As
filed with the U.S. Securities and Exchange Commission on May 1,
2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BETTER
CHOICE COMPANY INC.
(Exact
name of registrant as specified in its charter)
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Delaware |
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83-4284557 |
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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12400
Race Track Road
Tampa,
FL 33626
(813)
659-5921
(Address,
including zip code, and telephone number, including area code, of
Registrant’s principal executive offices)
Lionel
F. Conacher
Interim
Chief Executive Officer
12400
Race Track Road
Tampa,
FL 33626
(813)
659-5921
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Louis
Lombardo, Esq.
Denis
Dufresne, Esq.
Meister
Seelig & Fein LLP
125
Park Avenue, 7th Floor
Tel:
(212) 655-3500
Fax:
(212) 655-3535
From
time to time after the effective date of this Registration
Statement
(Approximate
date of commencement of proposed sale to the public)
If
the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
If
this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If
this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box.
☐
If
this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer |
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Accelerated
filer |
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Non-accelerated
filer |
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Smaller
reporting company |
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Emerging
Growth Company |
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment that specifically states
that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as
amended, or until the registration statement shall become effective
on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities or accept an offer to buy
these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting
offers to buy these securities in any state where such offer or
sale is not permitted.
PROSPECTUS (Subject to Completion) Dated May 1,
2023
$55,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
From
time to time, we may offer and sell up to an aggregate amount of
$55,000,000 of any combination of the securities described in this
prospectus, either individually or in combination, at prices and on
terms described in one or more supplements to this
prospectus.
This
prospectus describes some of the general terms that may apply to an
offering of our securities. We will provide the specific terms of
these offerings and securities in one or more supplements to this
prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these
offerings. The prospectus supplement and any related free writing
prospectus may also add, update or change information contained in
this prospectus. You should carefully read this prospectus, the
applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference,
before buying any of the securities being offered.
Our
common stock is listed on the NYSE American under the trading
symbol “BTTR.” On April 28, 2023, the last reported sale price of
our common stock was $0.41 per share. The applicable prospectus
supplement will contain information, where applicable, as to other
listings, if any, on the NYSE American or any securities market or
other exchange of the securities covered by the applicable
prospectus supplement.
As of
April 28, 2023, the aggregate market value of our common stock held
by our non-affiliates, as calculated pursuant to the rules of the
Securities and Exchange Commission, was approximately $12.5
million, based upon 30,541,148 shares of our outstanding common
stock held by non-affiliates at the per share price of $0.41, the
closing sale price of our common stock on NYSE American on April
28, 2023. Pursuant to General Instruction I.B.6 of Form S-3, in no
event will we sell securities in a public offering with a value
exceeding more than one-third of our “public float” (i.e., the
market value of our common stock held by our non-affiliates) in any
12-month period so long as our public float remains below $75.0
million. We have not sold any securities in reliance on General
Instruction I.B.6 of Form S-3 during the 12 calendar months prior
to and including the date of this prospectus.
Investing
in our securities involves a high degree of risk. You should review
carefully the risks and uncertainties described under the section
titled “Risk Factors” on page 5 of this prospectus and any
similar section contained in the applicable prospectus supplement
and in any free writing prospectuses we have authorized for use in
connection with a specific offering, and under similar headings in
the documents that are incorporated by reference into this
prospectus.
This
prospectus may not be used to consummate a sale of securities
unless accompanied by a prospectus supplement.
The
securities may be sold directly by us to investors, through agents
designated from time to time or to or through underwriters or
dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section
titled “Plan of Distribution” in this prospectus. If any agents or
underwriters are involved in the sale of any shares of our
securities with respect to which this prospectus is being
delivered, the names of such agents or underwriters and any
applicable fees, commissions, discounts and overallotment options
will be set forth in a prospectus supplement. The price to the
public of such securities and the net proceeds we expect to receive
from such sale will also be set forth in a prospectus
supplement.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The
date of this prospectus is , 2022.
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission, or the SEC,
using a “shelf” registration process under the Securities Act of
1933, as amended, or the Securities Act. Under this shelf
registration statement, we may, from time to time, offer and sell
in one or more offerings of common stock and preferred stock,
various series of debt securities, and/or warrants in one or more
offerings to purchase any of such securities, either individually
or in combination with other securities, in one or more offerings,
up to a total dollar amount of $55,000,000 of any combination of
the securities described in this prospectus. This prospectus
provides you with a general description of the securities we may
offer.
Each
time we sell any type or series of securities under this
prospectus, we will provide a prospectus supplement that will
contain more specific information about the terms of that offering.
We may also authorize one or more free writing prospectuses to be
provided to you that may contain material information relating to
these offerings. The prospectus supplement and any related free
writing prospectus that we may authorize to be provided to you may
also add, update or change any of the information contained in this
prospectus or in the documents that we have incorporated by
reference into this prospectus. This prospectus, together with the
applicable prospectus supplement, any related free writing
prospectus and the documents incorporated by reference into this
prospectus and the applicable prospectus supplement, will include
all material information relating to the applicable offering. We
urge you to read carefully this prospectus, any applicable
prospectus supplement and any related free writing prospectuses we
have authorized for use in connection with a specific offering,
together with the information incorporated herein by reference as
described under the heading “Incorporation of Certain Information
by Reference,” before buying any of the securities being
offered.
This
prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
We
have not authorized anyone to provide you with information that is
different from that contained, or incorporated by reference, in
this prospectus, any applicable prospectus supplement or in any
related free writing prospectus. We take no responsibility for, and
can provide no assurance as to the reliability of, any other
information that others may give you. This prospectus and any
applicable prospectus supplement or any related free writing
prospectus do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the securities
described in the applicable prospectus supplement or an offer to
sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. You
should assume that the information appearing in this prospectus,
any prospectus supplement, the documents incorporated by reference
and any related free writing prospectus is accurate only as of
their respective dates. Our business, financial condition, results
of operations and prospects may have changed materially since those
dates.
This
prospectus contains and incorporates by reference market data and
industry statistics and forecasts that are based on independent
industry publications and other publicly available information.
Although we believe that these sources are reliable, we do not
guarantee the accuracy or completeness of this information and we
have not independently verified this information. Although we are
not aware of any misstatements regarding the market and industry
data presented in this prospectus and the documents incorporated
herein by reference, these estimates involve risks and
uncertainties and are subject to change based on various factors,
including those discussed under the section titled “Risk Factors”
contained in the applicable prospectus supplement and any related
free writing prospectus, and under similar headings in the other
documents that are incorporated by reference into this prospectus.
Accordingly, investors should not place undue reliance on this
information.
This
prospectus contains summaries of certain provisions contained in
some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
section titled “Where You Can Find Additional
Information.”
PROSPECTUS SUMMARY
This
summary highlights selected information that is presented in
greater detail elsewhere, or incorporated by reference, in this
prospectus. It does not contain all of the information that may be
important to you and your investment decision. Before investing in
our securities, you should carefully read this entire prospectus,
including the matters set forth under the section of this
prospectus captioned “Risk Factors” and the financial statements
and related notes and other information that we incorporate by
reference herein, including our Annual Report on Form 10-K and our
Quarterly Reports on Form 10-Q. You should also carefully read the
other information incorporated by reference into this prospectus,
including our consolidated and condensed consolidated financial
statements, and the exhibits to the registration statement of which
this prospectus is a part. Unless the context requires otherwise,
references in this prospectus to “Better Choice,” the “Company,”
“we,” “us” and “our” refer to Better Choice Company Inc., a
Delaware corporation, and our consolidated subsidiaries, unless
expressly indicated or the context otherwise
requires.
Better
Choice Company Inc.
Overview
Better
Choice is a pet health and wellness company committed to leading
the industry shift toward pet products and services that help dogs
and cats live healthier, happier and longer lives. Our mission is
to become the most innovative premium pet food company in the
world, and we are motivated by our commitment to making products
with integrity and treating pets and their parents with respect. We
believe that our broad portfolio of pet health and wellness
products are well positioned to benefit from the trends of growing
pet humanization and an increased consumer focus on health and
wellness, and have adopted a laser focused, channel specific
approach to growth that is driven by new product innovation. Our
executive team has a proven history of success in both pet and
consumer-packaged goods, and has over 50 years of combined
experience in the pet industry and over 100 years of combined
experience in the consumer-packaged goods industry.
We
sell our premium and super-premium products (which we believe
generally includes products with a retail price greater than $0.20
per ounce) under the Halo brand umbrella, which includes Halo
Holistic™, Halo Elevate® and the former TruDog brand, which has
been rebranded and successfully integrated under the Halo brand
umbrella during the third quarter of 2022. Our core products sold
under the Halo brand are made with high-quality, thoughtfully
sourced ingredients for natural, science-based nutrition. Each
innovative recipe is formulated with leading veterinary and
nutrition experts to deliver optimal health. Our diverse and
established customer base has enabled us to penetrate multiple
channels of trade, which we believe enables us to deliver on core
consumer needs and serve pet parents wherever they shop. We group
these channels of trade into four distinct categories: E-commerce,
which includes the sale of product to online retailers such as
Amazon and Chewy; Brick & Mortar, which primarily includes the
sale of product to Pet Specialty retailers such as Petco, Pet
Supplies Plus and neighborhood pet stores, as well as to select
grocery chains; Direct to Consumer (“DTC”) which includes the sale
of product through our website halopets.com; and International,
which includes the sale of product to foreign distribution partners
and to select international retailers.
New
product innovation represents the cornerstone of our growth plan,
supported by our own research and development, and acquisitions.
Our established supply and distribution infrastructure allows us to
bring new products to market in nine months, generally. Our
outsourced manufacturing model is flexible, scalable and encourages
innovation allowing us to offer a breadth of assortment in dog and
cat food products under the Halo brand, serving a wide variety of
customer needs.
Halo
is the brand for a new generation of pet parents. For millennial
pet parents who view their pets as children, we believe Halo
provides the world’s best nutrition for the world’s best kids. Halo
offers two premium sub-lines of natural dog and cat food for this
audience - Halo Holistic™, which includes the former TruDog brand,
and Halo Elevate®.
Halo
Holistic™ is designed for the pet parent seeking high-quality
ingredients for digestive health. Halo Holistic™ is the only
super-premium pet food certified by the Global Animal Partnership
and the Marine Stewardship Council, both of which are animal
welfare organizations recognized worldwide. Halo Holistic™ also
supports complete digestive health with prebiotics, probiotics and
postbiotics. Additionally, it’s made with whole animal proteins
only and no meat meals.
Halo
Elevate®, our second sub-line which launched during 2022, provides
best-in-class nutrition. We believe it’s the only natural pet food
with leading nutrient levels to support the top five pet parent
health concerns which include digestive health, heart and immunity
support, healthy skin and coat, hip and joint support and strength
and energy. Each recipe delivers natural, science-based nutrition
for optimal health. Both Halo Holistic™ and Halo Elevate® provide
confidence and validation to empower millennial pet
parents.
We
have a broad portfolio of over 100 active premium and super premium
animal health and wellness products for dogs and cats, which
includes products sold under the Halo brand across multiple forms,
including foods, treats, toppers, dental products, chews, grooming
products and supplements. Our products consist of naturally
formulated premium kibble and canned dog and cat food, freeze-dried
raw dog food and treats, vegan dog food and treats, oral care
products, and supplements. Our products are sustainably sourced,
derived from real whole meat and no rendered meat meal and include
non-GMO fruits and vegetables.
Our
products are manufactured by an established network of
co-manufacturers in partnership with Better Choice. We have
maintained each of our key co-manufacturing relationships for more
than four years, with certain relationships in place for more than
ten years and with the launch of Halo Elevate®, we have expanded
and engaged two new co-manufacturing partners in 2022.
Corporate
Information
We
were incorporated in the State of Nevada in 2001 under the name
Cayenne Construction, Inc., and in 2009, changed our name to Sports
Endurance, Inc. Effective March 11, 2019, we changed our name to
Better Choice Company Inc. after reincorporating in Delaware. We
have two subsidiaries Halo, Purely for Pets, Inc., and Bona Vida,
Inc. Our principal executive offices are located at 12400 Race
Track Road, Tampa, FL 33626. Our website is available at
https://www.betterchoicecompany.com. Our website and the
information contained on or connected to that site are not, and
should not be deemed to be part of or incorporated into this
Prospectus.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various
series of debt securities and/or warrants in one or more offerings
and in any combination to purchase any of such securities, either
individually or in combination with other securities, up to a total
dollar amount of $55,000,000, from time to time under this
prospectus, together with the applicable prospectus supplement and
any related free writing prospectus, at prices and on terms to be
determined by market conditions at the time of any offering. We may
also offer common stock, preferred stock, warrants and/or debt
securities upon the exercise of warrants. This prospectus provides
you with a general description of the securities we may
offer.
Each
time we offer a type of security or series of securities under this
prospectus, we will provide a prospectus supplement that will
describe the specific amounts, prices and other important terms of
the securities, including, to the extent applicable:
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original
issue discount, if any; |
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rates
and times of payment of interest or dividends, if any; |
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conversion, exercise, exchange or sinking fund terms, if
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conversion
or exchange prices or rates, if any, and, if applicable, any
provisions for changes to or adjustments in the conversion or
exchange prices or rates and in the securities or other property
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or special U.S. federal income tax considerations, if
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The
applicable prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you may also
add, update or change any of the information contained in this
prospectus or in the documents we have incorporated by
reference.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES
UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We
may sell the securities directly to investors or to or through
agents, underwriters or dealers. We and our agents or underwriters,
reserve the right to accept or reject all or part of any proposed
purchase of securities. If we do offer securities to or through
agents or underwriters, we will include in the applicable
prospectus supplement:
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names of those agents or underwriters; |
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applicable
fees, discounts and commissions to be paid to them; |
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estimated net proceeds to us. |
Common
Stock
We
may offer shares of our common stock, par value $0.001 per share,
either alone or underlying other registered securities convertible
into our common stock. Holders of our common stock are entitled to
receive dividends declared by our board of directors out of funds
legally available for the payment of dividends, subject to rights,
if any, of preferred stockholders. We expect to use cash flow from
future operations to repay debt and support the growth of our
business and do not expect to declare or pay any cash dividends on
our common stock in the foreseeable future. Holders of shares of
our common stock are entitled to one vote per share held of record
on all matters to be voted upon by the stockholders. At each
election for directors every stockholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the
number of shares owned by such stockholder for as many persons as
there are directors to be elected at that time and for whose
election such stockholder has a right to vote. The shares of common
stock have no preemptive or conversion rights and are not subject
to further calls or assessment by the Company. There are no
redemption or sinking fund provisions applicable to the common
stock.
Preferred
Stock
Our
amended and restated certificate of incorporation authorizes our
board of directors, subject to any limitations prescribed by law,
without further stockholder approval, to establish and to issue
from time to time one or more series of preferred stock, par value
$0.001 per share, covering up to an aggregate of 4,000,000 shares
of preferred stock. Each series of preferred stock will cover the
number of shares and will have the powers, preferences, rights,
qualifications, limitations and restrictions determined by the
board of directors, which may include, among others, dividend
rights, liquidation preferences, voting rights, conversion rights,
preemptive rights and redemption rights. Each series of preferred
stock offered by us will be more fully described in the particular
prospectus supplement that will accompany this prospectus,
including redemption provisions, rights in the event of our
liquidation, dissolution or winding up, voting rights and rights to
convert into common stock.
Debt
Securities
We
may offer one or more series of senior or subordinated debt. The
senior debt securities and the subordinated debt securities are
together referred to in this prospectus as the “debt securities.”
The debt securities may be issued in one or more series with the
same or various maturities at par, at premium or at a discount.
Unless otherwise specified in a prospectus supplement, the debt
securities will be our direct, unsecured obligations. The
subordinated debt securities generally will be entitled to payment
only after payment of our senior debt. Senior debt generally
includes all debt for money borrowed by us, except debt that is
stated in the instrument governing the terms of that debt not to be
senior to, or to have the same rank in right of payment as, or to
be expressly junior to, the subordinated debt securities. We may
issue debt securities that are convertible into shares of our
common stock.
The
debt securities will be issued under an indenture between us and a
trustee to be identified in an accompanying prospectus supplement.
We have summarized the general features of the debt securities to
be governed by the form of indenture in this prospectus and the
form of indenture has been filed as an exhibit to the registration
statement of which this prospectus forms a part. We encourage you
to read the indenture. In this prospectus, we have summarized
certain general features of the debt securities under the heading
“Description of Debt Securities.” We urge you, however, to read the
applicable prospectus supplement (and any related free writing
prospectus that we may authorize to be provided to you) related to
the series of debt securities being offered, as well as the
complete indenture and any supplemental indentures that contain the
terms of the debt securities.
Warrants
We
may offer warrants for the purchase of common stock, preferred
stock or debt securities. We may offer warrants independently or
together with other securities. In this prospectus, we have
summarized certain general features of the warrants under the
heading “Description of Warrants.” We urge you, however, to read
the applicable prospectus supplement (and any related free writing
prospectus that we may authorize to be provided to you) related to
the particular series of warrants being offered.
Warrants
may be issued under a warrant agreement that we enter into with a
warrant agent. We will indicate the name and address of the warrant
agent, if any, in the applicable prospectus supplement relating to
a particular series of warrants.
Use
of Proceeds
We
currently intend to use the net proceeds we receive from this
offering for general corporate purposes. We may also use proceeds
from this offering to acquire complimentary technologies, products
or businesses, although we are not a party to any letters of intent
or definitive agreement for any such acquisition.
NYSE
American
Our
common stock is listed on the NYSE American under the symbol
“BTTR”. The applicable prospectus supplement will contain
information, where applicable, as to other listings, if any, on the
NYSE American or any other securities market or other exchange of
the securities covered by the applicable prospectus
supplement.
RISK FACTORS
Investing
in our securities involves a high degree of risk. Before deciding
whether to invest in our securities, you should consider carefully
the risks and uncertainties described under the section titled
“Risk Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and discussed under the
section titled “Risk Factors” contained in our most recent Annual
Report on Form 10-K and in our most recent Quarterly Report on Form
10-Q, as well as any amendments thereto reflected in subsequent
filings with the SEC, which are incorporated by reference into this
prospectus in their entirety, together with other information in
this prospectus, the documents incorporated by reference and any
free writing prospectus that we may authorize for use in connection
with a specific offering. The risks described in these documents
are not the only ones we face, but those that we consider to be
material. There may be other unknown or unpredictable economic,
business, competitive, regulatory or other factors that could have
material adverse effects on our future results. Past financial
performance may not be a reliable indicator of future performance,
and historical trends should not be used to anticipate results or
trends in future periods. If any of these risks actually occur, our
business, financial condition, results of operations or cash flow
could be harmed. This could cause the trading price of our
securities to decline, resulting in a loss of all or part of your
investment. Please also read carefully the section below titled
“Special Note Regarding Forward-Looking Statements.”
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus contains forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995. We intend
such forward-looking statements to be covered by the safe harbor
provisions for forward-looking statements contained in Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”)
and Section 21E of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). All statements other than statements of
historical facts contained in this prospectus are “forward-looking
statements” for purposes of federal and state securities laws.
These statements involve known and unknown risks, uncertainties and
other important factors that may cause our actual results,
performance or achievements to be materially different from any
future results, performance or achievements expressed or implied by
the forward-looking statements.
In
some cases, you can identify forward-looking statements by terms
such as “may,” “will,” “should,” “would,” “expect,” “plan,”
“anticipate,” “could,” “intend,” “target,” “project,” “believe,”
“estimate,” “predict,” “potential,” “seek,” “aim,” or “continue” or
the negative of these terms or other similar expressions.
Forward-looking statements contained in this prospectus and the
documents we have filed with the SEC that are incorporated by
reference include, but are not limited to, statements
about:
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impact of damage to or interruption of our information technology
systems due to cyber-attacks or other circumstances beyond our
control; |
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the
impact of the COVID-19 pandemic on the global pet health and
wellness industry, our employees, suppliers, customers and end
consumers, which could adversely and materially impact our
business, financial condition and results of
operations; |
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business
interruptions resulting from geopolitical actions, including war
and terrorism; |
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our
ability to successfully implement our growth strategy; |
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failure
to achieve growth or manage anticipated growth; |
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our
ability to achieve or maintain profitability; |
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the
loss of key members of our senior management team; |
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our
ability to generate sufficient cash flow or raise capital on
acceptable terms to run our operations, service our debt and make
necessary capital expenditures; |
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our
dependence on our subsidiaries for payments, advances and transfers
of funds due to our holding company status; |
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our
ability to successfully develop additional products and services or
successfully market and commercialize such products and
services; |
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competition
in our market; |
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our
ability to attract new and retain existing customers, suppliers,
distributors or retail partners; |
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allegations
that our products cause injury or illness or fail to comply with
government regulations; |
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our
ability to manage our supply chain effectively; |
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our
or our co-manufacturers’ and suppliers’ ability to comply with
legal and regulatory requirements; |
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the
effect of potential price increases and shortages on the inputs,
commodities and ingredients that we require whether as a result of
the continued or perceived effects of the COVID-19 pandemic or
broader geopolitical and macroeconomic conditions, including the
military conflict between Russia and Ukraine; |
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our
ability to develop and maintain our brand and brand
reputation; |
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compliance
with data privacy rules; |
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our
compliance with applicable regulations issued by the U.S. Food and
Drug Administration (“FDA”), the U.S. Federal Trade Commission
(“FTC”), the U.S. Department of Agriculture (“USDA”), and other
federal, state and local regulatory authorities, including those
regarding marketing pet food, products and supplements; |
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risk
of our products being recalled for a variety of reasons, including
product defects, packaging safety and inadequate or inaccurate
labeling disclosure; and |
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risk
of shifting customer demand in relation to raw pet foods, premium
kibble and canned pet food products, and failure to respond to such
changes in customer taste quickly and effectively. |
These
forward-looking statements are subject to a number of risks,
uncertainties, and assumptions described in the section titled
“Risk Factors” and elsewhere in this prospectus. Because
forward-looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified, you
should not rely on these forward-looking statements as predictions
of future events. The events and circumstances reflected in our
forward-looking statements may not be achieved or occur and actual
results could differ materially from those projected in the
forward-looking statements. Except as required by applicable law,
we do not plan to publicly update or revise any forward-looking
statements contained herein, whether as a result of any new
information, future events, or otherwise. We discuss in greater
detail many of these risks under the section titled “Risk Factors”
contained in the applicable prospectus supplement, in any free
writing prospectuses we may authorize for use in connection with a
specific offering, and in our most recent Annual Report on Form
10-K and in our most recent Quarterly Report on Form 10-Q, as well
as any amendments thereto reflected in subsequent filings with the
SEC, which are incorporated by reference into this prospectus in
their entirety. Also, these forward-looking statements represent
our estimates and assumptions only as of the date of the document
containing the applicable statement. Unless required by law, we
undertake no obligation to update or revise any forward-looking
statements to reflect new information or future events or
developments. You should read this prospectus, any applicable
prospectus supplement, together with the documents we have filed
with the SEC that are incorporated by reference and any free
writing prospectus that we may authorize for use in connection with
a specific offering completely and with the understanding that our
actual future results may be materially different from what we
expect. We qualify all of the forward-looking statements in the
foregoing documents by these cautionary statements.
In
addition, statements that “we believe” and similar statements
reflect our beliefs and opinions on the relevant subject. These
statements are based upon information available to us as of the
date of this prospectus, and while we believe such information
forms a reasonable basis for such statements, such information may
be limited or incomplete, and our statements should not be read to
indicate that we have conducted an exhaustive inquiry into, or
review of, all potentially available relevant information. These
statements are inherently uncertain and you are cautioned not to
unduly rely upon these statements.
USE OF PROCEEDS
We
currently intend to use the net proceeds we receive from this
offering for general corporate purposes. We may also use proceeds
from this offering to acquire complimentary technologies, products
or businesses, although we are not a party to any letters of intent
or definitive agreement for any such acquisition.
DESCRIPTION OF CAPITAL
STOCK
References
to “us,” “our,” “we” and the “Company” in this section refer to
Better Choice Company Inc. only. The following summary description
of our capital stock is based on the provisions of our amended and
restated certificate of incorporation and amended and restated
bylaws and the applicable provisions of the Delaware General
Corporation Law (the “DGCL”). This information is qualified
entirely by reference to the applicable provisions of our amended
and restated certificate of incorporation and bylaws. For
information on how to obtain copies of our amended and restated
certificate of incorporation and bylaws, which are exhibits to the
registration statement of which this prospectus is a part, see the
sections titled “Where You Can Find Additional Information” and
“Incorporation of Certain Information by Reference” in this
prospectus.
General
As of
April 28, 2023, our authorized capital stock consisted of
200,000,000 shares of common stock, par value $0.001 per share (the
“Common Stock”), and 4,000,000 shares of preferred stock, par value
$0.001 per share (the “Preferred Stock”).
Common
Stock
Voting
Rights
Holders
of shares of our Common Stock are entitled to one vote per share
held of record on all matters to be voted upon by the stockholders.
At each election for directors every stockholder entitled to vote
at such election shall have the right to vote, in person or by
proxy, the number of shares owned by such stockholder for as many
persons as there are directors to be elected at that time and for
whose election such stockholder has a right to vote.
Dividend
Rights
Holders
of shares of our Common Stock are entitled to ratably receive
dividends when and if declared by our board of directors out of
funds legally available for that purpose, subject to any statutory
or contractual restrictions on the payment of dividends and to, if
applicable, any prior rights and preferences that may be applicable
to any outstanding preferred stock.
Liquidation
Rights
Upon
our voluntary or involuntary liquidation, dissolution, distribution
of assets or other winding up, holders of shares of our Common
Stock are entitled to receive ratably the assets available for
distribution to the stockholders after payment of liabilities and
the liquidation preference of any of our outstanding shares of
preferred stock.
Rights
and Preferences
The
shares of Common Stock have no preemptive or conversion rights and
are not subject to further calls or assessment by us. There are no
redemption or sinking fund provisions applicable to the Common
Stock. All outstanding shares of our Common Stock are fully paid
and non-assessable.
Stock
Exchange Listing
The
Common Stock is listed on NYSE American under the trading symbol
“BTTR.”
Preferred
Stock
Our
amended and restated certificate of incorporation authorizes our
board of directors, subject to any limitations prescribed by law,
without further stockholder approval, to establish and to issue
from time to time one or more series of preferred stock, par value
$0.001 per share, covering up to an aggregate of 4,000,000 shares
of preferred stock. Each series of preferred stock will cover the
number of shares and will have the powers, preferences, rights,
qualifications, limitations and restrictions determined by the
board of directors, which may include, among others, dividend
rights, liquidation preferences, voting rights, conversion rights,
preemptive rights and redemption rights.
Anti-Takeover
Effects of Provisions of Our Certificate of Incorporation, Our
Bylaws and Delaware Law
Some
provisions of Delaware law, our certificate of incorporation and
our bylaws could make the following transactions more difficult: an
acquisition of us by means of a tender offer; an acquisition of us
by means of a proxy contest or otherwise; or the removal of our
incumbent officers and directors. It is possible that these
provisions could make it more difficult to accomplish or could
deter transactions that stockholders may otherwise consider to be
in their best interest or in our best interests, including
transactions that provide for payment of a premium over the market
price for our shares.
These
provisions, summarized below, are intended to discourage coercive
takeover practices and inadequate takeover bids. These provisions
are also designed to encourage persons seeking to acquire control
of us to first negotiate with our board of directors. We believe
that the benefits of the increased protection of our potential
ability to negotiate with the proponent of an unfriendly or
unsolicited proposal to acquire or restructure us outweigh the
disadvantages of discouraging these proposals because negotiation
of these proposals could result in an improvement of their
terms.
Undesignated
Preferred Stock
The
ability of our board of directors, without action by the
stockholders, to issue up to 4,000,000 shares of undesignated
preferred stock with voting or other rights or preferences as
designated by our board of directors could impede the success of
any attempt to change control of us. These and other provisions may
have the effect of deferring hostile takeovers or delaying changes
in control or management of our company.
Stockholder
Meetings
Our
bylaws provide that a special meeting of stockholders may be called
only by our chairperson of the board, chief executive officer or
when requested in writing by the holders of not less than 10
percent of all the voting power entitled to vote at the
meeting.
Requirements
for Advance Notification of Stockholder Nominations and
Proposals
Our
bylaws establish advance notice procedures with respect to
stockholder proposals to be brought before a stockholder meeting
and the nomination of candidates for election as directors, other
than nominations made by or at the direction of the board of
directors or a committee of the board of directors. Additionally,
vacancies and newly created directorships may be filled only by a
vote of a majority of the directors then in office, even though
less than a quorum, and not by the stockholders.
Removal
of Directors
Our
bylaws provide that our board of directors may be removed from
office by our stockholders with or without cause, but only at a
meeting of the shareholders called expressly for that purpose, upon
the approval of the holders of at least a majority in voting power
of the outstanding shares of stock entitled to vote in the election
of directors.
Stockholders
Not Entitled to Cumulative Voting
Our
certificate of incorporation does not permit stockholders to
cumulate their votes in the election of directors.
Choice
of Forum
Our
bylaws provides that, unless we consent in writing to the selection
of an alternative form, the Court of Chancery of the State of
Delaware will, to the fullest extent permitted by applicable law,
be the sole and exclusive forum for: (i) any derivative action or
proceeding brought on our behalf, (ii) any action asserting a claim
of breach of a fiduciary duty owed by any director or officer (or
affiliate of any of the foregoing) of us to us or the our
shareholders, (iii) any action asserting a claim arising pursuant
to any provision of the DGCL or our certificate of incorporation or
bylaws, or (iv) any other action asserting a claim arising under,
in connection with, and governed by the internal affairs doctrine;
provided that the exclusive forum provisions will not apply to
suits brought to enforce any liability or duty created by the
Securities Act or the Exchange Act, or to any claim for which the
federal courts have exclusive jurisdiction. Any person or entity
purchasing or otherwise acquiring any interest in shares of our
capital stock will be deemed to have notice of, and consented to,
the provisions of our bylaws described in the preceding
sentence.
Transfer
Agent and Registrar
The
transfer agent and registrar for our Common Stock is Equity Stock
Transfer, LLC.
DESCRIPTION OF DEBT
SECURITIES
References
to “us,” “our,” “we” and the “Company” in this section refer to
Better Choice Company Inc. only.
We
may issue debt securities from time to time, 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 debt securities that 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. The terms of any debt securities offered
under a prospectus supplement may differ from the terms described
below. Unless the context requires otherwise, whenever we refer to
the indenture, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt
securities.
We
will issue the debt securities under the indenture that we will
enter into with the trustee named in the indenture. The indenture
will be qualified under the Trust Indenture Act of 1939, as
amended, or the Trust Indenture Act. We have filed the form of
indenture as an exhibit 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
following summary of material provisions of the debt securities and
the indenture is subject to, and qualified in its entirety by
reference to, all of the provisions of the indenture 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 indenture that contains
the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may
issue. It provides that we may issue debt securities up to the
principal amount that we may authorize and may be in any currency
or currency unit that we may designate. Except for the limitations
on consolidation, merger and sale of all or substantially all of
our assets contained in the indenture, the terms of the indenture
do not contain any covenants or other provisions designed to give
holders of any debt securities protection against changes in our
operations, financial condition or transactions involving
us.
We
may issue the debt securities issued under the indenture as
“discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well
as other debt securities that are not issued at a discount, may be
issued with “original issue discount,” or OID, for U.S. federal
income tax purposes because of interest payment and other
characteristics or terms of the debt securities. Material U.S.
federal income tax considerations applicable to debt securities
issued with OID will be described in more detail in any applicable
prospectus supplement.
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 of the series of debt securities; |
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any
limit upon the aggregate principal amount that may be
issued; |
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the
maturity date or dates; |
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the
form of the debt securities of the series; |
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the
applicability of any guarantees; |
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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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whether
the debt securities rank as senior debt, senior subordinated debt,
subordinated debt or any combination thereof, and the terms of any
subordination; |
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if
the price (expressed as a percentage of the aggregate principal
amount thereof) at which such debt securities will be issued is a
price other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the
principal amount of such debt securities that is convertible into
another security or the method by which any such portion shall be
determined; |
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the
interest rate or rates, 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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our
right, if any, to defer payment of interest and the maximum length
of any such deferral period; |
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if
applicable, the date or dates after which, or the period or periods
during which, and the price or prices 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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the
date or dates, if any, on which, and the price or prices at which
we are obligated, pursuant to any mandatory sinking fund or
analogous fund provisions 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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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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any
and all terms, if applicable, relating to any auction or
remarketing of the debt securities of that series and any security
for our obligations with respect to such debt securities and any
other terms which may be advisable in connection with the marketing
of debt securities of that series; |
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whether
the debt securities of the series shall be issued in whole or in
part in the form of a global security or securities; |
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the
terms and conditions, if any, upon which such global security or
securities may be exchanged in whole or in part for other
individual securities; and the depositary for such global security
or securities; |
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if
applicable, the provisions relating to conversion or exchange of
any debt securities of the series and the terms and conditions upon
which such debt securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or
optional (at our option or the holders’ option) conversion or
exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or
exchange; |
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if
other than the full principal amount thereof, the portion of the
principal amount of debt securities of the series which shall be
payable upon declaration of acceleration of the maturity
thereof; |
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additions
to or changes in the covenants applicable to the particular debt
securities being issued, including, among others, the
consolidation, merger or sale covenant; |
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additions
to or changes in the events of default with respect to the
securities and any change in the right of the trustee or the
holders to declare the principal, premium, if any, and interest, if
any, with respect to such securities to be due and
payable; |
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additions
to or changes in or deletions of the provisions relating to
covenant defeasance and legal defeasance; |
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additions
to or changes in the provisions relating to satisfaction and
discharge of the indenture; |
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additions
to or changes in the provisions relating to the modification of the
indenture both with and without the consent of holders of debt
securities issued under the indenture; |
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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; |
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whether
interest will be payable in cash or additional debt securities at
our or the holders’ option and the terms and conditions upon which
the election may be made; |
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the
terms and conditions, if any, upon which we will pay amounts in
addition to the stated interest, premium, if any and principal
amounts of the debt securities of the series to any holder that is
not a “United States person” for federal tax purposes; |
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any
restrictions on transfer, sale or assignment of the debt securities
of the series; and |
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any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, any other additions or
changes in the provisions of the indenture, 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 on
which a series of debt securities may be convertible into or
exchangeable for our common stock or our other securities. We will
include provisions as to settlement upon conversion or exchange and
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 our other
securities 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 indenture will not
contain any covenant that restricts our ability to merge or
consolidate, or sell, convey, transfer or otherwise dispose of our
assets as an entirety or substantially as an entirety. However, any
successor to or acquirer of such assets (other than a subsidiary of
ours) must assume all of our obligations under the indenture or the
debt securities, as appropriate.
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 indenture with respect to any series of debt
securities that we may issue:
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if we
fail to pay any installment of interest on any series of debt
securities, as and when the same shall become due and payable, and
such default continues for a period of 90 days; provided, however,
that a valid extension of an interest payment period by us in
accordance with the terms of any indenture supplemental thereto
shall not constitute a default in the payment of interest for this
purpose; |
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if we
fail to pay the principal of, or premium, if any, on any series of
debt securities as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise,
or in any payment required by any sinking or analogous fund
established with respect to such series; provided, however, that a
valid extension of the maturity of such debt securities in
accordance with the terms of any indenture supplemental thereto
shall not constitute a default in the payment of principal or
premium, if any; |
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if we
fail to observe or perform any other covenant or agreement
contained in the debt securities or the indenture, other than a
covenant specifically relating to another series of debt
securities, and our failure continues for 90 days after we receive
written notice of such failure, requiring the same to be remedied
and stating that such is a notice of default thereunder, from the
trustee or holders of at least 25% in aggregate principal amount of
the outstanding debt securities of the applicable series;
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if
specified events of bankruptcy, insolvency or reorganization
occur. |
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 of, premium, if any, and accrued interest, if any, due
and payable immediately. If an event of default specified in the
last bullet point above occurs with respect to us, the principal
amount of 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 indenture, 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. 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. |
A
holder of the debt securities of any series will have the right to
institute a proceeding under the indenture 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 written
request, |
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such
holders have offered to the trustee indemnity satisfactory to it
against the costs, expenses and liabilities to be incurred by the
trustee in compliance with the request; 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.
We
will periodically file statements with the trustee regarding our
compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
We
and the trustee may change an indenture without the consent of any
holders with respect to specific matters:
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to
cure any ambiguity, defect or inconsistency in the indenture or in
the debt securities of any series; |
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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
provide for uncertificated debt securities in addition to or in
place of certificated debt securities; |
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to
add to our covenants, restrictions, conditions or provisions such
new covenants, restrictions, conditions or provisions for the
benefit of the holders of all or any series of debt securities, 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 upon us in the indenture; |
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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
make any change that does not adversely affect the interests of any
holder of debt securities of any series in any material
respect; |
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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 above
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 under any
indenture by a successor trustee; or |
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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. |
In
addition, under the indenture, 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, unless we provide otherwise in the
prospectus supplement applicable to a particular series of debt
securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities
affected:
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extending
the fixed maturity of any debt securities of any
series; |
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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 of any series 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 we can 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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provide
for payment; |
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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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pay
principal of and premium and interest on any 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, any premium, if any, 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 provide otherwise in
the applicable prospectus supplement, in denominations of $1,000
and any integral multiple thereof. The indenture provides 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 DTC, or
another depositary named by us and identified in the applicable
prospectus supplement with respect to that series. To the extent
the debt securities of a series are issued in global form and as
book-entry, a description of terms relating to any book-entry
securities will be set forth in the applicable prospectus
supplement.
At
the option of the holder, subject to the terms of the indenture 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 indenture 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 impose 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. 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. Subject to this
provision, the trustee is under no obligation to exercise any of
the powers given it by the indenture 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.
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.
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
indenture and the debt securities will be governed by and construed
in accordance with the internal laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
The
indenture will provide that we, the trustee and the holders of the
debt securities (by their acceptance of the debt securities)
irrevocably waive, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding
arising out of or relating to the indenture, the debt securities or
the transactions contemplated thereby.
The
indenture will provide that any legal suit, action or proceeding
arising out of or based upon the indenture or the transactions
contemplated thereby may be instituted in the federal courts of the
United States of America located in the City of New York or the
courts of the State of New York in each case located in the City of
New York, and we, the trustee and the holder of the debt securities
(by their acceptance of the debt securities) irrevocably submit to
the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The indenture will provide that service of
any process, summons, notice or document by mail (to the extent
allowed under any applicable statute or rule of court) to such
party’s address set forth in the indenture will be effective
service of process for any suit, action or other proceeding brought
in any such court. The indenture will provide that we, the trustee
and the holders of the debt securities (by their acceptance of the
debt securities) irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other
proceeding in the courts specified above and irrevocably and
unconditionally waive and agree not to plead or claim any such
suit, action or other proceeding has been brought in an
inconvenient forum.
DESCRIPTION OF WARRANTS
References
to “us,” “our,” “we” and the “Company” in this section refer to
Better Choice Company Inc. only.
The
following description, together with the additional information we
may include in any applicable prospectus supplement and free
writing prospectus, 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, preferred stock, debt
securities and/or warrants may be issued in one or more series.
Warrants may be offered independently or in combination with common
stock, preferred stock, and debt securities by any prospectus
supplement. 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 in
more detail in the applicable prospectus supplement. The following
description of warrants will apply to the warrants offered by this
prospectus unless we provide otherwise in the applicable prospectus
supplement. The applicable prospectus supplement for a particular
series of warrants may specify different or additional
terms.
General
We
will describe in the applicable prospectus supplement the terms of
the series of warrants being offered, 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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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 or preferred stock,
the number of shares of common stock or preferred stock, as the
case may be, 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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a
discussion of any material or special U.S. federal income tax
considerations 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 or preferred 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. The
warrants may be exercised as set forth in the prospectus supplement
relating to the warrants offered. Unless we otherwise specify in
the applicable prospectus supplement, warrants may be exercised at
any time up to the close of business on the expiration date set
forth in the prospectus supplement relating to the warrants offered
thereby. After the close of business on the expiration date,
unexercised warrants will become void.
Governing
Law
Unless
we otherwise specify in the applicable prospectus supplement, the
warrants and any warrant agreements will be governed by and
construed in accordance with the laws of the State of New
York.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent, if any, will act solely as our agent under the
applicable warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than
one issue of warrants. A warrant agent will have no duty or
responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a warrant may, without the consent of
the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and
receive the securities purchasable upon exercise of, its
warrants.
LEGAL OWNERSHIP OF
SECURITIES
We
may 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, 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. Securities issued in global form will
be registered in the name of the depositary or its participants.
Consequently, for securities issued in global form, 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 in non-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
applicable trustee or depositary will make all payments on those
securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only
because they agree to do so in their customer agreements or because
they are legally required to do so. Investors who hold securities
in street name will be indirect holders, not holders, of those
securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee
and of any third parties 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 depositary
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 the indenture or for other
purposes. In such an event, we would seek approval only from the
holders, and not the indirect holders, of the securities. Whether
and how the holders contact the indirect holders is up to the
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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the
performance of third-party service providers; |
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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 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 deposit with and register in the name of a
financial institution or its nominee that we select. The financial
institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC 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 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
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 in global form only, 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
The
rights of an indirect holder 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 in the form of a global security, 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 a 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 a global security; |
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we
and any applicable trustee have no responsibility for any aspect of
the depositary’s actions or for its records of ownership interests
in a global security, nor do we or any applicable trustee 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 a 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 a
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, the 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 name, so that they will be direct holders.
We have described the rights of holders and street name investors
above.
Unless
we provide otherwise in the applicable prospectus supplement, the
global security will terminate when the following special
situations occur:
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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 applicable
prospectus supplement. When a global security terminates, the
depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial
direct holders.
PLAN OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten
public offerings, direct sales to the public, “at-the-market”
offerings, negotiated transactions, block trades or a combination
of these methods. We may sell the securities to or through one or
more underwriters or dealers (acting as principal or agent),
through agents, or directly to one or more purchasers. We may
distribute the securities from time to time in one or more
transactions:
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at a
fixed price or prices, which may be changed; |
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at
market prices prevailing at the time of sale; |
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prices related to such prevailing market prices; or |
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at
negotiated prices. |
We
will describe the terms of the offering of the securities and the
specific plan of distribution in a prospectus supplement or
supplements to this prospectus, any related free writing prospectus
that we may authorize to be provided to you, an amendment to the
registration statement of which this prospectus is a part or other
filings we make with the SEC under the Exchange Act that are
incorporated by reference. Such description may include, to the
extent applicable:
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the
name or names of any underwriters, dealers, agents or other
purchasers; |
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the
purchase price of the securities or other consideration therefor,
and the proceeds, if any, we will receive from the
sale; |
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any
options to purchase additional shares or other options under which
underwriters, dealers, agents or other purchasers may purchase
additional securities from us; |
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any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation; |
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any
public offering price; |
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any
discounts or concessions allowed or reallowed or paid to dealers;
and |
|
|
|
|
|
|
● |
any
securities exchange or market on which the securities may be
listed. |
Only
underwriters named in the prospectus supplement will be
underwriters of the securities offered by the prospectus
supplement. 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 such dealers or agents were deemed to be
underwriters, they may be subject to statutory liabilities under
the Securities Act.
If
underwriters are used in the sale, they will acquire the securities
for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price
or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement, other than
securities covered by any option to purchase additional shares or
other option. If a dealer is used in the sale of 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 transaction.
Any public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may change from time to time. We
may use underwriters, dealers or agents with whom we have a
material relationship. In such case, we will describe in the
prospectus supplement the name of the underwriter, dealer or agent
and the nature of any such relationship.
We
may sell securities directly or through agents we designate from
time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions payable to
the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, the agent will act on a best-efforts
basis for the period of its appointment.
We
may provide agents, dealers and underwriters with indemnification
against civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the
agents or dealers or underwriters may make with respect to these
liabilities. Agents, dealers and underwriters or their affiliates
may engage in transactions with, or perform services for us in the
ordinary course of business.
All
securities we may offer, other than common stock, will be new
issues of securities with no established trading market. Any
underwriters may make a market in these securities, but will not be
obligated to do so and may discontinue any market making at any
time without notice. We cannot guarantee the liquidity of the
trading markets for any securities.
Any
underwriter may be granted an option to purchase additional shares,
and engage in stabilizing transactions, short-covering transactions
and penalty bids in accordance with Regulation M under the Exchange
Act. An underwriter’s option to purchase additional shares involves
sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum price. Syndicate-covering or other short-covering
transactions involve purchases of the securities, either through
exercise of the option to purchase additional shares or in the open
market after the distribution is completed, to cover short
positions. Penalty bids permit the underwriters to reclaim a
selling concession from a dealer when the securities originally
sold by the dealer are purchased in a stabilizing or covering
transaction to cover short positions. Those activities may cause
the price of the securities to be higher than it would otherwise
be. If commenced, the underwriters may discontinue any of the
activities at any time.
LEGAL MATTERS
Unless
otherwise indicated in the applicable prospectus supplement,
Meister Seelig & Fein, LLP will pass upon the validity of the
securities offered by this prospectus and any supplement
thereto.
EXPERTS
The
consolidated financial statements as of December 31, 2022 and 2021
and for the years then ended incorporated by reference in this
Prospectus and in the Registration Statemen have been so
incorporated in reliance on the report of BDO USA, LLP, an
independent registered public accounting firm, incorporated herein
by reference, given on the authority of said firm as experts in
auditing and accounting. The report on the consolidated financial
statements contains an explanatory paragraph regarding the
Company’s ability to continue as a going concern.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
This
prospectus is part of the registration statement on Form S-3 we
filed with the SEC under the Securities Act and does not contain
all the information set forth or incorporated by reference in the
registration statement. Whenever a reference is made in this
prospectus to any of our contracts, agreements or other documents,
the reference may not be complete and you should refer to the
exhibits that are a part of the registration statement or the
exhibits to the reports or other documents incorporated by
reference into this prospectus for a copy of such contract,
agreement or other document. Because we are subject to the
information and reporting requirements of the Exchange Act, we file
annual, quarterly and current 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
http://www.sec.gov. Our Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K,
including any amendments to those reports, and other information
that we file with or furnish to the SEC pursuant to Section 13(a)
or 15(d) of the Exchange Act can also be accessed free of charge on
our website. These filings will be available as soon as reasonably
practicable after we electronically file such material with, or
furnish it to, the SEC. Our website address is
https://www.betterchoicecompany.com. Information contained
on or accessible through our website is not a part of this
prospectus and is not incorporated by reference herein, and the
inclusion of our website address in this prospectus is an inactive
textual reference only.
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The
SEC allows us to “incorporate by reference” information into this
prospectus from other documents that we file with the SEC, which
means that we can disclose important information to you by
referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus. Information
in this prospectus supersedes information incorporated by reference
that we filed with the SEC prior to the date of this prospectus,
while information that we file later with the SEC will
automatically update and supersede the information in this
prospectus. We incorporate by reference into this prospectus and
the registration statement of which this prospectus is a part the
information or documents listed below that we have filed with the
SEC (Commission File No. 001-40477):
|
|
● |
our
Annual Report on Form 10-K for the year ended
December 31, 2022, filed with the SEC on March 28,
2023; |
|
|
|
|
|
|
● |
our
Current Report on Form 8-K filed with the SEC on
March 28, 2023; and
|
|
|
|
|
|
|
● |
the
description of our common stock contains in the Registration
Statement on Form 8-A relating thereto, filed
on June 9, 2021. |
All
filings filed by us pursuant to the Exchange Act after the date of
the initial filing of the registration statement of which this
prospectus is a part and prior to effectiveness of the registration
statement shall be deemed to be incorporated by reference into this
prospectus.
We
also incorporate by reference any future filings (other than
current reports furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits filed on such form that are related to such items
unless such Form 8-K expressly provides to the contrary) made with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, including those made after the date of the initial
filing of the registration statement of which this prospectus is a
part and prior to effectiveness of such registration statement,
until we file a post-effective amendment that indicates the
termination of the offering of the securities made by this
prospectus and will become a part of this prospectus from the date
that such documents are filed with the SEC. Information in such
future filings updates and supplements the information provided in
this prospectus. Any statements in any such future filings will
automatically be deemed to modify and supersede any information in
any document we previously filed with the SEC that is incorporated
or deemed to be incorporated herein by reference to the extent that
statements in the later filed document modify or replace such
earlier statements.
You
can request a copy of these filings, at no cost, by writing or
telephoning us at the following address or telephone
number:
Better
Choice Company Inc.
12400
Race Track Road
Tampa,
FL 33626
Chief
Financial Officer
(813)
659-5921
$55,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
PROSPECTUS
,
2023
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth an estimate of the fees and expenses,
other than the underwriting discounts and commissions, payable by
us in connection with the issuance and distribution of the
securities being registered. All the amounts shown are estimates,
except for the SEC registration fee and the FINRA filing
fee.
| |
|
Amount |
|
| SEC registration fee |
|
$ |
6,061.00 |
|
| NYSE American fee |
|
|
|
(1) |
| FINRA filing fee |
|
$ |
8,750.00 |
|
| Accounting fees and expenses |
|
|
|
(1) |
| Legal fees and expenses |
|
|
|
(1) |
| Transfer agent and registrar fees and
expenses |
|
|
|
(1) |
| Printing and
miscellaneous fees and expenses |
|
|
|
(1) |
| Total |
|
$ |
|
(1) |
|
(1) |
The
amount of securities and number of offerings are indeterminable and
the expenses cannot be estimated at this time. An estimate of the
aggregate expenses in connection with the sale and distribution of
securities being offered will be included in the applicable
prospectus supplement. |
Item
15. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law, or DGCL, empowers a
corporation to indemnify its directors and officers and to purchase
insurance with respect to liability arising out of their capacity
or status as directors and officers, provided that the person acted
in good faith and in a manner the person reasonably believed to be
in our best interests, and, with respect to any criminal action,
had no reasonable cause to believe the person’s actions were
unlawful. The DGCL further provides that the indemnification
permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under
the corporation’s bylaws, any agreement, a vote of stockholders or
otherwise. The certificate of incorporation of the registrant
provides for the indemnification of the registrant’s directors and
officers to the fullest extent permitted under the DGCL. In
addition, the amended and restated bylaws of the registrant require
the registrant to fully indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such
person is or was a director or officer of the registrant, or is or
was a director or officer of the registrant serving at the
registrant’s request as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit, or proceeding, to the fullest extent permitted by applicable
law.
Section
102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except (1) for any breach of the director’s duty of
loyalty to the corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) for payments of unlawful
dividends or unlawful stock repurchases or redemptions or (4) for
any transaction from which the director derived an improper
personal benefit. The registrant’s amended and restated certificate
of incorporation provides that the registrant’s directors shall not
be personally liable to it or its stockholders for monetary damages
for breach of fiduciary duty as a director to the fullest extent
permitted under applicable law and that if the DGCL is amended to
authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of the
registrant’s directors shall be eliminated or limited to the
fullest extent permitted by the DGCL, as so amended.
Section
174 of the DGCL provides, among other things, that a director who
willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption may be held
liable for such actions. A director who was either absent when the
unlawful actions were approved, or dissented at the time, may avoid
liability by causing his or her dissent to such actions to be
entered in the books containing minutes of the meetings of the
board of directors at the time such action occurred or immediately
after such absent director receives notice of the unlawful
acts.
Article
10 of the registrant’s certificate of incorporation (the
“Certificate of Incorporation”) limits the liability of the
registrant’s directors for monetary damages for breach of their
fiduciary duty as directors, except to the extent such exemption or
limitation thereof is not permitted under the DGCL and applicable
law. Delaware law provides that such a provision may not limit the
liability of directors:
| |
● |
for
any breach of their duty of loyalty to the corporation or its
stockholders; |
| |
|
|
| |
● |
for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; |
| |
|
|
| |
● |
for
unlawful payment of dividend or unlawful stock repurchase or
redemption, as provided under Section 174 of the DGCL;
or |
| |
|
|
| |
● |
for
any transaction from which the director derived an improper
personal benefit. |
The
limitation of liability does not apply to liabilities arising under
the federal or state securities laws and does not affect the
availability of equitable remedies, such as injunctive relief or
rescission.
Article
11 of the Certificate of Incorporation states that the registrant
shall indemnify, to the fullest extent permitted by applicable law,
any person who is a party or is threatened to be made a party to
any action, suit or proceeding authorized by the registrant’s board
of directors by reason of the fact that such person is or was a
director or executive officer of the registrant or is or was
serving at the request of the registrant. Article 11 of the
Certificate of Incorporation also requires the registrant to pay
any expenses incurred by any director or executive officer in
defending against any such action, suit or proceeding in advance of
the final disposition of such matter to the fullest extent
permitted by law, subject to the receipt of an undertaking by or on
behalf of such person to repay all amounts so advanced if it shall
ultimately be determined that such person is not entitled to be
indemnified as authorized by the Certificate of Incorporation or
otherwise.
As
permitted by the DGCL, the registrant has entered into separate
indemnification agreements with each of the registrant’s directors
and certain of the registrant’s officers which requires the
registrant, among other things, to indemnify them against certain
liabilities which may arise by reason of their status as directors,
officers, or certain other employees.
As
permitted by Article 11 of the Certificate of Incorporation, the
registrant maintains insurance policies under which its directors
and officers are insured, within the limits and subject to the
limitations of those policies, against certain expenses in
connection with the defense of, and certain liabilities which might
be imposed as a result of, actions, suits, or proceedings to which
they are parties by reason of being or having been directors or
officers. The coverage provided by these policies may apply whether
or not the registrant would have the power to indemnify such person
against such liability under the provisions of the DGCL.
The
underwriting agreement that we may enter into, Exhibit 1.1 to this
registration statement, will provide for the indemnification by the
underwriters of our directors and officers and certain controlling
persons against specified liabilities, including liabilities under
the Securities Act with respect to information provided by the
underwriters specifically for inclusion in this registration
statement.
Item
16. Exhibits
|
Exhibit
|
|
Exhibit
Description |
|
Form |
|
File
No.
|
|
Exhibit |
|
Filing
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.1*
|
|
Form
of Underwriting Agreement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.1 |
|
Certificate
of Incorporation, dated January 1, 2019 |
|
10-Q |
|
333-161943 |
|
3.1 |
|
04/15/2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
3.2 |
|
Certificate
of Amendment to Certificate of Incorporation, dated February 1,
2019 |
|
10-Q |
|
333-161943 |
|
3.2 |
|
04/15/2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
3.3 |
|
Certificate
of Amendment to Certificate of Incorporation, dated March 13,
2019 |
|
8-K |
|
333-161943 |
|
3.1 |
|
03/20/2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
3.4 |
|
Certificate
of Amendment to Certificate of Incorporation, dated April 18,
2019 |
|
10-KT |
|
333-161943 |
|
3.5 |
|
07/25/2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
3.5 |
|
Certificate
of Amendment to Certificate of Incorporation, dated July 30,
2020 |
|
8-K |
|
333-161943 |
|
99.1 |
|
07/30/2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
4.1
|
|
Reference
is made to Exhibit 3.1, 3.2, 3.3, 3.4 and 3.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.2*
|
|
Form
of Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.3*
|
|
Form
of Debt Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.4* |
|
Form
of Common Stock Warrant Agreement and Warrant
Certificate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.5* |
|
Form
of Preferred Stock Warrant Agreement and Warrant
Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.6*
|
|
Form
of Debt Securities Warrant Agreement and Warrant
Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.1
|
|
Opinion
of Meister Seelig & Fein LLP
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23.1 |
|
Consent
of BDO USA, LLP Independent Registered Public Accounting
Firm |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23.2
|
|
Consent
of Meister Seelig & Fein LLP (included in Exhibit
5.1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24.1 |
|
Power
of Attorney, Reference is made to the signature pages of this Form
S-3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.1** |
|
Statement
of Eligibility of Trustee under the Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
107
|
|
Filing
Fee Table |
|
|
|
|
|
|
|
|
|
* |
To be
filed by amendment or as an exhibit to a report filed under the
Exchange Act and incorporated herein by reference, if
applicable. |
|
** |
To be
filed in accordance with the requirements of Section 305(b)(2) of
the Trust Indenture Act and the applicable rules
thereunder. |
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration
statement:
(i)
to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii)
to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective
registration statement; and
(iii)
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that paragraphs (1)(i), (1)(ii)
and (1)(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in this registration statement,
or is contained in a form of prospectus filed pursuant to Rule
424(b) that is part of this registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(6)
That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(7)
That, for purposes of determining any liability under the
Securities Act of 1933:
(i)
the information omitted from the form of prospectus filed as part
of the registration statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities
Act of 1933 shall be deemed to be a part of the registration
statement as of the time it was declared effective; and
(ii)
each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(8)
To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section
310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the
Trust Indenture Act.
Insofar
as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, on May 1, 2023.
|
BETTER
CHOICE COMPANY INC. |
|
| |
|
|
|
By: |
/s/
Lionel F. Conacher |
|
| |
Lionel
F. Conacher |
|
| |
Interim
Chief Executive Officer |
|
| |
|
|
|
BETTER
CHOICE COMPANY INC.
|
|
|
|
|
|
/s/
Carolina Martinez |
|
|
Carolina
Martinez |
|
|
Interim
Chief Financial Officer |
|
POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Lionel F. Conacher
and Carolina Martinez, and each of them, as the undersigned’s true
and lawful attorneys-in-fact and agents, with full power of
substitution, for the undersigned in any and all capacities, to
sign any or all amendments to this Registration Statement on Form
S-3 (including post-effective amendments), and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to
do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully for all intents and
purposes as the undersigned might or could do in person, hereby and
about the premises hereby ratifying and confirming all that said
attorneys-in-fact and agent, proxy and agent, or their substitute,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
|
Signatures |
|
Title |
|
Date |
|
|
|
|
|
|
|
/s/
Lionel F. Conacher |
|
Interim
Chief Executive Officer and Director |
|
May
1, 2023 |
|
Lionel
F. Conacher |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
|
|
/s/
Carolina Martinez |
|
Interim
Chief Financial Officer |
|
May
1, 2023 |
|
Carolina
Martinez |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
|
|
/s/
Arlene Dickinson |
|
Director |
|
May
1, 2023 |
|
Arlene
Dickinson |
|
|
|
|
|
|
|
|
|
|
|
/s/
John M. Word III |
|
Director |
|
May
1, 2023 |
|
John
M. Word III |
|
|
|
|
|
|
|
|
|
|
|
/s/
Michael Young |
|
Director |
|
May
1, 2023 |
|
Michael
Young |
|
|
|
|
|
|
|
|
|
|
|
/s/
Gil Fronzaglia |
|
Director |
|
May
1, 2023 |
|
Gil
Fronzaglia |
|
|
|
|
Better Choice (AMEX:BTTR)
Graphique Historique de l'Action
De Août 2023 à Sept 2023
Better Choice (AMEX:BTTR)
Graphique Historique de l'Action
De Sept 2022 à Sept 2023
