As
filed with the Securities and Exchange Commission on August 3, 2023
Registration
No. 333-273080
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Pre-Effective Amendment No. 1
To
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KIDPIK
CORP.
(Exact
name of registrant in its charter)
Delaware
(State
or jurisdiction of incorporation or organization)
81-3640708
(I.R.S.
Employer Identification Number)
200
Park Avenue South, 3rd Floor
New
York, New York 10003
(212)
399-2323
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
Ezra
Dabah,
Chief
Executive Officer
200
Park Avenue South, 3rd Floor
New
York, New York 10003
(212)
399-2323
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies
To:
David
M. Loev, Esq.
John
S. Gillies, Esq.
The
Loev Law Firm, PC
6300
West Loop South, Suite 280
Bellaire,
Texas 77401
Telephone:
(713) 524-4110
Facsimile:
(713) 524-4122
Email:
dloev@loevlaw.com;
john@loevlaw.com
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as
determined by market conditions and other factors.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ☐ |
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Accelerated
filer ☐ |
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Non-accelerated
filer ☒ |
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Smaller
reporting company ☒ |
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Emerging
growth company ☒ |
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 which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the
Securities and Exchange Commission acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities
until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting offers to buy these securities in any state or jurisdiction where such offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED AUGUST 3, 2023
PROSPECTUS
$10,000,000
Kidpik
Corp.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may from time to time, in one or more offerings at prices and on terms that we will determine at the time of each offering, sell common
stock, preferred stock, debt securities, warrants, or a combination of these securities or units (collectively referred to as “securities”)
for an aggregate initial offering price of up to $10 million. The preferred stock may be convertible into shares of our common stock
or shares of our preferred stock. The warrants may be exercisable for shares of our common stock or shares of our preferred stock or
debt securities. The units may consist of any combination of the other types of securities described in this prospectus. This prospectus
describes the general manner in which our securities may be offered using this prospectus. Each time we offer and sell securities, we
will provide you with a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related
free writing prospectus may also add, update, or change information contained in this prospectus. You should carefully read this prospectus,
the applicable prospectus supplement and any related free writing prospectus as well as the documents incorporated or deemed to be incorporated
by reference herein or therein before you purchase any of the securities offered hereby.
This
prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered securities.
Securities
may be sold by us to or through underwriters or dealers, directly to purchasers or through agents designated from time to time. For additional
information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus. If
any underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such
underwriters and any applicable discounts or commissions and over-allotment options will be set forth in a prospectus supplement. The
price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus
supplement.
Our
common stock is currently quoted on the Nasdaq Capital Market (“Nasdaq”) under the symbol “PIK”.
The closing sales price of our common stock on August 2, 2023 was $0.662 per share.
As of August 3, 2023,
the aggregate market value of our outstanding common stock held by non-affiliate (our “public float”), was $3,670,223,
based on 7,808,366 shares of common stock outstanding, of which 2,983,921 shares are held by non-affiliates, and a
per share price of $1.23, based on the closing sales price of our common stock on the Nasdaq Capital Market on June 26, 2023 (within
60 days prior to the date of filing). Therefore, as of August 3, 2023, the aggregate market value of our common equity held by
non-affiliates was less than $75,000,000, as calculated in accordance with General Instruction I.B.1 of Form S-3. As of the date of this
prospectus, we have not offered and sold securities pursuant to General Instruction I.B.6 to Form S-3 during the 12-calendar month period
that ends on and includes the date hereof. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities in
a public primary offering with a value exceeding more than one-third of our “public float” (the market value of our common
stock held by our non-affiliates) in any 12-month period so long as our public float remains below $75,000,000.
There
is currently no market for the other securities we may offer. The applicable prospectus supplement will contain information, where applicable,
as to other listings, if any, on the Nasdaq Capital Market or other securities exchange of the securities covered by the prospectus supplement.
We urge you to read carefully this prospectus and the accompanying prospectus supplement, which will describe the specific terms of the
securities being offered to you, before you make your investment decision.
This
prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement. The information contained or
incorporated in this prospectus or in the prospectus supplement(s) is accurate only as of the date of this prospectus, or such prospectus
supplement, as applicable, regardless of the time of delivery of this prospectus or any sale of our securities.
Investing
in our securities involves risks. You should carefully consider the risk factors under, and incorporated by reference in,
“Risk Factors” beginning on page 7 of this prospectus and the discussion of risk factors contained in our annual,
quarterly and current reports filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended, which are incorporated by reference into this prospectus, and in the other documents incorporated by reference herein,
before making any decision to invest in our securities.
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. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2023.
IMPORTANT
NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS
AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We
may provide information to you about the securities we are offering in three separate documents that progressively provide more detail:
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this
prospectus, which provides general information, some of which may not apply to your securities; |
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a
prospectus supplement or supplements (including any free writing prospectus), which describes the terms of the securities, some of
which may not apply to your securities and which may not include information relating to the prices of the securities being offered;
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if
necessary, a pricing supplement, which describes the pricing terms of your securities. |
If
the terms of your securities vary among the pricing supplement, the prospectus supplement and the prospectus, you should rely on the
information in the following order of priority:
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the
pricing supplement, if any; |
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the
prospectus supplement(s) (including any free writing prospectus); and |
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this
prospectus. |
We
include cross-references in this prospectus and the prospectus supplement(s) to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents included in the prospectus supplement(s) provide the pages
on which these captions are located.
Unless
indicated in the applicable prospectus supplement(s) or free writing prospectus, we have not taken any action that would permit us to
publicly sell these securities in any jurisdiction outside the United States. If you are an investor outside the United States, you should
inform yourself about and comply with any restrictions as to the offering of the securities and the distribution of this prospectus.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission, the SEC or the Commission,
utilizing a “shelf” registration process. Under this shelf registration process, we may offer to sell any combination
of the securities described in this prospectus, either individually or in units, in one or more offerings up to a total dollar amount
of $10,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities
under this shelf registration, we will provide a prospectus supplement that will contain specific information about the terms of that
offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information about
the terms of that offering. 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. To the extent that any statement that we make in a prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you is inconsistent with statements made in
this prospectus, the statements made in this prospectus will be deemed modified or superseded by those made in the prospectus supplement(s).
You should read this prospectus and any prospectus supplement(s) and free writing prospectus, including all documents incorporated herein
or therein by reference, together with additional information described under “Where You Can Find More Information” and “Incorporation of Certain Documents By Reference” before making an investment decision. We may only use this prospectus to sell the securities
if it is accompanied by a prospectus supplement(s).
You
should rely only on the information included or incorporated by reference in this prospectus, the accompanying prospectus supplement(s)
and any free writing prospectus. We have not authorized any dealer, salesman or other person to provide you with additional or different
information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus, the accompanying
prospectus supplement(s) and any free writing prospectus are not an offer to sell or the solicitation of an offer to buy any securities
other than the securities to which they relate and are not 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 an offer or solicitation in that jurisdiction. You should not assume that the
information contained in this prospectus and the accompanying prospectus supplement(s), and any 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 previously filed with the SEC
and incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this
prospectus and any accompanying prospectus supplement(s) and any free writing prospectus is delivered or securities are sold on a later
date. Our business, financial condition, results of operations and prospects may have changed since those dates. We will disclose any
material changes in our affairs in a post-effective amendment to the registration statement of which this prospectus is a part, a prospectus
supplement, free writing prospectus or a future filing with the Securities and Exchange Commission incorporated by reference in this
prospectus. We do not imply or represent by delivering this prospectus that Kidpik Corp., or its business, financial condition or results
of operations, are unchanged after the date on the front of this prospectus or that the information in this prospectus is correct at
any time after such date.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Persons
outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating
to, the offering of the securities and the distribution of this prospectus outside of the United States.
Our
logo and some of our trademarks and tradenames are used in this prospectus and the applicable prospectus supplement(s) and the documents
incorporated by reference herein and therein and any free writing prospectus. This prospectus and the applicable prospectus supplement(s)
and the documents incorporated by reference herein and therein and any free writing prospectus also include trademarks, tradenames and
service marks that are the property of others. Solely for convenience, trademarks, tradenames and service marks referred to in this prospectus
and the applicable prospectus supplement(s) and the documents incorporated by reference herein and therein and any free writing prospectus
may appear without the ®, ™ and SM symbols. References to our trademarks, tradenames and service marks are not intended to
indicate in any way that we will not assert to the fullest extent under applicable law our rights or the rights of the applicable licensors
if any, nor that respective owners to other intellectual property rights will not assert, to the fullest extent under applicable law,
their rights thereto. We do not intend the use or display of other companies’ trademarks and trade names to imply a relationship
with, or endorsement or sponsorship of us by, any other companies.
You
should carefully read the entire prospectus, as well as the documents incorporated by reference in the prospectus, the applicable prospectus
supplement(s) and any applicable “free writing prospectus” before making an investment decision.
The
market data and certain other statistical information used throughout this prospectus and the applicable prospectus supplement(s) are
incorporated by reference herein and therein, are based on independent industry publications, reports by market research firms or other
independent sources that we believe to be reliable sources. Industry publications and third-party research, surveys and studies generally
indicate that their information has been obtained from sources believed to be reliable, although they do not guarantee the accuracy or
completeness of such information. We are responsible for all of the disclosures contained in this prospectus and the applicable prospectus
supplement(s) and incorporated herein and therein by reference, and we believe these industry publications and third-party research,
surveys and studies are reliable. While we are not aware of any misstatements regarding any third-party information presented in this
prospectus and the applicable prospectus supplement(s) or incorporated herein or therein by reference, their estimates, in particular,
as they relate to projections, involve numerous assumptions, are subject to risks and uncertainties, and are subject to change based
on various factors, including those discussed under, and incorporated by reference in, the section entitled “Risk Factors”
of this prospectus and the applicable prospectus supplement(s). These and other factors could cause our future performance to differ
materially from our assumptions and estimates. Some market and other data included herein and the applicable prospectus supplement(s),
as well as the data of competitors as they relate to Kidpik Corp., is also based on our good faith estimates.
Unless
the context otherwise requires, references in this prospectus and the applicable prospectus supplement(s) and any free writing prospectus
to “we,” “us,” “our,” the “Registrant,” “Kidpik”,
the “Company,” refers to Kidpik Corp. In addition, unless the context otherwise requires, “Exchange Act”
refers to the Securities Exchange Act of 1934, as amended; “SEC” or the “Commission” refers to
the United States Securities and Exchange Commission; and “Securities Act” refers to the Securities Act of 1933, as
amended. All dollar amounts in this prospectus are in U.S. dollars unless otherwise stated. You should read the entire prospectus before
making an investment decision to purchase our securities.
The
registration statement containing this prospectus, including the exhibits to the registration statement, provides additional information
about us and the securities offered pursuant to this prospectus. For a more complete understanding of the offering of the securities,
you should refer to the registration statement, including its exhibits. The registration statement can be read on the SEC’s website
mentioned under the heading “Where You Can Find More Information”, below.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
We
file reports, proxy statements, and other information with the SEC. Such reports, proxy statements, and other information concerning
us can be read on the Internet at the SEC’s website http://www.sec.gov.
This
prospectus is part of a registration statement filed with the SEC by us. The full registration statement can be obtained from the SEC
as indicated above, or from us.
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus and each prospectus supplement,
which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The
information incorporated by reference is deemed to be part of this prospectus and each prospectus supplement, and subsequent information
that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus and each
prospectus supplement or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this prospectus, each prospectus supplement or a subsequently filed document
incorporated by reference modifies or replaces that statement.
We
incorporate by reference in this prospectus (i) the documents listed below, (ii) all reports and documents that we file with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the initial filing of the registration statement that contains this
prospectus and prior to the effectiveness of such registration statement, and (iii) and any future filings that we may make with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act on or after the date of this prospectus and prior to the termination
of the offering under this prospectus; provided, however, that we are not incorporating, in each case, any documents or information deemed
to have been furnished and not filed in accordance with SEC rules (including Items 2.02 and 7.01 of Form 8-K):
(a)
The Company’s Annual Report
on Form 10-K for the year ended December 31, 2022 (the “Annual Report”), as filed with the SEC on March 31,
2023;
(b)
The Company’s Quarterly
Report on Form 10-Q for the quarter ended April 1, 2023, filed with the SEC on May 16, 2023;
(c)
The portions of the Company’s Definitive Proxy Statement on Schedule
14A, filed with the SEC on May 1, 2023, for the 2023 annual meeting of stockholders incorporated by reference in the Annual
Report on Form 10-K for the fiscal year ended December 31, 2022;
(d)
The Company’s Current Reports on Form 8-K and Form 8-K/A (other than information furnished rather than filed) filed with the
SEC on March 23, 2023, June
20, 2023 and July 7, 2023;
(e)
The description of our common stock contained in our Registration Statement on Form
8- A, filed with the SEC on November 5, 2021 (File No. 001-41032), as updated by the description of our common stock contained
in Exhibit 4.1 to our Annual Report on
Form 10-K for the year ended January 1, 2022, and as subsequently amended or updated.
Our
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, including any amendments to those reports,
and other information that we file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed
free of charge on the Investor Relations section of our website, which is located at https://investor.kidpik.com. These filings will
be available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Our website
address is www.kidpik.com. Information contained on or accessible through our website is not a part of this prospectus and is not incorporated
by reference herein, and the inclusion of our website address in this prospectus is an inactive textual reference only.
Upon
request, we will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered,
a copy of the documents incorporated by reference into this prospectus but not delivered with the prospectus. You may make a request
for copies of these filings, and any exhibits we have specifically incorporated by reference as an exhibit in this prospectus, at no
cost by writing or by telephone. Requests should be directed to:
Kidpik
Corp.
200
Park Avenue South, 3rd Floor
New
York, New York 10003
Attn:
Moshe Dabah, Secretary
Phone:
(212) 399-2323
Exhibits
to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus and
the applicable prospectus supplement and any free writing prospectus.
Any
statement contained in a document incorporated by reference into this prospectus shall be deemed to be modified or superseded for the
purposes of this prospectus to the extent that a statement contained herein or in any subsequently filed document that is also incorporated
by reference in this prospectus modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this prospectus or any prospectus supplement.
PROSPECTUS
SUMMARY
The
following summary highlights material information found in more detail elsewhere in, or incorporated by reference in, the prospectus.
It does not contain all of the information you should consider. As such, before you decide to buy our securities, in addition to the
following summary, we urge you to carefully read the entire prospectus and documents incorporated by reference herein, the prospectus
supplement, and any free writing prospectus, especially the risks of investing in our securities as discussed under, and incorporated
by reference in, the sections entitled “Risk Factors” herein and therein. The following summary is qualified in its
entirety by the detailed information appearing elsewhere in this prospectus.
Overview
We
began operations in 2016 as a subscription-based e-commerce company on the proposition of making shopping easy, convenient, and accessible
for parents by delivering fashionable and customized kids’ outfits in a box. Kidpik provides kids clothing subscription boxes for
boys and girls (sizes 12M-16) that include mix-&-match, coordinated outfits that are personalized based on each member’s style
preferences. We focus on providing entire outfits from head-to-toe (including shoes) by designing each seasonal collection in-house from
concept to box.
Staying
ahead in an emerging industry requires constant innovation in product and services. After launching with our girls’ subscription
boxes for sizes 4-14 in 2016, we have continued to expand our product offering and marketing channels. We expanded into boys’ clothing,
added larger sizes for boys and girls (up to 16 for apparel and 6 youth for shoes), in the Spring of 2022, added toddler sizes down to
2T & 3T for apparel and 7 & 8 toddler shoes, and launched shop.kidpik.com, where we sell individual apparel items and shoes,
curated outfits, pre-styled boxes and our 2 for basics. During the second quarter of 2022, we introduced sizes 12 months and 18 months
apparel to our offerings. We have expanded our distribution by selling our branded products on Amazon.com, as well as Fulfilled by Amazon
(FBA) and Fulfilled by Merchant (FBM) for pre-packs and individual items.
We
also introduced an “add-on” option for all members, whereby they can add additional items of their choosing to their next
subscription box order. We plan to broaden the assortment of add-on items offered in an effort to increase the average box transaction
size and gross margin. During the second quarter of 2022, we expanded our subscription box offerings, introducing a 12-piece box option
in addition to our traditional 8-piece box, adding to the customer experience and providing an opportunity to drive additional revenue.
We have also expanded our seasonal pre-styled fashion box and outfit assortment available on our e-commerce website, which provides an
upsell opportunity for active members and additional variety for our e-commerce customers.
As
of the date of this prospectus, we provide e-commerce services throughout the 48 contiguous U.S. states and Army Post Offices (APOs)
and Fleet Post Offices (FPOs).
We
have expanded our offerings with the introduction of husky/plus and slim sizes to our assortment and launched a limited-edition NASA
selection during the third quarter of 2022.
We
have added new channels to our paid advertising strategy, including Tap Joy and new affiliate partnerships, with the goal of increasing
new member growth. In addition, we have focused on other revenue share marketing opportunities, such as continuing to scale our influencer
ambassador program, and launched a consumer-facing brand ambassador program. We are also pursuing new awareness strategies, such as cross-promotional
opportunities with children’s companies with brand synergies.
*****
Additional
Information
Additional
information about us can be obtained from the documents incorporated by reference herein. See “Where You Can Find More Information”.
Our
Contact Information
Our
executive offices are located at 200 Park Avenue South, 3rd Floor, New York, New York 10003, and our telephone number is (212) 399-2323.
Our corporate website address is www.kidpik.com. Information contained on, or accessible through, our websites are not a part
of, and are not incorporated by reference into, this prospectus.
*****
THIS
PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY SECURITIES
UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
*****
SECURITIES
REGISTERED HEREBY THAT WE MAY OFFER
We
may offer any of the following securities, either individually or in combination, with a total value of up to $10,000,000 from time to
time under this prospectus at prices and on terms to be determined by market conditions at the time of the offering:
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common
stock; |
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preferred
stock, in one or more series; |
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debt
securities; |
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warrants
to purchase shares of common stock, shares of preferred stock or debt securities; or |
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any
combination of the foregoing securities, in units. |
We
refer to our common stock, preferred stock, debt securities, warrants, and units collectively in this prospectus as the “securities.”
This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities,
we will provide a prospectus supplement and may provide a free writing prospectus that will describe the specific amounts, prices and
other important terms of the securities, including, to the extent applicable:
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designation
or classification; |
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aggregate
offering price; |
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rates
and times of payment of dividends, if any; |
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redemption,
conversion or sinking fund terms, if any; |
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voting
or other rights, if any; |
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conversion
prices, if any; and |
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important
federal income tax considerations. |
We
may sell the securities to or through underwriters or dealers, directly to purchasers or through agents designated from time to time.
We and our agents, underwriters and dealers reserve the right to accept or reject all or part of any proposed purchase of securities.
If we do offer securities to or through agents, underwriters or dealers, we will include in the applicable prospectus supplement:
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the
names of those agents, underwriters or dealers; |
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applicable
fees, discounts and commissions to be paid to them; |
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details
regarding over-allotment options, if any; and |
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the
net proceeds to us. |
Common
Stock. We may offer shares of our common stock. Our common stock currently is listed on the Nasdaq Capital Market under the
symbol “PIK”. Shares of common stock that may be offered in this offering will, when issued and paid for, be fully
paid and non-assessable. We have summarized certain general features of our stock under “Description of Common Stock.” We
urge you to read our Certificate of Incorporation, as amended, and our Bylaws, as well as the applicable prospectus supplement, and any
related free writing prospectus that we may authorize to be provided to you, related to any offering of our common stock.
Preferred
Stock. We may offer shares of our preferred stock, in one or more series. Prior to the issuance of shares of each series,
our Board of Directors will determine the rights, preferences, privileges and restrictions of such preferred stock series, and will adopt
resolutions and file a certificate of designations with the Secretary of State of the State of Delaware. The certificate of designations
fixes for each class or series the designations, powers, preferences, rights, qualifications, limitations and restrictions, including,
but not limited to, the following: any dividend rights, conversion rights, voting rights, rights and terms of redemption, liquidation
preferences, sinking fund terms and the number of shares constituting any series or the designation of any series. Convertible preferred
stock will be convertible into shares of our common stock or preferred stock. Conversion may be mandatory or at your option and would
be at prescribed conversion rates. Shares of preferred stock that may be offered in this offering will, when issued and paid for, be
fully paid and non-assessable. If we elect to issue preferred stock, we will describe the specific terms of a particular series of preferred
stock in the prospectus supplement relating to that series. We will file as an exhibit to the registration statement of which this prospectus
is a part, or will incorporate by reference from another report that we file with the SEC, the certificate of designations that describes
the terms of any series of preferred stock we offer under this prospectus before the issuance of shares of that series of preferred stock.
You should read the prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the
series of preferred stock being offered. We have summarized certain general features of the preferred stock under “Description of Preferred Stock.” We urge you to read the complete certificate of designations containing the terms of the applicable series
of preferred stock, as well as the applicable prospectus supplement, and any related free writing prospectus that we may authorize to
be provided to you, related to such series.
Debt
Securities. We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt
or as senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated
debt. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described
in the instrument governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable
for our common stock or other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.
Any
debt securities issued under this prospectus will be issued under one or more documents called indentures, which are contracts between
us and a national banking association or other eligible party, as trustee. In this prospectus, we have summarized certain general features
of the debt securities under “Description of Debt Securities.” We urge you, however, to read the applicable prospectus supplement
(and any free writing prospectus that we may authorize to be provided to you) related to the series of debt securities being offered,
as well as the complete indentures that contain the terms of the debt securities. We have filed the form of indenture as an exhibit to
the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the
terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part
or will be incorporated by reference from reports that we file with the SEC.
Warrants.
We may issue warrants for the purchase of shares of common stock, shares of preferred stock in one or more series, and/or debt securities
in one or more series. We may issue warrants independently or in combination with common stock, preferred stock, and/or debt securities.
In this prospectus, we have summarized certain general features of the warrants under “Description of Warrants.” We urge
you, however, to read the applicable prospectus supplement, and any related free writing prospectus that we may authorize to be provided
to you, related to the particular series of warrants being offered, as well as the form of warrant and/or the warrant agreement and warrant
certificate, as applicable, that contain the terms 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 reports that we file with the SEC, the form of warrant and/or the warrant
agreement and warrant certificate, as applicable, that describe the terms of the particular series of warrants we are offering, and any
supplemental agreements, before the issuance of such warrants.
Any
warrants issued under this prospectus may be evidenced by warrant certificates. Warrants also may be issued under an applicable warrant
agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if any, in the applicable
prospectus supplement relating to a particular series of warrants.
Units.
We may issue units representing any combination of common stock, preferred stock, debt securities and/or warrants from time to time.
The units may be issued under one or more unit agreements. In this prospectus, we have summarized certain general features of the units.
We
will incorporate by reference into the registration statement, of which this prospectus is a part, the form of unit agreement under which
the units are designated, if any, describing the terms of the units we are offering before the issuance of the related units. We have
summarized certain general features of the units under “Description of Units.” We urge you to read the prospectus
supplements related to any units being offered, as well as the complete unit agreement, if any, designating the units.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities
will, and any free writing prospectus may, contain a discussion of the risks applicable to an investment in our securities. Prior to
making a decision about investing in our securities, you should carefully consider the specific factors discussed under the heading “Risk
Factors” in the applicable prospectus supplement and any information contained in any free writing prospectus, together with
all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference
in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,”
in our most recent Annual Report on Form 10-K, and Item 1A, “Risk Factors” in our most recent Quarterly Report on
Form 10-Q, all of which are incorporated herein by reference, as such may be amended, supplemented or superseded from time to time by
other reports we file with the Securities and Exchange Commission in the future. For more information, see “Incorporation of Certain Documents by Reference.” The risks and uncertainties we have described are not the only ones we face. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may also affect our business and operations. If one or more
of the possibilities described as risks actually occurs, our operating results and financial condition would likely suffer and the trading
price of our securities could fall, causing you to lose some or all of your investment in the securities we are offering. In addition,
please read “Forward-Looking Statements” in this prospectus, below, where we describe additional uncertainties associated
with our business and the forward-looking statements included or incorporated by reference in this prospectus.
FORWARD-LOOKING
STATEMENTS
This
prospectus contains, and the prospectus supplement will contain, forward-looking statements within the meaning of the federal securities
laws, including the Private Securities Litigation Reform Act of 1995. In some cases, you can identify forward-looking statements by the
following words: “anticipate,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “ongoing,”
“plan,” “potential,” “predict,” “project,” “should,”
or the negative of these terms or other comparable terminology, although not all forward-looking statements contain these words. Forward-looking
statements are not a guarantee of future performance or results, and will not necessarily be accurate indications of the times at, or
by, which such performance or results will be achieved. Forward-looking statements are based on information available at the time the
statements are made and involve known and unknown risks, uncertainties and other factors that may cause our results, levels of activity,
performance or achievements to be materially different from the information expressed or implied by the forward-looking statements in
this prospectus and the prospectus supplement. These factors include, but are not limited to, the risk factors included under or incorporated
by reference in, “Risk Factors” above and under “Risk Factors” in any prospectus supplement and
filings incorporated by reference herein and therein.
You
should read this prospectus and the prospectus supplement, those documents incorporated by reference herein and therein, and those documents
which we have filed with the SEC as exhibits to the registration statement, of which this prospectus is a part, completely and with the
understanding that our actual future results may be materially different from any future results expressed or implied by these forward-looking
statements.
Forward-looking
statements speak only as of the date of this prospectus or the date of any document incorporated by reference in this prospectus, and
the prospectus supplement(s) and the documents incorporated therein, as applicable and any free writing prospectus, as applicable. Except
to the extent required by applicable law or regulation, we do not undertake any obligation to update forward-looking statements to reflect
events or circumstances after the date of this prospectus, any prospectus supplement or any free writing prospectus or to reflect the
occurrence of unanticipated events.
You
should also consider carefully the statements under and incorporated by reference in “Risk Factors” in this prospectus,
any prospectus supplement, and other sections of this prospectus, and the documents we incorporate by reference, and the prospectus supplement(s)
and the documents incorporated therein and any free writing prospectus, which address additional facts that could cause our actual results
to differ from those set forth in the forward-looking statements. We caution investors not to place significant reliance on the forward-looking
statements contained in this prospectus, and the documents we incorporate by reference, the prospectus supplement(s) and the documents
incorporated therein and any free writing prospectus. We undertake no obligation to publicly update or review any forward-looking statements,
whether as a result of new information, future developments or otherwise, except as otherwise required by law.
You
should read this prospectus and the documents that we reference in this prospectus, and the prospectus supplement and the documents incorporated
therein and any free writing prospectus, and those documents we have filed as exhibits to the registration statement, of which this prospectus
is a part, completely and with the understanding that our actual future results may be materially different from what we expect. We qualify
all of our forward-looking statements by these cautionary statements.
USE
OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities offered
in the prospectus and the prospectus supplement for working capital and general corporate purposes. We may also use a portion of the
net proceeds to acquire or invest in businesses and assets that are complementary to our own, although we have no current plans, commitments
or agreements with respect to any acquisitions as of the date of this prospectus. Pending the uses described above, we intend to invest
the net proceeds in short-term, interest bearing, investment-grade securities. The intended application of proceeds from the sale of
any particular offering of securities using this prospectus will be described in the applicable prospectus supplement(s) and any free
writing prospectus relating to such offering. The precise amount and timing of the application of these proceeds will depend on our funding
requirements and the availability and costs of other funds.
DESCRIPTION
OF COMMON STOCK
The
total number of authorized shares of our common stock is 75,000,000 shares, par value $0.001 per share, and the total number of authorized
shares of our preferred stock 25,000,000 shares, par value $0.001 per share.
As
of the date of this prospectus, we have 7,808,366 shares of our common stock outstanding and no shares of preferred stock designated,
or issued and outstanding.
The
following description of our capital stock is a summary only and is subject to and qualified in its entirety by reference to the applicable
provisions of Delaware General Corporation Law, and our charter and Bylaws, copies of which are incorporated by reference as exhibits
to the registration statement of which this prospectus forms a part. Please refer to the “Where You Can Find More Information”
section of this prospectus for directions on obtaining these documents. You should refer to, and read this summary together with, our
Certificate of Incorporation, designations of preferred stock (if any) and Bylaws, each as amended and restated from time to time, to
review all of the terms of our capital stock. Our Certificate of Incorporation and amendments thereto are incorporated by reference as
exhibits to the registration statement of which this prospectus is a part and other reports incorporated by reference herein.
Common
Stock
Voting
Rights. Each share of our common stock is entitled to one vote on all stockholder matters. Shares of our common stock do not
possess any cumulative voting rights.
Except
for the election of directors, if a quorum is present, an action on a matter is approved if it receives the affirmative vote of the holders
of a majority of the voting power of the shares of capital stock present in person or represented by proxy at the meeting and entitled
to vote on the matter, unless otherwise required by applicable law, Delaware law, our Certificate of Incorporation, as amended or Bylaws,
as amended. The election of directors will be determined by a plurality of the votes cast in respect of the shares present in person
or represented by proxy at the meeting and entitled to vote, meaning that the nominees with the greatest number of votes cast, even if
less than a majority, will be elected. The rights, preferences and privileges of holders of common stock are subject to, and may be impacted
by, the rights of the holders of shares of any series of preferred stock that we have designated or may designate and issue in the future.
Dividend
Rights. Each share of our common stock is entitled to equal dividends and distributions per share with respect to the common
stock when, as and if declared by our Board of Directors, subject to any preferential or other rights of any outstanding preferred stock.
Liquidation
and Dissolution Rights. Upon liquidation, dissolution or winding up, our common stock will be entitled to receive pro rata on
a share-for-share basis, the assets available for distribution to the stockholders after payment of liabilities and payment of preferential
and other amounts, if any, payable on any outstanding preferred stock.
Fully
Paid Status. All outstanding shares of the Company’s common stock are validly issued, fully paid and non-assessable.
Other
Matters. No holder of any shares of our common stock has a preemptive right to subscribe for any of our securities, nor are any
shares of our common stock subject to redemption or convertible into other securities.
Anti-Takeover
Effects of Our Certificate and Bylaws
The
provisions of our Certificate and Bylaws summarized below may have an anti-takeover effect and may delay, defer or prevent a tender offer
or takeover attempt that you might consider in your best interest, including an attempt that might result in your receipt of a premium
over the market price for your shares. These provisions are also designed, in part, to encourage persons seeking to acquire control of
us to first negotiate with our Board of Directors, which could result in an improvement of their terms.
Authorized
but Unissued Shares of Common Stock. Shares of our authorized and unissued common stock are available for future issuances without
additional stockholder approval. While the additional shares are not designed to deter or prevent a change of control, under some circumstances
we could use the additional shares to create voting impediments or to frustrate persons seeking to affect a takeover or otherwise gain
control by, for example, issuing those shares in private placements to purchasers who might side with our Board of Directors in opposing
a hostile takeover bid.
Authorized
but Unissued Shares of Preferred Stock. Under our Certificate, our Board of Directors has the authority, without further action
by our stockholders, to issue up to 25,000,000 shares of preferred stock in one or more series and to fix the voting powers, designations,
preferences and the relative participating, optional or other special rights and qualifications, limitations and restrictions of each
series, including dividend rights, dividend rates, conversion rights, voting rights, terms of redemption, liquidation preferences and
the number of shares constituting any series. The existence of authorized but unissued preferred stock could reduce our attractiveness
as a target for an unsolicited takeover bid since we could, for example, issue shares of preferred stock to parties who might oppose
such a takeover bid or shares that contain terms the potential acquirer may find unattractive. This may have the effect of delaying or
preventing a change of control, may discourage bids for the common stock at a premium over the market price of the common stock, and
may adversely affect the market price of, and the voting and other rights of the holders of, our common stock.
Classified
Board of Directors. In accordance with the terms of our Certificate, our Board of Directors is divided into three classes, Class
I, Class II and Class III, with members of each class serving staggered three-year terms. Under our Certificate, our Board of Directors
consists of such number of directors as may be determined from time to time by resolution of the Board of Directors, but in no event
may the number of directors be less than one or more than fifteen. Any additional directorships resulting from an increase in the number
of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of the
directors. Our Certificate provides that any vacancy on our board of directors, including a vacancy resulting from an enlargement of
our board of directors, may be filled only by the affirmative vote of a majority of our directors then in office, even if less than a
quorum, or by a sole remaining director. Any director elected to fill a vacancy will hold office until such director’s successor
shall have been duly elected and qualified or until such director’s earlier death, resignation or removal. Our classified Board
of Directors could have the effect of delaying or discouraging an acquisition of us or a change in our management.
Removal
of Directors. As a result of our classified Board of Directors, our Bylaws provide that directors may be removed only for cause
and upon the affirmative vote of holders of at least a majority of the outstanding shares of common stock then entitled to vote at an
election of directors.
Special
Meetings of Stockholders. Our Bylaws provide that a special meeting of stockholders may be called only by the Board of Directors,
the Chairman of the Board of Directors, the President, a majority of the members of the Board of Directors or a committee of the Board
of Directors duly designated and whose powers and authority include the power to call meetings may call special meetings of the stockholders
of the Company or holders of at least 25% of all shares entitled to vote at the proposed special meeting. In the case of a stockholder
requested special meeting, upon receipt of such a request, the Board of Directors has the authority to determine the date, time and place
of such special meeting, which must be scheduled to be held on a date that is within ninety days of receipt by the Secretary of the request
therefor (provided such request is in compliance with the Company’s Bylaws).
Stockholder
Advance Notice Procedure. Our Bylaws establish an advance notice procedure for stockholders to make nominations of candidates
for election as directors or to bring other business before an annual meeting of our stockholders. The Bylaws provide that any stockholder
wishing to nominate persons for election as directors at, or bring other business before, an annual meeting must deliver to our corporate
secretary a written notice of the stockholder’s intention to do so. These provisions may have the effect of precluding the conduct
of certain business at a meeting if the proper procedures are not followed. We expect that these provisions may also discourage or deter
a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting
to obtain control of our company.
Forum
selection clause. Our Certificate provides that unless the Company consents in writing to the selection of an alternative forum
(an “Alternative Forum Consent”), the Court of Chancery of the State of Delaware is the sole and exclusive forum for:
(i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim for breach of a fiduciary
duty owed by any current or former director, officer, employee or stockholder of the Company to the Company or the Company’s stockholders,
(iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law (the “DGCL”),
the certificate of incorporation or the bylaws of the Company, each as amended, or (iv) any action asserting a claim governed by the
internal affairs doctrine; provided, however, that, in the event that the Court of Chancery of the State of Delaware lacks subject matter
jurisdiction over any such action or proceeding, the sole and exclusive forum for such action or proceeding shall be another state or
federal court located within the State of Delaware, in each such case, unless the Court of Chancery (or such other state or federal court
located within the State of Delaware, as applicable) has dismissed a prior action by the same plaintiff asserting the same claims because
such court lacked personal jurisdiction over an indispensable party named as a defendant therein.
The
following provisions would not however apply to suits brought to enforce a duty or liability created by the Securities Act, the Exchange
Act, or any other claim for which the U.S. federal courts have exclusive jurisdiction. Section 27 of the Exchange Act creates exclusive
federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations
thereunder and Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to
enforce any duty or liability created by the Securities Act, and an investor cannot waive compliance with the federal securities laws
and the rules and regulations thereunder. Notwithstanding the above, to prevent having to litigate claims in multiple jurisdictions and
the threat of inconsistent or contrary rulings by different courts, among other considerations, our Certificate provides that unless
the Company gives an Alternative Forum Consent, the U.S. federal district courts will be the exclusive forum for resolving any complaint
asserting a cause of action arising under the Securities Act. However, there is uncertainty as to whether a court would enforce such
a provision. While the Delaware courts have determined that such choice of forum provisions are facially valid, a stockholder may nevertheless
seek to bring a claim in a venue other than those designated in the exclusive forum provisions. In such instance, we would expect to
vigorously assert the validity and enforceability of the exclusive forum provisions of our Certificate. This may require significant
additional costs associated with resolving such action in other jurisdictions and there can be no assurance that the provisions will
be enforced by a court in those other jurisdictions.
These
exclusive forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes
with us or our directors, officers, or other employees, which may discourage lawsuits against us and our directors, officers and other
employees. If a court were to find either exclusive-forum provision in our vigorously assert the validity and enforceability to be inapplicable
or unenforceable in an action, we may incur further significant additional costs associated with resolving the dispute in other jurisdictions,
all of which could seriously harm our business.
Anti-Takeover
Effects Under Section 203 of Delaware General Corporation Law
We
are subject to Section 203 of Delaware General Corporation Law, which prohibits a Delaware corporation from engaging in any business
combination with any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder,
with the following exceptions:
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before
such date, the Board of Directors of the corporation approved either the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder; |
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upon
completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned
at least 85 percent of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes
of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares
owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or an exchange offer;
or |
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on
or after such date, the business combination is approved by our Board of Directors and authorized at an annual or a special meeting
of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3 percent of the outstanding voting stock
that is not owned by the interested stockholder. |
In
general, Section 203 defines “business combination” to include the following:
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any
merger or consolidation involving the corporation or any direct or indirect majority owned subsidiary of the corporation and the
interested stockholder or any other corporation, partnership, unincorporated association, or other entity if the merger or consolidation
is caused by the interested stockholder and as a result of such merger or consolidation the transaction is not excepted as described
above; |
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any
sale, transfer, pledge, or other disposition (in one transaction or a series) of 10% or more of the assets of the corporation involving
the interested stockholder; |
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subject
to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder; |
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any
transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series
of the corporation beneficially owned by the interested stockholder; or |
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the
receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges, or other financial benefits by or
through the corporation. |
In
general, Section 203 defines an “interested stockholder” as an entity or a person who, together with the person’s
affiliates and associates, beneficially owns, or within three years prior to the time of determination of interested stockholder status
did own, 15 percent or more of the outstanding voting stock of the corporation.
A
Delaware corporation may “opt out” of these provisions with an express provision in its original certificate of incorporation
or an express provision in its certificate of incorporation or bylaws resulting from a stockholders’ amendment approved by at least
a majority of the outstanding voting shares. We have not opted out of these provisions. As a result, mergers or other takeover or change
in control attempts of us may be discouraged or prevented.
The
provisions of Delaware law and the provisions of our Certificate and Bylaws could have the effect of discouraging others from attempting
hostile takeovers and, as a consequence, they might also inhibit temporary fluctuations in the market price of our common stock that
often result from actual or rumored hostile takeover attempts. These provisions might also have the effect of preventing changes in our
management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders might otherwise
deem to be in their best interests.
Transfer
Agent
The
transfer agent for our common stock is ClearTrust LLC, 16540 Pointe Village Dr Suite 205, Lutz,
FL 33558.
Quotation
on the Nasdaq Capital Market
Our
common stock is quoted on the Nasdaq Capital Market under the symbol “PIK”.
DESCRIPTION
OF PREFERRED STOCK
We
are authorized to issue 25,000,000 shares of preferred stock, $0.001 par value per share, of which no shares have been designated, or
are issued and outstanding as of the date of this prospectus.
General
Under
the terms of our Certificate of Incorporation, as amended, shares of Preferred Stock may be issued from time to time in one or more series,
each of which shall have such distinctive designation or title as shall be determined by our Board of Directors (“Board of Directors”)
prior to the issuance of any shares thereof. Preferred Stock shall have such voting powers, full or limited, or no voting powers, and
such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof,
as shall be stated in such resolution or resolutions providing for the issue of such class or series of Preferred Stock as may be adopted
from time to time by the Board of Directors prior to the issuance of any shares thereof.
The
powers, preferences and relative, participating, optional and other special rights of each class or series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.
A prospectus supplement relating to any series of preferred stock being offered will include specific terms relating to the offering.
Such prospectus supplement will include:
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the
title and stated or par value of the preferred stock; |
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the
number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock; |
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the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the preferred stock; |
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whether
dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall accumulate; |
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the
provisions for a sinking fund, if any, for the preferred stock; |
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any
voting rights of the preferred stock; |
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the
provisions for redemption, if applicable, of the preferred stock and any restriction on the repurchase or redemption of shares by
the Company while there is any arrearage in the payment of dividends or sinking fund installments; |
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any
listing of the preferred stock on any securities exchange; |
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the
terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock or preferred stock,
including the conversion price or the manner of calculating the conversion price and conversion period; |
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if
appropriate, a discussion of Federal income tax consequences applicable to the preferred stock; and |
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any
other specific terms, preferences, rights, limitations or restrictions of the preferred stock. |
The
terms, if any, on which the preferred stock may be convertible into or exchangeable for our common stock or preferred stock will also
be stated in the prospectus supplement. The terms will include provisions as to whether conversion or exchange is mandatory, at the option
of the holder and/or at our option, and may include provisions pursuant to which the number of shares of our common stock or preferred
stock to be received by the holders of preferred stock would be subject to adjustment.
When
we issue shares of preferred stock, the shares will be fully paid and non-assessable, which means the full purchase price of the shares
will have been paid and holders of the shares will not be assessed any additional monies for the shares. Unless the applicable prospectus
supplement indicates otherwise, each series of the preferred stock will rank equally with any outstanding shares of our preferred stock
and each other series of the preferred stock. Unless the applicable prospectus supplement states otherwise, the preferred stock will
have no preemptive rights to subscribe for any additional securities which are issued by us, meaning, the holders of shares of preferred
stock will have no right to buy any portion of the issued securities.
In
addition, unless the applicable prospectus indicates otherwise, we will have the right to “reopen” a previous issue
of a series of preferred stock by issuing additional preferred stock of such series.
The
transfer agent, registrar, dividend disbursing agent and redemption agent for shares of each series of preferred stock will be named
in the prospectus supplement relating to such series.
DESCRIPTION
OF DEBT SECURITIES
We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement
and any free writing prospectus. The terms of any debt securities offered under a prospectus supplement may differ from the terms described
below. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities.
We
will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will
be qualified under the Trust Indenture Act of 1939, as amended, or the “Trust Indenture Act.” We have filed the form
of indenture as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of
debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of
which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference
to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus
supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well
as the complete indenture that contains the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal
amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation,
merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants
or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition
or transactions involving us.
We
may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at
a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount,
may be issued with “original issue discount,” or “OID,” for U.S. federal income tax purposes because
of interest payment and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable
to debt securities issued with OID will be described in more detail in any applicable prospectus supplement.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
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the
title and form of the debt securities; |
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any
limit on the aggregate principal amount of the debt securities or the series of which they are a part; |
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the
person to whom any interest on a debt security of the series will be paid; |
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the
date or dates on which we must repay the principal; |
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the
rate or rates at which the debt securities will bear interest; |
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the
date or dates from which interest will accrue, and the dates on which we must pay interest; |
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the
place or places where we must pay the principal and any premium or interest on the debt securities; |
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the
terms and conditions on which we may redeem any debt security, if at all; |
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any
obligation to redeem or purchase any debt securities, and the terms and conditions on which we must do so; |
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the
denominations in which we may issue the debt securities; |
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the
manner in which we will determine the amount of principal of or any premium or interest on the debt securities; |
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the
currency in which we will pay the principal of and any premium or interest on the debt securities; |
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the
principal amount of the debt securities that we will pay upon declaration of acceleration of their maturity; |
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the
amount that will be deemed to be the principal amount for any purpose, including the principal amount that will be due and payable
upon any maturity or that will be deemed to be outstanding as of any date; |
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if
applicable, that the debt securities are defeasible and the terms of such defeasance; |
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if
applicable, the terms of any right to convert debt securities into, or exchange debt securities for, shares of our debt securities,
common stock, or other securities or property; |
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whether
we will issue the debt securities in the form of one or more global securities and, if so, the respective depositaries for the global
securities and the terms of the global securities; |
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the
subordination provisions that will apply to any subordinated debt securities; |
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any
addition to or change in the events of default applicable to the debt securities and any change in the right of the trustee or the
holders to declare the principal amount of any of the debt securities due and payable; |
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any
addition to or change in the covenants in the indentures; and |
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any
other terms of the debt securities not inconsistent with the applicable indentures. |
We
may sell the debt securities at a substantial discount below their stated principal amount. We will describe U.S. federal income tax
considerations, if any, applicable to debt securities sold at an original issue discount in the prospectus supplement. An “original
issue discount security” is any debt security sold for less than its face value, and which provides that the holder cannot
receive the full face value if maturity is accelerated. The prospectus supplement relating to any original issue discount securities
will describe the particular provisions relating to acceleration of the maturity upon the occurrence of an event of default. In addition,
we will describe U.S. federal income tax or other considerations applicable to any debt securities that are denominated in a currency
or unit other than U.S. dollars in the prospectus supplement.
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the
title of the series of debt securities; |
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any
limit upon the aggregate principal amount that may be issued; |
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the
maturity date or dates; |
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the
form of the debt securities of the series; |
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the
applicability of any guarantees; |
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of
any subordination; |
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if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a
price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another
security or the method by which any such portion shall be determined; |
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the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our
option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions; |
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the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous
fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency
or currency unit in which the debt securities are payable; |
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; |
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any
and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our
obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt
securities of that series; |
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whether
the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and
conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities;
and the depositary for such global security or securities; |
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if
applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon
which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or
how it will be calculated and may be adjusted, any mandatory or optional (at our option and/or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange; |
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if
other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof; |
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any
changes in or additions to the covenants applicable to the particular debt securities being issued, including, among others, the
consolidation, merger or sale covenant; |
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additions
to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to
declare the principal, premium, if any, and accrued interest, if any, with respect to such securities to be due and payable; |
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additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
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additions
to or changes in the provisions relating to satisfaction and discharge of the indenture; |
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additions
to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt
securities issued under the indenture; |
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; |
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whether
interest will be payable in cash or additional debt securities at our or the holder’s option and the terms and conditions upon
which the election may be made; |
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the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal amounts
of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes; |
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any
restrictions on transfer, sale or assignment of the debt securities of the series; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes
in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion
and Exchange Rights
We
will set forth in the prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for
our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially
all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indenture or the
debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of
other entities, we or 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 indenture with respect to any series of debt securities that we may issue:
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if
we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and
such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in
accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this
purpose; |
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if
we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established
with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with
the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
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if
we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice
of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders
of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization occur. |
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point
above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with respect to that series; |
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request,
and such holders have offered reasonable indemnity to the trustee to institute the proceeding as trustee; and |
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters:
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to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
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to
comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale”; |
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to
provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
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to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit
of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred
upon us in the indenture; |
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to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture; |
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to
make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
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to
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above
under “Description of Debt Securities—General” to establish the form of any certifications required to be
furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any
series of debt securities; |
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to
evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we
and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending
the fixed maturity of any debt securities of any series; |
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption of any series of any debt securities; or |
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
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provide
for payment; |
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register
the transfer or exchange of debt securities of the series; |
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replace
stolen, lost or mutilated debt securities of the series; |
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pay
principal of and premium and interest on any debt securities of the series; |
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maintain
paying agencies; |
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hold
monies for payment in trust; |
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recover
excess money held by the trustee; |
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compensate
and indemnify the trustee; and |
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appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, or “DTC,” or another depositary named by us and identified in a prospectus supplement with respect
to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of such terms
will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at
the close of business on the day of the mailing; or |
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the
same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Defeasance
To
the extent stated in the prospectus supplement, we may elect to apply the provisions in the indentures relating to defeasance and discharge
of indebtedness, or to defeasance of restrictive covenants, to the debt securities of any series. The indentures provide that, upon satisfaction
of the requirements described below, we may terminate all of our obligations under the debt securities of any series and the applicable
indenture, known as legal defeasance, other than our obligation:
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to
maintain a registrar and paying agents and hold monies for payment in trust; |
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to
register the transfer or exchange of the notes; and |
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to
replace mutilated, destroyed, lost or stolen notes. |
In
addition, we may terminate our obligation to comply with any restrictive covenants under the debt securities of any series or the applicable
indenture, known as covenant defeasance.
We
may exercise our legal defeasance option even if we have previously exercised our covenant defeasance option. If we exercise either defeasance
option, payment of the notes may not be accelerated because of the occurrence of events of default.
To
exercise either defeasance option as to debt securities of any series, we must irrevocably deposit in trust with the trustee money and/or
obligations backed by the full faith and credit of the United States that will provide money in an amount sufficient in the written opinion
of a nationally recognized firm of independent public accountants to pay the principal of, premium, if any, and each installment of interest
on the debt securities. We may only establish this trust if, among other things:
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no
event of default shall have occurred or be continuing; |
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in
the case of legal defeasance, we have delivered to the trustee an opinion of counsel to the effect that we have received from, or
there has been published by, the Internal Revenue Service a ruling or there has been a change in law, which in the opinion of our
counsel, provides that holders of the debt securities will not recognize gain or loss for federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit, defeasance and discharge had not occurred; |
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in
the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt
securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge
and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred; and |
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we
satisfy other customary conditions precedent described in the applicable indenture. |
Notices
We
will mail notices to holders of debt securities as indicated in the prospectus supplement.
Title
We
may treat the person in whose name a debt security is registered as the absolute owner, whether or not such debt security may be overdue,
for the purpose of making payment and for all other purposes.
Governing
Law
The
indenture 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.
DESCRIPTION
OF WARRANTS
General
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, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered
independently or in combination with common stock, preferred stock or debt securities, or as a part of units, offered by the prospectus
supplement. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we
will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The following description
of warrants will apply to the warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement.
The applicable prospectus supplement for a particular series of warrants may specify different or additional terms.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that describe the
terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of such warrants. The
following summaries of material terms and provisions of the warrants are subject to, and qualified in their entirety by reference to,
all the provisions of the form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements
applicable to a particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus
supplement related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing
prospectuses, and the complete form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental
agreements, that contain the terms of the warrants.
The
prospectus supplement relating to a particular series of warrants to purchase our common stock or preferred stock will describe the terms
of the warrants, including the following:
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the
title of the warrants; |
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the
offering price for the warrants, if any; |
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the
aggregate number of the warrants; |
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the
designation and terms of the common stock, preferred stock or debt securities that may be purchased upon exercise of the warrants; |
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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 security; |
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if
applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
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the
number of shares of common stock or preferred stock that may be purchased upon exercise of a warrant and the exercise price for the
warrants; |
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the
dates on which the right to exercise the warrants shall commence and expire; |
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
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the
currency or currency units in which the offering price, if any, and the exercise price are payable; |
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if
applicable, a discussion of material U.S. federal income tax considerations; |
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the
anti-dilution provisions of the warrants, if any; |
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the
redemption or call provisions, if any, applicable to the warrants; |
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any
provisions with respect to a holder’s right to require us to repurchase the warrants upon a change in control; and |
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any
additional material terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement
of the warrants. |
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Holders
of warrants will not be entitled to: |
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vote,
consent or receive dividends; |
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receive
notice as shareholders with respect to any meeting of shareholders for the election of our directors or any other matter; or |
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exercise
any rights as shareholders of the Company. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement or free writing prospectus
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 or warrant certificate representing the warrants to be exercised
together with specified information, and paying the required amount to the warrant agent, if applicable, in immediately available funds,
as provided in the applicable prospectus supplement. We will set forth on the reverse side of any warrant certificate and in the applicable
prospectus supplement the information that the holder of the warrant will be required to deliver to any warrant agent.
Upon
receipt of the required payment and any warrant certificate properly completed and duly executed at the corporate trust office of any
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 a 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, if any, will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
Amendments
and Supplements to Warrant Agreements
We
and the relevant warrant agent may, with the consent of the holders of at least a majority in number of the outstanding unexercised warrants
affected, modify or amend the warrant agreement and the terms of the warrants. However, the warrant agreements may be amended or supplemented
without the consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions
of the warrants and that do not adversely affect the interests of the holders of the warrants. Notwithstanding the foregoing, no such
modification or amendment may, without the consent of the holders of each warrant affected:
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reduce
the amount receivable upon exercise, cancellation or expiration; |
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shorten
the period of time during which the warrants may be exercised; |
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otherwise
materially and adversely affect the exercise rights of the beneficial owners of the warrants; or |
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reduce
the percentage of outstanding warrants whose holders must consent to modification or amendment of the applicable warrant agreement
or the terms of the warrants. |
Anti-dilution
and Other Adjustments
Unless
otherwise indicated in the applicable prospectus supplement, the exercise price of, and the number of shares of common stock covered
by a warrant, are subject to adjustment in certain events, including:
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the
issuance of common stock as a dividend or distribution on the common stock; |
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subdivisions
and combinations of the common stock (or as applicable to warrants to purchase preferred stock and the preferred stock); |
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the
issuance to all holders of common stock of capital stock rights entitling them to subscribe for or purchase common stock within 45
days after the date fixed for the determination of the stockholders entitled to receive such capital stock rights, at less than the
current market price; and |
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the
distribution to all holders of common stock of evidence of our indebtedness or assets (excluding certain cash dividends and distributions
described below) or rights or warrants (excluding those referred to above). |
We
may, in lieu of making any adjustment in the exercise price of, and the number of shares of common stock covered by, a warrant, make
proper provision so that each holder of such warrant who exercises such warrant (or any portion thereof):
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before
the record date for such distribution of separate certificates, shall be entitled to receive upon such exercise, shares of common
stock issued with capital stock rights; and |
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after
such record date and prior to the expiration, redemption or termination of such capital stock rights, shall be entitled to receive
upon such exercise, in addition to the shares of common stock issuable upon such exercise, the same number of such capital stock
rights as would a holder of the number of shares of common stock that such warrants so exercised would have entitled the holder thereof
to acquire in accordance with the terms and provisions applicable to the capital stock rights if such warrant was exercised immediately
prior to the record date for such distribution. |
Common
stock owned by or held for our account or for the account of any of our majority owned subsidiaries will not be deemed outstanding for
the purpose of any adjustment.
No
adjustment in the exercise price of, and the number of shares of common stock covered by, a warrant will be made for regular quarterly
or other periodic or recurring cash dividends or distributions of cash dividends or distributions to the extent paid from retained earnings.
Except as stated above, the exercise price of, and the number of shares of common stock covered by, a warrant will not be adjusted for
the issuance of common stock or any securities convertible into or exchangeable for common stock, or securities carrying the right to
purchase any of the foregoing.
In
the case of a reclassification or change of the common stock, a consolidation or merger involving us or sale or conveyance to another
corporation of our property and assets as an entirety or substantially as an entirety, in each case as a result of which holders of our
common stock shall be entitled to receive stock, securities, other property or assets (including cash) with respect to or in exchange
for such common stock, the holders of the warrants then outstanding will be entitled thereafter to convert such warrants into the kind
and number of shares of stock and amount of other securities or property which they would have received upon such reclassification, change,
consolidation, merger, sale or conveyance had such warrants been exercised immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance.
Governing
Law
Unless
we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION
OF UNITS
We
may issue, in one more series, units consisting of common stock, preferred stock, debt securities and/or warrants for the purchase of
common stock, preferred stock and/or debt securities in any combination in such amounts and in such numerous distinct series as we determine.
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.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
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 may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement and
any supplemental agreements that contain the terms of the units.
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 being offered, including:
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the designation
and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities
may be held or transferred separately; |
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any provisions
of the governing unit agreement that differ from those described below; and |
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any provisions
for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred
stock, debt security, or warrant included in each unit, respectively.
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,
and any unit agent 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.
Issuance
in Series
We
may issue units in such amounts and in as many distinct series as we wish. This section summarizes terms of the units that apply generally
to all series. Most of the financial and other specific terms of a particular series will be described in the prospectus supplement.
Governing
Law
Unless
we provide otherwise in the applicable prospectus supplement, the units and unit agreements will be governed by and construed in accordance
with the laws of the State of New York.
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, depositary
or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders
of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered
in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal
holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which
are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will
be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize
only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary
passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are
not obligated to do so under the terms of the securities.
As
a result, investors in a book-entry 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 holders,
of the securities.
Street
Name Holders
We
may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities
in their own names or in “street name.” Securities held by an investor in street name would be registered in the name
of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that institution.
For
securities held in street name, we 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 will make all payments on those securities to them. These institutions
pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their
customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street
name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has
no choice because we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that
holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but
does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we
would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect
holders is up to the holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check
with your own institution to find out:
| ● | the
performance of third-party service providers; |
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| ● | how
it handles securities payments and notices; |
| ● | whether
it imposes fees or charges; |
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| ● | how
it would handle a request for the holders’ consent, if ever required; |
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| ● | whether
and how you can instruct it to send you securities registered in your own name so you can
be a holder, if that is permitted in the future; |
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| ● | how
it would exercise rights under the securities if there were a default or other event triggering
the need for holders to act to protect their interests; and |
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| ● | if
the securities are in book-entry form, how the depositary’s rules and procedures will
affect these matters. |
Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities
represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless
we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary,
unless special termination situations arise. We describe those situations below under the section entitled “Special Situations
When a Global Security Will Be Terminated” in this prospectus. As a result of these arrangements, the depositary, or its nominee,
will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own
only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose
security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest
in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security
will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may
issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry
clearing system.
Special
Considerations for Global Securities
The
rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If
securities are issued only in the form of a global security, an investor should be aware of the following:
| ● | 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; |
| ● | an
investor will be an indirect holder and must look to his or her own bank or broker for payments
on the securities and protection of his or her legal rights relating to the securities, as
we describe above; |
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| ● | an
investor may not be able to sell interests in the securities to some insurance companies
and to other institutions that are required by law to own their securities in non-book-entry
form; |
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| ● | an
investor may not be able to pledge his or her interest in a global security in circumstances
where certificates representing the securities must be delivered to the lender or other beneficiary
of the pledge in order for the pledge to be effective; |
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| ● | the
depositary’s policies, which may change from time to time, will govern payments, transfers,
exchanges and other matters relating to an investor’s interest in a global security; |
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| ● | we
and any applicable trustee have no responsibility for any aspect of the depositary’s
actions or for its records of ownership interests in a global security, nor do we or any
applicable trustee supervise the depositary in any way; |
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| ● | the
depositary may, and we understand that DTC will, require that those who purchase and sell
interests in a global security within its book-entry system use immediately available funds,
and your broker or bank may require you to do so as well; |
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| ● | financial
institutions that participate in the depositary’s book-entry system, and through which
an investor holds its interest in a global security, may also have their own policies affecting
payments, notices and other matters relating to the securities; and |
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| ● | There
may be more than one financial intermediary in the chain of ownership for an investor. We
do not monitor and are not responsible for the actions of any of those intermediaries. |
Special
Situations when a Global Security will be Terminated
In
a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to
the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to
their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless
we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations
occur:
| ● | if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue
as depositary for that global security and we do not appoint another institution to act as
depositary within 90 days; |
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| ● | if
we notify any applicable trustee that we wish to terminate that global security; or |
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| ● | if
an event of default has occurred with regard to securities represented by that global security
and has not been cured or waived. |
The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular
series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or
any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN
OF DISTRIBUTION
We
may sell the securities offered by this prospectus in any one or more of the following ways from time to time:
| ● | directly
to investors, including through a specific bidding, auction or other process or in privately
negotiated transactions; |
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| ● | to
investors through agents; |
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| ● | directly
to agents; |
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| ● | to
or through brokers or dealers; |
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| ● | to
the public through underwriting syndicates led by one or more managing underwriters; |
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| ● | to
one or more underwriters acting alone for resale to investors or to the public; |
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| ● | through
a block trade in which the broker or dealer engaged to handle the block trade will attempt
to sell the securities as agent, but may position and resell a portion of the block as principal
to facilitate the transaction; |
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| ● | through
agents on a best-efforts basis; and |
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| ● | through
a combination of any such methods of sale. |
We
may also sell the securities offered by this prospectus in “at the market offerings” within the meaning of Rule 415(a)(4)
of the Securities Act (including as discussed in greater detail below).
Sales
may be affected in transactions:
| ● | on
any national securities exchange or quotation service on which the securities may be listed
or quoted at the time of sale, including the Nasdaq Capital Market in the case of shares
of our common stock; |
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| ● | in
the over-the-counter market; |
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| ● | in
transactions otherwise than on such exchanges or services or in the over-the-counter market; |
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| ● | through
the writing of options; or |
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| ● | through
the settlement of short sales. |
We
will provide in the applicable prospectus supplement the terms of the offering and the method of distribution and will identify any firms
acting as underwriters, dealers or agents in connection with the offering, including:
| ● | the
name or names of any underwriters, dealers or agents; |
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| ● | the
amount of securities underwritten; |
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| ● | the
purchase price of the securities and the proceeds to us from the sale; |
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| ● | any
over-allotment options under which underwriters may purchase additional securities from us; |
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| ● | any
underwriting discounts and other items constituting compensation to underwriters, dealers
or agents; |
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| ● | any
public offering price; |
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| ● | any
discounts or concessions allowed or reallowed or paid to dealers; |
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| ● | any
material relationships between the underwriters and the Company; and |
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| ● | any
securities exchange or market on which the securities offered in the prospectus supplement
may be listed. |
In
connection with the sale of the securities, we or the purchasers of securities for whom the underwriter may act as agent, may compensate
the underwriter in the form of underwriting discounts or commissions.
Any
underwritten offering may be on a best-efforts or a firm commitment basis. Underwriters, dealers and agents participating in the securities
distribution may be deemed to be underwriters, and any discounts and commissions they receive and any profit they realize on the resale
of the securities may be deemed to be underwriting discounts and commissions under the Securities Act. Underwriters and their controlling
persons, dealers and agents may be entitled, under agreements entered into with us, to indemnification against and contribution toward
specific civil liabilities, including liabilities under the Securities Act.
The
distribution of the securities may be affected from time to time in one or more transactions at a fixed price or prices, which may be
changed, at varying prices determined at the time of sale, or at prices determined as the applicable prospectus supplement specifies.
In
connection with the sale of the securities, underwriters, dealers or agents may be deemed to have received compensation from us in the
form of underwriting discounts or commissions and also may receive commissions from securities purchasers for whom they may act as agent.
Underwriters may sell the securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters or commissions from the purchasers for whom they may act as agent.
Unless
otherwise specified in the related prospectus supplement, each series of securities will be a new issue with no established trading market,
other than shares of common stock of the Company, which are listed on the Nasdaq Capital Market. Any common stock sold pursuant to a
prospectus supplement will be listed on the Nasdaq Capital Market, or listed on the exchange where our common stock is then listed, subject
where applicable, to official notice of issuance and where applicable, subject to the requirements of the exchange (which in some cases
require stockholder approval for any transactions which would result in the issuance of more than 20% of our then outstanding shares
of common stock or voting rights representing over 20% of our then outstanding shares of stock). We may elect to list any series of debt
securities or preferred stock, on an exchange, but we are not obligated to do so. It is possible that one or more underwriters may make
a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of, or the trading market for, any offered securities.
In
connection with an offering, the underwriters may purchase and sell securities in the open market. These transactions may include short
sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters
of a greater number of securities than they are required to purchase in an offering. Stabilizing transactions consist of bids or purchases
made for the purpose of preventing or retarding a decline in the market price of the securities while an offering is in progress. The
underwriters also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting
discount received by it because the underwriters have repurchased securities sold by or for the account of that underwriter in stabilizing
or short-covering transactions. These activities by the underwriters may stabilize, maintain or otherwise affect the market price of
the securities. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market.
If these activities are commenced, they may be discontinued by the underwriters at any time. Underwriters may engage in overallotment.
If any underwriters create a short position in the securities in an offering in which they sell more securities than are set forth on
the cover page of the applicable prospectus supplement, the underwriters may reduce that short position by purchasing the securities
in the open market.
Underwriters,
dealers or agents that participate in the offer of securities, or their affiliates or associates, may have engaged or engage in transactions
with and perform services for, us or our affiliates in the ordinary course of business for which they may have received or receive customary
fees and reimbursement of expenses.
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 so indicates, in connection with any derivative transaction, the third
parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions.
If so, the third party 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 stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified
in the applicable prospectus supplement or a post-effective amendment to the registration statement of which this prospectus is a part.
In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities
short using this prospectus. Such financial institution or other third party may transfer its economic short position to investors in
our securities or in connection with a concurrent offering of other securities.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for
which they receive compensation.
Selling
stockholders also may resell all or a portion of the securities in open market transactions in reliance upon Rule 144 under the Securities
Act, provided that they meet the criteria and conform to the requirements of that rule.
At-the-Market
Offerings
Upon
written instruction from us, a sales agent party to a distribution agency agreement with us will use its commercially reasonable efforts
to sell on our behalf, as our agent, the shares of common stock offered as agreed upon by us and the sales agent. We will designate the
maximum amount of shares of common stock to be sold through the sales agent, on a daily basis or otherwise as we and the sales agent
agree. Subject to the terms and conditions of the applicable distribution agency agreement, the sales agent will use its commercially
reasonable efforts to sell, as our sales agent and on our behalf, all of the designated shares of common stock. We may instruct the sales
agent not to sell shares of common stock if the sales cannot be affected at or above the price designated by us in any such instruction.
We may suspend the offering of shares of common stock under any distribution agency agreement by notifying the sales agent. Likewise,
the sales agent may suspend the offering of shares of common stock under the applicable distribution agency agreement by notifying us
of such suspension.
We
also may sell shares to the sales agent as principal for its own account at a price agreed upon at the time of sale. If we sell shares
to the sales agent as principal, we will enter into a separate agreement setting forth the terms of such transaction.
The
offering of common stock pursuant to a distribution agency agreement will terminate upon the earlier of (1) the sale of all shares of
common stock subject to the distribution agency agreement or (2) the termination of the distribution agency agreement by us or by the
sales agent.
Sales
agents under our distribution agency agreements may make sales in privately negotiated transactions and/or any other method permitted
by law, including sales deemed to be an “at-the-market” offering as defined in Rule 415 promulgated under the Securities
Act, sales made directly on existing trading market, or sales made to or through a market maker other than on an exchange, each in accordance
with Rule 415(a)(4) under the Securities Act. The name of any such underwriter or agent involved in the offer and sale of our common
stock, the amounts underwritten, and the nature of its obligations to take our common stock will be described in the applicable prospectus
supplement.
PROSPECTUS
SUPPLEMENTS
This
prospectus provides you with a general description of the proposed offering of our securities. Each time that we sell securities under
this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The
prospectus supplement may add to, update, or change information contained in this prospectus and should be read as superseding this prospectus.
You should read both this prospectus, any prospectus supplement and any free writing prospectus, together with additional information
described under the heading “Where You Can Find More Information.”
The
prospectus supplement will describe the terms of any offering of securities, including the offering price to the public in that offering,
the purchase price and net proceeds of that offering, and the other specific terms related to that offering of securities.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus have been passed upon for us by The Loev Law Firm, PC, Bellaire, Texas. If legal
matters in connection with offerings made by this prospectus are passed on by counsel for the underwriters, dealers or agents, if any,
that counsel will be named in the applicable prospectus supplement.
EXPERTS
The
financial statements of Kidpik Corp. as of December 31, 2022 and January 1, 2022, and for the years then ended, included in the Annual
Report on Form 10-K of Kidpik Corp. for the year ended December 31, 2022, have been audited by CohnReznick LLP,
as set forth in their report dated March 31, 2023 thereon, which includes an explanatory paragraph
regarding Kidpik Corp.’s ability to continue as a going concern and are incorporated herein by reference. Such financial
statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as an expert in accounting
and auditing.
No
expert or counsel named in this prospectus as having prepared or certified any part of this prospectus or having given an opinion upon
the validity of the securities being registered or upon other legal matters in connection with the registration or offering of the securities
was employed on a contingency basis, or had, or is to receive, any interest, directly or indirectly, in our Company, nor was any such
person connected with us, as a promoter, managing or principal underwriter, voting trustee, director, officer, or employee.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly, and current reports, proxy statements and other information with the Securities and Exchange Commission (“SEC”).
Our SEC filings are on the “Investors,” “Financials”, “SEC Filings” page of
our website at www.kidpik.com. Information on our web site is not part of this prospectus, and we do not desire to incorporate
by reference such information herein. The SEC maintains an Internet site that contains reports, proxy and information statements, and
other information regarding issuers that file electronically with the SEC like us. Our SEC filings are also available to the public from
the SEC’s website at https://www.sec.gov.
This
prospectus is part of the registration statement and does not contain all of the information included in the registration statement.
Whenever a reference is made in this prospectus to any of our contracts or other documents, the reference may not be complete and, for
a copy of the contract or document, you should refer to the exhibits that are a part of the registration statement. You should rely only
on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized anyone
to provide you with information different from that contained in this prospectus and any prospectus supplement. The securities offered
under this prospectus and any prospectus supplement are offered only in jurisdictions where offers and sales are permitted. The information
contained in this prospectus and any prospectus supplement, is accurate only as of the date of this prospectus and prospectus supplement,
respectively, regardless of the time of delivery of this prospectus or any prospectus supplement, or any sale of the securities.
This
prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations. You should review
the information and exhibits included in the registration statement for further information about us and the securities we are offering.
Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed
with the SEC are not intended to be comprehensive and are qualified by reference to these filings and documents. You should review the
complete document to evaluate these statements.
$10,000,000
Kidpik
Corp.
Common
Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
,
2023
You
should rely only on the information contained in this prospectus. No dealer, salesperson or other person is authorized to give information
that is not contained in this prospectus. This prospectus is not an offer to sell nor is it seeking an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted. The information contained in this prospectus is correct only as of the
date of this prospectus, regardless of the time of the delivery of this prospectus or the sale of these securities.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
following table sets forth the various expenses, all of which will be borne by us, in connection with the sale and distribution of the
securities being registered, other than the underwriting discounts and commissions. All amounts shown are estimates except for the Securities
and Exchange Commission registration fee.
Description | |
Amount to be Paid | |
| |
| |
Filing Fee - Securities and Exchange Commission | |
$ | 1,102 | |
Attorney’s fees and expenses | |
| * | |
Accountant’s fees and expenses | |
| * | |
FINRA, Stock exchange and listing fees | |
| * | |
Transfer agent’s and registrar fees and expenses | |
| * | |
Printing and engraving expenses | |
| * | |
Trustee fees and expenses | |
| * | |
Miscellaneous expenses | |
| * | |
| |
| | |
Total | |
$ | * | |
*
Estimated expenses that are not presently known because they depend upon, among other things, the number of offerings that will be made
pursuant to this registration statement, the amount and type of securities being offered and the timing of such offerings.
ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section
145 of the Delaware General Corporation Law (the “DGCL”) authorizes a court to award, or a corporation’s board
of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances
for liabilities, including reimbursement for expenses incurred, arising under the Securities Act.
Our
Second Amended and Restated Certificate of Incorporation provides for indemnification of our directors, officers, employees and other
agents to the maximum extent permitted by the DGCL, and our Amended and Restated Bylaws provide for indemnification of our directors,
officers, employees and other agents to the maximum extent permitted by the DGCL.
In
addition, we have entered into indemnification agreements with directors and officers containing provisions that are in some respects
broader than the specific indemnification provisions contained in the DGCL. The indemnification agreements will require our company,
among other things, to indemnify our directors against certain liabilities that may arise by reason of their status or service as directors
and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified.
The
underwriting agreement to be entered into in connection with an offering of the securities will contain provisions which indemnify the
officers and directors of the Company in certain circumstances.
Neither
our Amended and Restated Bylaws nor our Second Amended and Restated Certificate of Incorporation include any specific indemnification
provisions for our officers or directors against liability under the Securities Act. Additionally, insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company 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.
ITEM
16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The
following documents are filed as exhibits to this registration statement, including those exhibits incorporated herein by reference to
a prior filing under the Securities Act or the Exchange Act, as indicated:
*
If applicable, to be filed by amendment or by a report filed under the Exchange Act and incorporated herein by reference.
**
Filed herewith.
***
If applicable, to be filed subsequent to the effectiveness of this Registration Statement pursuant to Section 305(b)(2) of the Trust
Indenture Act of 1939, as amended.
ITEM
17. UNDERTAKINGS.
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to:
(i)
Include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
Include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided,
however, that paragraphs (1)(i), (1)(ii) and (i)(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 sections
13 or 15(d) of the Exchange that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) of this chapter that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act 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 shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)
Insofar as indemnification for liabilities arising under the Securities Act 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 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 Act and will be governed by the final adjudication of
such issue.
(8)
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 Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, New York on the 3rd day of August 2023.
|
KIDPIK CORP. |
|
|
|
|
By: |
/s/ Ezra Dabah |
|
|
Ezra
Dabah, President and Chief Executive
Officer (Principal Executive Officer) |
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Ezra Dabah |
|
Chairman, President,
and Chief Executive Officer (Principal Executive Officer) |
|
August
3, 2023 |
Ezra Dabah |
|
|
|
|
|
|
|
|
|
/s/
Jill Pasechnick |
|
Chief
Accounting Officer (Principal Financial/Accounting
Officer) |
|
August
3, 2023 |
Jill
Pasechnick |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
August
3, 2023 |
David Oddi |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
August
3, 2023 |
Bart Sichel |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
August
3, 2023 |
Jill Kronenberg |
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
/s/
Ezra Dabah
|
|
|
|
|
Ezra Dabah
|
|
|
|
|
Attorney-in-fact
|
|
|
|
|
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Amendment No. 1 to Registration Statement on Form S-3 (File No. 333-273080)
and related Prospectus, of our report dated March 31, 2023, with respect to the financial statements of Kidpik Corp. as of December
31, 2022 and January 1, 2022, and for the years then ended, which report is included in the Annual Report on Form 10-K of Kidpik Corp.
for the year ended December 31, 2022, filed with the Securities and Exchange Commission. Our audit report includes an explanatory paragraph
relating to Kidpik Corp.’s ability to continue as a going concern.
We
also consent to the reference to our firm under the heading “Experts.”
/s/ CohnReznick LLP |
|
|
|
New York, New York |
|
August
3, 2023 |
|
Kidpik (NASDAQ:PIK)
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Kidpik (NASDAQ:PIK)
過去 株価チャート
から 9 2023 まで 9 2024