As
filed with the Securities and Exchange Commission on December 22, 2023
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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51-0394637 |
(State
or other jurisdiction of
incorporation
or organization) |
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(I.R.S.
Employer
Identification
No.) |
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.
Greenberg
Traurig, P.A.
One
Azrieli Center
Round
Tower, 30th floor
132
Menachem Begin Rd
Tel
Aviv, Israel 6701101
Telephone:
+972 (0) 3.636.6033
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 ☐ |
Accelerated
filer ☐ |
Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
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|
|
Emerging
growth company ☐ |
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. ☐
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 22, 2023
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. We refer to the common stock, the debt securities,
the warrants to purchase common stock and the units collectively as the securities.
This
prospectus provides a general description of the securities we may offer. Other than in connection with the exercise of certain outstanding
warrants 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.
We
may, from time to time, offer to sell the securities, through public or private transactions, directly or through underwriters, agents
or dealers, on or off the Nasdaq Capital Market, at prevailing market prices or at privately negotiated prices. If any underwriters,
agents or dealers are involved in the sale of any of these securities, the applicable prospectus supplement will set forth the names
of the underwriter, agent or dealer and any applicable fees, commissions or discounts.
Our
common stock is presently listed on both the Nasdaq Capital Market under the symbol “MYSZ” and on the Tel Aviv Stock Exchange,
or the TASE, under the symbol “MYSZ.” On December 21, 2023, the last reported sale price of our common stock on the Nasdaq
Capital Market was $0.67. On December 21, 2023, the last reported sale price of our shares of common stock on the TASE was NIS
2.545 or $0.71 per share (based on the exchange rate reported by the Bank of Israel on the same day).
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
$3 million, which was calculated based on 3,621,792 shares of common stock outstanding, as of December 21, 2023, of which 3,354,032
shares were held by non-affiliates, and a price per share of $0.97 which was the closing sale price of our common stock on the Nasdaq
Capital Market on November 2, 2023. We have sold securities with an aggregate market value of approximately $1.35 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.
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 , 2023.
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.”
We
implemented a 1-for-25 reverse stock split of our outstanding shares of common stock that was effective for Nasdaq Capital Market purposes
at the open of business on December 8, 2022. All share and related option and warrant information presented in this prospectus have been
retroactively adjusted to reflect the reduced number of shares and the increase in the share price which resulted from this action.
This
prospectus and the information incorporated by reference herein and therein include trademarks, service marks and trade names owned by
us or other companies. Solely for convenience, trademarks referred to in this prospectus, including logos, artwork, and other visual
displays, may appear without the ® or ™ symbols. We do not intend our use or display of other companies’ trade names
or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other companies. All trademarks, service marks
and trade names included or incorporated by reference into this prospectus or an accompanying prospectus supplement are the property
of their respective owners.
Unless
the context otherwise requires, references to “we,” “our,” “us,” “My Size” or the “Company”
in this prospectus mean My Size, Inc. on a consolidated basis with its wholly-owned subsidiaries, My Size (Israel) 2014 Ltd., Orgad International
Marketing Ltd, and Naiz Bespoke Technologies, S.L., as applicable.
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 an omnichannel e-commerce platform and provider of AI-driven SaaS measurement solutions, including MySizeID and our recently acquired
subsidiaries, Naiz Fit, which provides SaaS technology solutions that solve size and fit issues and AI solutions for smarter design through
data driven decisions for fashion ecommerce companies, and Orgad, an online retailer operating in the global markets. To date, we have
generated almost all our revenue as a third-party seller on Amazon. Our advanced software and solutions assists us in supply chain, identifying
products that can drive growth and provides a user-friendly experience and best customer service.
Our
flagship innovative tech products, MySizeID, enables shoppers to generate highly accurate measurements of their body to find the accurate
fitting apparel by using our application on their mobile phone or through the MySizeID Widget: a simple questionnaire which uses a database
collected over the years.
MySizeID
syncs the user’s measurement data to a sizing chart integrated through a retailer’s (or a white labeled) mobile application,
and only presents items for purchase that match their measurements to ensure a correct fit.
We
are positioning ourselves as a consolidator of sizing solutions and a provider of a new digital experience due to recent technological
developments for the fashion industry needs. Our other product offerings include First Look Smart Mirror for physical stores and Smart
Catalog to empower brand design teams, which are designed to increase end consumer satisfaction, contributing to a sustainable world
and reducing operation costs.
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 certain forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934,
as amended, or the Exchange Act. 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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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
ability to realize the benefits of our acquisitions of Orgad and Naiz; |
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our
dependence on assets we purchased from a related party; |
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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; |
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current
or future unfavorable economic and market conditions and adverse developments with respect to financial institutions and associated
liquidity risk; and |
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the
impact of the political and security situation in Israel on our business; and |
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other
factors described in the documents incorporated by reference in this prospectus and any prospectus supplement.. |
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 2 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
The
descriptions of the securities contained in this prospectus, together with any applicable prospectus supplement, summarize the material
terms and provisions of the various types of securities that we may offer. We will describe in any applicable prospectus supplement relating
to any securities the particular terms of the securities offered by that prospectus supplement. If we so indicate in any applicable prospectus
supplement, the terms of the securities may differ from the terms we have summarized below. We may also include in any prospectus supplement
information, where applicable, about material U.S. federal income tax consequences relating to the securities, and the securities exchange
or market, if any, on which the securities will be listed.
We
may sell from time to time, in one or more offerings, one or more of the following securities:
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common
stock; |
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debt
securities |
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warrants
to purchase common stock; and |
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units
comprised of one or more of the other securities. |
The
total initial offering price of all securities that we may issue in these offerings will not exceed $100,000,000.
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 250,000,000 shares of common stock, $0.001 par value per
share. As of December 21, 2023, there were 3,621,792 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 have no conversion, preemptive or other subscription rights and there are no sinking fund or redemption provisions
applicable to the shares of common stock. Holders of our common stock are entitled to receive ratably such dividends, if any, as may
be declared by our board of directors out of legally available funds. However, the current policy of our board of directors 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.
Anti-Takeover
Effects of Certain Provisions of our Certificate of Incorporation, Bylaws and the DGCL
Certain
provisions of our Certificate of Incorporation and our 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, our Certificate of Incorporation and our Bylaws and Delaware law, as applicable, among other things:
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provide
the board of directors with the ability to alter the Bylaws without stockholder approval; |
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the
classification of our board of directors; |
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place
limitations on the removal of directors; |
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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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require
that stockholder actions must be affected at a duly called stockholder meeting and generally prohibiting stockholder actions by written
consent; |
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eliminate
the ability of stockholders to call a special meeting of stockholders;
and |
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establish
advance notice requirements for nominations for election to the board of directors or for proposing matters that can be acted upon
at duly called stockholder meetings. |
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, or the 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.
Classified
Board of Directors
Our
board of directors is divided into three classes, each of which will generally serve for a term of three years with only one class of
directors being elected in each year. This system of electing directors may tend to discourage a third party from making a tender offer
or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority
of the directors.
Forum
Selection
Our
Bylaws provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
(or, if the Court of Chancery does not have jurisdiction, another state court or a federal court located within the State of Delaware)
will, to the fullest extent permitted by applicable law and subject to applicable jurisdictional requirements, be the sole and exclusive
forum for any stockholder (including a beneficial owner) to bring claims, including claims in the right of the Company, (i) that are
based upon a violation of a duty by a current or former director, officer, employee or stockholder in such capacity, or (ii) as to which
the DGCL confers jurisdiction upon the Court of Chancery.
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, 18 Lafayette Place, Woodmere, New York 11598. The telephone
number of VStock Transfer, LLC is (212) 828-8436.
Listing
Our
common stock is listed on both the Nasdaq Capital Market under the symbol “MYSZ” and on the Tel Aviv Stock Exchange under
the symbol “MYSZ.”
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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title; |
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the
principal amount being offered, and if a series, the total amount authorized and the total amount outstanding; |
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any
limit on the amount that may be issued; |
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms and who the depositary will be; |
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the
maturity date; |
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United
States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
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the
annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates; |
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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the
terms of the subordination of any series of subordinated debt; |
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the
place where payments will be made; |
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restrictions
on transfer, sale or other assignment, if any; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional
or provisional redemption provisions and the terms of those redemption provisions; |
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provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which we are
obligated, pursuant thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt securities
and the currency or currency unit in which the debt securities are payable; |
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whether
the indenture will restrict our ability or the ability of our subsidiaries to: |
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incur
additional indebtedness; |
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issue
additional securities; |
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create
liens; |
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pay
dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries; |
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redeem
capital stock; |
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets; |
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make
investments or other restricted payments; |
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sell
or otherwise dispose of assets; |
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enter
into sale-leaseback transactions; |
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engage
in transactions with stockholders or affiliates; |
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issue
or sell stock of our subsidiaries; or |
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effect
a consolidation or merger; |
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
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a
discussion of certain material or special United States federal income tax considerations applicable to the debt securities; |
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information
describing any book-entry features; |
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the
applicability of the provisions in the indenture on discharge; |
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whether
the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended; |
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; |
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events
of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under
applicable laws or regulations. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into or exchangeable
for our common stock or other securities (including securities of a third party). We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or other securities (including securities of a third party) that the holders of the series of debt securities receive
would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially
all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or the
debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of
other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion
of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities
before the consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended; |
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase
or otherwise, and the time for payment has not been extended; |
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if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or
we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization occur. |
We
will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain
specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each
issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any
holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory to it against any
loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any series will have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any
trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
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direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the proceeding. |
The
indentures provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise of its powers
to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse to follow
any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rights of any other
holder of the relevant series of debt securities, or that would involve the trustee in personal liability. Prior to taking any action
under the indentures, the trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred
by taking or not taking such action.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a receiver
or trustee, or to seek other remedies only if:
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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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trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The
indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the trustee
must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known by a responsible
officer of the trustee or written notice of it is received by the trustee, unless such default has been cured or waived. Except in the
case of a default in the payment of principal or premium of, or interest on, any debt security or certain other defaults specified in
an indenture, the trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee
or a trust committee of directors, or responsible officers of the trustee, in good faith determine that withholding notice is in the
best interests of holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without
the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture; |
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to
comply with the provisions described above under “Description of Debt Securities — Consolidation, Merger or Sale;” |
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act; |
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to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture; |
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to
provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided under
“Description of Debt Securities — General,” to establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of
debt securities; |
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to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; |
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to
provide for uncertificated debt securities and to make all appropriate changes for such purpose; |
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to
add such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or the occurrence
and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or
to surrender any right or power conferred to us in the indenture; or |
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to
change anything that does not adversely affect the interests of any holder of debt securities of any series in any material respect. |
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, subject to the terms of the indenture for any series of debt securities that we may issue or otherwise provided in
the prospectus supplement applicable to a particular series of debt securities, we and the trustee may only make the following changes:
with the consent of each holder of any outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities; |
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption or repurchase of any debt securities; or |
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable
to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or more series of debt
securities, except for specified obligations, including obligations to:
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register
the transfer or exchange of debt securities of the series; |
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replace
stolen, lost or mutilated debt securities of the series; |
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maintain
paying agencies; |
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hold
monies for payment in trust; |
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recover
excess money held by the trustee; |
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compensate
and indemnify the trustee; and |
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appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series. See “Legal
Ownership of Securities” below for a further description of the terms relating to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at
the close of business on the day of the mailing; or |
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers given it by
the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs,
expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee must use the same degree
of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest payment.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to
the extent that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities
that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The senior
indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured
or unsecured debt.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free writing
prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist
of warrants to purchase common stock or debt securities and may be issued in one or more series. Warrants may be offered independently
or together with common stock or debt securities offered by any prospectus supplement, and may be attached to or separate from those
securities. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we
will describe the particular terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement
and any applicable free writing prospectus. The terms of any warrants offered under a prospectus supplement may differ from the terms
described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer
a security that is not registered and described in this prospectus at the time of its effectiveness.
We
will issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. The warrant agent
will act solely as an agent of ours in connection with the warrants and will not act as an agent for the holders or beneficial owners
of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference
from a current report on Form 8-K that we file with the SEC, the form of warrant agreement, including a form of warrant certificate,
that describes the terms of the particular series of warrants we are offering before the issuance of the related series of warrants.
The following summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety
by reference to, all the provisions of the warrant agreement and warrant certificate applicable to a particular series of warrants. We
urge you to read the applicable prospectus supplement and any applicable free writing prospectus related to the particular series of
warrants that we sell under this prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms
of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants, including:
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offering price and aggregate number of warrants offered; |
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the
currency for which the warrants may be purchased; |
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
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in
the case of warrants to purchase common stock, the number of shares of common stock purchasable upon the exercise of one warrant
and the price at which these shares may be purchased upon such exercise; |
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
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the
terms of any rights to redeem or call the warrants; |
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the
dates on which the right to exercise the warrants will commence and expire; |
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the
manner in which the warrant agreements and warrants may be modified; |
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United
States federal income tax consequences of holding or exercising the warrants; |
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the
terms of the securities issuable upon exercise of the warrants; and |
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
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in
the case of warrants to purchase common stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution
or winding up or to exercise voting rights, if any. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable
prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with
specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the
information that the holder of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants
may surrender securities as all or part of the exercise price for warrants.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free writing
prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have
summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of
any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement
may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in
this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current
report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering,
and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions
of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular
series of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain
the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock and warrants in any combination. Each unit will be issued
so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities
included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
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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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provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, debt security or
warrant included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit
agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
We,
the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced
by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any
notice to the contrary. See “Legal Ownership of Securities.”
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or
depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders
of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered
in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders,
and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which
are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary as the
holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments
it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so
under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security,
through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest
through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders,
of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to hold
their securities in their own names or in “street name.” Securities held by an investor in street name would be registered
in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial
interest in those securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other
financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or
depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers
who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders, not legal holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders
of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any
other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because
we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that
holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does
not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a
default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would
seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact
the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented
by one or more global securities or in street name, you should check with your own institution to find out:
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it handles securities payments and notices; |
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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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the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities
represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of
a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary.
Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC,
will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary,
unless special termination situations arise. We describe those situations below under “— Special Situations When A Global
Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner
and legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests
in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that
in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by
a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security
will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may
issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry
clearing system.
Special
Considerations For Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect
holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations we describe below; |
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an
investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe above; |
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an
investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required
by law to own their securities in non-book-entry form; |
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an
investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
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the
depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating
to an investor’s interest in the global security. We and any applicable trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership interests in the global security. We and the trustee also do not supervise
the depositary in any way; |
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the
depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within
its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and |
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financial
institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in the
global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There
may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible
for the actions of any of those intermediaries |
Special
Situations When A Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to
the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to
their own names, so that they will be direct holders. We have described the rights of holders and street name investors above.
A
global security will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within 90 days; |
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an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular
series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and neither we, nor any
applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN
OF DISTRIBUTION
The
securities being offered by this prospectus may be sold:
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through
agents; |
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or through one or more underwriters on a firm commitment or agency basis; |
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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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directly
to a purchaser pursuant to what is known as an “equity line of credit”; |
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transactions
not involving market makers or established trading markets, including direct sales or privately negotiated transactions; |
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transactions
in options, swaps or other derivatives that may or may not be listed on an exchange; |
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through
any other method permitted pursuant to applicable law; or |
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a combination of any such methods of sale. |
At
any time a particular offer of the securities covered by this prospectus is made, a revised prospectus or prospectus supplement, if required,
will be distributed which will set forth the aggregate amount of securities covered by this prospectus being offered and the terms of
the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions, concessions and
other items constituting compensation from us and any discounts, commissions or concessions allowed or re-allowed or paid to dealers.
Such prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a
part, will be filed with the SEC to reflect the disclosure of additional information with respect to the distribution of the securities
covered by this prospectus. In order to comply with the securities laws of certain states, if applicable, the securities sold under this
prospectus may only be sold through registered or licensed broker-dealers. In addition, in some states the securities may not be sold
unless they have been registered or qualified for sale in the applicable state or an exemption from registration or qualification requirements
is available and is complied with.
The
distribution of securities may be effected from time to time in one or more transactions, including block transactions and transactions
on the Nasdaq Capital Market or any other organized market where the securities may be traded. The securities may be sold at a fixed
price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market
prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers
may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions
to be received from us or from the purchasers of the securities. Any dealers and agents participating in the distribution of the securities
may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts.
If any such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act.
Agents
may from time to time solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement any
agent involved in the offer or sale of the securities and set forth any compensation payable to the agent. Unless otherwise indicated
in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the
securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities.
To
the extent that we make sales to or through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to
the terms of a distribution agreement between us and the underwriters or agents. If we engage in at-the-market sales pursuant to a distribution
agreement, we will sell any of our listed securities to or through one or more underwriters or agents, which may act on an agency basis
or on a principal basis. During the term of any such agreement, we may sell any of our listed securities on a daily basis in exchange
transactions or otherwise as we agree with the underwriters or agents. The distribution agreement will provide that any of our listed
securities which are sold will be sold at prices related to the then prevailing market prices for our listed securities. Therefore, exact
figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time and will be described in a
prospectus supplement. Pursuant to the terms of the distribution agreement, we also may agree to sell, and the relevant underwriters
or agents may agree to solicit offers to purchase, blocks of our listed securities. The terms of each such distribution agreement will
be set forth in more detail in a prospectus supplement to this prospectus.
We
may also sell securities pursuant to an “equity line of credit”. In such event, we will enter into a common stock purchase
agreement with the purchaser to be named therein, which will be described in a Current Report on Form 8-K that we will file with the
SEC. In that Form 8-K, we will describe the total amount of securities that we may require the purchaser to purchase under the purchase
agreement and the other terms of purchase, and any rights that the purchaser is granted to purchase securities from us. In addition to
our issuance of shares of common stock to the equity line purchaser pursuant to the purchase agreement, this prospectus (and the applicable
prospectus supplement or post-effective amendment) also covers the resale of those shares from time to time by the equity line purchaser
to the public. The equity line purchaser will be considered an “underwriter” within the meaning of Section 2(a)(11) of the
Securities Act. Its resales may be effected through a number of methods, including without limitation, ordinary brokerage transactions
and transactions in which the broker solicits purchasers and block trades in which the broker or dealer so engaged will attempt to sell
the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction. The equity line purchaser
will be bound by various anti-manipulation rules of the SEC and may not, for example, engage in any stabilization activity in connection
with its resales of our securities and may not bid for or purchase any of our securities or attempt to induce any person to purchase
any of our securities other than as permitted under the Exchange Act.
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 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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stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging, fixing or maintaining
the price of a security. |
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a
syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate or the effecting of any purchase
to reduce a short position created in connection with the offering. |
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a
penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession from a syndicate member in
connection with the offering when offered securities originally sold by the syndicate member are purchased in syndicate covering
transactions. |
These
transactions may be effected on an exchange or automated quotation system, if the securities are listed on that exchange or admitted
for trading on that automated quotation system, or in the over-the-counter market or otherwise.
If
so indicated in the applicable prospectus supplement, we will authorize agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase offered securities from us at the public offering price set forth in such prospectus supplement pursuant
to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will be subject only
to those conditions set forth in the prospectus supplement and the prospectus supplement will set forth the commission payable for solicitation
of such contracts.
In
addition, shares of common stock or warrants may be issued upon conversion of or in exchange for debt securities or other securities.
Any
underwriters to whom offered securities are sold for public offering and sale may make a market in such offered securities, but such
underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The offered securities
may or may not be listed on a national securities exchange. No assurance can be given that there will be a market for the offered securities.
Any
securities that qualify for sale pursuant to Rule 144 or Regulation S under the Securities Act, may be sold under Rule 144 or Regulation
S rather than pursuant to this prospectus.
In
connection with offerings made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant
to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection
with these arrangements, the underwriters or agents may also sell securities covered by this prospectus to hedge their positions in these
outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from
us under these arrangements to close out any related open borrowings of securities.
We
may enter into derivative transactions with third parties or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, such third parties
(or affiliates of such third parties) may sell securities covered by this prospectus and the applicable prospectus supplement, including
in short sale transactions. If so, such third parties (or affiliates of such third parties) may use securities pledged by us or borrowed
from us or others to settle those sales or to close out any related open borrowings of shares, and may use securities received from us
in settlement of those derivatives to close out any related open borrowings of shares. The third parties (or affiliates of such third
parties) in such sale transactions will be underwriters and will be identified in the applicable prospectus supplement (or a post-effective
amendment).
We
may loan or pledge securities to a financial institution or other third party that in turn may sell the securities using this prospectus.
Such financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous
offering of other securities offered by this prospectus or in connection with a simultaneous offering of other securities offered by
this prospectus.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Greenberg Traurig, P.A., Tel Aviv Israel. 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. and subsidiaries as of December 31, 2022 and 2021, and for each of the years in the
two-year period ended December 31, 2022, 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, 2022 consolidated financial statements
contains an explanatory paragraph that states that the Company has incurred significant losses and negative cash flows from operations
and has an accumulated deficit that raises substantial doubt about the Company’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.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s
rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain all the information
that is included in the registration statement. You will find additional information about us in the registration statement. Any statements
made in this prospectus or any prospectus supplement concerning legal documents are not necessarily complete and you should read the
documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding
of the document or matter.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are also available to
the public at no cost from the SEC’s website at http://www.sec.gov. In addition, we make available on or through our Internet site
copies of these reports as soon as reasonably practicable after we electronically file or furnish them to the SEC. Our Internet site
can be found at http://www.mysizeid.com.
We
are subject to the informational requirements of the Exchange Act, and, in accordance with those requirements, file annual, quarterly
and current reports, proxy statements and other information with the SEC. Such reports, proxy statements and other information, as well
as this registration statement and the exhibits and schedules thereto, are available on the SEC website at www.sec.gov. Copies of these
documents may also be accessed on our website at www.vereit.com. Our internet website and the information contained therein or connected
thereto are not incorporated into this prospectus or any amendment or supplement thereto.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
have filed a registration statement on Form S-3 with the Securities and Exchange Commission under the Securities Act. This
prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional
information and exhibits. The Securities and Exchange Commission permits us to “incorporate by reference” the
information contained in documents we file with the Securities and Exchange Commission, which means that we can disclose important
information to you by referring you to those documents rather than by including them in this prospectus. Information that is
incorporated by reference is considered to be part of this prospectus and you should read it with the same care that you read this
prospectus. Information that we file later with the Securities and Exchange Commission will automatically update and supersede the
information that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this
prospectus from the date those documents are filed. We have filed with the Securities and Exchange Commission, and incorporate by
reference in this prospectus:
|
● |
Annual
Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on April 14, 2023; |
|
|
|
|
● |
Quarterly
Reports on Form 10-Q for the quarterly period ended March 31, 2023, June 30, 2023 and September 30, 2023 filed on May 15, 2023,
August 14, 2023 and November 14, 2023, respectively; |
|
|
|
|
● |
Current
Reports on Form 8-K (excluding any reports or portions thereof that are deemed to be furnished and not filed) filed on January
4, 2023, January
10, 2023, January
12, 2023, April
14, 2023, May
16, 2023, July
18, 2023, August
14, 2023, August
25, 2023, November
3, 2023, and November
15, 2023. |
|
|
|
|
● |
Our
definitive proxy statement on Schedule 14A relating to our 2023 annual meeting of stockholders filed on November 24, 2023; and |
|
|
|
|
● |
The
description of our common stock, which is contained in the registration statement on Form
8-A, filed with the SEC on June 14, 2016, as supplemented by Exhibit
4.4 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 19, 2020, and as
may be further updated or amended in any amendment or report filed for such purpose. |
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 | |
$ | 7,398.48 | |
FINRA filing fees and expenses | |
$ | 15,500.00 | |
Transfer agent’s fees and expenses | |
$ | * | |
Legal fees and expenses | |
$ | * | |
Printing fees and expenses | |
$ | * | |
Accounting fees and expenses | |
$ | * | |
Miscellaneous fees and expenses | |
$ | * | |
Total | |
$ | * | |
* |
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, or 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.
We
have entered into indemnification agreements with each of our directors and officers. These indemnification agreements may require us,
among other things, to indemnify our directors and officers for some expenses, including attorneys’ fees, judgments, fines and
settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of our directors
or officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our request.
We
maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out
of claims based on acts or omissions in their capacities as directors or officers.
Any
underwriting agreement or distribution agreement that we enter into with any underwriters or agents involved in the offering or sale
of any securities registered hereby may require such underwriters or dealers to indemnify us, some or all of our directors and officers
and our controlling persons, if any, for specified liabilities, which may include liabilities under the Securities Act.
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.
Exhibit
Number |
|
Description
of Document |
|
|
|
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
3.1 |
|
Amended and Restated Certificate of Incorporation (incorporated by reference to the Company’s Current Report on Form 8-K filed March 23, 2017). |
|
|
|
3.2 |
|
Second Amended and Restated Bylaws (incorporated by reference to Form 8-K filed April 24, 2018). |
|
|
|
3.3 |
|
Amendment to Amended and Restated Certificate of Incorporation of My Size, Inc. (incorporated by reference to the Company’s Current Report on Form 8-K filed February 20, 2018) |
|
|
|
3.4 |
|
Certificate of Amendment of Amended and Restated Certificate of Incorporation of My Size, Inc. (incorporated by reference to the Company’s Current Report on Form 8-K filed on November 18, 2019). |
|
|
|
3.5 |
|
Certificate of Amendment of Amended and Restated Certificate of Incorporation of My Size, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on January 7, 2022). |
|
|
|
3.6 |
|
Amendment No. 1 to Second Amended and Restated By-Laws (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on January 7, 2022). |
|
|
|
3.7 |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of My Size, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on December 7, 2022). |
|
|
|
4.1 |
|
Specimen Common Stock Certificate of the Registrant (incorporated by reference to Form S-3 filed November 14, 2016) |
|
|
|
4.2 |
|
Form of Senior Indenture (incorporated by reference to Form S-3 filed December 23, 2020) |
|
|
|
4.3 |
|
Form of Subordinated Indenture (incorporated by reference to Form S-3 filed December 23, 2020) |
|
|
|
4.4* |
|
Form
of Senior Note |
|
|
|
4.5* |
|
Form
of Subordinated Note |
|
|
|
4.6* |
|
Form of
Warrant |
|
|
|
4.7* |
|
Form of
Warrant Agreement |
|
|
|
4.8* |
|
Form
of Unit Agreement |
|
|
|
5.1 |
|
Opinion of Greenberg Traurig, P.A. as to the legality of the securities being registered |
|
|
|
23.1 |
|
Consent of Greenberg Traurig, P.A. (included in Exhibit 5.1) |
|
|
|
23.2 |
|
Consent of Somekh Chaikin |
|
|
|
24.1 |
|
Power of Attorney (included on signature pages to the registration statement) |
|
|
|
25.1* |
|
Statement
of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended |
|
|
|
107 |
|
Filing Fee Table |
* |
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.
(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 22, 2023.
|
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
22, 2023 |
Ronen
Luzon |
|
Chief
Executive Officer and Director
(Principal
Executive Officer) |
|
|
|
/s/
Or Kles |
December
22, 2023 |
Or
Kles |
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer) |
|
|
|
/s/
Arik Kaufman |
December
22, 2023 |
Arik
Kaufman |
|
Director |
|
|
|
/s/
Oren Elmaliah |
December
22, 2023 |
Oren
Elmaliah |
|
Director |
|
|
|
/s/
Oron Branitzky |
December
22, 2023 |
Oron
Branitzky |
|
Director |
|
|
|
/s/
Guy Zimmerman |
December
22, 2023 |
Guy
Zimmerman |
|
Director |
|
Exhibit
5.1
December
22, 2023
My
Size, Inc.
4
Hayarden St.
P.O.B.
1026,
Airport
City, 7010000
Israel
Re: My Size, Inc. Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as counsel to My Size, Inc., a Delaware corporation (the “Company”), in connection with a Registration Statement
on Form S-3 (the “Registration Statement”), to be filed with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), relating to the proposed public offering on a delayed
basis pursuant to Rule 415 under the Securities Act of up to an aggregate initial offer price of $100,000,000 of (i) shares of common
stock, par value $0.001 per share (“Common Stock”), including Common Stock as may from time to time be issued upon exchange
of Debt Securities (as defined below) or the exercise of Warrants or Units (each as defined below); (ii) debt securities (“Debt
Securities”), which, unless otherwise provided in any supplement to the prospectus forming a part of the Registration Statement
relating to a particular series of the Debt Securities, may be in the form of (a) senior debt securities to be issued pursuant to an
indenture (the “Senior Indenture”) proposed to be entered into between the Company and a trustee (the “Senior Trustee”),
a form of which indenture is being filed as an exhibit to the Registration Statement or (b) subordinated debt securities to be issued
pursuant to an indenture (the “Subordinated Indenture” and the Senior Indenture, each individually, an “Indenture”)
proposed to be entered into between the Company and a trustee (the “Subordinated Trustee” and the Senior Trustee, each individually,
a “Trustee”), a form of which indenture is being filed as an exhibit to the Registration Statement; (iii) warrants for the
purchase of Common Stock or Debt Securities (“Warrants”) pursuant to one or more warrant agreements (each, a “Warrant
Agreement”) proposed to be entered into between the Company and one or more warrant agents to be named in the applicable Warrant
Agreement (each, a “Warrant Agent”); and (iv) units consisting of one or more of the Company’s Common Stock, Debt Securities
or Warrants, or any combination of those securities (“Units”), pursuant to one or more unit agreements (each, a “Unit
Agreement”) proposed to be entered into between the Company and one or more unit agents to be named in the applicable Unit Agreement
(each, a “Unit Agent”). The Common Stock, Debt Securities, Warrants and Units are collectively referred to herein as the
“Securities.”
The
Securities may be sold from time to time as set forth in the Registration Statement and the prospectus which forms part of the Registration
Statement (the “Prospectus”) and as to be set forth in one or more supplements to the Prospectus (each, a “Prospectus
Supplement”).
For
purposes of this opinion letter, we have assumed that each Indenture, in substantially the form reviewed by us, any supplemental indenture
to each such Indenture, each Warrant Agreement and each Unit Agreement will be duly authorized, executed and delivered by the applicable
Trustee, Warrant Agent or Unit Agent, as the case may be, and that any Debt Securities, Warrants or Units that may be issued will be
manually authenticated, signed or countersigned, as the case may be, by duly authorized officers of the applicable Trustee, Warrant Agent
or Unit Agent, as the case may be.
In
arriving at the opinions expressed below, we have examined signed copies of the Registration Statement, the prospectus and the form of
indenture filed as an exhibit to the Registration Statement. We have also examined and relied upon minutes of meetings of the Board of
Directors of the Company as provided to us by the Company, the Amended and Restated Certificate of Incorporation and Amended and Restated
By-Laws of the Company, each as restated and/or amended to date (collectively, the “Charter Documents”), and such other documents
as we have deemed necessary for purposes of rendering the opinions hereinafter set forth. In such examination, we have assumed the genuineness
of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals
of such copies. As to any facts material to the opinions expressed herein which we have not independently established or verified, we
have relied upon statements and representations of the Company and its officers and other representatives and of public officials and
others.
We
have also assumed that (i) the issuance, sale, amount and terms of the Securities to be offered from time to time will be duly authorized
and determined by proper action of the Board of Directors of the Company (the “Board”) consistent with the procedures and
terms described in the Registration Statement and the applicable Prospectus Supplement (each, a “Board Action”) and in accordance
with the Charter Documents and applicable Delaware law, (ii) the Registration Statement and any amendments thereto (including post-effective
amendments) are effective under the Securities Act, (iii) a Prospectus Supplement will have been filed with the Commission describing
the Securities offered thereby, (iv) all Securities will be issued and sold in compliance with applicable federal and state securities
laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement, (v) in the case of Debt Securities,
(a) the applicable Indenture will be duly authorized, executed and delivered by the trustee named therein, (b) the applicable Indenture
will be duly qualified under the Trust Indenture Act of 1939, as amended, and the applicable trustee will be duly eligible to serve as
trustee, and (c) the Debt Securities will be duly authenticated by the trustee named in the applicable Indenture; (vi) any Unit
Agreement or Warrant Agreement, as applicable, will be duly authorized, executed and delivered by all parties thereto other than the
Company; (vii) a definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly
authorized and validly executed and delivered by the Company and the other parties thereto, (viii) any securities issuable upon conversion,
exchange, redemption or exercise of any Securities being offered will be duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange, redemption or exercise, (ix) the Securities as executed and delivered do not result in a default under
or breach of any agreement or instrument binding upon the Company, (x) with respect to shares of Common Stock offered, there will be
sufficient shares of Common Stock authorized under the Charter Documents and not otherwise reserved for issuance; and (xi) the Company
will be validly existing as a corporation and in good standing under the laws of the State of Delaware.
Based
upon, subject to and limited by the assumptions, qualifications and other limitations set forth herein, we are of the opinion that, as
of the date hereof:
1.
With respect to the Common Stock, when (i) specifically authorized for issuance by proper action of the Company’s Board of Directors
or an authorized committee thereof (the “Authorizing Resolutions”), (ii) the terms of the issuance and sale of the Common
Stock have been duly established in conformity with the Charter Documents, (iii) the shares of Common Stock have been issued and sold
as contemplated by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement, and (iv) the Company has
received the consideration provided for in the Authorizing Resolutions and the applicable underwriting agreement or other purchase agreement
and such consideration per share is not less than the par value per share of the Common Stock, the Common Stock will be validly issued,
fully paid and nonassessable.
2.
With respect to the Debt Securities, when (i) specifically authorized for issuance by Authorizing Resolutions, (ii) the applicable Indenture
has been duly authorized, executed and delivered, (iii) the terms of the Debt Securities and of their issuance and sale have been duly
established in conformity with the applicable Indenture and the Authorizing Resolutions, (iv) such Debt Securities have been duly executed
and authenticated in accordance with the applicable Indenture and issued and sold as contemplated by the Registration Statement, the
Base Prospectus and the applicable Prospectus Supplement, and (v) the Company has received the consideration provided for in the Authorizing
Resolutions and the applicable underwriting agreement or other purchase agreement, such Debt Securities will constitute valid and binding
obligations of the Company enforceable against the Company in accordance with their terms, except that the enforceability thereof may
be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance or moratorium or other similar laws now or
hereafter existing which affect the rights and remedies of creditors generally and equitable principles of general applicability.
3.
With respect to the Warrants, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable Warrant
Agreement relating to the Warrants has been duly authorized, executed and delivered, (iii) the terms of the Warrants and of their issuance
and sale have been duly established in conformity with the applicable Warrant Agreement and the Authorizing Resolutions, (iv) the Warrants
have been duly executed and countersigned in accordance with the applicable Warrant Agreement and issued and sold as contemplated by
the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement, and (v) the Company has received the consideration
provided for in the Authorizing Resolutions and the applicable underwriting agreement or other purchase agreement, such Warrants will
constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except that the
enforceability thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance or moratorium or
other similar laws now or hereafter existing which affect the rights and remedies of creditors generally and equitable principles of
general applicability.
4.
With respect to the Units, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable Unit Agreement
has been duly authorized, executed and delivered, (iii) the terms of the Units and of their issuance and sale have been duly established
in conformity with the applicable Unit Agreement and the Authorizing Resolutions, (iv) the Units have been duly executed and delivered
in accordance with the applicable Unit Agreement and issued and sold as contemplated by the Registration Statement, the Base Prospectus
and the applicable Prospectus Supplement, and (v) the Company has received the consideration provided for in the Authorizing Resolutions
and the applicable underwriting agreement or other purchase agreement, such Units will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, except that the enforceability thereof may be limited by or subject
to bankruptcy, reorganization, insolvency, fraudulent conveyance or moratorium or other similar laws now or hereafter existing which
affect the rights and remedies of creditors generally and equitable principles of general applicability.
We
express no opinion as to the applicability of, compliance with or effect of the laws of any jurisdiction other than the General Corporation
Law of the State of Delaware and, to the extent relevant to the opinions expressed herein, the laws of the State of New York.
This
opinion speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance
of any kind, including any change of law or fact, that may occur after the date of this opinion that might affect the opinions expressed
herein.
We
hereby consent to the submission of this opinion to the Commission as an exhibit to the Registration Statement. We hereby also consent
to the reference to our Firm under the caption “Legal Matters” in the Registration Statement. We do not admit in providing
such consent that we are included within the category of persons whose consent is required under Section 7 of the Securities Act and
the rules and regulations of the Commission thereunder.
|
Very
truly yours, |
|
|
|
/s/
Greenberg Traurig, P.A. |
|
Greenberg
Traurig, P.A. |
Exhibit
23.2
Somekh
Chaikin
17
Ha’arba’a Street, PO Box 609
KPMG
Millennium Tower
Tel
Aviv 6100601, Israel
+972
3 684 8000
Consent
of Independent Registered Public Accounting Firm
We
consent to the use of our report dated April 14, 2023, with respect to the consolidated financial statements of My Size, Inc., incorporated
herein by reference and to the reference to our firm under the heading “Experts” in the prospectus.
/s/
Somekh Chaikin |
|
Somekh
Chaikin |
|
|
|
Member
Firm of KMPG International |
|
Tel
Aviv, Israel
December
22, 2023
KPMG
Somekh Chaikin, an Israeli partnership and a member firm of the KPMG global organization of independent member
firms affiliated with
KPMG International Limited, a private English company limited by guarantee
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
My
Size, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities and Carry Forward Securities
| |
Security Type | |
Security Class Title | |
Fee Calculation or Carry Forward Rule | | |
Amount Registered (1) | | |
Proposed Maximum Offering Price Per Unit (2) | | |
Maximum Aggregate Offering Price (3) | | |
Fee Rate | | |
Amount of Registration Fee | |
Fees to Be Paid | |
Equity | |
Common Stock, $0.001 par value per share (5) | |
| 457(o) | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Fees to Be Paid | |
Other | |
Debt Securities | |
| 457(o) | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Fees to Be Paid | |
Other | |
Warrants | |
| 457(o) | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Fees to Be Paid | |
Other | |
Units | |
| 457(o) | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
Fees to Be Paid | |
Unallocated (Universal) Shelf | |
Unallocated (Universal) Shelf | |
| 457(o) | | |
| | (2) | |
| | (3) | |
$ | 100,000,000 | | |
| 0.0001476 | | |
$ | 14,760.00 | (4) |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total Offering Amounts | | |
| | | |
| | | |
| | | |
$ | 14,760.00 | |
| |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| — | |
| |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
$ | 7,361.52 | |
| |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 7,398.48 | (5)(6) |
(1) |
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 (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. |
|
|
(2) |
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. |
|
|
(3) |
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. |
|
|
(4) |
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. |
|
|
(5) |
The
registration fee has been calculated in accordance with Rule 457(o) under the Securities Act. |
|
|
(6) |
The
Registrant previously filed a Registration Statement on Form S-3 with the Securities and Exchange Commission on December 23, 2020
(File No. 333-251679), which was declared effective on December 30, 2020 (the “Prior Registration Statement”), that registered
an aggregate of $100,000,000 of an indeterminate number of securities to be offered by the Registrant from time to time. Of the $100,000,000
of securities registered on the Prior Registration Statement, for which the Registrant paid a filing fee of $7,361.52 after giving
effect to a fee offset. In connection therewith, $90,204,074.95 of the securities remain unsold, leaving $9,940.49 in previously
paid fees available for future offset (calculated at the fee rate in effect on the filing date of the Prior Registration Statement).
In accordance with Rule 457(p) under the Securities Act, the Registrant is using $7,361.52 of the unused filing fees to offset the
filing fee payable in connection with this filing. Accordingly, a registration fee of $7,398.48 is due to be paid at this time. Concurrently
with the effectiveness of this registration statement, any offering of unsold securities pursuant to the Prior Registration Statement
is hereby terminated. |
Table
2: Fee Offset Claims and Sources
| |
Registrant or Filer Name | |
Form or Filing Type | |
File Number | |
Initial Filing Date | |
Filing Date | |
Fee Offset Claimed | | |
Security Type Associated with Fee Offset Claimed | |
Security Title Associated with Fee Offset Claimed | | |
Unsold Securities Associated with Fee Offset Claimed | |
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed | | |
Fee Paid with Fee Offset Source | |
Rule 457(p) |
Fee Offset Claims | |
My Size, Inc. | |
S-3 | |
333-251679 | |
December 23, 2020 | |
| |
$ | 7,361.52 | | |
Unallocated (Universal) Shelf | |
| | (1) | |
Unallocated (Universal) Shelf | |
$ | 90,204,074.95 | | |
| | |
Fee Offset Sources | |
My Size, Inc. | |
S-3 | |
333-251679 | |
| |
December 23, 2020 | |
| | | |
| |
| | | |
| |
| | | |
$ | 7,398.48 | |
(1) |
Pursuant
to Rule 457(p) under the Securities Act, the Registrant is offsetting the registration fee due under this registration statement
by $7,361.52, which represents the portion of the registration fee previously paid (after offset) with respect to $90,204,074.95
of unsold securities (the “Unsold Offset Securities”) previously registered on the Prior Registration Statement. The
offering of the Unsold Offset Securities pursuant to the Prior Registration Statement associated with the claimed fee offset pursuant
to Rule 457(p) have been completed or terminated. |
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