Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
My
Size, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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N/A
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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HaYarden
4, POB 1026, Airport City, Israel, 7010000
+972-3-6009030
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Corporation
Service Company
2711
Centerville Road, Suite 400
Wilmington,
DE 19808
1-800-927-9800
(Name,
address including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Gary
Emmanuel, Esq.
McDermott
Will & Emery LLP
340
Madison Avenue
New
York, New York 10173
Phone:
(212) 547-5400
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
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. (Check one):
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 Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
Title of each class of securities to be registered
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Amount to be
registered/
proposed
maximum
offering price
per unit/
proposed
maximum
aggregate
offering price(1)
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Amount of
registration
fee
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Common Stock
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(2)(3)
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Debt Securities
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(2)
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Warrants
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(2)
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Units
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(2)
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Total
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$
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100,000,000
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(4)
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$
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7,361.52
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(5)(6)
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(1)
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There
are being registered under this registration statement such indeterminate number of common stock, debt securities, warrants and
units, as may be sold by the registrant from time to time, which collectively shall have an aggregate initial offering price not
to exceed $100,000,000. The securities registered hereunder also include such indeterminate number of common stock as may be issued
upon conversion, exercise or exchange of debt securities or warrants that provide for such conversion into, exercise for or exchange
into common stock. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, the
common stock being registered hereunder include such indeterminate number of common stock as may be issuable with respect to the
common stock being registered hereunder as a result of stock splits, stock dividends, or similar transactions. If any debt securities
are issued at an original issue discount, then the offering may be in such greater principal amount as shall result in a maximum
aggregate offering price not to exceed $100,000,000 after the date hereof.
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(2)
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An
unspecified number of securities or aggregate principal amount, as applicable, is being registered as may from time to time be
offered at unspecified prices.
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(3)
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Includes
rights to acquire common stock of the Company under any shareholder rights plan then in effect, if applicable under the terms
of any such plan.
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(4)
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Estimated
solely for the purpose of calculating the registration fee. No separate consideration will be received for shares of common stock
that are issued upon conversion of debt securities or upon exercise of warrants registered hereunder. The aggregate maximum offering
price of all securities issued by the registrant pursuant to this registration statement will not exceed $100,000,000.
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(5)
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The
registration fee has been calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended.
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(6)
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As discussed below, pursuant to Rule 415(a)(6) of the Securities Act,
this registration statement includes a total of $32,524,998 aggregate offering price of unsold securities that were previously
registered on a registration statement on Form S-3 (Registration No. 333-222535) and for which the registration fee was previously
paid. Accordingly, the $7,361.52 registration fee shown above has been calculated based on the proposed maximum offering price
of the additional $67,475,002 of securities registered on this registration statement
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Pursuant to Rule 415(a)(6) of the Securities
Act, the securities registered pursuant to this registration statement include $32,524,998 aggregate offering price of unsold securities
of the registrant previously registered on its Registration Statement on Form S-3 (Registration No. 333-222535), filed on January
12, 2018 and declared effective on January 25, 2018, which the registrant refers to as the Prior Registration Statement. The previously
paid filing fee relating to such unsold securities under the Prior Registration Statement will continue to be applied to such unsold
securities registered in this registration statement. To the extent that, after the filing date hereof and prior to the effectiveness
of this registration statement, any such unsold securities are sold pursuant to the Prior Registration Statement, the registrant
will identify in a pre-effective amendment to this registration statement the updated amount of unsold securities from the Prior
Registration Statement to be included in this registration statement pursuant to Rule 415(a)(6) and the updated amount of new securities
to be registered on this registration statement. Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under
the Prior Registration Statement, if not previously terminated, will be deemed terminated as of the date of effectiveness of this
Registration Statement.
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 or until this Registration Statement shall become effective on
such date as the 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 Securities and Exchange Commission declares our registration statement effective. This prospectus is
not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale
is not permitted.
SUBJECT
TO COMPLETION, DATED DECEMBER 23, 2020
PROSPECTUS
MY
SIZE, INC.
$100,000,000
Common
Stock
Debt
Securities
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, debt securities, warrants to
purchase common stock or debt securities, or any combination of the foregoing, either individually or as units comprised of one
or more of the other securities, having an aggregate initial offering price not exceeding $100,000,000.
This
prospectus provides a general description of the securities we may offer. Each time we sell a particular class or series of securities,
we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus supplement and
any related free writing prospectus may also add, update or change information contained in this prospectus. We may also authorize
one or more free writing prospectuses to be provided to you in connection with these offerings. You should read carefully this
prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated
by reference herein or therein before you invest in any of our securities.
This
prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered
securities.
Our
common stock is presently listed on the Nasdaq Capital Market under the symbol “MYSZ.” On December 22, 2020,
the last reported sale price of our common stock was $1.28. The applicable prospectus supplement will contain information, where
applicable, as to any other listing on the Nasdaq Capital Market or any securities market or other exchange of the securities,
if any, covered by the prospectus supplement.
The aggregate market value of our
outstanding common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3 was approximately $9.1
million, which was calculated based on 7,232,836 shares of common stock outstanding, as of December 22, 2020, of which
7,115,773 shares were held by non-affiliates, and a price per share of $1.28 which was the closing sale price of our common
stock on the Nasdaq Capital Market on December 22, 2020. We have sold securities with an aggregate market value of
approximately $2.0 million pursuant to General Instruction I.B.6. of Form S-3 during the prior 12 calendar month period that
ends on and includes the date hereof.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters, dealers
or through a combination of these methods on a continuous or delayed basis. See “Plan of Distribution” in this
prospectus. We may also describe the plan of distribution for any particular offering of our securities in a prospectus
supplement. If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus
is being delivered, we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The
price to the public of such securities and the net proceeds we expect to receive from any such sale will also be included in a
prospectus supplement.
Investing
in our securities involves various risks. See “Risk Factors” contained herein for more information on these
risks. Additional risks will be described in the related prospectus supplements under the heading “Risk Factors”. You
should review that section of the related prospectus supplements for a discussion of matters that investors in our securities
should consider.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or
passed upon the adequacy or accuracy of this prospectus or any accompanying prospectus supplement. Any representation to
the contrary is a criminal offense.
The
date of this Prospectus is , 2020.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”) using a “shelf” registration process.
Under this shelf registration process, we may from time to time sell common stock, debt securities or warrants to purchase common
stock, debt securities, or any combination of the foregoing, either individually or as units comprised of one or more of the other
securities, in one or more offerings up to a total dollar amount of $100,000,000. We have provided to you in this prospectus a
general description of the securities we may offer. Each time we sell securities under this shelf registration, we will, to the
extent required by law, provide a prospectus supplement that will contain specific information about the terms of that offering, including the prices and terms of the securities we offer.
We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating
to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to
you may also add, update or change information contained in this prospectus or in any documents that we have incorporated by reference
into this prospectus. To the extent there is a conflict between the information contained in this prospectus and the prospectus
supplement or any related free writing prospectus, you should rely on the information in the prospectus supplement or the related
free writing prospectus; provided that if any statement in one of these documents is inconsistent with a statement in another
document having a later date — for example, a document incorporated by reference in this prospectus or any prospectus supplement
or any related free writing prospectus — the statement in the document having the later date modifies or supersedes the
earlier statement.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus, any accompanying prospectus supplement or any related free writing prospectus
that we may authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus or an accompanying prospectus supplement, or any related free writing prospectus that we may authorize
to be provided to you. This prospectus, the accompanying prospectus supplement and any related free writing prospectus, if any,
do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities
to which they relate, nor do this prospectus, the accompanying prospectus supplement or any related free writing prospectus, if
any, constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it
is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this
prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to
the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date
subsequent to the date of the document incorporated by reference (as our business, financial condition, results of operations
and prospects may have changed since that date), even though this prospectus, any applicable prospectus supplement or any related
free writing prospectus is delivered or securities are sold on a later date.
As
permitted by the rules and regulations of the SEC, the registration statement, of which this prospectus forms a part, includes
additional information not contained in this prospectus. You may read the registration statement and the other reports we file
with the SEC at the SEC’s web site or at the SEC’s offices described below under the heading “Where You Can
Find Additional Information.”
Company
References
In
this prospectus, “My Size,” “the Company,” “we,” “us,” and “our” refer
to My Size, Inc., a Delaware corporation, unless the context otherwise requires.
OUR
BUSINESS
This
summary highlights selected information contained elsewhere in this prospectus that we consider important. This summary does not
contain all of the information you should consider before investing in our securities. You should read this summary together with
the entire prospectus, including the risks related to our business, our industry, investing in our shares of common stock and
our location in Israel, that we describe under “Risk Factors” and our consolidated financial statements and the related
notes before making an investment in our securities.
Overview
We
are a creator of mobile device measurement solutions that has developed innovative solutions designed to address shortcomings
in multiple verticals, including the e-commerce fashion/apparel, shipping/parcel and do it yourself, or DIY, industries. Utilizing
our sophisticated algorithms within our proprietary technology, we can calculate and record measurements in a variety of novel
ways, and most importantly, increase revenue for businesses across the globe.
Our
solutions can be utilized to accurately take measurements of a variety of items via a mobile device. By downloading the application
to a smartphone, the user is then able to run the mobile device over the surface of an item the user wishes to measure. The information
is then automatically sent to a cloud-based server where the dimensions are calculated through our proprietary algorithms, and
the accurate measurements (+ or - 2 centimeters) are then sent back to the user’s mobile device. We believe that the commercial
applications for this technology are significant in many areas.
Currently,
we are mainly focusing on the e-commerce fashion/apparel industry. In addition, our solutions address the shipping/parcel and
DIY uses markets.
We
are in the commercialization phase of our products, although we have only generated minimal revenues to date. While we rollout
our products to major retailers and apparel companies, there is a lead time for new customers to ramp up before we can recognize
revenue. This lead time varies between customers, especially when the customer is a tier 1 retailer, where the integration process
may take longer. Generally, first we integrate our product into a customer’s online platform, which is followed by piloting
and implementation, and, assuming we are successful, commercial roll-out, all of which takes time before we expect it to impact
our financial results in a meaningful way. While we have begun generating initial sales revenue, we do not expect to generate
meaningful revenue during the upcoming quarters. In addition, the COVID-19 pandemic has had a particularly adverse impact on the
retail industry and this has resulted in an adverse impact on our marketing and sales activities. For example, we have three ongoing
pilots with international retailers that have been halted, we are unable to participate physically in industry conferences, our
ability to meet with potential customers is limited and in certain instances sales processes have been delayed or cancelled. Because
of the numerous risks and uncertainties associated with the COVID-19 pandemic, the success of our market penetration and our dependence
on the extent to which MySizeID is adopted and utilized, we are unable to predict the extent to which we will recognize revenue.
We may be unable to successfully develop or market any of our current or proposed products or technologies, those products or
technologies may not generate any revenues, and any revenues generated may not be sufficient for us to become profitable or thereafter
maintain profitability
Company
Information
We
were incorporated in the State of Delaware on September 20, 1999 under the name Topspin Medical, Inc. In December 2013, we changed
our name to Knowledgetree Ventures Inc. Subsequently, in February 2014, we changed our name to MySize, Inc. Subsequently, in February
2014, the Company changed its name to My Size, Inc. Our principal executive offices are located at HaYarden 4, POB 1026, Airport
City, Israel, 7010000, and our telephone number is +972-3-600-9030. Our website address is www.MySizeID.com. The information
on our website is not part of this prospectus. We have included our website address as a factual reference and do not intend it
to be an active link to our website.
RISK
FACTORS
Before
purchasing any of the securities you should carefully consider the risk factors incorporated by reference in this prospectus from
our most recent Annual Report on Form 10-K and any subsequent Quarterly Report on Form 10-Q or Current Report on Form 8-K, as
well as the risks, uncertainties and additional information set forth in our SEC reports on Forms 10-K, 10-Q and 8-K and in the
other documents incorporated by reference in this prospectus. For a description of these reports and documents, and information
about where you can find them, see “Where You Can Find More Information” and “Incorporation of Documents By
Reference.” Additional risks not presently known or that we presently consider to be immaterial could subsequently materially
and adversely affect our financial condition, results of operations, business and prospects.
FORWARD-LOOKING
STATEMENTS
This
prospectus, including the documents that we incorporate by reference, contains forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act. Any statements in this prospectus and any accompanying
prospectus supplement about our expectations, beliefs, plans, objectives, assumptions or future events or performance are not
historical facts and are forward-looking statements. These statements are often, but not always, made through the use of words
or phrases such as “believe,” “will,” “expect,” “anticipate,” “estimate,”
“intend,” “plan” and “would.” For example, statements concerning financial condition, possible
or assumed future results of operations, growth opportunities, industry ranking, plans and objectives of management, markets for
our common stock and future management and organizational structure are all forward-looking statements. Forward-looking statements
are not guarantees of performance. They involve known and unknown risks, uncertainties and assumptions that may cause actual results,
levels of activity, performance or achievements to differ materially from any results, levels of activity, performance or achievements
expressed or implied by any forward-looking statement.
Any
forward-looking statements are qualified in their entirety by reference to the risk factors discussed throughout this prospectus
and any accompanying prospectus supplement. Some of the risks, uncertainties and assumptions that could cause actual results to
differ materially from estimates or projections contained in the forward-looking statements include but are not limited to:
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our
history of losses and needs for additional capital to fund our operations and our inability to obtain additional capital on acceptable
terms, or at all;
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risks
related to our ability to continue as a going concern;
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risk
related to the COVID-19 pandemic;
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the
new and unproven nature of the measurement technology markets;
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our
ability to achieve customer adoption of our products;
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our
dependence on assets we purchased from a related party and the risk that such assets may in the future be repurchased;
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our
ability to enhance our brand and increase market awareness;
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our
ability to introduce new products and continually enhance our product offerings;
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the
success of our strategic relationships with third parties;
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information
technology system failures or breaches of our network security;
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competition
from competitors;
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our
reliance on key members of our management team;
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current
or future litigation; and
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the
impact of the political and security situation in Israel on our business.
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The
foregoing list sets forth some, but not all, of the factors that could affect our ability to achieve results described in any
forward-looking statements. You should read this prospectus and the documents that we reference herein and have filed as exhibits
to the registration statement, of which this prospectus is part, completely and with the understanding that our actual future
results may be materially different from what we expect. You should assume that the information appearing in this prospectus
is accurate as of the date on the front cover of this prospectus. Because the risk factors referred to on page 3 of this
prospectus and incorporated herein by reference, could cause actual results or outcomes to differ materially from those expressed
in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements.
Further,
any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking
statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated
events. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In
addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors,
may cause actual results to differ materially from those contained in any forward-looking statements. We qualify all of the information
presented in this prospectus, and particularly our forward-looking statements, by these cautionary statements.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities offered under this prospectus for working capital, repayment of
trade payables and general corporate purposes. We have not determined the amount of net proceeds to be used specifically
for the foregoing purposes. As a result, our management will have broad discretion in the allocation of the net proceeds and investors
will be relying on the judgment of our management regarding the application of the proceeds of any sale of the securities.
Each
time we offer securities under this prospectus, we will describe the intended use of the net proceeds from that offering in the
applicable prospectus supplement. The actual amount of net proceeds we spend on a particular use will depend on many factors,
including, our future capital expenditures, the amount of cash required by our operations, and our future revenue growth, if any.
Therefore, we will retain broad discretion in the use of the net proceeds.
THE
SECURITIES WE MAY OFFER
We
may offer shares of common stock, debt securities or warrants to purchase common stock, debt securities, or any combination of
the foregoing, either individually or as units comprised of one or more of the other securities. We may offer up to $100,000,000
of securities under this prospectus. If securities are offered as units, we will describe the terms of the units in a prospectus
supplement.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock, together with any additional information we include in any applicable prospectus supplement
or any related free writing prospectus, summarizes the material terms and provisions of our common stock that we may offer under
this prospectus. While the terms we have summarized below will apply generally to any future common stock that we may offer, we
will describe the particular terms of any class or series of these securities in more detail in the applicable prospectus supplement.
For the complete terms of our common stock, please refer to our Certificate of Incorporation and our Bylaws that are incorporated
by reference into the registration statement of which this prospectus is a part or may be incorporated by reference in this prospectus
or any applicable prospectus supplement. The terms of these securities may also be affected by Delaware General Corporation Law.
The summary below and that contained in any applicable prospectus supplement or any related free writing prospectus are qualified
in their entirety by reference to our Certificate of Incorporation and Bylaws.
As
of the date of this prospectus, our authorized capital stock consisted of 100,000,000 shares of common stock, $0.001 par
value per share. As of December 22, 2020, there were 7,232,836 shares of our common stock issued and outstanding.
Common
Stock
Holders
of our common stock are entitled to one vote per share. Our Certificate of Incorporation does not provide for cumulative voting.
Holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared by our board of directors
(the “Board” or “Board of Directors”) out of legally available funds. However, the current policy of our
Board is to retain earnings, if any, for the operation and expansion of our company. Upon liquidation, dissolution or winding-up,
the holders of our common stock are entitled to share ratably in all of our assets which are legally available for distribution,
after payment of or provision for all liabilities. The holders of our common stock have no preemptive, subscription, redemption
or conversion rights.
Anti-Takeover
Effects of Certain Provisions of our Certificate of Incorporation, Bylaws and the DGCL
Certain
provisions of our Certificate of Incorporation and Bylaws, which are summarized in the following paragraphs, may have the effect
of discouraging potential acquisition proposals or making a tender offer or delaying or preventing a change in control, including
changes a stockholder might consider favorable. Such provisions may also prevent or frustrate attempts by our stockholders to
replace or remove our management. In particular, the Certificate of Incorporation and Bylaws and Delaware law, as applicable,
among other things:
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provide
the Board with the ability to alter the bylaws without stockholder approval;
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place
limitations on the removal of directors; and
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provide
that vacancies on the board of directors may be filled by a majority of directors in office, although less than a quorum.
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These
provisions are expected to discourage certain types of coercive takeover practices and inadequate takeover bids and to encourage
persons seeking to acquire control of us to first negotiate with its board. These provisions may delay or prevent someone from
acquiring or merging with us, which may cause our market price of our common stock to decline.
Advance
Notice Bylaws. Our Bylaws contain an advance notice procedure for stockholder proposals to be brought before any
meeting of stockholders, including proposed nominations of persons for election to our Board of Directors. Stockholders at any
meeting will only be able to consider proposals or nominations specified in the notice of meeting or brought before the meeting
by or at the direction of our Board of Directors or by a stockholder who was a stockholder of record on the record date for the
meeting, who is entitled to vote at the meeting and who has given our corporate secretary timely written notice, in proper form,
of the stockholder's intention to bring that business before the meeting. Although the Bylaws do not give our Board of Directors
the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business to be conducted
at a special or annual meeting, the Bylaws may have the effect of precluding the conduct of certain business at a meeting if the
proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to
elect its own slate of directors or otherwise attempting to obtain control of us.
Interested
Stockholder Transactions. We are subject to Section 203 of the Delaware General Corporation Law
(“DGCL”) which, subject to certain exceptions, prohibits "business combinations" between a publicly-held
Delaware corporation and an "interested stockholder," which is generally defined as a stockholder who becomes a beneficial
owner of 15% or more of a Delaware corporation's voting stock for a three-year period following the date that such stockholder
became an interested stockholder.
Limitations
on Liability, Indemnification of Officers and Directors and Insurance
The
DGCL authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders
for monetary damages for breaches of directors' fiduciary duties as directors and Certificate of Incorporation will include such
an exculpation provision. Our Certificate of Incorporation and Bylaws will include provisions that indemnify, to the fullest extent
allowable under the DGCL, the personal liability of directors or officers for monetary damages for actions taken as a director
or officer of us, or for serving at our request as a director or officer or another position at another corporation or enterprise,
as the case may be. Our Certificate of Incorporation and Bylaws will also provide that we must indemnify and advance reasonable
expenses to our directors and officers, subject to our receipt of an undertaking from the indemnified party as may be required
under the DGCL. Our Certificate of Incorporation will expressly authorize us to carry directors' and officers' insurance to protect
us, our directors, officers and certain employees for some liabilities. The limitation of liability and indemnification provisions
in our Certificate of Incorporation and Bylaws may discourage stockholders from bringing a lawsuit against directors for breach
of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against
our directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. However,
these provisions do not limit or eliminate our rights, or those of any stockholder, to seek non-monetary relief such as injunction
or rescission in the event of a breach of a director's duty of care. The provisions will not alter the liability of directors
under the federal securities laws. In addition, your investment may be adversely affected to the extent that, in a class action
or direct suit, we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification
provisions. There is currently no pending material litigation or proceeding against any of our directors, officers or employees
for which indemnification is sought.
Authorized
but Unissued Shares
Our
authorized but unissued shares of common stock will be available for future issuance without your approval. We may use additional
shares for a variety of purposes, including future public offerings to raise additional capital, to fund acquisitions and as employee
compensation. The existence of authorized but unissued shares of common stock could render more difficult or discourage an attempt
to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is VStock Transfer, LLC.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements or free writing
prospectuses, summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. We
may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. While the terms we have summarized below will apply generally to any future debt securities we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement
or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement may differ from the terms
we describe below. However, no prospectus supplement shall fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness. As of the date of
this prospectus, we have no outstanding registered debt securities. Unless the context requires otherwise, whenever we refer to
the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular series
of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior
indenture. We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that
we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to
the registration statement, of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term “trustee”
to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures
are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related
free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indentures
that contains the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth
or determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be
issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount
for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt
securities being offered, including:
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the
principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
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any
limit on the amount that may be issued;
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms and who the depositary will be;
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a
United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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the
annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the
terms of the subordination of any series of subordinated debt;
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the
place where payments will be made;
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restrictions
on transfer, sale or other assignment, if any;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to
any optional or provisional redemption provisions and the terms of those redemption provisions;
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provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which
we are obligated, pursuant thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt
securities and the currency or currency unit in which the debt securities are payable;
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whether
the indenture will restrict our ability or the ability of our subsidiaries to:
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incur
additional indebtedness;
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issue
additional securities;
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pay
dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries;
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
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make
investments or other restricted payments;
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sell
or otherwise dispose of assets;
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enter
into sale-leaseback transactions;
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engage
in transactions with stockholders or affiliates;
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issue
or sell stock of our subsidiaries; or
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effect
a consolidation or merger;
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial
ratios;
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a
discussion of certain material or special United States federal income tax considerations applicable to the debt securities;
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information
describing any book-entry features;
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the
applicability of the provisions in the indenture on discharge;
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whether
the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof;
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional
events of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
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Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into
or exchangeable for our common stock or other securities (including securities of a third party). We will include provisions as
to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant
to which the number of shares of our common stock or other securities (including securities of a third party) that the holders
of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other
securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property
must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have
received if they had converted the debt securities before the consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events
of default under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or
repurchase or otherwise, and the time for payment has not been extended;
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if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice
from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series; and
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if
specified events of bankruptcy, insolvency or reorganization occur.
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We
will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt
securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the
unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due
to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any,
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or
other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event
of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver
shall cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding.
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The
indentures provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise of
its powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however,
may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial
to the rights of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability.
Prior to taking any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and
liabilities that would be incurred by taking or not taking such action.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written
request and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss,
liability or expense or to be incurred in compliance with instituting the proceeding as trustee; and
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and
offer.
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These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The
indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the
trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known
by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured
or waived. Except in the case of a default in the payment of principal or premium of, or interest on, any debt security or certain
other defaults specified in an indenture, the trustee shall be protected in withholding such notice if and so long as the Board
of Directors, the executive committee or a trust committee of directors, or responsible officers of the trustee, in good faith
determine that withholding notice is in the best interests of holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture
without the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture;
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to
comply with the provisions described above under “Description of Debt Securities — Consolidation, Merger or Sale;”
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of debt securities, as set forth in the indenture;
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to
provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided
under “Description of Debt Securities — General,” to establish the form of any certifications required to
be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities;
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to
evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to
provide for uncertificated debt securities and to make all appropriate changes for such purpose;
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to
add such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or
the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions
an event of default or to surrender any right or power conferred to us in the indenture; or
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to
change anything that does not adversely affect the interests of any holder of debt securities of any series in any material
respect.
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In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may issue
or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may
only make the following changes: with the consent of each holder of any outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon
the redemption or repurchase of any debt securities; or
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver.
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Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement
applicable to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or
more series of debt securities, except for specified obligations, including obligations to:
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register
the transfer or exchange of debt securities of the series;
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replace
stolen, lost or mutilated debt securities of the series;
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maintain
paying agencies;
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hold
monies for payment in trust;
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recover
excess money held by the trustee;
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compensate
and indemnify the trustee; and
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appoint
any successor trustee.
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In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to
pay all the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in
the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that
we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited
with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement
with respect to that series. See “Legal Ownership of Securities” below for a further description of the terms relating
to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for
other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and
ending at the close of business on the day of the mailing; or
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part.
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Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest payment.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt
securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The
senior indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing
any other secured or unsecured debt.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which
may consist of warrants to purchase common stock or debt securities and may be issued in one or more series. Warrants may be offered
independently or together with common stock or debt securities offered by any prospectus supplement, and may be attached to or
separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer
under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail in the
applicable prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus
supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that
are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its
effectiveness.
We
will issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. The warrant
agent will act solely as an agent of ours in connection with the warrants and will not act as an agent for the holders or beneficial
owners of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate
by reference from a current report on Form 8-K that we file with the SEC, the form of warrant agreement, including a form of warrant
certificate, that describes the terms of the particular series of warrants we are offering before the issuance of the related
series of warrants. The following summaries of material provisions of the warrants and the warrant agreements are subject to,
and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable
to a particular series of warrants. We urge you to read the applicable prospectus supplement and any applicable free writing prospectus
related to the particular series of warrants that we sell under this prospectus, as well as the complete warrant agreements and
warrant certificates that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants, including:
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the
offering price and aggregate number of warrants offered;
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the
currency for which the warrants may be purchased;
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such security;
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in
the case of warrants to purchase common stock, the number of shares of common stock purchasable upon the exercise of one warrant
and the price at which these shares may be purchased upon such exercise;
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the
terms of any rights to redeem or call the warrants;
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the
dates on which the right to exercise the warrants will commence and expire;
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the
manner in which the warrant agreements and warrants may be modified;
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United
States federal income tax consequences of holding or exercising the warrants;
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the
terms of the securities issuable upon exercise of the warrants; and
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in
the case of warrants to purchase common stock, the right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any.
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Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth
in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities
purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we
will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement,
holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue
of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement
or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us.
Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus. While
the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe
the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally
change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus
at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a current report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series of units
we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions
of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock and warrants in any combination. Each unit will
be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before
a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, debt security
or warrant included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship
of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series
of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal
action its rights as holder under any security included in the unit.
We,
the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested,
despite any notice to the contrary. See “Legal Ownership of Securities.”
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable
trustee or depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons
are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below,
indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect
holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities
may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary
on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary
as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along
the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders,
and not legal holders, of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to
hold their securities in their own names or in “street name.” Securities held by an investor in street name would
be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold
only a beneficial interest in those securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers
and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any
such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not legal holders,
of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security
or has no choice because we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even
if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders
but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event,
we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal
holders contact the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you should check with your own institution to find out:
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how
it handles securities payments and notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the holders’ consent, if ever required;
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whether
and how you can instruct it to send you securities registered in your own name so you can be a legal holder, if that is permitted
in the future;
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how
it would exercise rights under the securities if there were a default or other event triggering the need for holders to act
to protect their interests; and
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if
the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
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Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the
name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called
the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New
York, known as DTC, will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We describe those situations below under “— Special Situations
When A Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the
sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to
own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank
or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an
investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder
of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the
security will be represented by a global security at all times unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be
held through any book-entry clearing system.
Special
Considerations For Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an
indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his
or her interest in the securities, except in the special situations we describe below;
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an
investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe above;
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an
investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry form;
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an
investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing
the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
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the
depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in the global security. We and any applicable trustee have no responsibility for
any aspect of the depositary’s actions or for its records of ownership interests in the global security. We and the
trustee also do not supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security
within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
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financial
institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest
in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not
responsible for the actions of any of those intermediaries
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Special
Situations When A Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street
name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in
securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street
name investors above.
A
global security will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within 90 days;
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if
we notify any applicable trustee that we wish to terminate that global security; or
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if
an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
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The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to
the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and
neither we, nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN
OF DISTRIBUTION
The
securities being offered by this prospectus may be sold:
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through
agents;
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to
or through one or more underwriters on a firm commitment or agency basis;
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through
put or call option transactions relating to the securities;
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to
or through dealers, who may act as agents or principals, including a block trade (which may involve crosses) in which a broker
or dealer so engaged will attempt to sell as agent but may position and resell a portion of the block as principal to facilitate
the transaction;
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through
privately negotiated transactions;
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purchases
by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant to this prospectus;
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directly
to purchasers, including our affiliates, through a specific bidding or auction process, on a negotiated basis or otherwise;
to or through one or more underwriters on a firm commitment or best efforts basis;
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exchange
distributions and/or secondary distributions;
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ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
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in
“at-the-market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act to or through a market maker
or into an existing trading market, on an exchange or otherwise;
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transactions
not involving market makers or established trading markets, including direct sales or privately negotiated transactions;
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transactions
in options, swaps or other derivatives that may or may not be listed on an exchange;
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through
any other method permitted pursuant to applicable law; or
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through
a combination of any such methods of sale.
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At
any time a particular offer of the securities covered by this prospectus is made, a revised prospectus or prospectus supplement,
if required, will be distributed which will set forth the aggregate amount of securities covered by this prospectus being offered
and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions,
concessions and other items constituting compensation from us and any discounts, commissions or concessions allowed or re-allowed
or paid to dealers. Such prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of
which this prospectus is a part, will be filed with the SEC to reflect the disclosure of additional information with respect to
the distribution of the securities covered by this prospectus. In order to comply with the securities laws of certain states,
if applicable, the securities sold under this prospectus may only be sold through registered or licensed broker-dealers. In addition,
in some states the securities may not be sold unless they have been registered or qualified for sale in the applicable state or
an exemption from registration or qualification requirements is available and is complied with.
The
distribution of securities may be effected from time to time in one or more transactions, including block transactions and transactions
on the Nasdaq Capital Market or any other organized market where the securities may be traded. The securities may be sold at a
fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing
market prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters
or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts,
concessions or commissions to be received from us or from the purchasers of the securities. Any dealers and agents participating
in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities
may be deemed to be underwriting discounts. If any such dealers or agents were deemed to be underwriters, they may be subject
to statutory liabilities under the Securities Act.
Agents
may from time to time solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement
any agent involved in the offer or sale of the securities and set forth any compensation payable to the agent. Unless otherwise
indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any
agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities
Act, of the securities.
To
the extent that we make sales to or through one or more underwriters or agents in at-the-market offerings, we will do so pursuant
to the terms of a distribution agreement between us and the underwriters or agents. If we engage in at-the-market sales pursuant
to a distribution agreement, we will sell any of our listed securities to or through one or more underwriters or agents, which
may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell any of our listed securities
on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The distribution agreement
will provide that any of our listed securities which are sold will be sold at prices related to the then prevailing market prices
for our listed securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be
determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement,
we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our listed
securities. The terms of each such distribution agreement will be set forth in more detail in a prospectus supplement to this
prospectus.
If
underwriters are used in a sale, securities will be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered
to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement
will be executed with the underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular
underwritten offering of securities, and will set forth the terms of the transactions, including compensation of the underwriters
and dealers and the public offering price, if applicable. The prospectus and prospectus supplement will be used by the underwriters
to resell the securities.
If
a dealer is used in the sale of the securities, we or an underwriter will sell the securities to the dealer, as principal. The
dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To
the extent required, we will set forth in the prospectus supplement the name of the dealer and the terms of the transactions.
We
may directly solicit offers to purchase the securities and may make sales of securities directly to institutional investors or
others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of
the securities. To the extent required, the prospectus supplement will describe the terms of any such sales, including the terms
of any bidding or auction process, if used.
Agents,
underwriters and dealers may be entitled under agreements which may be entered into with us to indemnification by us against specified
liabilities, including liabilities incurred under the Securities Act, or to contribution by us to payments they may be required
to make in respect of such liabilities. If required, the prospectus supplement will describe the terms and conditions of the indemnification
or contribution. Some of the agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions
with or perform services for us or our subsidiaries.
Any
person participating in the distribution of securities registered under the registration statement that includes this prospectus
will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the applicable
SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of
our securities by that person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of
our securities to engage in market-making activities with respect to our securities. These restrictions may affect the marketability
of our securities and the ability of any person or entity to engage in market-making activities with respect to our securities.
Certain
persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions, penalty
bids and other transactions that stabilize, maintain or otherwise affect the price of the offered securities. These activities
may maintain the price of the offered securities at levels above those that might otherwise prevail in the open market, including
by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids, each of which is described below:
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a
stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging, fixing or maintaining
the price of a security.
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a
syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate or the effecting of any
purchase to reduce a short position created in connection with the offering.
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a
penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession from a syndicate member
in connection with the offering when offered securities originally sold by the syndicate member are purchased in syndicate
covering transactions.
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These
transactions may be effected on an exchange or automated quotation system, if the securities are listed on that exchange or admitted
for trading on that automated quotation system, or in the over-the-counter market or otherwise.
If
so indicated in the applicable prospectus supplement, we will authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase offered securities from us at the public offering price set forth in such prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts
will be subject only to those conditions set forth in the prospectus supplement and the prospectus supplement will set forth the
commission payable for solicitation of such contracts.
In
addition, shares of common stock or warrants may be issued upon conversion of or in exchange for debt securities or other securities.
Any
underwriters to whom offered securities are sold for public offering and sale may make a market in such offered securities, but
such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The offered
securities may or may not be listed on a national securities exchange. No assurance can be given that there will be a market for
the offered securities.
Any
securities that qualify for sale pursuant to Rule 144 or Regulation S under the Securities Act, may be sold under Rule 144 or
Regulation S rather than pursuant to this prospectus.
In
connection with offerings made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant
to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection
with these arrangements, the underwriters or agents may also sell securities covered by this prospectus to hedge their positions
in these outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities
received from us under these arrangements to close out any related open borrowings of securities.
We
may enter into derivative transactions with third parties or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, such
third parties (or affiliates of such third parties) may sell securities covered by this prospectus and the applicable prospectus
supplement, including in short sale transactions. If so, such third parties (or affiliates of such third parties) may use securities
pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of shares, and may
use securities received from us in settlement of those derivatives to close out any related open borrowings of shares. The third
parties (or affiliates of such third parties) in such sale transactions will be underwriters and will be identified in the applicable
prospectus supplement (or a post-effective amendment).
We
may loan or pledge securities to a financial institution or other third party that in turn may sell the securities using this
prospectus. Such financial institution or third party may transfer its short position to investors in our securities or in connection
with a simultaneous offering of other securities offered by this prospectus or in connection with a simultaneous offering of other
securities offered by this prospectus.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by McDermott Will & Emery LLP, New York,
New York. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name
in the applicable prospectus supplement.
EXPERTS
The consolidated
financial statements of My Size, Inc. as of December 31, 2019 and 2018 and for each of the years in the two-year period ended December
31, 2019 have been incorporated by reference herein in reliance upon the report of Somekh Chaikin, a Member firm of KPMG International,
independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
The audit report
covering the December 31, 2019 consolidated financial statements contains an explanatory paragraph that states that the Company’s
significant losses, negative cash flow from operations, and accumulated deficit, raise substantial doubt about the entity's ability
to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the
outcome of that uncertainty.
The audit report
covering the December 31, 2019 consolidated financial statements refers to a change to the method of accounting for leases.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted
by the SEC’s rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not
contain all the information that is included in the registration statement. You will find additional information about us
in the registration statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents
are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise
filed with the SEC for a more complete understanding of the document or matter.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are also
available to the public at no cost from the SEC’s website at http://www.sec.gov. In addition, we make available on or through
our Internet site copies of these reports as soon as reasonably practicable after we electronically file or furnish them to the
SEC. Our Internet site can be found at http://www.mysizeid.com.
We
are subject to the informational requirements of the Exchange Act, and, in accordance with those requirements, file annual, quarterly
and current reports, proxy statements and other information with the SEC. Such reports, proxy statements and other information,
as well as this registration statement and the exhibits and schedules thereto, are available on the SEC website at www.sec.gov.
Copies of these documents may also be accessed on our website at www.vereit.com. Our internet website and the information contained
therein or connected thereto are not incorporated into this prospectus or any amendment or supplement thereto.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
have filed a registration statement on Form S-3 with the Securities and Exchange Commission under the Securities Act. This
prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional
information and exhibits. The Securities and Exchange Commission permits us to “incorporate by reference” the information
contained in documents we file with the Securities and Exchange Commission, which means that we can disclose important information
to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated
by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus.
Information that we file later with the Securities and Exchange Commission will automatically update and supersede the information
that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus
from the date those documents are filed. We have filed with the Securities and Exchange Commission, and incorporate by reference
in this prospectus:
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Annual
Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 19, 2020;
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Current
Reports on Form 8-K (excluding any reports or portions thereof that are deemed to be furnished and not filed) filed on
January 17, 2020, February 11, 2020, April 22, 2020, May 8, 2020, May 14, 2020, May 29, 2020, August 1, 2020 and November 12, 2020;
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our
definitive proxy statement on Schedule 14A relating to our 2020 annual meeting of stockholders filed on June 15, 2020; and
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the
description of our common stock contained in the Registrant’s Registration Statement on Form 8-A12B/A filed with
the Commission on June 14, 2016.
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We
also incorporate by reference all future documents (excluding information furnished pursuant to Items 2.02 and 7.01 of Form 8-K)
we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent
to the date of this prospectus and prior to the termination of the offering.
We
also incorporate by reference all additional documents that we file with the Securities and Exchange Commission under the terms
of Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act that are made after the date of the initial registration statement
but prior to effectiveness of the registration statement and after the date of this prospectus but prior to the termination of
the offering of the securities covered by this prospectus. We are not, however, incorporating, in each case, any documents or
information that we are deemed to furnish and not file in accordance with Securities and Exchange Commission rules.
You
may request, and we will provide you with, a copy of these filings, at no cost, by calling us at +972-3-600-9030 or by writing
to us at the following address:
My
Size Inc.
HaYarden
4, pob 1026
Airport
City, Israel, 7010000
Attn.:
Or Kles
Chief
Financial Officer
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being
registered hereby, other than underwriting discounts and commissions, all of which shall be borne by the Registrant. All
of such fees and expenses, except for the SEC registration fee are estimated:
SEC registration fee
|
|
$
|
7,361.52
|
|
Transfer agent’s fees and expenses
|
|
$
|
*
|
|
Legal fees and expenses
|
|
$
|
*
|
|
Printing fees and expenses
|
|
$
|
*
|
|
Accounting fees and expenses
|
|
$
|
*
|
|
Miscellaneous fees and expenses
|
|
$
|
*
|
|
|
|
|
|
|
Total
|
|
$
|
7,361.52
|
|
|
*
|
These
fees and expenses depend on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
|
Item
15. Indemnification of Officers and Directors.
Section 145
(“Section 145”) of the DGCL permits indemnification of directors, officers, agents and controlling persons of
a corporation under certain conditions and subject to certain limitations. Section 145 empowers a corporation to 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 he or she is or was a director, officer or
agent of the corporation or another enterprise if serving at the request of the corporation. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified acted
in good faith and in a manner he or she reasonably believed to be in or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In
the case of an action by or in the right of the corporation, no indemnification may be made with respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145
further provides that to the extent a present or former director or officer of a corporation has been successful in the defense
of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection
therewith. The foregoing is only a summary of the described sections of the Delaware General Corporation Law and is qualified
in its entirety by reference to such sections.
The
Company’s Certificate of Incorporation and Bylaws provide that it shall indemnify each of its officers and directors to
the fullest extent permitted by Section 145.
The
Company’s Certificate of Incorporation provides that no current or former director of the Company shall be personally liable
to it or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption
from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to My Size’s directors, officers and
controlling persons pursuant to the foregoing provisions, or otherwise, My Size has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
Item
16. Exhibits.
a)
Exhibits.
|
*
|
To
the extent applicable, to be filed by an amendment or as an exhibit to a document filed under the Securities Exchange Act of 1934,
as amended, and incorporated by reference herein.
|
Item
17. Undertakings.
(a)
|
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;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the 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.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
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
(B)
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.
(6)
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.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c)
The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period (if
any), to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period,
the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof.
If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus,
a post-effective amendment will be filed to set forth the terms of such offering.
(h)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(j)
The undersigned registrant hereby undertakes 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 (the “Act”) in accordance with the
rules and regulations prescribed by the SEC under section 305(b)(2) of the Act.
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 fling on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Airport City, State of Israel, on December 23, 2020.
|
MY
SIZE, INC.
|
|
|
|
|
By:
|
/s/
Ronen Luzon
|
|
|
Ronen
Luzon
|
|
|
Chief
Executive Officer
(Principal Executive Officer)
|
|
By:
|
/s/
Or Kles
|
|
|
Or
Kles
|
|
|
Chief
Financial Officer
(Principal Financing and Accounting Officer)
|
Each
person whose signature appears below constitutes and appoints Ronen Luzon and Or Kles, and each of them severally, as his true
and lawful attorney in fact and agent, with full powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to the Registration Statement,
and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post effective amendments thereto, and to
file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, each acting alone, or his or
her substitute or substitutes, 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.
/s/
Ronen Luzon
|
|
December
23, 2020
|
Ronen
Luzon
|
|
|
Chief
Executive Officer and Director
(Principal Executive Officer)
|
|
|
|
|
|
/s/
Or Kles
|
|
December
23, 2020
|
Or
Kles
|
|
|
Chief
Financial Officer
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
/s/
Arik Kaufman
|
|
December
23, 2020
|
Arik
Kaufman
|
|
|
Director
|
|
|
|
|
|
/s/
Oren Elmaliah
|
|
December
23, 2020
|
Oren
Elmaliah
|
|
|
Director
|
|
|
|
|
|
/s/
Oron Branitzky
|
|
December
23, 2020
|
Oron
Branitzky
|
|
|
Director
|
|
|
II-5
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