaser of pre-funded warrants in this offering may
also elect prior to the issuance of the pre-funded warrants to have
the initial exercise limitation set at 9.99% of our outstanding
common stock. No fractional shares of common stock will be issued
in connection with the exercise of the pre-funded warrants. In lieu
of fractional shares, at our election, we will either round up to
the nearest whole number or we will pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction
multiplied by the exercise price.
Cashless
Exercise. A holder may elect to receive upon exercise of its
pre-funded warrants (either in whole or in part) the net number of
shares of common stock determined according to a formula set forth
in the pre-funded warrants in lieu of making the cash payment
otherwise contemplated to be made to us upon such exercise in
payment of the aggregate exercise price.
Transferability.
Subject to applicable laws, a pre-funded warrants may be
transferred at the option of the holder upon surrender of the
pre-funded warrants to us together with the appropriate instruments
of transfer.
Exchange
Listing. There is no trading market available for the
pre-funded warrants on any securities exchange or nationally
recognized trading system. We do not intend to list the pre-funded
warrants on any securities exchange or nationally recognized
trading system.
Right
as a Stockholder. Except as otherwise provided in the
pre-funded warrants or by virtue of such holder’s ownership of
shares of our common stock, the holders of the pre-funded warrants
do not have the rights or privileges of holders of our common
stock, including any voting rights, until they exercise their
pre-funded warrants.
Fundamental
Transaction. In the event of any fundamental transaction, as
described in the pre-funded warrants and generally including any
merger with or into another entity, sale of all or substantially
all of our assets, tender offer or exchange offer, reclassification
of our common stock, or purchase agreement or other business
combination pursuant to which another person or group of persons
acquires more than 50% of the outstanding shares of our common
stock, then upon any subsequent exercise of a Registered Pre-Funded
Warrant, the holder will have the right to receive as alternative
consideration, for each share of our common stock that would have
been issuable upon such exercise immediately prior to the
occurrence of such fundamental transaction, the number of shares of
common stock of the successor or acquiring corporation or of our
company, if it is the surviving corporation, and any additional
consideration receivable upon or as a result of such transaction by
a holder of the number of shares of our common stock for which the
pre-funded warrant is exercisable immediately prior to such
event.
CAPITALIZATION
The
following table sets forth our consolidated cash and capitalization
as of September 30, 2022. Such information is set forth on the
following basis:
|
● |
actual
basis; |
|
|
|
|
● |
on an
as adjusted basis to give further effect to (i) the offering of
441,899 shares of common stock in a registered direct offering
placement (assuming full exercise of the pre-funded warrants issued
thereunder), and (ii) the sale of 540,098 unregistered pre-funded
warrants in a concurrent private placement (assuming full exercise
of the pre-funded warrants issued thereunder), after deducting the
placement agent fees and estimated offering expenses payable by
us. |
You
should read this table in conjunction with the section of this
prospectus supplement under the caption “Use of Proceeds”, as well
as our “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and our consolidated financial
statements and other financial information included or incorporated
by reference in this prospectus supplement.
|
|
As of
September 30, 2022 (unaudited) (in $ thousands, except share and
per share amounts) |
|
|
|
Actual |
|
|
As Adjusted |
|
Cash and cash
equivalents |
|
|
4,360 |
|
|
|
6,860 |
|
Total current liabilities |
|
|
(2,135 |
) |
|
|
(2,135 |
) |
Stockholders’ equity: |
|
|
|
|
|
|
|
|
Common Stock,
$0.001 par value 200,000,000 shares authorized, 1,029,051 shares
issued and outstanding, actual; 2,011,048 shares issued and
outstanding, pro forma |
|
|
(1 |
) |
|
|
(4 |
) |
Additional paid-in capital |
|
|
(45,852 |
) |
|
|
(48,349 |
) |
Accumulated deficit |
|
|
40,468 |
|
|
|
40,468 |
|
Accumulated other comprehensive
loss |
|
|
(440 |
) |
|
|
(440 |
) |
Total stockholders’ equity |
|
|
4,945 |
|
|
|
7,445 |
|
The
above discussion and table are based on 1,029,051 shares of common
stock outstanding as of September 30, 2022 and excludes as of such
date:
|
● |
33,673 shares
of common stock issuable upon exercise of outstanding options under
our 2017 Equity Incentive Plan at a weighted exercise price of
$26.53; |
|
|
|
|
● |
1,890
shares
of common stock issuable upon exercise of outstanding options under
our 2017 Consultant Equity Incentive Plan and non-plan options at a
weighted exercise price of $74.88; |
|
|
|
|
● |
203,260 shares of common stock reserved for potential future
issuance pursuant to our 2017 Equity Incentive Plan and 2017
Consultant Incentive Plan, combined; and |
|
|
|
|
● |
293,996
shares
of common stock issuable upon the exercise of warrants outstanding
at a weighted exercise price of $31.11 per share, prior to giving
effect to the price-based anti-dilution adjustment of warrants to
purchase an aggregate of 4,714 shares of common stock as a result
of this offering, under which the exercise price of such warrants
will be decreased to a price per share that is equal to the lower
of (x) the offering price per share and (y) the lowest volume
weighted average price of our common stock on any trading day
during the four trading day period immediately following the public
announcement of this offering. |
PLAN
OF DISTRIBUTION
Pursuant
to an engagement letter, we have engaged H.C. Wainwright & Co.,
LLC, or Wainwright, as our exclusive placement agent for this
offering. The engagement agreement does not give rise to any
commitment by Wainwright to purchase any of the securities, and
Wainwright will have no authority to bind us by virtue of the
engagement agreement. Wainwright is not purchasing or selling any
shares, nor are they required to arrange for the purchase and sale
of any specific number or dollar amount of securities other than
the use its reasonable “best efforts” to arrange for the sale of
shares by us. Therefore, we may not sell the entire amount of
securities being offered. Wainwright may engage one or more
sub-agents or selected dealers to assist with the
offering.
We
have entered into a securities purchase agreement directly with the
investor in connection with this offering, and we will only sell to
investors who have entered into the securities purchase agreement.
The investor in the offering has agreed to not offer, sell or
otherwise dispose of the shares purchased in the offering up to and
including January 12, 2023.
We
expect to deliver the securities being offered pursuant to this
prospectus supplement on or about January 12, 2023.
In
addition, we have agreed that (i) we will not conduct any issuances
of our common stock or common stock equivalents for a period 60
days following the closing of this offering, and (ii) we will not
enter into a variable rate transaction for a period ending on the
12-month anniversary of the closing of this offering.
Notwithstanding the foregoing, we may enter into and effect sales
pursuant to an at-the-market facility following six (6) months
following the closing of this offering.
Upon
the closing of this offering, we will pay Wainwright a cash fee
equal to 7.0% of the gross proceeds to us from the sale of the
securities in the offering and the concurrent private placement. We
have also agreed to pay Wainwright a management fee equal to 1.0%
of the gross proceeds to us from the sale of the securities in the
offering and the concurrent private placement, a non-accountable
expense allowance of $85,000 payable to Wainwright in connection
with this offering and the concurrent private placement and
clearing expenses of $15,950. We estimate the total expenses of
this offering, which will be payable by us, excluding the placement
agent fees and expenses, will be approximately $173,000.
In
addition, we have agreed to issue to the placement agent or its
designees warrants to purchase up to 7.0% of the aggregate number
of shares of common stock and pre-funded warrants sold in this
offering and the concurrent private placement, or warrants to
purchase up to 68,740 shares of common stock. The placement agent
warrants will have an exercise price equal to $3.8188, or 125% of
the offering price per share and associated warrants and will be
exercisable for five years from the commencement of the sales
pursuant to this offering.
Wainwright
shall also be entitled to the foregoing cash fee and warrant
compensation (other than the non-accountable expense allowance)
with respect to certain investors contacted by Wainwright or
introduced to us by Wainwright during the term of the engagement
letter that invest in any subsequent capital-raising transaction
during the 15-month period following the termination or expiration
of the engagement letter.
We
have also granted the placement agent a right of first refusal for
a period of twelve months following the closing of this offering to
act as sole book-running manager, sole underwriter or sole
placement agent for each and every future public offering
(including at-the-market facility) or private placement of equity
or any other capital-raising financing of equity, equity-linked or
debt securities by us or any of our subsidiaries.
We
have agreed to indemnify Wainwright and specified other persons
against certain liabilities relating to or arising out of
Wainwright’s activities under the engagement letter and to
contribute to payments that Wainwright may be required to make in
respect of such liabilities.
Wainwright
may be deemed to be an underwriter within the meaning of Section
2(a)(11) of the Securities Act, and any commissions received by it
and any profit realized on the resale of the securities sold by it
while acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. As an
underwriter, Wainwright would be required to comply with the
requirements of the Securities Act and the Exchange Act, including,
without limitation, Rule 415(a)(4) under the Securities Act and
Rule 10b-5 and Regulation M under the Exchange Act. These rules and
regulations may limit the timing of purchases and sales of shares
of common stock by Wainwright acting as principal. Under these
rules and regulations, Wainwright:
|
● |
may
not engage in any stabilization activity in connection with our
securities; and |
|
|
|
|
● |
may
not bid for or purchase any of our securities or attempt to induce
any person to purchase any of our securities, other than as
permitted under the Exchange Act, until it has completed its
participation in the distribution. |
The
securities purchase agreement is included as an exhibit to a
Current Report on Form 8-K that we have filed with the SEC and that
is incorporated by reference into the registration statement of
which this prospectus supplement forms a part.
From
time to time, Wainwright may provide in the future various
advisory, investment and commercial banking and other services to
us in the ordinary course of business, for which they have received
and may continue to receive customary fees and commissions. The
placement agent acted as our sales agent for our at-the-market
offering facility that was established in September 2019 and as
placement agent in a registered direct offering in January 2020 and
public offering in May 2020 and as placement agent in a registered
direct offering and private placement in October 2021. However,
except as disclosed in this prospectus supplement, we have no
present arrangements with Wainwright for any further
services.
The
transfer agent for our shares of common stock is VStock Transfer,
LLC.
Our
common stock is listed on the Nasdaq Capital Market under the
symbol “MYSZ” and on the Tel Aviv Stock Exchange, or the TASE,
under the symbol “MYSZ”.
CONCURRENT PRIVATE PLACEMENTS OF
SHARES AND WARRANTS
In
concurrent private placements, we are issuing (i) unregistered
pre-funded warrants to purchase up to an aggregate of 540,098
shares of common stock at an offering price of $3.054 per
pre-funded warrant, and (ii) unregistered Series A warrants to
purchase up to an aggregate of 981,997 shares of common stock and
Series B warrants to purchase up to an aggregate of 981,997 shares
of common stock, in which for each share or pre-funded warrant
issued in this offering and the private placement, an associated
Series A and Series B warrant is being issued. The unregistered
pre-funded warrants have an exercise price of $0.001 per share,
will be immediately exercisable upon issuance, and will not expire
until fully exercised. Each Series A and Series B warrant will be
exercisable for one share of common stock at an exercise price of
$2.805 per share and will be immediately exercisable. The Series A
warrants will expire five and one-half years from the initial
exercise date and the Series B warrants will expire 28 months from
the initial exercise date. The unregistered shares, the
unregistered Series A and Series B warrants and the shares of
common stock issuable upon the exercise of the such unregistered
warrants are being offered pursuant to the exemptions provided in
Section 4(a)(2) under the Securities Act of 1933, as amended, or
the Securities Act, and Rule 506(b) promulgated thereunder, and
they are not being offered pursuant to this prospectus supplement
and the accompanying prospectus. The registered and unregistered
warrants issued in the concurrent private placements are not and
will not be listed for trading on any national securities
exchange.
Accordingly,
the investors may exercise the unregistered common stock warrants
and sell the shares of common stock issuable upon the exercise of
such warrants only pursuant to an effective registration statement
under the Securities Act covering the resale of those shares, an
exemption under Rule 144 under the Securities Act or another
applicable exemption under the Securities Act.
All
purchasers are required to be “accredited investors” as such term
is defined in Rule 501(a) under the Securities Act.
A
holder of warrants will not have the right to exercise any portion
of its warrants if the holder, together with its affiliates, would
beneficially own in excess of 4.99% (or, at the election of a
holder prior to the date of issuance, 9.99%) of the number of
shares of our common stock outstanding immediately after giving
effect to such exercise; provided, however, that upon notice to the
Company, the holder may increase or decrease such beneficial
ownership limitation, provided that in no event shall such
beneficial ownership limitation exceed 9.99% and any increase in
the beneficial ownership limitation will not be effective until 61
days following notice of such increase from the holder to us. In
addition, the holders of the warrants will have the right to
participate in any rights offering or distribution of assets
together with the holders of our common stock on an as-exercised
basis.
The
exercise price and number of the shares of our common stock
issuable upon the exercise of the warrants will be subject to
adjustment for stock splits, reverse splits, and similar capital
transactions, as described in the warrants. The warrants will be
exercisable on a “cashless” basis in certain
circumstances.
If a
fundamental transaction occurs, then the successor entity will
succeed to, and be substituted for us, and may exercise every right
and power that we may exercise and will assume all of our
obligations under the purchase warrants with the same effect as if
such successor entity had been named in the purchase warrant
itself. If holders of shares of our common stock are given a choice
as to the securities, cash or property to be received in a
fundamental transaction, then the holder shall be given the same
choice as to the consideration it receives upon any exercise of the
purchase warrant following such fundamental transaction.
Additionally, as more fully described in the warrants, in the event
of certain fundamental transactions, the holders of warrants will
be entitled to receive consideration in an amount equal to the
Black Scholes value of the warrants on the date of consummation of
such transaction.
As
part of the concurrent private placements, we have agreed to
register for resale the shares of common stock issuable upon
exercise of the unregistered warrants sold in the concurrent
private placements.
LEGAL MATTERS
The
validity of the shares of common stock and registered pre-funded
warrants offered hereby will be passed upon for us by Greenberg
Traurig, LLP, New York, New York.
EXPERTS
The
consolidated financial statements of My Size, Inc. as of December
31, 2021 and 2020, and for each of the years in the two-year period
ended December 31, 2021, have been incorporated by reference herein
and in the registration statement in reliance upon the report of
Somekh Chaikin, member firm of KPMG International, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing.
The
audit report covering the December 31, 2021 consolidated financial
statements refers to a change in accounting principle in regards to
stock compensation for nonemployee share-based payments.
WHERE YOU CAN FIND MORE
INFORMATION
This
prospectus supplement and the accompanying prospectus are part of
the registration statement on Form S-3 we filed with the Securities
and Exchange Commission, under the Securities Act, and do not
contain all the information set forth in the registration
statement. Whenever a reference is made in this prospectus
supplement or the accompanying prospectus to any of our contracts,
agreements or other documents, the reference may not be complete,
and you should refer to the exhibits that are a part of the
registration statement or the exhibits to the reports or other
documents incorporated by reference into this prospectus supplement
and the accompanying prospectus for a copy of such contract,
agreement or other document. You may inspect a copy of the
registration statement, including the exhibits and schedules,
without charge, at the SEC’s public reference room mentioned below,
or obtain a copy from the SEC upon payment of the fees prescribed
by the SEC.
Because
we are subject to the information and reporting requirements of the
Exchange Act, we file annual, quarterly and special reports, proxy
statements and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SEC’s website at
www.sec.gov.
We
also maintain a web site at www.MySizeID.com, through which
you can access our SEC filings. The information set forth on our
web site is not part of this prospectus supplement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information into this
prospectus. This means that we can disclose important information
to you by referring you to another document filed separately with
the SEC. The information that we incorporate by reference is
considered to be part of this prospectus. Because we are
incorporating by reference our future filings with the SEC, this
prospectus is continually updated and those future filings may
modify or supersede some or all of the information included or
incorporated in this prospectus. This means that you must look at
all of the SEC filings that we incorporate by reference to
determine if any of the statements in this prospectus or in any
document previously incorporated by reference have been modified or
superseded. This prospectus incorporates by reference the documents
listed below and any future filings we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, (i) after
the date of the initial registration statement and prior to
effectiveness of the registration statement, and (ii) on or after
the date of this prospectus until the earlier of the date on which
all of the securities registered hereunder have been sold or the
registration statement of which this prospectus is a part has been
withdrawn:
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our
Annual Report on Form 10-K for the fiscal year
ended December 31, 2021, filed with the SEC on March 18,
2022; |
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our
Quarterly Report on Form 10-Q for the three months ended March 31,
2022 filed with the SEC on May 12, 2022, for the six months
ended June 30, 2022 filed with the SEC on August 15, 2022 and for the nine
months ended September 30, 2022 filed with the SEC on November 14, 2022; |
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our
Current Reports on Form 8-K filed with the SEC on January 3, 2022, January 4, 2022, January 7, 2022, February 1, 2022, February 8, 2022, April 11, 2022, July 7, 2022, October 4, 2022, October 12, 2022, December 7, 2022, December 27, 2022 (two filings),
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our
definitive proxy statement on Schedule 14A relating to our 2022
annual meeting of stockholders filed on November 4,
2022; |
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the
description of our common stock, which is contained in the
registration statement on Form 8-A filed with the SEC on
June 14, 2016 (File No. 001-37370). |
Notwithstanding
the foregoing, information furnished under Items 2.02 and 7.01 of
any Current Report on Form 8-K, including the related exhibits, is
not incorporated by reference in this prospectus.
The
information about us contained in this prospectus should be read
together with the information in the documents incorporated by
reference. You may request a copy of any or all of these filings,
at no cost, by writing or telephoning us at: Or Kles, Chief
Financial Officer, Hayarden 4, Airport City, Israel 701000,
telephone number 972-3-600-9030.
PROSPECTUS
MY
SIZE, INC.
$100,000,000
Common
Stock
Debt
Securities
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any
combination of common stock, debt securities, warrants to purchase
common stock or debt securities, or any combination of the
foregoing, either individually or as units comprised of one or more
of the other securities, having an aggregate initial offering price
not exceeding $100,000,000.
This
prospectus provides a general description of the securities we may
offer. Each time we sell a particular class or series of
securities, we will provide specific terms of the securities
offered in a supplement to this prospectus. The prospectus
supplement and any related free writing prospectus may also add,
update or change information contained in this prospectus. We may
also authorize one or more free writing prospectuses to be provided
to you in connection with these offerings. You should read
carefully this prospectus, the applicable prospectus supplement and
any related free writing prospectus, as well as any documents
incorporated by reference herein or therein before you invest in
any of our securities.
This
prospectus may not be used to offer or sell our securities unless
accompanied by a prospectus supplement relating to the offered
securities.
Our
common stock is presently listed on the Nasdaq Capital Market under
the symbol “MYSZ.” On December 22, 2020, the last reported sale
price of our common stock was $1.28. The applicable prospectus
supplement will contain information, where applicable, as to any
other listing on the Nasdaq Capital Market or any securities market
or other exchange of the securities, if any, covered by the
prospectus supplement.
The
aggregate market value of our outstanding common stock held by
non-affiliates pursuant to General Instruction I.B.6 of Form S-3
was approximately $9.1 million, which was calculated based on
7,232,836 shares of common stock outstanding, as of December 22,
2020, of which 7,115,773 shares were held by non-affiliates, and a
price per share of $1.28 which was the closing sale price of our
common stock on the Nasdaq Capital Market on December 22, 2020. We
have sold securities with an aggregate market value of
approximately $2.0 million pursuant to General Instruction I.B.6.
of Form S-3 during the prior 12 calendar month period that ends on
and includes the date hereof.
These
securities may be sold directly by us, through dealers or agents
designated from time to time, to or through underwriters, dealers
or through a combination of these methods on a continuous or
delayed basis. See “Plan of Distribution” in this prospectus. We
may also describe the plan of distribution for any particular
offering of our securities in a prospectus supplement. If any
agents, underwriters or dealers are involved in the sale of any
securities in respect of which this prospectus is being delivered,
we will disclose their names and the nature of our arrangements
with them in a prospectus supplement. The price to the public of
such securities and the net proceeds we expect to receive from any
such sale will also be included in a prospectus
supplement.
Investing
in our securities involves various risks. See “Risk Factors”
contained herein for more information on these risks. Additional
risks will be described in the related prospectus supplements under
the heading “Risk Factors”. You should review that section of the
related prospectus supplements for a discussion of matters that
investors in our securities should consider.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or
passed upon the adequacy or accuracy of this prospectus or any
accompanying prospectus supplement. Any representation to the
contrary is a criminal offense.
The
date of this Prospectus is December 30, 2020.
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “Securities Act”) using a
“shelf” registration process. Under this shelf registration
process, we may from time to time sell common stock, debt
securities or warrants to purchase common stock, debt securities,
or any combination of the foregoing, either individually or as
units comprised of one or more of the other securities, in one or
more offerings up to a total dollar amount of $100,000,000. We have
provided to you in this prospectus a general description of the
securities we may offer. Each time we sell securities under this
shelf registration, we will, to the extent required by law, provide
a prospectus supplement that will contain specific information
about the terms of that offering, including the prices and terms of
the securities we offer. We may also authorize one or more free
writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus
supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change
information contained in this prospectus or in any documents that
we have incorporated by reference into this prospectus. To the
extent there is a conflict between the information contained in
this prospectus and the prospectus supplement or any related free
writing prospectus, you should rely on the information in the
prospectus supplement or the related free writing prospectus;
provided that if any statement in one of these documents is
inconsistent with a statement in another document having a later
date — for example, a document incorporated by reference in this
prospectus or any prospectus supplement or any related free writing
prospectus — the statement in the document having the later date
modifies or supersedes the earlier statement.
We
have not authorized any dealer, agent or other person to give any
information or to make any representation other than those
contained or incorporated by reference in this prospectus, any
accompanying prospectus supplement or any related free writing
prospectus that we may authorize to be provided to you. You must
not rely upon any information or representation not contained or
incorporated by reference in this prospectus or an accompanying
prospectus supplement, or any related free writing prospectus that
we may authorize to be provided to you. This prospectus, the
accompanying prospectus supplement and any related free writing
prospectus, if any, do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the
registered securities to which they relate, nor do this prospectus,
the accompanying prospectus supplement or any related free writing
prospectus, if any, constitute an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to
whom it is unlawful to make such offer or solicitation in such
jurisdiction. You should not assume that the information contained
in this prospectus, any applicable prospectus supplement or any
related free writing prospectus is accurate on any date subsequent
to the date set forth on the front of the document or that any
information we have incorporated by reference is correct on any
date subsequent to the date of the document incorporated by
reference (as our business, financial condition, results of
operations and prospects may have changed since that date), even
though this prospectus, any applicable prospectus supplement or any
related free writing prospectus is delivered or securities are sold
on a later date.
As
permitted by the rules and regulations of the SEC, the registration
statement, of which this prospectus forms a part, includes
additional information not contained in this prospectus. You may
read the registration statement and the other reports we file with
the SEC at the SEC’s web site or at the SEC’s offices described
below under the heading “Where You Can Find Additional
Information.”
Company
References
In
this prospectus, “My Size,” “the Company,” “we,” “us,” and “our”
refer to My Size, Inc., a Delaware corporation, unless the context
otherwise requires.
OUR BUSINESS
This
summary highlights selected information contained elsewhere in this
prospectus that we consider important. This summary does not
contain all of the information you should consider before investing
in our securities. You should read this summary together with the
entire prospectus, including the risks related to our business, our
industry, investing in our shares of common stock and our location
in Israel, that we describe under “Risk Factors” and our
consolidated financial statements and the related notes before
making an investment in our securities.
Overview
We
are a creator of mobile device measurement solutions that has
developed innovative solutions designed to address shortcomings in
multiple verticals, including the e-commerce fashion/apparel,
shipping/parcel and do it yourself, or DIY, industries. Utilizing
our sophisticated algorithms within our proprietary technology, we
can calculate and record measurements in a variety of novel ways,
and most importantly, increase revenue for businesses across the
globe.
Our
solutions can be utilized to accurately take measurements of a
variety of items via a mobile device. By downloading the
application to a smartphone, the user is then able to run the
mobile device 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 our
proprietary algorithms, and the accurate measurements (+ or - 2
centimeters) are then sent back to the user’s mobile device. We
believe that the commercial applications for this technology are
significant in many areas.
Currently,
we are mainly focusing on the e-commerce fashion/apparel industry.
In addition, our solutions address the shipping/parcel and DIY uses
markets.
We
are in the commercialization phase of our products, although we
have only generated minimal revenues to date. While we rollout our
products to major retailers and apparel companies, there is a lead
time for new customers to ramp up before we can recognize revenue.
This lead time varies between customers, especially when the
customer is a tier 1 retailer, where the integration process may
take longer. Generally, first we integrate our product into a
customer’s online platform, which is followed by piloting and
implementation, and, assuming we are successful, commercial
roll-out, all of which takes time before we expect it to impact our
financial results in a meaningful way. While we have begun
generating initial sales revenue, we do not expect to generate
meaningful revenue during the upcoming quarters. In addition, the
COVID-19 pandemic has had a particularly adverse impact on the
retail industry and this has resulted in an adverse impact on our
marketing and sales activities. For example, we have three ongoing
pilots with international retailers that have been halted, we are
unable to participate physically in industry conferences, our
ability to meet with potential customers is limited and in certain
instances sales processes have been delayed or cancelled. Because
of the numerous risks and uncertainties associated with the
COVID-19 pandemic, the success of our market penetration and our
dependence on the extent to which MySizeID is adopted and utilized,
we are unable to predict the extent to which we will recognize
revenue. 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
Company
Information
We
were incorporated in the State of Delaware on September 20, 1999
under the name Topspin Medical, Inc. In December 2013, we changed
our name to Knowledgetree Ventures Inc. Subsequently, in February
2014, we changed our name to MySize, Inc. Subsequently, in February
2014, the Company changed its name to My Size, Inc. Our principal
executive offices are located at HaYarden 4, POB 1026, Airport
City, Israel, 7010000, and our telephone number is +972-3-600-9030.
Our website address is www.MySizeID.com. The information on our
website is not part of this prospectus. We have included our
website address as a factual reference and do not intend it to be
an active link to our website.
RISK
FACTORS
Before
purchasing any of the securities you should carefully consider the
risk factors incorporated by reference in this prospectus from our
most recent Annual Report on Form 10-K and any subsequent Quarterly
Report on Form 10-Q or Current Report on Form 8-K, as well as the
risks, uncertainties and additional information set forth in our
SEC reports on Forms 10-K, 10-Q and 8-K and in the other documents
incorporated by reference in this prospectus. For a description of
these reports and documents, and information about where you can
find them, see “Where You Can Find More Information” and
“Incorporation of Documents By Reference.” Additional risks not
presently known or that we presently consider to be immaterial
could subsequently materially and adversely affect our financial
condition, results of operations, business and
prospects.
FORWARD-LOOKING
STATEMENTS
This
prospectus, including the documents that we incorporate by
reference, contains forward-looking statements within the meaning
of Section 27A of the Securities Act and Section 21E of the
Exchange Act. Any statements in this prospectus and any
accompanying prospectus supplement about our expectations, beliefs,
plans, objectives, assumptions or future events or performance are
not historical facts and are forward-looking statements. These
statements are often, but not always, made through the use of words
or phrases such as “believe,” “will,” “expect,” “anticipate,”
“estimate,” “intend,” “plan” and “would.” For example, statements
concerning financial condition, possible or assumed future results
of operations, growth opportunities, industry ranking, plans and
objectives of management, markets for our common stock and future
management and organizational structure are all forward-looking
statements. Forward-looking statements are not guarantees of
performance. They involve known and unknown risks, uncertainties
and assumptions that may cause actual results, levels of activity,
performance or achievements to differ materially from any results,
levels of activity, performance or achievements expressed or
implied by any forward-looking statement.
Any
forward-looking statements are qualified in their entirety by
reference to the risk factors discussed throughout this prospectus
and any accompanying prospectus supplement. Some of the risks,
uncertainties and assumptions that could cause actual results to
differ materially from estimates or projections contained in the
forward-looking statements include but are not limited
to:
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our
history of losses and needs for additional capital to fund our
operations and our inability to obtain additional capital on
acceptable terms, or at all; |
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risks
related to our ability to continue as a going concern; |
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risk
related to the COVID-19 pandemic; |
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the
new and unproven nature of the measurement technology
markets; |
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our
ability to achieve customer adoption of our products; |
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our
dependence on assets we purchased from a related party and the risk
that such assets may in the future be repurchased; |
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our
ability to enhance our brand and increase market
awareness; |
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our
ability to introduce new products and continually enhance our
product offerings; |
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the
success of our strategic relationships with third
parties; |
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information
technology system failures or breaches of our network
security; |
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competition
from competitors; |
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our
reliance on key members of our management team; |
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or future litigation; and |
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the
impact of the political and security situation in Israel on our
business. |
The
foregoing list sets forth some, but not all, of the factors that
could affect our ability to achieve results described in any
forward-looking statements. You should read this prospectus and the
documents that we reference herein and have filed as exhibits to
the registration statement, of which this prospectus is part,
completely and with the understanding that our actual future
results may be materially different from what we expect. You should
assume that the information appearing in this prospectus is
accurate as of the date on the front cover of this prospectus.
Because the risk factors referred to on page 3 of this prospectus
and incorporated herein by reference, could cause actual results or
outcomes to differ materially from those expressed in any
forward-looking statements made by us or on our behalf, you should
not place undue reliance on any forward-looking
statements.
Further,
any forward-looking statement speaks only as of the date on which
it is made, and we undertake no obligation to update any
forward-looking statement to reflect events or circumstances after
the date on which the statement is made or to reflect the
occurrence of unanticipated events. New factors emerge from time to
time, and it is not possible for us to predict which factors will
arise. In addition, we cannot assess the impact of each factor on
our business or the extent to which any factor, or combination of
factors, may cause actual results to differ materially from those
contained in any forward-looking statements. We qualify all of the
information presented in this prospectus, and particularly our
forward-looking statements, by these cautionary
statements.
USE OF PROCEEDS
Except
as described in any prospectus supplement and any free writing
prospectus in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities
offered under this prospectus for working capital, repayment of
trade payables and general corporate purposes. We have not
determined the amount of net proceeds to be used specifically for
the foregoing purposes. As a result, our management will have broad
discretion in the allocation of the net proceeds and investors will
be relying on the judgment of our management regarding the
application of the proceeds of any sale of the
securities.
Each
time we offer securities under this prospectus, we will describe
the intended use of the net proceeds from that offering in the
applicable prospectus supplement. The actual amount of net proceeds
we spend on a particular use will depend on many factors,
including, our future capital expenditures, the amount of cash
required by our operations, and our future revenue growth, if any.
Therefore, we will retain broad discretion in the use of the net
proceeds.
THE SECURITIES WE MAY
OFFER
We
may offer shares of common stock, debt securities or warrants to
purchase common stock, debt securities, or any combination of the
foregoing, either individually or as units comprised of one or more
of the other securities. We may offer up to $100,000,000 of
securities under this prospectus. If securities are offered as
units, we will describe the terms of the units in a prospectus
supplement.
DESCRIPTION OF CAPITAL
STOCK
General
The
following description of our capital stock, together with any
additional information we include in any applicable prospectus
supplement or any related free writing prospectus, summarizes the
material terms and provisions of our common stock that we may offer
under this prospectus. While the terms we have summarized below
will apply generally to any future common stock that we may offer,
we will describe the particular terms of any class or series of
these securities in more detail in the applicable prospectus
supplement. For the complete terms of our common stock, please
refer to our Certificate of Incorporation and our Bylaws that are
incorporated by reference into the registration statement of which
this prospectus is a part or may be incorporated by reference in
this prospectus or any applicable prospectus supplement. The terms
of these securities may also be affected by Delaware General
Corporation Law. The summary below and that contained in any
applicable prospectus supplement or any related free writing
prospectus are qualified in their entirety by reference to our
Certificate of Incorporation and Bylaws.
As of
the date of this prospectus, our authorized capital stock consisted
of 100,000,000 shares of common stock, $0.001 par value per share.
As of December 22, 2020, there were 7,232,836 shares of our common
stock issued and outstanding.
Common
Stock
Holders
of our common stock are entitled to one vote per share. Our
Certificate of Incorporation does not provide for cumulative
voting. Holders of our common stock are entitled to receive ratably
such dividends, if any, as may be declared by our board of
directors (the “Board” or “Board of Directors”) out of legally
available funds. However, the current policy of our Board is to
retain earnings, if any, for the operation and expansion of our
company. Upon liquidation, dissolution or winding-up, the holders
of our common stock are entitled to share ratably in all of our
assets which are legally available for distribution, after payment
of or provision for all liabilities. The holders of our common
stock have no preemptive, subscription, redemption or conversion
rights.
Anti-Takeover
Effects of Certain Provisions of our Certificate of Incorporation,
Bylaws and the DGCL
Certain
provisions of our Certificate of Incorporation and Bylaws, which
are summarized in the following paragraphs, may 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 and 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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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. |
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
its board. These provisions may delay or prevent someone from
acquiring or merging with us, which may cause our market price of
our common stock to decline.
Advance
Notice Bylaws. Our Bylaws contain an advance notice procedure
for stockholder proposals to be brought before any meeting of
stockholders, including proposed nominations of persons for
election to our Board of Directors. Stockholders at any meeting
will only be able to consider proposals or nominations specified in
the notice of meeting or brought before the meeting by or at the
direction of our Board of Directors or by a stockholder who was a
stockholder of record on the record date for the meeting, who is
entitled to vote at the meeting and who has given our corporate
secretary timely written notice, in proper form, of the
stockholder’s intention to bring that business before the meeting.
Although the Bylaws do not give our Board of Directors the power to
approve or disapprove stockholder nominations of candidates or
proposals regarding other business to be conducted at a special or
annual meeting, the Bylaws may have the effect of precluding the
conduct of certain business at a meeting if the proper procedures
are not followed or may discourage or deter a potential acquirer
from conducting a solicitation of proxies to elect its own slate of
directors or otherwise attempting to obtain control of
us.
Interested
Stockholder Transactions. We are subject to Section 203 of the
Delaware General Corporation Law (“DGCL”) 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.
Limitations
on Liability, Indemnification of Officers and Directors and
Insurance
The
DGCL authorizes corporations to limit or eliminate the personal
liability of directors to corporations and their stockholders for
monetary damages for breaches of directors’ fiduciary duties as
directors and Certificate of Incorporation will include such an
exculpation provision. Our Certificate of Incorporation and Bylaws
will include provisions that indemnify, to the fullest extent
allowable under the DGCL, the personal liability of directors or
officers for monetary damages for actions taken as a director or
officer of us, or for serving at our request as a director or
officer or another position at another corporation or enterprise,
as the case may be. Our Certificate of Incorporation and Bylaws
will also provide that we must indemnify and advance reasonable
expenses to our directors and officers, subject to our receipt of
an undertaking from the indemnified party as may be required under
the DGCL. Our Certificate of Incorporation will expressly authorize
us to carry directors’ and officers’ insurance to protect us, our
directors, officers and certain employees for some liabilities. The
limitation of liability and indemnification provisions in our
Certificate of Incorporation and Bylaws may discourage stockholders
from bringing a lawsuit against directors for breach of their
fiduciary duty. These provisions may also have the effect of
reducing the likelihood of derivative litigation against our
directors and officers, even though such an action, if successful,
might otherwise benefit us and our stockholders. However, these
provisions do not limit or eliminate our rights, or those of any
stockholder, to seek non-monetary relief such as injunction or
rescission in the event of a breach of a director’s duty of care.
The provisions will not alter the liability of directors under the
federal securities laws. In addition, your investment may be
adversely affected to the extent that, in a class action or direct
suit, we pay the costs of settlement and damage awards against
directors and officers pursuant to these indemnification
provisions. There is currently no pending material litigation or
proceeding against any of our directors, officers or employees for
which indemnification is sought.
Authorized
but Unissued Shares
Our
authorized but unissued shares of common stock will be available
for future issuance without your approval. We may use additional
shares for a variety of purposes, including future public offerings
to raise additional capital, to fund acquisitions and as employee
compensation. The existence of authorized but unissued shares of
common stock could render more difficult or discourage an attempt
to obtain control of us by means of a proxy contest, tender offer,
merger or otherwise.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is VStock
Transfer, LLC.
DESCRIPTION OF DEBT
SECURITIES
The
following description, together with the additional information we
include in any applicable prospectus supplements or free writing
prospectuses, summarizes the material terms and provisions of the
debt securities that we may offer under this prospectus. We may
issue debt securities, in one or more series, as either senior or
subordinated debt or as senior or subordinated convertible debt.
While the terms we have summarized below will apply generally to
any future debt securities we may offer under this prospectus, we
will describe the particular terms of any debt securities that we
may offer in more detail in the applicable prospectus supplement or
free writing prospectus. The terms of any debt securities we offer
under a prospectus supplement may differ from the terms we describe
below. However, no prospectus supplement shall fundamentally change
the terms that are set forth in this prospectus or offer a security
that is not registered and described in this prospectus at the time
of its effectiveness. As of the date of this prospectus, we have no
outstanding registered debt securities. Unless the context requires
otherwise, whenever we refer to the “indentures,” we also are
referring to any supplemental indentures that specify the terms of
a particular series of debt securities.
We
will issue any senior debt securities under the senior indenture
that we will enter into with the trustee named in the senior
indenture. We will issue any subordinated debt securities under the
subordinated indenture and any supplemental indentures that we will
enter into with the trustee named in the subordinated indenture. We
have filed forms of these documents as exhibits to the registration
statement, of which this prospectus is a part, and supplemental
indentures and forms of debt securities containing the terms of the
debt securities being offered will be filed as exhibits to the
registration statement of which this prospectus is a part or will
be incorporated by reference from reports that we file with the
SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939,
as amended, or the Trust Indenture Act. We use the term “trustee”
to refer to either the trustee under the senior indenture or the
trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt
securities, the subordinated debt securities and the indentures are
subject to, and qualified in their entirety by reference to, all of
the provisions of the indenture and any supplemental indentures
applicable to a particular series of debt securities. We urge you
to read the applicable prospectus supplements and any related free
writing prospectuses related to the debt securities that we may
offer under this prospectus, as well as the complete indentures
that contains the terms of the debt securities. Except as we may
otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical.
General
The
terms of each series of debt securities will be established by or
pursuant to a resolution of our Board of Directors and set forth or
determined in the manner provided in an officers’ certificate or by
a supplemental indenture. Debt securities may be issued in separate
series without limitation as to aggregate principal amount. We may
specify a maximum aggregate principal amount for the debt
securities of any series. We will describe in the applicable
prospectus supplement the terms of the series of debt securities
being offered, including:
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the
title; |
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the
principal amount being offered, and if a series, the total amount
authorized and the total amount outstanding; |
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any
limit on the amount that may be issued; |
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whether
or not we will issue the series of debt securities in global form,
and, if so, the terms and who the depositary will be; |
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the
maturity date; |
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whether
and under what circumstances, if any, we will pay additional
amounts on any debt securities held by a person who is not a United
States person for tax purposes, and whether we can redeem the debt
securities if we have to pay such additional amounts; |
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the
annual interest rate, which may be fixed or variable, or the method
for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record
dates for interest payment dates or the method for determining such
dates; |
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whether
or not the debt securities will be secured or unsecured, and the
terms of any secured debt; |
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the
terms of the subordination of any series of subordinated
debt; |
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the
place where payments will be made; |
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restrictions
on transfer, sale or other assignment, if any; |
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our
right, if any, to defer payment of interest and the maximum length
of any such deferral period; |
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the
date, if any, after which, and the price at which, we may, at our
option, redeem the series of debt securities pursuant to any
optional or provisional redemption provisions and the terms of
those redemption provisions; |
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provisions
for a sinking fund purchase or other analogous fund, if any,
including the date, if any, on which, and the price at which we are
obligated, pursuant thereto or otherwise, to redeem, or at the
holder’s option, to purchase, the series of debt securities and the
currency or currency unit in which the debt securities are
payable; |
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whether
the indenture will restrict our ability or the ability of our
subsidiaries to: |
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incur
additional indebtedness; |
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issue
additional securities; |
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create
liens; |
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pay
dividends or make distributions in respect of our capital stock or
the capital stock of our subsidiaries; |
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redeem
capital stock; |
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place
restrictions on our subsidiaries’ ability to pay dividends, make
distributions or transfer assets; |
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make
investments or other restricted payments; |
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sell
or otherwise dispose of assets; |
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enter
into sale-leaseback transactions; |
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engage
in transactions with stockholders or affiliates; |
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issue
or sell stock of our subsidiaries; or |
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effect
a consolidation or merger; |
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whether
the indenture will require us to maintain any interest coverage,
fixed charge, cash flow-based, asset-based or other financial
ratios; |
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a
discussion of certain material or special United States federal
income tax considerations applicable to the debt
securities; |
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information
describing any book-entry features; |
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the
applicability of the provisions in the indenture on
discharge; |
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whether
the debt securities are to be offered at a price such that they
will be deemed to be offered at an “original issue discount” as
defined in paragraph (a) of Section 1273 of the Internal Revenue
Code of 1986, as amended; |
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the
denominations in which we will issue the series of debt securities,
if other than denominations of $1,000 and any integral multiple
thereof; |
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the
currency of payment of debt securities if other than U.S. dollars
and the manner of determining the equivalent amount in U.S.
dollars; and |
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any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, including any additional
events of default or covenants provided with respect to the debt
securities, and any terms that may be required by us or advisable
under applicable laws or regulations. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms
under which a series of debt securities may be convertible into or
exchangeable for our common stock or other securities (including
securities of a third party). We will include provisions as to
whether conversion or exchange is mandatory, at the option of the
holder or at our option. We may include provisions pursuant to
which the number of shares of our common stock or other securities
(including securities of a third party) that the holders of the
series of debt securities receive would be subject to
adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a
particular series of debt securities, the indentures will not
contain any covenant that restricts our ability to merge or
consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or
acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt
securities are convertible into or exchangeable for our other
securities or securities of other entities, the person with whom we
consolidate or merge or to whom we sell all of our property must
make provisions for the conversion of the debt securities into
securities that the holders of the debt securities would have
received if they had converted the debt securities before the
consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a
particular series of debt securities, the following are events of
default under the indentures with respect to any series of debt
securities that we may issue:
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if we
fail to pay interest when due and payable and our failure continues
for 90 days and the time for payment has not been
extended; |
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if we
fail to pay the principal, premium or sinking fund payment, if any,
when due and payable at maturity, upon redemption or repurchase or
otherwise, and the time for payment has not been
extended; |
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if we
fail to observe or perform any other covenant contained in the debt
securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure
continues for 90 days after we receive notice from the trustee or
we and the trustee receive notice from the holders of at least 25%
in aggregate principal amount of the outstanding debt securities of
the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization
occur. |
We
will describe in each applicable prospectus supplement any
additional events of default relating to the relevant series of
debt securities.
If an
event of default with respect to debt securities of any series
occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid
principal, premium, if any, and accrued interest, if any, due and
payable immediately. If an event of default arises due to the
occurrence of certain specified bankruptcy, insolvency or
reorganization events, the unpaid principal, premium, if any, and
accrued interest, if any, of each issue of debt securities then
outstanding shall be due and payable without any notice or other
action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt
securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except
defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or
event of default in accordance with the indenture. Any waiver shall
cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an
indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such
indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have
offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a
majority in principal amount of the outstanding debt securities of
any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
trustee, or exercising any trust or power conferred on the trustee,
with respect to the debt securities of that series, provided
that:
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the
direction so given by the holder is not in conflict with any law or
the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the trustee need not
take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the
proceeding. |
The
indentures provide that if an event of default has occurred and is
continuing, the trustee will be required in the exercise of its
powers to use the degree of care that a prudent person would use in
the conduct of its own affairs. The trustee, however, may refuse to
follow any direction that conflicts with law or the indenture, or
that the trustee determines is unduly prejudicial to the rights of
any other holder of the relevant series of debt securities, or that
would involve the trustee in personal liability. Prior to taking
any action under the indentures, the trustee will be entitled to
indemnification against all costs, expenses and liabilities that
would be incurred by taking or not taking such action.
A
holder of the debt securities of any series will have the right to
institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing
event of default with respect to that series; |
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the
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written
request and such holders have offered reasonable indemnity to the
trustee or security satisfactory to it against any loss, liability
or expense or to be incurred in compliance with instituting the
proceeding as trustee; and |
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the
trustee does not institute the proceeding, and does not receive
from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting
directions within 90 days after the notice, request and
offer. |
These
limitations do not apply to a suit instituted by a holder of debt
securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that
may be specified in the applicable prospectus
supplement.
We
will periodically file statements with the trustee regarding our
compliance with specified covenants in the indentures.
The
indentures provide that if a default occurs and is continuing and
is actually known to a responsible officer of the trustee, the
trustee must mail to each holder notice of the default within the
earlier of 90 days after it occurs and 30 days after it is known by
a responsible officer of the trustee or written notice of it is
received by the trustee, unless such default has been cured or
waived. Except in the case of a default in the payment of principal
or premium of, or interest on, any debt security or certain other
defaults specified in an indenture, the trustee shall be protected
in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of
directors, or responsible officers of the trustee, in good faith
determine that withholding notice is in the best interests of
holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities
that we may issue, we and the trustee may change an indenture
without the consent of any holders with respect to the following
specific matters:
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to
fix any ambiguity, defect or inconsistency in the
indenture; |
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to
comply with the provisions described above under “Description of
Debt Securities — Consolidation, Merger or Sale;” |
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to
comply with any requirements of the SEC in connection with the
qualification of any indenture under the Trust Indenture
Act; |
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to
add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of debt securities, as set forth in the
indenture; |
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to
provide for the issuance of, and establish the form and terms and
conditions of, the debt securities of any series as provided under
“Description of Debt Securities — General,” to establish the form
of any certifications required to be furnished pursuant to the
terms of the indenture or any series of debt securities, or to add
to the rights of the holders of any series of debt
securities; |
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to
evidence and provide for the acceptance of appointment hereunder by
a successor trustee; |
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to
provide for uncertificated debt securities and to make all
appropriate changes for such purpose; |
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to
add such new covenants, restrictions, conditions or provisions for
the benefit of the holders, to make the occurrence, or the
occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an event of
default or to surrender any right or power conferred to us in the
indenture; or |
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to
change anything that does not adversely affect the interests of any
holder of debt securities of any series in any material
respect. |
In
addition, under the indentures, the rights of holders of a series
of debt securities may be changed by us and the trustee with the
written consent of the holders of at least a majority in aggregate
principal amount of the outstanding debt securities of each series
that is affected. However, subject to the terms of the indenture
for any series of debt securities that we may issue or otherwise
provided in the prospectus supplement applicable to a particular
series of debt securities, we and the trustee may only make the
following changes: with the consent of each holder of any
outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities; |
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reducing
the principal amount, reducing the rate of or extending the time of
payment of interest, or reducing any premium payable upon the
redemption or repurchase of any debt securities; or |
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reducing
the percentage of debt securities, the holders of which are
required to consent to any amendment, supplement, modification or
waiver. |
Discharge
Each
indenture provides that, subject to the terms of the indenture and
any limitation otherwise provided in the prospectus supplement
applicable to a particular series of debt securities, we may elect
to be discharged from our obligations with respect to one or more
series of debt securities, except for specified obligations,
including obligations to:
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register
the transfer or exchange of debt securities of the
series; |
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replace
stolen, lost or mutilated debt securities of the
series; |
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maintain
paying agencies; |
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hold
monies for payment in trust; |
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recover
excess money held by the trustee; |
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compensate
and indemnify the trustee; and |
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appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with
the trustee money or government obligations sufficient to pay all
the principal of, and any premium and interest on, the debt
securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully
registered form without coupons and, unless we otherwise specify in
the applicable prospectus supplement, in denominations of $1,000
and any integral multiple thereof. The indentures provide that we
may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited
with, or on behalf of, The Depository Trust Company or another
depositary named by us and identified in a prospectus supplement
with respect to that series. See “Legal Ownership of Securities”
below for a further description of the terms relating to any
book-entry securities.
At
the option of the holder, subject to the terms of the indentures
and the limitations applicable to global securities described in
the applicable prospectus supplement, the holder of the debt
securities of any series can exchange the debt securities for other
debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to
global securities set forth in the applicable prospectus
supplement, holders of the debt securities may present the debt
securities for exchange or for registration of transfer, duly
endorsed or with the form of transfer endorsed thereon duly
executed if so required by us or the security registrar, at the
office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided
in the debt securities that the holder presents for transfer or
exchange, we will make no service charge for any registration of
transfer or exchange, but we may require payment of any taxes or
other governmental charges.
We
will name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security
registrar, that we initially designate for any debt securities. We
may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment for
the debt securities of each series.
If we
elect to redeem the debt securities of any series, we will not be
required to:
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issue,
register the transfer of, or exchange any debt securities of that
series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of any debt
securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or |
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register
the transfer of or exchange any debt securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an
event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable
indenture and is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt
securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
However, upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise
or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we
will make payment of the interest on any debt securities on any
interest payment date to the person in whose name the debt
securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the
interest payment.
We
will pay principal of and any premium and interest on the debt
securities of a particular series at the office of the paying
agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest
payments by check that we will mail to the holder or by wire
transfer to certain holders. Unless we otherwise indicate in the
applicable prospectus supplement, we will designate the corporate
trust office of the trustee as our sole paying agent for payments
with respect to debt securities of each series. We will name in the
applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series.
We will maintain a paying agent in each place of payment for the
debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of
the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be
repaid to us, and the holder of the debt security thereafter may
look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be
subordinate and junior in priority of payment to certain other
indebtedness to the extent described in a prospectus supplement.
The subordinated indenture does not limit the amount of
subordinated debt securities that we may issue. It also does not
limit us from issuing any other secured or unsecured
debt.
The
senior debt securities will be unsecured and will rank equally in
right of payment to all our other senior unsecured debt. The senior
indenture does not limit the amount of senior debt securities that
we may issue. It also does not limit us from issuing any other
secured or unsecured debt.
DESCRIPTION OF
WARRANTS
The
following description, together with the additional information we
may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus, which may
consist of warrants to purchase common stock or debt securities and
may be issued in one or more series. Warrants may be offered
independently or together with common stock or debt securities
offered by any prospectus supplement, and may be attached to or
separate from those securities. While the terms we have summarized
below will apply generally to any warrants that we may offer under
this prospectus, we will describe the particular terms of any
series of warrants that we may offer in more detail in the
applicable prospectus supplement and any applicable free writing
prospectus. The terms of any warrants offered under a prospectus
supplement may differ from the terms described below. However, no
prospectus supplement will fundamentally change the terms that are
set forth in this prospectus or offer a security that is not
registered and described in this prospectus at the time of its
effectiveness.
We
will issue the warrants under a warrant agreement that we will
enter into with a warrant agent to be selected by us. The warrant
agent will act solely as an agent of ours in connection with the
warrants and will not act as an agent for the holders or beneficial
owners of the warrants. We will file as exhibits to the
registration statement of which this prospectus is a part, or will
incorporate by reference from a current report on Form 8-K that we
file with the SEC, the form of warrant agreement, including a form
of warrant certificate, that describes the terms of the particular
series of warrants we are offering before the issuance of the
related series of warrants. The following summaries of material
provisions of the warrants and the warrant agreements are subject
to, and qualified in their entirety by reference to, all the
provisions of the warrant agreement and warrant certificate
applicable to a particular series of warrants. We urge you to read
the applicable prospectus supplement and any applicable free
writing prospectus related to the particular series of warrants
that we sell under this prospectus, as well as the complete warrant
agreements and warrant certificates that contain the terms of the
warrants.
General
We
will describe in the applicable prospectus supplement the terms
relating to a series of warrants, including:
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the
offering price and aggregate number of warrants
offered; |
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the
currency for which the warrants may be purchased; |
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if
applicable, the designation and terms of the securities with which
the warrants are issued and the number of warrants issued with each
such security or each principal amount of such
security; |
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if
applicable, the date on and after which the warrants and the
related securities will be separately transferable; |
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in
the case of warrants to purchase debt securities, the principal
amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of
debt securities may be purchased upon such exercise; |
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in
the case of warrants to purchase common stock, the number of shares
of common stock purchasable upon the exercise of one warrant and
the price at which these shares may be purchased upon such
exercise; |
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the
effect of any merger, consolidation, sale or other disposition of
our business on the warrant agreements and the
warrants; |
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the
terms of any rights to redeem or call the warrants; |
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any
provisions for changes to or adjustments in the exercise price or
number of securities issuable upon exercise of the
warrants; |
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the
dates on which the right to exercise the warrants will commence and
expire; |
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the
manner in which the warrant agreements and warrants may be
modified; |
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United
States federal income tax consequences of holding or exercising the
warrants; |
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the
terms of the securities issuable upon exercise of the warrants;
and |
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any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such
exercise, including:
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in
the case of warrants to purchase debt securities, the right to
receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce
covenants in the applicable indenture; or |
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in
the case of warrants to purchase common stock, the right to receive
dividends, if any, or, payments upon our liquidation, dissolution
or winding up or to exercise voting rights, if any. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement.
Unless we otherwise specify in the applicable prospectus
supplement, holders of the warrants may exercise the warrants at
any time up to the specified time on the expiration date that we
set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will
become void.
Holders
of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with
specified information, and paying the required amount to the
warrant agent in immediately available funds, as provided in the
applicable prospectus supplement. We will set forth on the reverse
side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be
required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of the
warrants represented by the warrant certificate are exercised, then
we will issue a new warrant certificate for the remaining amount of
warrants. If we so indicate in the applicable prospectus
supplement, holders of the warrants may surrender securities as all
or part of the exercise price for warrants.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than
one issue of warrants. A warrant agent will have no duty or
responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a warrant may, without the consent of
the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and
receive the securities purchasable upon exercise of, its
warrants.
DESCRIPTION OF UNITS
The
following description, together with the additional information we
may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the
terms we have summarized below will apply generally to any units
that we may offer under this prospectus, we will describe the
particular terms of any series of units in more detail in the
applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described
below. However, no prospectus supplement will fundamentally change
the terms that are set forth in this prospectus or offer a security
that is not registered and described in this prospectus at the time
of its effectiveness.
We
will file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from a
current report on Form 8-K that we file with the SEC, the form of
unit agreement that describes the terms of the series of units we
are offering, and any supplemental agreements, before the issuance
of the related series of units. The following summaries of material
terms and provisions of the units are subject to, and qualified in
their entirety by reference to, all the provisions of the unit
agreement and any supplemental agreements applicable to a
particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units
that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of
the units.
General
We
may issue units comprised of one or more debt securities, shares of
common stock and warrants in any combination. Each unit will be
issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will have
the rights and obligations of a holder of each included security.
The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified
date.
We
will describe in the applicable prospectus supplement the terms of
the series of units, including:
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the
designation and terms of the units and of the securities comprising
the units, including whether and under what circumstances those
securities may be held or transferred separately; |
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any
provisions of the governing unit agreement that differ from those
described below; and |
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any
provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the
units. |
The
provisions described in this section, as well as those described
under “Description of Capital Stock,” “Description of Debt
Securities” and “Description of Warrants” will apply to each unit
and to any common stock, debt security or warrant included in each
unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as
we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit
agreement and will not assume any obligation or relationship of
agency or trust with any holder of any unit. A single bank or trust
company may act as unit agent for more than one series of units. A
unit agent will have no duty or responsibility in case of any
default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of a
unit may, without the consent of the related unit agent or the
holder of any other unit, enforce by appropriate legal action its
rights as holder under any security included in the
unit.
We,
the unit agents and any of their agents may treat the registered
holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person
entitled to exercise the rights attaching to the units so
requested, despite any notice to the contrary. See “Legal Ownership
of Securities.”
LEGAL OWNERSHIP OF
SECURITIES
We
can issue securities in registered form or in the form of one or
more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities
registered in their own names on the books that we or any
applicable trustee or depositary or warrant agent maintain for this
purpose as the “holders” of those securities. These persons are the
legal holders of the securities. We refer to those persons who,
indirectly through others, own beneficial interests in securities
that are not registered in their own names, as “indirect holders”
of those securities. As we discuss below, indirect holders are not
legal holders, and investors in securities issued in book-entry
form or in street name will be indirect holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in
the applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name
of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the
depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their
customers.
Only
the person in whose name a security is registered is recognized as
the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently,
for global securities, we will recognize only the depositary as the
holder of the securities, and we will make all payments on the
securities to the depositary. The depositary passes along the
payments it receives to its participants, which in turn pass the
payments along to their customers who are the beneficial owners.
The depositary and its participants do so under agreements they
have made with one another or with their customers; they are not
obligated to do so under the terms of the securities.
As a
result, investors in a global security will not own securities
directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution
that participates in the depositary’s book-entry system or holds an
interest through a participant. As long as the securities are
issued in global form, investors will be indirect holders, and not
legal holders, of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not
issued in global form. In these cases, investors may choose to hold
their securities in their own names or in “street name.” Securities
held by an investor in street name would be registered in the name
of a bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that
institution.
For
securities held in street name, we or any applicable trustee or
depositary will recognize only the intermediary banks, brokers and
other financial institutions in whose names the securities are
registered as the holders of those securities, and we or any such
trustee or depositary will make all payments on those securities to
them. These institutions pass along the payments they receive to
their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they
are legally required to do so. Investors who hold securities in
street name will be indirect holders, not legal holders, of those
securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee
or third party employed by us or a trustee, run only to the legal
holders of the securities. We do not have obligations to investors
who hold beneficial interests in global securities, in street name
or by any other indirect means. This will be the case whether an
investor chooses to be an indirect holder of a security or has no
choice because we are issuing the securities only in global
form.
For
example, once we make a payment or give a notice to the holder, we
have no further responsibility for the payment or notice even if
that holder is required, under agreements with its participants or
customers or by law, to pass it along to the indirect holders but
does not do so. Similarly, we may want to obtain the approval of
the holders to amend an indenture, to relieve us of the
consequences of a default or of our obligation to comply with a
particular provision of an indenture, or for other purposes. In
such an event, we would seek approval only from the legal holders,
and not the indirect holders, of the securities. Whether and how
the legal holders contact the indirect holders is up to the legal
holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial
institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you
should check with your own institution to find out:
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how
it handles securities payments and notices; |
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whether
it imposes fees or charges; |
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how
it would handle a request for the holders’ consent, if ever
required; |
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whether
and how you can instruct it to send you securities registered in
your own name so you can be a legal holder, if that is permitted in
the future; |
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how
it would exercise rights under the securities if there were a
default or other event triggering the need for holders to act to
protect their interests; and |
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if
the securities are in book-entry form, how the depositary’s rules
and procedures will affect these matters. |
Global
Securities
A
global security is a security that represents one or any other
number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have
the same terms.
Each
security issued in book-entry form will be represented by a global
security that we issue to, deposit with and register in the name of
a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, The Depository Trust Company, New York, New
York, known as DTC, will be the depositary for all securities
issued in book-entry form.
A
global security may not be transferred to or registered in the name
of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We
describe those situations below under “— Special Situations When A
Global Security Will Be Terminated.” As a result of these
arrangements, the depositary, or its nominee, will be the sole
registered owner and legal holder of all securities represented by
a global security, and investors will be permitted to own only
beneficial interests in a global security. Beneficial interests
must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor
whose security is represented by a global security will not be a
legal holder of the security, but only an indirect holder of a
beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that
the security will be issued as a global security, then the security
will be represented by a global security at all times unless and
until the global security is terminated. If termination occurs, we
may issue the securities through another book-entry clearing system
or decide that the securities may no longer be held through any
book-entry clearing system.
Special
Considerations For Global Securities
As an
indirect holder, an investor’s rights relating to a global security
will be governed by the account rules of the investor’s financial
institution and of the depositary, as well as general laws relating
to securities transfers. We do not recognize an indirect holder as
a holder of securities and instead deal only with the depositary
that holds the global security.
If
securities are issued only as global securities, an investor should
be aware of the following:
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an
investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations we
describe below; |
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an
investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his
or her legal rights relating to the securities, as we describe
above; |
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an
investor may not be able to sell interests in the securities to
some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry
form; |
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an
investor may not be able to pledge his or her interest in the
global security in circumstances where certificates representing
the securities must be delivered to the lender or other beneficiary
of the pledge in order for the pledge to be effective; |
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the
depositary’s policies, which may change from time to time, will
govern payments, transfers, exchanges and other matters relating to
an investor’s interest in the global security. We and any
applicable trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership interests in
the global security. We and the trustee also do not supervise the
depositary in any way; |
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the
depositary may, and we understand that DTC will, require that those
who purchase and sell interests in the global security within its
book-entry system use immediately available funds, and your broker
or bank may require you to do so as well; and |
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financial
institutions that participate in the depositary’s book-entry
system, and through which an investor holds its interest in the
global security, may also have their own policies affecting
payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those
intermediaries |
Special
Situations When A Global Security Will Be Terminated
In a
few special situations described below, a global security will
terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the
choice of whether to hold securities directly or in street name
will be up to the investor. Investors must consult their own banks
or brokers to find out how to have their interests in securities
transferred to their own names, so that they will be direct
holders. We have described the rights of holders and street name
investors above.
A
global security will terminate when the following special
situations occur:
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if
the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary
within 90 days; |
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if we
notify any applicable trustee that we wish to terminate that global
security; or |
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if an
event of default has occurred with regard to securities represented
by that global security and has not been cured or
waived. |
The
applicable prospectus supplement may also list additional
situations for terminating a global security that would apply only
to the particular series of securities covered by the prospectus
supplement. When a global security terminates, the depositary, and
neither we, nor any applicable trustee, is responsible for deciding
the names of the institutions that will be the initial direct
holders.
PLAN OF DISTRIBUTION
The
securities being offered by this prospectus may be sold:
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through
agents; |
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to or
through one or more underwriters on a firm commitment or agency
basis; |
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through
put or call option transactions relating to the
securities; |
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to or
through dealers, who may act as agents or principals, including a
block trade (which may involve crosses) in which a broker or dealer
so engaged will attempt to sell as agent but may position and
resell a portion of the block as principal to facilitate the
transaction; |
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through
privately negotiated transactions; |
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purchases
by a broker or dealer as principal and resale by such broker or
dealer for its own account pursuant to this prospectus; |
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directly
to purchasers, including our affiliates, through a specific bidding
or auction process, on a negotiated basis or otherwise; to or
through one or more underwriters on a firm commitment or best
efforts basis; |
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exchange
distributions and/or secondary distributions; |
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ordinary
brokerage transactions and transactions in which the broker
solicits purchasers; |
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in
“at-the-market” offerings, within the meaning of Rule 415(a)(4) of
the Securities Act to or through a market maker or into an existing
trading market, on an exchange or otherwise; |
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transactions
not involving market makers or established trading markets,
including direct sales or privately negotiated
transactions; |
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transactions
in options, swaps or other derivatives that may or may not be
listed on an exchange; |
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through
any other method permitted pursuant to applicable law;
or |
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a combination of any such methods of sale. |
At
any time a particular offer of the securities covered by this
prospectus is made, a revised prospectus or prospectus supplement,
if required, will be distributed which will set forth the aggregate
amount of securities covered by this prospectus being offered and
the terms of the offering, including the name or names of any
underwriters, dealers, brokers or agents, any discounts,
commissions, concessions and other items constituting compensation
from us and any discounts, commissions or concessions allowed or
re-allowed or paid to dealers. Such prospectus supplement, and, if
necessary, a post-effective amendment to the registration statement
of which this prospectus is a part, will be filed with the SEC to
reflect the disclosure of additional information with respect to
the distribution of the securities covered by this prospectus. In
order to comply with the securities laws of certain states, if
applicable, the securities sold under this prospectus may only be
sold through registered or licensed broker-dealers. In addition, in
some states the securities may not be sold unless they have been
registered or qualified for sale in the applicable state or an
exemption from registration or qualification requirements is
available and is complied with.
The
distribution of securities may be effected from time to time in one
or more transactions, including block transactions and transactions
on the Nasdaq Capital Market or any other organized market where
the securities may be traded. The securities may be sold at a fixed
price or prices, which may be changed, or at market prices
prevailing at the time of sale, at prices relating to the
prevailing market prices or at negotiated prices. The consideration
may be cash or another form negotiated by the parties. Agents,
underwriters or broker-dealers may be paid compensation for
offering and selling the securities. That compensation may be in
the form of discounts, concessions or commissions to be received
from us or from the purchasers of the securities. Any dealers and
agents participating in the distribution of the securities may be
deemed to be underwriters, and compensation received by them on
resale of the securities may be deemed to be underwriting
discounts. If any such dealers or agents were deemed to be
underwriters, they may be subject to statutory liabilities under
the Securities Act.
Agents
may from time to time solicit offers to purchase the securities. If
required, we will name in the applicable prospectus supplement any
agent involved in the offer or sale of the securities and set forth
any compensation payable to the agent. Unless otherwise indicated
in the prospectus supplement, any agent will be acting on a best
efforts basis for the period of its appointment. Any agent selling
the securities covered by this prospectus may be deemed to be an
underwriter, as that term is defined in the Securities Act, of the
securities.
To
the extent that we make sales to or through one or more
underwriters or agents in at-the-market offerings, we will do so
pursuant to the terms of a distribution agreement between us and
the underwriters or agents. If we engage in at-the-market sales
pursuant to a distribution agreement, we will sell any of our
listed securities to or through one or more underwriters or agents,
which may act on an agency basis or on a principal basis. During
the term of any such agreement, we may sell any of our listed
securities on a daily basis in exchange transactions or otherwise
as we agree with the underwriters or agents. The distribution
agreement will provide that any of our listed securities which are
sold will be sold at prices related to the then prevailing market
prices for our listed securities. Therefore, exact figures
regarding proceeds that will be raised or commissions to be paid
cannot be determined at this time and will be described in a
prospectus supplement. Pursuant to the terms of the distribution
agreement, we also may agree to sell, and the relevant underwriters
or agents may agree to solicit offers to purchase, blocks of our
listed securities. The terms of each such distribution agreement
will be set forth in more detail in a prospectus supplement to this
prospectus.
If
underwriters are used in a sale, securities will be acquired by the
underwriters for their own account and may be resold from time to
time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale, or under delayed delivery contracts
or other contractual commitments. Securities may be offered to the
public either through underwriting syndicates represented by one or
more managing underwriters or directly by one or more firms acting
as underwriters. If an underwriter or underwriters are used in the
sale of securities, an underwriting agreement will be executed with
the underwriter or underwriters, as well as any other underwriter
or underwriters, with respect to a particular underwritten offering
of securities, and will set forth the terms of the transactions,
including compensation of the underwriters and dealers and the
public offering price, if applicable. The prospectus and prospectus
supplement will be used by the underwriters to resell the
securities.
If a
dealer is used in the sale of the securities, we or an underwriter
will sell the securities to the dealer, as principal. The dealer
may then resell the securities to the public at varying prices to
be determined by the dealer at the time of resale. To the extent
required, we will set forth in the prospectus supplement the name
of the dealer and the terms of the transactions.
We
may directly solicit offers to purchase the securities and may make
sales of securities directly to institutional investors or others.
These persons may be deemed to be underwriters within the meaning
of the Securities Act with respect to any resale of the securities.
To the extent required, the prospectus supplement will describe the
terms of any such sales, including the terms of any bidding or
auction process, if used.
Agents,
underwriters and dealers may be entitled under agreements which may
be entered into with us to indemnification by us against specified
liabilities, including liabilities incurred under the Securities
Act, or to contribution by us to payments they may be required to
make in respect of such liabilities. If required, the prospectus
supplement will describe the terms and conditions of the
indemnification or contribution. Some of the agents, underwriters
or dealers, or their affiliates may be customers of, engage in
transactions with or perform services for us or our
subsidiaries.
Any
person participating in the distribution of securities registered
under the registration statement that includes this prospectus will
be subject to applicable provisions of the Securities Exchange Act
of 1934, as amended, or the Exchange Act, and the applicable SEC
rules and regulations, including, among others, Regulation M, which
may limit the timing of purchases and sales of any of our
securities by that person. Furthermore, Regulation M may restrict
the ability of any person engaged in the distribution of our
securities to engage in market-making activities with respect to
our securities. These restrictions may affect the marketability of
our securities and the ability of any person or entity to engage in
market-making activities with respect to our securities.
Certain
persons participating in an offering may engage in over-allotment,
stabilizing transactions, short-covering transactions, penalty bids
and other transactions that stabilize, maintain or otherwise affect
the price of the offered securities. These activities may maintain
the price of the offered securities at levels above those that
might otherwise prevail in the open market, including by entering
stabilizing bids, effecting syndicate covering transactions or
imposing penalty bids, each of which is described below:
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a
stabilizing bid means the placing of any bid, or the effecting of
any purchase, for the purpose of pegging, fixing or maintaining the
price of a security. |
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a
syndicate covering transaction means the placing of any bid on
behalf of the underwriting syndicate or the effecting of any
purchase to reduce a short position created in connection with the
offering. |
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a
penalty bid means an arrangement that permits the managing
underwriter to reclaim a selling concession from a syndicate member
in connection with the offering when offered securities originally
sold by the syndicate member are purchased in syndicate covering
transactions. |
These
transactions may be effected on an exchange or automated quotation
system, if the securities are listed on that exchange or admitted
for trading on that automated quotation system, or in the
over-the-counter market or otherwise.
If so
indicated in the applicable prospectus supplement, we will
authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase offered securities from
us at the public offering price set forth in such prospectus
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such
contracts will be subject only to those conditions set forth in the
prospectus supplement and the prospectus supplement will set forth
the commission payable for solicitation of such
contracts.
In
addition, shares of common stock or warrants may be issued upon
conversion of or in exchange for debt securities or other
securities.
Any
underwriters to whom offered securities are sold for public
offering and sale may make a market in such offered securities, but
such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. The
offered securities may or may not be listed on a national
securities exchange. No assurance can be given that there will be a
market for the offered securities.
Any
securities that qualify for sale pursuant to Rule 144 or Regulation
S under the Securities Act, may be sold under Rule 144 or
Regulation S rather than pursuant to this prospectus.
In
connection with offerings made through underwriters or agents, we
may enter into agreements with such underwriters or agents pursuant
to which we receive our outstanding securities in consideration for
the securities being offered to the public for cash. In connection
with these arrangements, the underwriters or agents may also sell
securities covered by this prospectus to hedge their positions in
these outstanding securities, including in short sale transactions.
If so, the underwriters or agents may use the securities received
from us under these arrangements to close out any related open
borrowings of securities.
We
may enter into derivative transactions with third parties or sell
securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus
supplement indicates, in connection with those derivatives, such
third parties (or affiliates of such third parties) may sell
securities covered by this prospectus and the applicable prospectus
supplement, including in short sale transactions. If so, such third
parties (or affiliates of such third parties) may use securities
pledged by us or borrowed from us or others to settle those sales
or to close out any related open borrowings of shares, and may use
securities received from us in settlement of those derivatives to
close out any related open borrowings of shares. The third parties
(or affiliates of such third parties) in such sale transactions
will be underwriters and will be identified in the applicable
prospectus supplement (or a post-effective amendment).
We
may loan or pledge securities to a financial institution or other
third party that in turn may sell the securities using this
prospectus. Such financial institution or third party may transfer
its short position to investors in our securities or in connection
with a simultaneous offering of other securities offered by this
prospectus or in connection with a simultaneous offering of other
securities offered by this prospectus.
LEGAL MATTERS
The
validity of the issuance of the securities offered hereby will be
passed upon for us by McDermott Will & Emery LLP, New York, New
York. Additional legal matters may be passed upon for us or any
underwriters, dealers or agents, by counsel that we will name in
the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of My Size, Inc. as of December
31, 2019 and 2018 and for each of the years in the two-year period
ended December 31, 2019 have been incorporated by reference herein
in reliance upon the report of Somekh Chaikin, a Member firm of
KPMG International, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The
audit report covering the December 31, 2019 consolidated financial
statements contains an explanatory paragraph that states that the
Company’s significant losses, negative cash flow from operations,
and accumulated deficit, raise substantial doubt about the entity’s
ability to continue as a going concern. The consolidated financial
statements do not include any adjustments that might result from
the outcome of that uncertainty.
The
audit report covering the December 31, 2019 consolidated financial
statements refers to a change to the method of accounting for
leases.
WHERE YOU CAN FIND MORE
INFORMATION
This
prospectus constitutes a part of a registration statement on Form
S-3 filed under the Securities Act. As permitted by the SEC’s
rules, this prospectus and any prospectus supplement, which form a
part of the registration statement, do not contain all the
information that is included in the registration statement. You
will find additional information about us in the registration
statement. Any statements made in this prospectus or any prospectus
supplement concerning legal documents are not necessarily complete
and you should read the documents that are filed as exhibits to the
registration statement or otherwise filed with the SEC for a more
complete understanding of the document or matter.
We
file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are also available
to the public at no cost from the SEC’s website at
http://www.sec.gov. In addition, we make available on or through
our Internet site copies of these reports as soon as reasonably
practicable after we electronically file or furnish them to the
SEC. Our Internet site can be found at
http://www.mysizeid.com.
We
are subject to the informational requirements of the Exchange Act,
and, in accordance with those requirements, file annual, quarterly
and current reports, proxy statements and other information with
the SEC. Such reports, proxy statements and other information, as
well as this registration statement and the exhibits and schedules
thereto, are available on the SEC website at www.sec.gov. Copies of
these documents may also be accessed on our website at
www.vereit.com. Our internet website and the information contained
therein or connected thereto are not incorporated into this
prospectus or any amendment or supplement thereto.
INCORPORATION OF DOCUMENTS BY
REFERENCE
We
have filed a registration statement on Form S-3 with the Securities
and Exchange Commission under the Securities Act. This prospectus
is part of the registration statement but the registration
statement includes and incorporates by reference additional
information and exhibits. The Securities and Exchange Commission
permits us to “incorporate by reference” the information contained
in documents we file with the Securities and Exchange Commission,
which means that we can disclose important information to you by
referring you to those documents rather than by including them in
this prospectus. Information that is incorporated by reference is
considered to be part of this prospectus and you should read it
with the same care that you read this prospectus. Information that
we file later with the Securities and Exchange Commission will
automatically update and supersede the information that is either
contained, or incorporated by reference, in this prospectus, and
will be considered to be a part of this prospectus from the date
those documents are filed. We have filed with the Securities and
Exchange Commission, and incorporate by reference in this
prospectus:
|
● |
Annual
Report on Form 10-K for the year ended
December 31, 2019, filed with the SEC on March 19,
2020; |
|
|
|
|
● |
Quarterly
Reports on Form 10-Q for the quarterly period ended March 31, 2020,
June 30, 2020 and September 30, 2020 filed on May 14, 2020, August 13, 2020 and November 12, 2020,
respectively; |
|
|
|
|
● |
Current
Reports on Form 8-K (excluding any reports or portions thereof that
are deemed to be furnished and not filed) filed on January 17, 2020, February 11, 2020, April 22, 2020, May 8, 2020, May 14, 2020, May 29, 2020, August 12, 2020 and November 12, 2020; |
|
|
|
|
● |
our
definitive proxy statement on Schedule 14A relating to our 2020
annual meeting of stockholders filed on June 15, 2020;
and |
|
|
|
|
● |
the
description of our common stock contained in the Registrant’s
Registration Statement on Form 8-A12B/A filed with the
Commission on June 14, 2016. |
We
also incorporate by reference all future documents (excluding
information furnished pursuant to Items 2.02 and 7.01 of Form 8-K)
we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, subsequent to
the date of this prospectus and prior to the termination of the
offering.
We
also incorporate by reference all additional documents that we file
with the Securities and Exchange Commission under the terms of
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act that are
made after the date of the initial registration statement but prior
to effectiveness of the registration statement and after the date
of this prospectus but prior to the termination of the offering of
the securities covered by this prospectus. We are not, however,
incorporating, in each case, any documents or information that we
are deemed to furnish and not file in accordance with Securities
and Exchange Commission rules.
You
may request, and we will provide you with, a copy of these filings,
at no cost, by calling us at +972-3-600-9030 or by writing to us at
the following address:
My
Size Inc.
HaYarden
4, pob 1026
Airport
City, Israel, 7010000
Attn.:
Or Kles
Chief
Financial Officer
My
Size, Inc.
162,000
Shares
of Common Stock
Pre-Funded Warrants to Purchase up to 279,899 Shares of
Common Stock
Prospectus
Supplement
January
10, 2023
H.C.
Wainwright & Co.
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