As filed with the Securities and Exchange Commission
on September 18, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACTELIS NETWORKS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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52-2160309 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
4039 Clipper Court, Fremont, California 94538
(510) 545-1045
(Address, including zip code, and telephone number,
including area code, of registrant’s principal
executive offices)
Tuvia Barlev
Chief Executive Officer
4039 Clipper Court
Fremont, California 94538
(510) 545-1045
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
with a copy to:
Eyal Peled, Esq.
Greenberg Traurig LLP
One Vanderbilt Avenue,
New York, New York 10017
Phone: (212) 801-9210
Fax: (212) 801-6400
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement.
If the only securities being
registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being
registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the
Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting 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 |
☐ |
Accelerated filer |
☐ |
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Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
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Emerging growth company |
☒ |
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended, or until the registration statement shall become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the
Securities and Exchange Commission declares our registration statement effective. This prospectus is not an offer to sell these securities
and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 18, 2024
PROSPECTUS
$50,000,000
COMMON STOCK
DEBT SECURITIES
WARRANTS
UNITS
We may offer and sell, from time to time in one or more offerings,
any combination of common stock, debt securities, warrants to purchase common stock or debt securities, or any combination of the foregoing,
either individually or as units comprised of one or more of the other securities, having an aggregate initial offering price not exceeding
$50,000,000. We refer to the common stock, the debt securities, the warrants to purchase common stock and the units collectively as the
securities.
This prospectus provides a
general description of the securities we may offer. Other than in connection with the exercise of certain outstanding warrants each time
we sell a particular class or series of securities, we will provide specific terms of the securities offered in a supplement to this prospectus.
The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus.
We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. You should read
carefully this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated
by reference herein or therein before you invest in any of our securities.
This prospectus may not
be used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered securities.
We may, from time to time,
offer to sell the securities, through public or private transactions, directly or through underwriters, agents or dealers, on or off the
Nasdaq Capital Market, at prevailing market prices or at privately negotiated prices. If any underwriters, agents or dealers are involved
in the sale of any of these securities, the applicable prospectus supplement will set forth the names of the underwriter, agent or dealer
and any applicable fees, commissions or discounts.
Our common stock is traded
on the Nasdaq Capital Market under the symbol “ASNS.” On September 17, 2024, the closing price of our common stock on the
Nasdaq Capital Market was $1.66 per share.
The applicable prospectus supplement will contain
information, where applicable, as to any other listing on the Nasdaq Capital Market or any securities market or other exchange of the
securities, if any, covered by the prospectus supplement.
As of September 17, 2024, the aggregate market value worldwide of our
outstanding voting and non-voting common equity held by non-affiliates, as calculated pursuant to the rules of the Securities and Exchange
Commission, was approximately $10,400,000 based on 5,780,864 shares of common stock outstanding held by non-affiliates at a per share
of common stock price of $1.80 based on the closing sale price of our common stock on the Nasdaq Capital Market on August 29, 2024.
As of the date hereof, we have not sold or offered any shares of common stock pursuant to General Instruction
I.B.6 of Form S-3 during the prior 12 calendar month period that ends on and includes the date hereof. Pursuant to General Instruction
I.B.6 of Form S-3, in no event will we sell securities registered on this registration statement of which any prospectus supplement forms
a part in a public primary offering with a value exceeding one-third of our outstanding voting and nonvoting common equity held by non-affiliates
(the “public float”) in any 12-month period so long as our public float remains below $75 million.
Investing in our securities
involves various risks. See “Risk Factors” contained herein for more information on these risks. Additional risks will be
described in the related prospectus supplements under the heading “Risk Factors”. You should review that section of the
related prospectus supplements for a discussion of matters that investors in our securities should consider.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed upon the adequacy
or accuracy of this prospectus or any accompanying prospectus supplement. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
You should rely only on the information contained
in this prospectus, any prospectus supplement and the documents incorporated by reference herein or therein, or to which we have referred
you. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information,
you should not rely on it. This prospectus and any prospectus supplement do not constitute an offer to sell, or a solicitation of an offer
to purchase, the securities offered by this prospectus and any prospectus supplement in any jurisdiction to or from any person to whom
or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. You should not assume that the information
contained in this prospectus, any prospectus supplement or any document incorporated by reference is accurate as of any date other than
the date indicated in the applicable document.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”)
using a “shelf” registration process. Under this shelf registration process, we may from time to time sell common stock, debt
securities or warrants to purchase common stock, debt securities, or any combination of the foregoing, either individually or as units
comprised of one or more of the other securities, in one or more offerings up to a total dollar amount of $50,000,000. We have provided
to you in this prospectus a general description of the securities we may offer. Each time we sell securities under this shelf registration,
we will, to the extent required by law, provide a prospectus supplement that will contain specific information about the terms of that
offering, including the prices and terms of the securities we offer. We may also authorize one or more free writing prospectuses to be
provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in any
documents that we have incorporated by reference into this prospectus. To the extent there is a conflict between the information contained
in this prospectus and the prospectus supplement or any related free writing prospectus, you should rely on the information in the prospectus
supplement or the related free writing prospectus; provided that if any statement in one of these documents is inconsistent with a statement
in another document having a later date — for example, a document incorporated by reference in this prospectus or any prospectus
supplement or any related free writing prospectus — the statement in the document having the later date modifies or supersedes the
earlier statement.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus, any accompanying prospectus supplement or any related free writing prospectus that we
may authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated by reference
in this prospectus or an accompanying prospectus supplement, or any related free writing prospectus that we may authorize to be provided
to you. This prospectus, the accompanying prospectus supplement and any related free writing prospectus, if any, do not constitute an
offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do
this prospectus, the accompanying prospectus supplement or any related free writing prospectus, if any, constitute an offer to sell or
the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation
in such jurisdiction. You should not assume that the information contained in this prospectus, any applicable prospectus supplement or
any related free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any
information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference
(as our business, financial condition, results of operations and prospects may have changed since that date), even though this prospectus,
any applicable prospectus supplement or any related free writing prospectus is delivered or securities are sold on a later date.
As
permitted by the rules and regulations of the SEC, the registration statement, of which this prospectus forms a part, includes additional
information not contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at the
SEC’s web site or at the SEC’s offices described below under the heading “Where You Can Find Additional Information.”
This
prospectus and the information incorporated by reference herein and therein include trademarks, service marks and trade names owned by
us or other companies. Solely for convenience, trademarks referred to in this prospectus, including logos, artwork, and other visual
displays, may appear without the ® or ™ symbols. We do not intend our use or display of other companies’ trade
names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other companies. All trademarks, service
marks and trade names included or incorporated by reference into this prospectus or an accompanying prospectus supplement are the property
of their respective owners.
In this prospectus, we frequently
use the terms “we,” “our,” “us,” “our company,” and the “Company” to refer
to Actelis Networks, Inc. and our wholly-owned Israeli subsidiary, Actelis Networks Israel Ltd.
OUR BUSINESS
This summary highlights
selected information contained elsewhere in this prospectus that we consider important. This summary does not contain all of the information
you should consider before investing in our securities. You should read this summary together with the entire prospectus, including the
risks related to our business, our industry, investing in our shares of common stock and our location in Israel, that we describe under
“Risk Factors” and our consolidated financial statements and the related notes before making an investment in our securities.
Overview
We are a market leader in
cyber-hardened, rapid-deployment networking solutions for wide-area IoT applications including federal, state and local government, intelligent
traffic systems, military, utility, rail, telecom and campus applications. Our unique portfolio of hybrid fiber, environmentally hardened
aggregation switches, high density Ethernet devices, advanced management software and cyber-protection capabilities, unlocks the hidden
value of essential networks, delivering safer connectivity for rapid, cost-effective deployment.
Our networking solutions
use a combination of newly deployed fiber infrastructure and existing copper and coaxial lines which our patented technology can upgrade
to Fiber-grade to jointly create what we believe to be a highly cost-effective, secure and quick-to-deploy network. Our patent protected
hybrid fiber networking solutions deliver excellent communication over fiber to locations that may be easy to reach with new fiber. However,
for locations that are difficult, or too costly to reach with fiber, we can upgrade existing copper lines to deliver cyber-hardened, high-speed
connectivity without needing to replace the existing copper infrastructure with new fiber. We believe that such hybrid fiber-copper networking
solution has distinct advantages in most real-life installations, while providing significant budget savings and accelerating deployment
of modern IoT networks, as based on our experience, most IoT projects have challenging, hard to reach with fiber locations which may explode
such projects’ timeline and budgets. We believe that our solutions can provide connectivity over either fiber or copper with speeds
of up to multi-Gigabit communication, while supporting Fiber-grade reliability and quality.
A primary focus of ours is
to provide our customers with a cyber-secure network solution. We currently offer Triple-Shield protection of data delivered with coding,
scrambling and encryption of the network traffic. We also provide secure, encrypted access to our network management software, and are
working to further enhance system-level and device-level software protection. We are also working to introduce additional capabilities
for network-wide cyber protection software as an additional SW and license-based service.
When high speed, long reach,
reliable and secure connectivity is required, network operators usually resort to using wireline communication over physical communication
lines such as fiber, coax and copper, rather than wireless communication that is more limited in performance, reliability, reach and security.
However, new fiber wireline infrastructure is costly to deploy, involves lengthy civil works to install, and, based on our internal calculations,
often accounts for more than 50% of total cost of ownership (ToC) and time to deploy wide-area IoT projects.
Providing new fiber connectivity
to hard-to-reach locations is especially costly and time-consuming, often requiring permits for boring, trenching, and right-of-way, sometimes
done over many miles. Connecting such hard-to-reach locations may cause significant delays and budget overruns in IoT projects. Our solutions
aim to solve these challenges by instantly enhancing performance of such existing copper and coax infrastructure to fiber-grade performance,
through the use of advanced signal processing an unique, patented network architecture, without the need to run new fiber to hard-to-reach
locations; thus, effectively accelerating deployment of many IoT projects, as we estimate, sometimes from many months to only days.
The result for the network owner isa hybrid network that optimizes the use of both new Fiber (where available) as well as upgraded, fiber-grade
copper and coax that is now modernized, digitized and cyber-hardened. This unique hybrid network approach is making IoT projects often
significantly more affordable, fast to deploy and predictable to plan and budget.
In addition, our solutions
can also provide power over existing copper and coax lines to remotely power up network elements and IoT components connected to them
(like cameras, small cell and Wi-Fi base stations sensors etc.). Connecting power lines to millions of IoT locations can be costly and
very time consuming as well (similar to data connectivity, for the same reason-need for civil works). By offering the ability to combine
power delivery over the same existing copper and coax lines that we use for high-speed data, we believe our solutions are solving yet
another important challenge in connecting hard-to-reach locations. We believe that combining communication and power over the same existing
lines is particularly important to help connect many fifth generation, or 5G, small cells and Wi-Fi base stations, as high cost of connectivity
and power is often slowing their deployment.
Since our inception, our
business was focused on serving telecommunication service providers, also known as Telcos, to provide connectivity for enterprises and
residential customers. Our products and solutions have been deployed with more than 100 telecommunication service providers worldwide,
in enterprise, residential and mobile base station connectivity applications. In recent years, as we have further developed our technology
and introduced additional products, we turned our focus on serving the wide-area IoT markets. Our operations are focused on our fast-growing
IoT business, while maintaining our commitment to our existing Telco customers. In 2023, we introduced new product offering, some of which
could serve both the IoT markets and our Telco customers.
In August 2024, we announced signing a strategic partnership with an
advanced cybersecurity provider to develop and deliver a novel, AI-Powered SaaS offering, under Actelis’ ‘Cyber Aware Networking’
initiative. This software, designed as an intelligence layer integrated into Actelis’ networking devices, leverages the network’s
power and proximity to IoT devices to monitor and protect physical assets such as cameras, sensors, and other devices at the edge, enabling
corrective actions before issues propagate throughout the network.
Recent Developments
Nasdaq Listing Compliance
On August 25, 2023, we received a notification letter
from the Listing Qualifications Staff (the “Staff”) of the Nasdaq Stock Market LLC (“Nasdaq”) indicating that
we are not in compliance with Nasdaq Listing Rule 5550(b)(1) due to our failure to maintain a minimum of $2,500,000 in shareholders’
equity (the “Minimum Shareholders’ Equity Requirement”) or any alternatives to such requirement. In order to maintain
our listing on the Nasdaq Capital Market, we submitted a plan of compliance addressing how we intended to regain compliance. On March
27, 2024, we received a delist determination letter from Nasdaq advising us that the Staff had determined to delist our securities from
Nasdaq due to non-compliance with the Minimum Shareholders’ Equity Requirement, unless we timely request a hearing before the Nasdaq
Hearings Panel (the “Panel”). We timely requested a hearing before the Panel. On August 27, 2024, we received formal written
notice from Nasdaq confirming that we have evidenced compliance with all applicable criteria for continued listing on Nasdaq as set forth
in Nasdaq Listing Rule 5550, including the Minimum Shareholders’ Equity Requirement. In accordance with Nasdaq Listing Rule 5815(d)(4)(B),
we will remain subject to a panel monitor for equity compliance through August 27, 2025.
In addition, on May 20, 2024, the Nasdaq Stock Market
LLC (“Nasdaq”) notified us that we were not in compliance with the minimum bid price requirements set forth in Nasdaq Listing
Rule 5550(a)(2), which requires our common stock to maintain a minimum bid price of $1.00 per share. On June 20, 2024, we received a
letter from Nasdaq that, for the 10 consecutive business days from June 5, 2024 to June 28, 2024, the closing bid price of the Company’s
common stock had been at $1.00 per share or greater. Accordingly, we have regained compliance with Nasdaq Listing Rule 5550(a)(2) and
Nasdaq considers the prior bid price deficiency matter now closed.
Recent Developments Affecting Our Business
In October 2023, Hamas terrorists infiltrated Israel’s
southern border from the Gaza Strip and conducted a series of attacks on civilian and military targets. Hamas also launched extensive
rocket attacks on the Israeli population and industrial centers located along Israel’s border with the Gaza Strip and in other
areas within the State of Israel. These attacks resulted in thousands of deaths and injuries, and Hamas additionally kidnapped many Israeli
civilians and soldiers. Following the attack, Israel’s security cabinet declared war against Hamas and commenced a military campaign
against Hamas and these terrorist organizations in parallel continued rocket and terror attacks. Nevertheless, our clinical and business
development activities remain on track. See also Risk Factors – “We conduct our operations in Israel. Conditions in Israel,
including the recent attack by Hamas and other terrorist organizations and Israel’s war against them, may affect our operations”.
Corporate Information
We are a Delaware corporation
and our corporate headquarters is located at 4039 Clipper Court, Fremont, California 94538. Our telephone number is (510) 545-1045. Our
internet website address is www.actelis.com. The information contained in, and that which can be accessed through, our website is not
incorporated into and does not form a part of this prospectus.
RISK FACTORS
Before purchasing any of the
securities you should carefully consider the risk factors incorporated by reference in this prospectus from our most recent Annual Report
on Form 10-K and any subsequent Quarterly Report on Form 10-Q or Current Report on Form 8-K, as well as the risks, uncertainties and additional
information set forth in our SEC reports on Forms 10-K, 10-Q and 8-K and in the other documents incorporated by reference in this prospectus.
For a description of these reports and documents, and information about where you can find them, see “Where You Can Find More Information”
and “Incorporation of Documents By Reference.” Additional risks not presently known or that we presently consider to be immaterial
could subsequently materially and adversely affect our financial condition, results of operations, business and prospects.
Conditions in the Middle East and in Israel, where our research
and development facilities are located, may harm our operations.
Our office where we conduct our research and development,
operations, sales outside the Americas, and administration activities, is located in Israel. Many of our employees are residents of Israel.
Most of our officers and directors are residents of Israel. Since the establishment of the State of Israel in 1948, a number of armed
conflicts have taken place between Israel and its neighboring countries, and between Israel and the Hamas (an Islamist militia and political
group in the Gaza Strip) and Hezbollah (an Islamist militia and political group in Lebanon).
In particular, in October 2023, Hamas terrorists
infiltrated Israel’s southern border from the Gaza Strip and conducted a series of attacks on civilian and military targets. Hamas
also launched extensive rocket attacks on the Israeli population and industrial centers located along Israel’s border with the Gaza
Strip and in other areas within the State of Israel. These attacks resulted in thousands of deaths and injuries, and Hamas additionally
kidnapped many Israeli civilians and soldiers. Following the attack, Israel’s security cabinet declared war against Hamas and commenced
a military campaign against Hamas and Hezbollah and these terrorist organizations in parallel continued rocket and terror attacks. As
a result of the events of October 7, 2023 whereby Hamas terrorists invaded southern Israel and launched thousands of rockets in a widespread
terrorist attack on Israel, the Israeli government declared that the country was at war and the Israeli military began to call-up reservists
for active duty. As of the date of this Annual Report, we have not been impacted by any absences of personnel at our service providers
or counterparties located in Israel. Military service call ups that result in absences of personnel from us for an extended period of
time may materially and adversely affect our business, prospects, financial condition and results of operations. As of the date of this
Registration Statement, we currently have 42 full-time employees, with 32 employees located in Israel and 10 employee located outside
of Israel.
Since the war broke out on October 7, 2023, our
operations have not been adversely affected by this situation, and we have not experienced any material disruptions to our operations.
We have the ability, if necessary, to shift our manufacturing from Israel to other countries where we have business partners, and we have
not had customers in Israel in the last year. However, the intensity and duration of the war in the Middle East is difficult to predict
at this stage, as are such war’s economic implications on the Company’s business and operations and on Israel’s economy
in general. if the war in the other fronts, such as Lebanon, Syria and the West Bank expands further, our operations may be adversely
affected.
In addition, since the commencement of these events,
there have been continued hostilities along Israel’s northern border with Lebanon (with the Hezbollah terror organization) and southern
border (with the Houthi movement in Yemen). It is possible that hostilities with Hezbollah in Lebanon will escalate, and that other terrorist
organizations, including Palestinian military organizations in the West Bank as well as other hostile countries, such as Iran, will join
the hostilities. Such clashes may escalate in the future into a greater regional conflict. In addition, Iran has threatened to attack
Israel and is widely believed to be developing nuclear weapons. Iran is also believed to have a strong influence among extremist groups
in the region, such as Hamas in Gaza, Hezbollah in Lebanon, the Houthi movement in Yemen and various rebel militia groups in Syria. These
situations may potentially escalate in the future to more violent events which may affect Israel and us. Any armed conflicts, terrorist
activities or political instability in the region could adversely affect business conditions, could harm our results of operations and
could make it more difficult for us to raise capital. Parties with whom we do business may decline to travel to Israel during periods
of heightened unrest or tension, forcing us to make alternative arrangements when necessary in order to meet our business partners face
to face. In addition, the political and security situation in Israel may result in parties with whom we have agreements involving performance
in Israel claiming that they are not obligated to perform their commitments under those agreements pursuant to force majeure provisions
in such agreements. Further, in the past, the State of Israel and Israeli companies have been subjected to economic boycotts. Several
countries still restrict business with the State of Israel and with Israeli companies. These restrictive laws and policies may have an
adverse impact on our operating results, financial condition or the expansion of our business.
Any hostilities involving Israel or the interruption
or curtailment of trade between Israel and its trading partners could adversely affect our operations and results of operations. In recent
years, the hostilities involved missile strikes against civilian targets in various parts of Israel, including areas in which our employees
and some of our consultants are located, and negatively affected business conditions in Israel.
Our commercial insurance
does not cover losses that may occur as a result of events associated with the security situation in the Middle East. Although the
Israeli government currently covers the reinstatement value of direct damages that are caused by terrorist attacks or acts of war,
we cannot assure you that this government coverage will be maintained. Any losses or damages incurred by us could have a material
adverse effect on our business. Any armed conflicts or political instability in the region would likely negatively affect business
conditions and could harm our results of operations. To date, we have received Israeli government war related support funding of
approximately $160,000.
Finally, political conditions within Israel may
affect our operations. Israel has held five general elections between 2019 and 2022, and prior to October 2023, the Israeli government
pursued extensive changes to Israel’s judicial system, which sparked extensive political debate and unrest. To date, these initiatives
have been substantially put on hold. Actual or perceived political instability in Israel or any negative changes in the political environment,
may individually or in the aggregate adversely affect the Israeli economy and, in turn, our business, financial condition, results of
operations and growth prospects.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents
incorporated by reference herein contain certain “forward-looking statements” within the meaning of the Private Securities
Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We have tried, whenever possible, to identify these
forward-looking statements using words such as “may,” “will,” “expect,” “believe,” “estimate,”
“anticipate,” “intend,” “continue,” “plan,” “predict,” “seek,”
“should,” “would,” “could,” “potential,” “ongoing,” and similar expressions
to identify forward-looking statements, whether in the negative or the affirmative. These statements reflect our current beliefs and are
based on information currently available to us. Accordingly, such forward-looking statements involve known and unknown risks, uncertainties
and other factors which could cause our actual results, performance or achievements to differ materially from those expressed in, or implied
by, such statements. Forward-looking statements contained herein include, but are not limited to, statements about:
| ● | our
history of losses and need for additional capital to fund our operations and our ability to obtain additional capital on acceptable terms,
or at all; |
| ● | our
ability to protect our intellectual property and continue to innovate; |
| ● | our
success in retaining or recruiting, or changes required in, our officers, key employees or directors; |
| ● | the
potential insufficiency of our disclosure controls and procedures to detect errors or acts of fraud; |
| ● | the
accuracy of our estimates regarding expenses, future revenues, and capital requirements; |
| ● | the
success of competing products or technologies that are or may become available; |
| ● | our
ability to grow the business due to the uncertainty resulting from the COVID-19 pandemic or any future pandemic; |
| ● | our
ability to comply with complex and increasing regulations by governmental authorities; |
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our ability to regain and maintain compliance with continued listing requirements of the Nasdaq Capital Market; |
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our ability to continue as a going concern; |
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statements as to the impact of the political and security situation in Israel on our business, including due to the number of armed conflicts between Israel and Hamas (an Islamist militia and political group in the Gaza Strip) and Hezbollah (an Islamist militia and political group in Lebanon); |
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our public securities’ potential liquidity and trading; and |
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our expectations regarding the period during which we qualify as an emerging growth company under the JOBS Act. |
Forward-looking statements
are based on our management’s current expectations, estimates, forecasts and projections about our business and the industry in
which we operate and our management’s beliefs and assumptions, and are not guarantees of future performance or development and involve
known and unknown risks, uncertainties and other factors that are in some cases beyond our control. As a result, any or all of our forward-looking
statements herein may turn out to be inaccurate. Important factors that may cause actual results to differ materially from current expectations
include, among other things, those listed under “Risk Factors,” “Use of Discussion and Analysis of Financial Condition
and Results of Operations,” “Business” and elsewhere herein or by incorporation by reference. Potential investors are
urged to consider these factors carefully in evaluating the forward-looking statements. You should read thoroughly this prospectus and
the documents that we refer to with the understanding that our actual future results may be materially different from and worse than what
we expect. We qualify all of our forward-looking statements by these cautionary statements.
The forward-looking statements included in this
prospectus speak only as of the date of this prospectus. Although we believe that the expectations reflected in the forward-looking statements
are reasonable, we cannot guarantee that future results, levels of activity, performance and events and circumstances reflected in the
forward-looking statements will be achieved or will occur. Except as required by law, we assume no obligation to update or revise these
forward-looking statements for any reason, even if new information becomes available in the future. You should, however, review the factors
and risks we describe in the reports we will file from time to time with the SEC after the date of this prospectus. See “Where You
Can Find More Information.”
USE OF PROCEEDS
We currently intend to use the net proceeds
from the sale of the securities offered under this prospectus for working capital, repayment of trade payables, mergers and acquisitions,
and general corporate purposes. We have not determined the amount of net proceeds to be used specifically for the foregoing purposes.
As a result, our management will have broad discretion in the allocation of the net proceeds and investors will be relying on the judgment
of our management regarding the application of the proceeds of any sale of the securities.
Each time we offer securities
under this prospectus, we will describe the intended use of the net proceeds from that offering in the applicable prospectus supplement.
The actual amount of net proceeds we spend on a particular use will depend on many factors, including, our future capital expenditures,
the amount of cash required by our operations, and our future revenue growth, if any. Therefore, we will retain broad discretion in the
use of the net proceeds.
THE SECURITIES WE MAY OFFER
The descriptions of the securities
contained in this prospectus, together with any applicable prospectus supplement, summarize the material terms and provisions of the various
types of securities that we may offer. We will describe in any applicable prospectus supplement relating to any securities the particular
terms of the securities offered by that prospectus supplement. If we so indicate in any applicable prospectus supplement, the terms of
the securities may differ from the terms we have summarized below. We may also include in any prospectus supplement information, where
applicable, about material U.S. federal income tax consequences relating to the securities, and the securities exchange or market, if
any, on which the securities will be listed.
We may sell from time to time,
in one or more offerings, one or more of the following securities:
| ● | warrants to purchase common stock; and |
| ● | units comprised of one or more of the other securities. |
The total initial offering price of all securities that we may issue
in these offerings will not exceed $50,000,000.
DESCRIPTION OF CAPITAL STOCK
Authorized Capital Stock
Our Certificate of Incorporation,
as amended from time to time (the “Certificate of Incorporation”), authorizes us to issue up to 42,803,774 shares consisting
of 30,000,000 shares of common stock with a par value of US$0.0001 per share, 2,803,774 shares of non-voting common stock
with a par value of US$0.0001 per share and 10,000,000 shares of preferred stock with a par value of US$0.0001 per share.
Common Stock
Our shares of our common stock
have the following rights, preferences and privileges:
Voting Rights
Each holder of common stock is entitled to one
vote for each share of common stock held on all matters submitted to a vote of stockholders. Any action at a meeting at which a quorum
is present will be decided by a majority of the voting power present in person or represented by proxy, except in the case of any election
of directors, which will be decided by a plurality of votes cast. There is no cumulative voting.
Dividends Rights
Holders of our common stock
are entitled to receive dividends when, as and if declared by our board of directors out of funds legally available for payment, subject
to the rights of holders, if any, of any class of stock having preference over the common stock. Any decision to pay dividends on our
common stock will be at the discretion of our board of directors. Our board of directors may or may not determine to declare dividends
in the future. The board of director’s determination to issue dividends will depend upon our profitability and financial condition
any contractual restrictions, restrictions imposed by applicable law and the SEC, and other factors that our board of directors deems
relevant.
Liquidation Rights
In the event of a voluntary
or involuntary liquidation, dissolution or winding up of the Company, the holders of our common stock will be entitled to share ratably
on the basis of the number of shares held in any of the assets available for distribution after we have paid in full, or provided for
payment of, all of our debts and after the holders of all outstanding series of any class of stock have preference over the common stock,
if any, have received their liquidation preferences in full.
Other Rights and Preferences
Holders of our common stock
will have no pre-emptive, conversion, subscription or other rights, and there are no redemption or sinking fund provisions applicable
to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to and may be adversely affected
by the rights of the holders of shares of any series of our preferred stock that we may designate in the future. Shares of our common
stock are not convertible into shares of any other class of capital stock, nor are they subject to any redemption or sinking fund provisions.
Fully paid and nonassessable
All of our outstanding shares
of common stock are fully paid and nonassessable.
Preferred Stock
We are authorized to issue
up to 10,000,000 shares of preferred stock. Our Certificate of Incorporation authorizes the board to issue these shares in one or
more series, to determine the designations and the powers, preferences and relative, participating, optional or other special rights and
the qualifications, limitations and restrictions thereof, including the dividend rights, conversion or exchange rights, voting rights
(including the number of votes per share), redemption rights and terms, liquidation preferences, sinking fund provisions and the number
of shares constituting the series. Our board of directors could, without stockholder approval, issue preferred stock with voting and other
rights that could adversely affect the voting power and other rights of the holders of common stock and which could have the effect of
making it more difficult for a third party to acquire, or of discouraging a third party from attempting to acquire, a majority of our
outstanding voting stock. No shares of preferred stock will be outstanding.
Certificate of Incorporation and Bylaw Provisions
Certificate of Incorporation and Bylaw Provisions
Our Certificate of Incorporation and our Bylaws
include a number of provisions that could deter hostile takeovers or delay or prevent changes in control of our management team, including
the following:
| ● | Board of Directors vacancies. Our Certificate
of Incorporation provides that vacancies on the board of directors may be filled only by the affirmative vote of a majority of the directors
then in office, irrespective of whether there is a quorum, or by a sole remaining director. Additionally, the number of directors to serve
on our board of directors is fixed solely and exclusively by resolution duly adopted by our board of directors. This would prevent a stockholder
from increasing the size of our board of directors and then gaining control of our board of directors by filling the resulting vacancies
with its own nominees. This makes it more difficult to change the composition of our board of directors but promotes continuity of management. |
| ● | Classified Board of Directors. In accordance
with our Certificate of Incorporation, as it will be in effect following the effectiveness of the registration statement of which this
prospectus forms a part, our board of directors will be divided into three classes with staggered three-year terms. At each annual general
meeting of stockholders, the successors to directors whose terms then expire will be elected to serve from the time of election and qualification
until the third annual meeting following election. Our directors will be divided among the three classes. We expect that 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. The division of our board of directors into three classes with staggered
three-year terms may delay or prevent a change of our management or a change in control. |
| ● | Special Meetings of Stockholders. Our Bylaws
provide that special meetings of our stockholders may be called by the board of directors acting pursuant to a resolution approved by
the affirmative vote of a majority of the directors then in office, and special meetings of stockholders may not be called by any other
person or persons. |
| ● | No Cumulative Voting. The DGCL provides that
stockholders are not entitled to the right to cumulate votes in the election of directors unless the corporation’s certificate of
incorporation provides otherwise. Our Certificate of Incorporation does not provide for cumulative voting. |
| ● | Amendment of Certificate of Incorporation and
Bylaw Provisions. Any amendment of our Certificate of Incorporation requires the affirmative vote of the majority of the outstanding shares
of capital stock entitled to vote on such amendment, and the affirmative vote of the majority of the outstanding shares of each class
entitled to vote thereon as a class, except that the provision in the Certificate of Incorporation regarding the staggered board may not
be repealed or amended without the vote of the holders of not less than 80% of the Company’s voting stock, voting as a single class.
Amendments to our Bylaws may be executed pursuant to a resolution by the Board of Directors pursuant to an affirmative vote of a majority
of the directors then in office, or by the affirmative vote of at least 75% of the outstanding shares of capital stock entitled to vote. |
| ● | Delaware Business Combination Statute. The Company
is subject to the “business combination” provisions of Section 203 of the DGCL. In general, Section 203 prohibits a publicly
held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years following
the date such person becomes an interested stockholder, unless the business combination or the transaction in which such person becomes
an interested stockholder is approved in a prescribed manner. Generally, a “business combination” includes a merger, asset
or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. Generally, an “interested stockholder”
is a person that, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder
status did own, 15% or more of a corporation’s voting stock. The existence of this provision may have an anti-takeover effect with
respect to transactions not approved in advance by our Board of Directors, and the anti-takeover effect includes discouraging attempts
that might result in a premium over the market price for the shares of our common stock. |
| ● | Exclusive Forum. Unless we consent in writing
to the selection of an alternative forum, the Court of Chancery of the State of Delaware is the sole and exclusive forum for (i) any derivative
action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our current
or former directors, officers, stockholder or other employees to us or our stockholders, (iii) any action asserting a claim against the
Corporation or any current or former director, officer, stockholder, employee or agent of the Corporation arising pursuant to any provision
of the DGCL, our Certificate of Incorporation or our Bylaws, (iv) any action to interpret, apply, enforce or determine the validity of
the Company’s Certificate of Incorporation or Bylaws, (v) any action asserting a claim against us governed by the internal affairs
doctrine or (vi) any action asserting an “internal corporate claim” as that term is defined in Section 115 of the General
Corporation Law. The federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint,
claim or proceeding asserting a cause of action arising under the Exchange Act or the Securities Act. Furthermore, 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 or the rules and regulations thereunder. Stockholders cannot waive compliance with the federal securities laws and the
rules and regulations thereunder. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of our capital
stock shall be deemed to have notice of and consented to the forum provision in our Certificate of Incorporation. This choice of forum
provision 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 such lawsuits against us and our directors, officers and other employees. |
Anti-Takeover Provisions
The provisions of the DGCL, our Certificate of
Incorporation and our Bylaws may have the effect of delaying, deferring or discouraging another person from acquiring control of our company.
These provisions, which are summarized below, may have the effect of discouraging takeover bids. They are also designed, in part, to encourage
persons seeking to acquire control of us to negotiate first with our board of directors. We believe that the benefits of increased protection
of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the disadvantages of discouraging a proposal
to acquire us because negotiation of these proposals could result in an improvement of their terms.
Our Certificate of Incorporation
established a classified board of directors, divided in three classes with staggered three-year terms. Under the classified board of directors
structure, only one class of directors would be elected at each annual meeting of our stockholders, with the other classes continuing
for the remainder for their respective three-year terms. Under the classified board of directors structure: (i) directors in Class I,
consisting of Gideon Marks, are to stand for election at the Annual Meeting to be held in 2026; (ii) directors in Class III, consisting
of Israel Niv and Tuvia Barlev, are to stand for election at the annual meeting of stockholders to be held in 2025, and (iii) directors
in Class II, consisting of Joseph Moscovitz, are to stand for election at the annual meeting of stockholders to be held in 2027.
Limitations on Liability, Indemnification of
officers and directors and Insurance
Our Certificate of Incorporation and Bylaws contain
provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by the DGCL. Consequently,
our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors,
except liability for:
| ● | any breach of the director’s duty of loyalty
to us or our stockholders; |
| ● | any act or omission not in good faith or that
involves intentional misconduct or a knowing violation of law; |
| ● | unlawful payments of dividends or unlawful stock
repurchases, or redemptions as provided in Section 174 of the DGCL; or |
| ● | any transaction from which the director derived
an improper personal benefit. |
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock will be VStock Transfer, LLC. The transfer agent and registrar’s address is 18 Lafayette Place, Woodmere, NY 11598.
Listing
Our common stock is listed
on the Nasdaq Capital Market under the symbol “ASNS”.
Exclusive Forum
Our Certificate of Incorporation provides that,
unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole
and exclusive forum for any stockholder for (a) any derivative action or proceeding brought on our behalf, (b) any action asserting a
claim of breach of a fiduciary duty owed by, or other wrongdoing by, any current or former director, officer, stockholder, employee or
agent of the Company to the Company or the Company’s stockholders, (c) any action asserting a claim against the Corporation or any
current or former director, officer, stockholder, employee or agent of the Corporation arising pursuant to any provision of the DGCL or
the Company’s Certificate of Incorporation or Bylaws, (d) any action to interpret, apply, enforce or determine the validity of the
Company’s Certificate of Incorporation or Bylaws, or (e) any action asserting a claim governed by the internal affairs doctrine
or (f) any action asserting an “internal corporate claim” as that term is defined in Section 115 of the General Corporation
Law. The federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint, claim
or proceeding asserting a cause of action arising under the Exchange Act or the Securities Act. Furthermore, 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 or the rules and regulations thereunder.
Stockholders cannot waive compliance with the
federal securities laws and the rules and regulations thereunder. Any person or entity purchasing or otherwise acquiring or holding any
interest in shares of our capital stock shall be deemed to have notice of and consented to the forum provision in our Certificate of Incorporation.
The choice-of-forum provision may limit a stockholder’s
ability to bring a claim in a judicial forum that it finds favorable for disputes with the Company or its directors, officers or other
employees, and may result in increased costs to a stockholder who has to bring a claim in a forum that is not convenient to the stockholder,
which may discourage such lawsuits. Although under Section 115 of the DGCL, exclusive forum provisions may be included in a company’s
certificate of incorporation, the enforceability of similar forum provisions in other companies’ certificates or incorporation or
bylaws has been challenged in legal proceedings, and it is possible that a court could find these types of provisions to be inapplicable
or unenforceable. If a court were to find the exclusive forum provision of our Certificate of Incorporation inapplicable or unenforceable
with respect to one or more of the specified types of actions or proceedings, we may incur additional costs associated with resolving
such matters in other jurisdictions, which could materially and adversely affect our business, financial condition and results of operations
and result in a diversion of the time and resources of our management and board of directors.
Anti-Takeover Provisions of the DGCL and Certificate
of Incorporation Provisions
Certain provisions of the DGCL and certain provisions
included in our Certificate of Incorporation and Bylaws summarized below may be deemed to have an anti-takeover effect and may delay,
deter, or prevent a tender offer or takeover attempt that a stockholder might consider to be in its best interests, including attempts
that might result in a premium being paid over the market price for the shares held by stockholders.
Removal of Directors
Our Bylaws provide that stockholders may only
remove a director with or without cause by a vote of no less than a majority of the shares present in person or by proxy at the meeting
and entitled to vote, voting together as a single class.
Amendments to Certificate of Incorporation
Certain sections of our Certificate of Incorporation
require the affirmative vote of the holders of a majority of the voting power of the then outstanding shares of capital stock of the Company
entitled to vote, voting together as a single class, except that the provision in the Certificate of Incorporation regarding the staggered
board may not be repealed or amended without the vote of the holders of not less than 80% of the Company’s voting stock, voting
as a single class.
Staggered Board
The board of directors is divided into three classes,
with regular three-year staggered terms. This classification system increases the difficulty of replacing a majority of the directors
and may tend to discourage a third-party from making a tender offer or otherwise attempting to gain control of the Company. In addition,
under Delaware law, the Certificate and the By-Laws, the Company’s directors may be removed from office by the stockholders only
for cause and only in the manner provided for in the Certificate. These factors may maintain the incumbency of the board of directors.
Amendments to Bylaws
Our Certificate of Incorporation limits the abilities
of the directors and stockholders to amend our Bylaws in certain circumstances. In particular, the Bylaws may be amended only by the vote
of a majority of all of the directors then in office, or by the affirmative vote of the stockholders holding at least 75% of the outstanding
shares of capital stock entitled to vote in accordance with the provisions of the Certificate of Incorporation, Bylaws, and the DGCL.
No Cumulative Voting
Our Certificate of Incorporation does not provide
for cumulative voting.
Special Meetings of Stockholders
Our Bylaws provide that, except as otherwise required
by law, special meetings of the stockholders may be called only by an officer at the request of a majority of our board of directors,
by our Chief Executive Officer or President or by the holders of not less than 25% of the holders of stock entitled to vote at the meeting.
DESCRIPTION OF DEBT SECURITIES
The following description,
together with the additional information we include in any applicable prospectus supplements or free writing prospectuses, summarizes
the material terms and provisions of the debt securities that we may offer under this prospectus. We may issue debt securities, in one
or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally to any future debt securities we may offer under this prospectus, we will describe the particular terms of
any debt securities that we may offer in more detail in the applicable prospectus supplement or free writing prospectus. The terms of
any debt securities we offer under a prospectus supplement may differ from the terms we describe below. However, no prospectus supplement
shall fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in
this prospectus at the time of its effectiveness. As of the date of this prospectus, we have no outstanding registered debt securities.
Unless the context requires otherwise, whenever we refer to the “indentures,” we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities.
We will issue any senior debt
securities under the senior indenture that we will enter into with the trustee named in the senior indenture. We will issue any subordinated
debt securities under the subordinated indenture and any supplemental indentures that we will enter into with the trustee named in the
subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which this prospectus is
a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed
as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we
file with the SEC.
The indentures will be qualified
under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term “trustee” to refer to either
the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of
material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in
their entirety by reference to, all of the provisions of the indenture and any supplemental indentures applicable to a particular series
of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the
debt securities that we may offer under this prospectus, as well as the complete indentures that contains the terms of the debt securities.
Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
The terms of each series
of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner
provided in an officers’ certificate or by a supplemental indenture. Debt securities may be issued in separate series without limitation
as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securities of any series. We will
describe in the applicable prospectus supplement the terms of the series of debt securities being offered,
including:
|
● |
the principal amount being
offered, and if a series, the total amount authorized and the total amount outstanding; |
|
● |
any limit on the amount
that may be issued; |
|
● |
whether or not we will
issue the series of debt securities in global form, and, if so, the terms and who the depositary will be; |
|
● |
whether and under what
circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person for
tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
|
● |
the annual interest rate,
which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest
will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
|
● |
whether or not the debt
securities will be secured or unsecured, and the terms of any secured debt; |
|
● |
the terms of the subordination
of any series of subordinated debt; |
|
● |
the place where payments
will be made; |
|
● |
restrictions on transfer,
sale or other assignment, if any; |
|
● |
our right, if any, to defer
payment of interest and the maximum length of any such deferral period; |
|
● |
the date, if any, after
which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional
redemption provisions and the terms of those redemption provisions; |
|
● |
provisions for a sinking
fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which we are obligated, pursuant
thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt securities and the currency or
currency unit in which the debt securities are payable; |
|
● |
whether the indenture will
restrict our ability or the ability of our subsidiaries to: |
|
● |
incur additional indebtedness; |
|
● |
issue additional securities; |
|
● |
pay dividends or make distributions
in respect of our capital stock or the capital stock of our subsidiaries; |
|
● |
place restrictions on our
subsidiaries’ ability to pay dividends, make distributions or transfer assets; |
|
● |
make investments or other
restricted payments; |
|
● |
sell or otherwise dispose
of assets; |
|
● |
enter into sale-leaseback
transactions; |
|
● |
engage in transactions
with stockholders or affiliates; |
|
● |
issue or sell stock of
our subsidiaries; or |
|
● |
effect a consolidation
or merger; |
|
● |
whether the indenture will
require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
|
● |
a discussion of certain
material or special United States federal income tax considerations applicable to the debt securities; |
|
● |
information describing
any book-entry features; |
|
● |
the applicability of the
provisions in the indenture on discharge; |
|
● |
whether the debt securities
are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined in
paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended; |
|
● |
the denominations in which
we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
|
● |
the currency of payment
of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and |
|
● |
any other specific terms,
preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of default or covenants
provided with respect to the debt securities, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable
prospectus supplement the terms under which a series of debt securities may be convertible into or exchangeable for our common stock or
other securities (including securities of a third party). We will include provisions as to whether conversion or exchange is mandatory,
at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or
other securities (including securities of a third party) that the holders of the series of debt securities receive would be subject to
adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain any covenant that restricts
our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However,
any successor to or acquirer of such assets must assume all of our obligations under the indentures or the debt securities, as appropriate.
If the debt securities are convertible into or exchangeable for our other securities or securities of other entities, the person with
whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into
securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation,
merger or sale.
Events of Default under the Indenture
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indentures
with respect to any series of debt securities that we may issue:
|
● |
if we fail to pay interest
when due and payable and our failure continues for 90 days and the time for payment has not been extended; |
|
● |
if we fail to pay the principal,
premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase or otherwise, and the time
for payment has not been extended; |
|
● |
if we fail to observe or
perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another
series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or we and the trustee receive
notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series;
and |
|
● |
if specified events of
bankruptcy, insolvency or reorganization occur. |
We will describe in each applicable
prospectus supplement any additional events of default relating to the relevant series of debt securities.
If an event of default with
respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above,
the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice
to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued
interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain specified bankruptcy, insolvency
or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority
in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to
the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the
indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise
any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the trustee reasonable indemnity or security satisfactory to it against any loss, liability or expense.
The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series, provided that:
|
● |
the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
|
● |
subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
The indentures provide that
if an event of default has occurred and is continuing, the trustee will be required in the exercise of its powers to use the degree of
care that a prudent person would use in the conduct of its own affairs. The trustee, however, may refuse to follow any direction that
conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rights of any other holder of the relevant
series of debt securities, or that would involve the trustee in personal liability. Prior to taking any action under the indentures, the
trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred by taking or not taking
such action.
A holder of the debt securities
of any series will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other
remedies only if:
|
● |
the holder has given written notice to the trustee of a continuing event of default with respect to that series; |
|
● |
the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense or to be incurred in compliance with instituting the proceeding as trustee; and |
|
● |
the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These limitations do not apply
to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the
debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We will periodically file
statements with the trustee regarding our compliance with specified covenants in the indentures.
The indentures provide that
if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the trustee must mail to each holder
notice of the default within the earlier of 90 days after it occurs and 30 days after it is known by a responsible officer of the trustee
or written notice of it is received by the trustee, unless such default has been cured or waived. Except in the case of a default in the
payment of principal or premium of, or interest on, any debt security or certain other defaults specified in an indenture, the trustee
shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of
directors, or responsible officers of the trustee, in good faith determine that withholding notice is in the best interests of holders
of the relevant series of debt securities.
Modification of Indenture; Waiver
Subject to the terms of the
indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without the consent of any holders
with respect to the following specific matters:
|
● |
to fix any ambiguity, defect
or inconsistency in the indenture; |
|
● |
to comply with the provisions
described above under “Description of Debt Securities — Consolidation, Merger or Sale;” |
|
● |
to comply with any requirements
of the SEC in connection with the qualification of any indenture under the Trust Indenture Act; |
|
● |
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; |
|
● |
to provide for the issuance
of, and establish the form and terms and conditions of, the debt securities of any series as provided under “Description of
Debt Securities — General,” to establish the form of any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
|
● |
to evidence and provide
for the acceptance of appointment hereunder by a successor trustee; |
|
● |
to provide for uncertificated
debt securities and to make all appropriate changes for such purpose; |
|
● |
to add such new covenants,
restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or the occurrence and the continuance,
of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right
or power conferred to us in the indenture; or |
|
● |
to change anything that
does not adversely affect the interests of any holder of debt securities of any series in any material respect. |
In addition, under the indentures,
the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at
least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, subject to
the terms of the indenture for any series of debt securities that we may issue or otherwise provided in the prospectus supplement applicable
to a particular series of debt securities, we and the trustee may only make the following changes: with the consent of each holder of
any outstanding debt securities affected:
|
● |
extending the stated maturity
of the series of debt securities; |
|
● |
reducing the principal
amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption or
repurchase of any debt securities; or |
|
● |
reducing the percentage
of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each indenture provides that,
subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable to a particular series
of debt securities, we may elect to be discharged from our obligations with respect to one or more series of debt securities, except for
specified obligations, including obligations to:
|
● |
register
the transfer or exchange of debt securities of the series; |
|
● |
replace
stolen, lost or mutilated debt securities of the series; |
|
● |
maintain
paying agencies; |
|
● |
hold
monies for payment in trust; |
|
● |
recover
excess money held by the trustee; |
|
● |
compensate
and indemnify the trustee; and |
|
● |
appoint any successor trustee. |
In order to exercise our rights
to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, and any premium
and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities
of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in
temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company
or another depositary named by us and identified in a prospectus supplement with respect to that series. See “Legal Ownership of
Securities” below for a further description of the terms relating to any book-entry securities.
At the option of the holder,
subject to the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any
authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the
indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt
securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any
transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer
or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other
governmental charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve
a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series.
If we elect to redeem the debt securities of any
series, we will not be required to:
|
● |
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 |
|
● |
register the transfer of
or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities
we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during
the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically
set forth in the applicable indenture and is under no obligation to exercise any of the powers given it by the indentures at the request
of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that
it might incur. However, upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person
would exercise or use in the conduct of his or her own affairs.
Payment and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest payment.
We will pay principal of and
any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that
unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will
name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular
series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying
agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the
end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt
security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt
securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust
Indenture Act is applicable.
Ranking Debt Securities
The subordinated debt securities
will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness to the extent described in a
prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue. It also
does not limit us from issuing any other secured or unsecured debt.
The senior debt securities
will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The senior indenture does not limit
the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
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 or debt securities and may be issued in one or more series. Warrants may be offered independently or together with common stock
or debt securities offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we
have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms
of any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus.
The terms of any warrants offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement
will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in
this prospectus at the time of its effectiveness.
We will issue the warrants
under a warrant agreement that we will enter into with a warrant agent to be selected by us. The warrant agent will act solely as an agent
of ours in connection with the warrants and will not act as an agent for the holders or beneficial owners of the warrants. We will file
as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on
Form 8-K that we file with the SEC, the form of warrant agreement, including a form of warrant certificate, that describes the terms of
the particular series of warrants we are offering before the issuance of the related series of warrants. The following summaries of material
provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions
of the warrant agreement and warrant certificate applicable to a particular series of warrants. We urge you to read the applicable prospectus
supplement and any applicable free writing prospectus related to the particular series of warrants that we sell under this prospectus,
as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement
the terms relating to a series of warrants, including:
|
● |
the offering price and
aggregate number of warrants offered; |
|
● |
the currency for which
the warrants may be purchased; |
|
● |
if applicable, the designation
and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each
principal amount of such security; |
|
● |
if applicable, the date
on and after which the warrants and the related securities will be separately transferable; |
|
● |
in the case of warrants
to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and
currency in which, this principal amount of debt securities may be purchased upon such exercise; |
|
● |
in the case of warrants
to purchase common stock, the number of shares of common stock purchasable upon the exercise of one warrant and the price at which
these shares may be purchased upon such exercise; |
|
● |
the effect of any merger,
consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
|
● |
the terms of any rights
to redeem or call the warrants; |
|
● |
any provisions for changes
to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
|
● |
the dates on which the
right to exercise the warrants will commence and expire; |
|
● |
the manner in which the
warrant agreements and warrants may be modified; |
|
● |
United States federal income
tax consequences of holding or exercising the warrants; |
|
● |
the terms of the securities
issuable upon exercise of the warrants; and |
|
● |
any other specific terms,
preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants,
holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
|
● |
in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
|
● |
in the case of warrants
to purchase common stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or
to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle
the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may
exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may
exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement.
We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the
holder of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required
payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other
office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If
fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for
the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities
as all or part of the exercise price for warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act
solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with
any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent
will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without
the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its warrants.
The warrant agent for any
warrants we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description,
together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes
the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will
apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in
more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the
terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or
offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will file as exhibits to
the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that
we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental
agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units
are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements
applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series
of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain the terms
of the units.
General
We may issue units comprised
of one or more debt securities, shares of common stock and warrants in any combination. Each unit will be issued so that the holder of
the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of
a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit
may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement
the terms of the series of units, including:
|
● |
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; |
|
● |
any provisions of the governing
unit agreement that differ from those described below; and |
|
● |
any provisions for the
issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The provisions described in
this section, as well as those described under “Description of Capital Stock,” “Description of Debt Securities”
and “Description of Warrants” will apply to each unit and to any common stock, debt security or warrant included in each unit,
respectively.
Issuance in Series
We may issue units in such amounts and in numerous
distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely
as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder
of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit
agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We, the unit agents and any
of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate
for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
See “Legal Ownership of Securities.”
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in
registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those
persons who have securities registered in their own names on the books that we or any applicable trustee or depositary or warrant agent
maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We
refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names,
as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities
issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in
book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more
global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions
that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants,
in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name
a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary
or its participants. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we
will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants,
which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in
a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank,
broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant.
As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global
security or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their
own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker
or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through
an account he or she maintains at that institution.
For securities held in street
name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions
in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all
payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who
hold securities in street name will be indirect holders, not legal holders, of those securities.
Legal Holders
Our obligations, as well as
the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities.
We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities
only in global form.
For example, once we make
a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required,
under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly,
we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation
to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the legal
holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the
legal holders.
Special Considerations
for Indirect Holders
If you hold securities through
a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global
securities or in street name, you should check with your own institution to find out:
| ● | how it handles securities payments and notices; |
| ● | whether it imposes fees or charges; |
| ● | how it would handle a request for the holders’ consent, if ever required; |
| ● | whether and how you can instruct it to send you securities registered in your own name so you can be a
legal holder, if that is permitted in the future; |
| ● | 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 |
| ● | if the securities are in book-entry form, how the depositary’s rules and procedures will affect
these matters. |
Global Securities
A global security is a security
that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same
global securities will have the same terms.
Each security issued in book-entry
form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its
nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise
in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all
securities issued in book-entry form.
A global security may not
be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special
termination situations arise. We describe those situations below under “— Special Situations When A Global Security Will Be
Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder
of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account
with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not
be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement
for a particular security indicates that the security will be issued as a global security, then the security will be represented by a
global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through
another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations
For Global Securities
As an indirect holder, an
investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If securities are issued only
as global securities, an investor should be aware of the following:
| ● | 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; |
| ● | 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; |
| ● | an investor may not be able to pledge his or her interest in the global security in circumstances where
certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to
be effective; |
| ● | the depositary’s policies, which may change from time to time, will govern payments, transfers,
exchanges and other matters relating to an investor’s interest in the global security. We and any applicable trustee have no responsibility
for any aspect of the depositary’s actions or for its records of ownership interests in the global security. We and the trustee
also do not supervise the depositary in any way; |
| ● | the depositary may, and we understand that DTC will, require that those who purchase and sell interests
in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so
as well; and |
| ● | financial institutions that participate in the depositary’s book-entry system, and through which
an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters
relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor
and are not responsible for the actions of any of those intermediaries |
Special Situations When
A Global Security Will Be Terminated
In a few special situations
described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests.
After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult
their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be
direct holders. We have described the rights of holders and street name investors above.
A global security will terminate
when the following special situations occur:
| ● | 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; |
| ● | if we notify any applicable trustee that we wish to terminate
that global security; or |
| ● | if an event of default has occurred with regard to securities
represented by that global security and has not been cured or waived. |
The applicable prospectus
supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities
covered by the prospectus supplement. When a global security terminates, the depositary, and neither we, nor any applicable trustee, is
responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
The securities being offered
by this prospectus may be sold:
| ● | to or through one or more underwriters on a firm commitment or agency basis; |
| ● | through put or call option transactions relating to the securities; |
| ● | to or through dealers, who may act as agents or principals, including a block trade (which may involve
crosses) in which a broker or dealer so engaged will attempt to sell as agent but may position and resell a portion of the block as principal
to facilitate the transaction; |
| ● | through privately negotiated transactions; |
| ● | purchases by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant
to this prospectus; |
| ● | directly to purchasers, including our affiliates, through a specific bidding or auction process, on a
negotiated basis or otherwise; to or through one or more underwriters on a firm commitment or best efforts basis; |
| ● | exchange distributions and/or secondary distributions; |
| ● | ordinary brokerage transactions and transactions in which the broker solicits purchasers; |
| ● | in “at-the-market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act to
or through a market maker or into an existing trading market, on an exchange or otherwise; |
| ● | directly to a purchaser pursuant to what is known as an “equity line of credit”; |
| ● | transactions not involving market makers or established trading markets, including direct sales or privately
negotiated transactions; |
| ● | transactions in options, swaps or other derivatives that may or may not be listed on an exchange; |
| ● | through any other method permitted pursuant to applicable law; or |
| ● | through a combination of any such methods of sale. |
At any time a particular offer
of the securities covered by this prospectus is made, a revised prospectus or prospectus supplement, if required, will be distributed
which will set forth the aggregate amount of securities covered by this prospectus being offered and the terms of the offering, including
the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions, concessions and other items constituting
compensation from us and any discounts, commissions or concessions allowed or re-allowed or paid to dealers. Such prospectus supplement,
and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part, will be filed with the
SEC to reflect the disclosure of additional information with respect to the distribution of the securities covered by this prospectus.
In order to comply with the securities laws of certain states, if applicable, the securities sold under this prospectus may only be sold
through registered or licensed broker-dealers. In addition, in some states the securities may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from registration or qualification requirements is available and is complied
with.
The distribution of securities
may be effected from time to time in one or more transactions, including block transactions and transactions on the Nasdaq Capital Market
or any other organized market where the securities may be traded. The securities may be sold at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices.
The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation
for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received
from us or from the purchasers of the securities. Any dealers and agents participating in the distribution of the securities may be deemed
to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts. If any such
dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act.
Agents may from time to time
solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement any agent involved in the
offer or sale of the securities and set forth any compensation payable to the agent. Unless otherwise indicated in the prospectus supplement,
any agent will be acting on a best efforts basis for the period of its appointment. Any agent selling the securities covered by this prospectus
may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities.
To the extent that we make
sales to or through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a distribution
agreement between us and the underwriters or agents. If we engage in at-the-market sales pursuant to a distribution agreement, we will
sell any of our listed securities to or through one or more underwriters or agents, which may act on an agency basis or on a principal
basis. During the term of any such agreement, we may sell any of our listed securities on a daily basis in exchange transactions or otherwise
as we agree with the underwriters or agents. The distribution agreement will provide that any of our listed securities which are sold
will be sold at prices related to the then prevailing market prices for our listed securities. Therefore, exact figures regarding proceeds
that will be raised or commissions to be paid cannot be determined at this time and will be described in a prospectus supplement. Pursuant
to the terms of the distribution agreement, we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers
to purchase, blocks of our listed securities. The terms of each such distribution agreement will be set forth in more detail in a prospectus
supplement to this prospectus.
We may also sell securities
pursuant to an “equity line of credit”. In such event, we will enter into a common stock purchase agreement with the purchaser
to be named therein, which will be described in a Current Report on Form 8-K that we will file with the SEC. In that Form 8-K, we will
describe the total amount of securities that we may require the purchaser to purchase under the purchase agreement and the other terms
of purchase, and any rights that the purchaser is granted to purchase securities from us. In addition to our issuance of shares of common
stock to the equity line purchaser pursuant to the purchase agreement, this prospectus (and the applicable prospectus supplement or post-effective
amendment) also covers the resale of those shares from time to time by the equity line purchaser to the public. The equity line purchaser
will be considered an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act. Its resales may be effected
through a number of methods, including without limitation, ordinary brokerage transactions and transactions in which the broker solicits
purchasers and block trades in which the broker or dealer so engaged will attempt to sell the shares as agent, but may position and resell
a portion of the block as principal to facilitate the transaction. The equity line purchaser will be bound by various anti-manipulation
rules of the SEC and may not, for example, engage in any stabilization activity in connection with its resales of our securities and may
not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities other than as permitted
under the Exchange Act.
If underwriters are used in
a sale, securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under delayed
delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting syndicates represented
by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used
in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters, as well as any other underwriter
or underwriters, with respect to a particular underwritten offering of securities, and will set forth the terms of the transactions, including
compensation of the underwriters and dealers and the public offering price, if applicable. The prospectus and prospectus supplement will
be used by the underwriters to resell the securities.
If a dealer is used in the
sale of the securities, we or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in the
prospectus supplement the name of the dealer and the terms of the transactions.
We may directly solicit offers
to purchase the securities and may make sales of securities directly to institutional investors or others. These persons may be deemed
to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the
prospectus supplement will describe the terms of any such sales, including the terms of any bidding or auction process, if used.
Agents, underwriters and dealers
may be entitled under agreements which may be entered into with us to indemnification by us against specified liabilities, including liabilities
incurred under the Securities Act, or to contribution by us to payments they may be required to make in respect of such liabilities. If
required, the prospectus supplement will describe the terms and conditions of the indemnification or contribution. Some of the agents,
underwriters or dealers, or their affiliates may be customers of, engage in transactions with or perform services for us or our subsidiaries.
Any person participating in
the distribution of securities registered under the registration statement that includes this prospectus will be subject to applicable
provisions of the Exchange Act and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the
timing of purchases and sales of any of our securities by that person. Furthermore, Regulation M may restrict the ability of any person
engaged in the distribution of our securities to engage in market-making activities with respect to our securities. These restrictions
may affect the marketability of our securities and the ability of any person or entity to engage in market-making activities with respect
to our securities.
Certain persons participating
in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions, penalty bids and other transactions
that stabilize, maintain or otherwise affect the price of the offered securities. These activities may maintain the price of the offered
securities at levels above those that might otherwise prevail in the open market, including by entering stabilizing bids, effecting syndicate
covering transactions or imposing penalty bids, each of which is described below:
| ● | a stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging,
fixing or maintaining the price of a security. |
| ● | a syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate
or the effecting of any purchase to reduce a short position created in connection with the offering. |
| ● | a penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession
from a syndicate member in connection with the offering when offered securities originally sold by the syndicate member are purchased
in syndicate covering transactions. |
These transactions may be
effected on an exchange or automated quotation system, if the securities are listed on that exchange or admitted for trading on that automated
quotation system, or in the over-the-counter market or otherwise.
If so indicated in the applicable
prospectus supplement, we will authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase
offered securities from us at the public offering price set forth in such prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such contracts will be subject only to those conditions set forth
in the prospectus supplement and the prospectus supplement will set forth the commission payable for solicitation of such contracts.
In addition, shares of common
stock or warrants may be issued upon conversion of or in exchange for debt securities or other securities.
Any underwriters to whom offered
securities are sold for public offering and sale may make a market in such offered securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. The offered securities may or may not be listed on a national
securities exchange. No assurance can be given that there will be a market for the offered securities.
Any securities that qualify
for sale pursuant to Rule 144 or Regulation S under the Securities Act, may be sold under Rule 144 or Regulation S rather than pursuant
to this prospectus.
In connection with offerings
made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant to which we receive our outstanding
securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters
or agents may also sell securities covered by this prospectus to hedge their positions in these outstanding securities, including in short
sale transactions. If so, the underwriters or agents may use the securities received from us under these arrangements to close out any
related open borrowings of securities.
We may enter into derivative
transactions with third parties or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement indicates, in connection with those derivatives, such third parties (or affiliates of such third
parties) may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions.
If so, such third parties (or affiliates of such third parties) may use securities pledged by us or borrowed from us or others to settle
those sales or to close out any related open borrowings of shares, and may use securities received from us in settlement of those derivatives
to close out any related open borrowings of shares. The third parties (or affiliates of such third parties) in such sale transactions
will be underwriters and will be identified in the applicable prospectus supplement (or a post-effective amendment).
We may loan or pledge securities
to a financial institution or other third party that in turn may sell the securities using this prospectus. Such financial institution
or third party may transfer its short position to investors in our securities or in connection with a simultaneous offering of other securities
offered by this prospectus or in connection with a simultaneous offering of other securities offered by this prospectus.
LEGAL MATTERS
The validity of the issuance
of the securities offered hereby will be passed upon for us by Greenberg Traurig, LLP. Additional legal matters may be passed upon for
us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The financial statements
incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2023 have been so
incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company’s ability to continue as a
going concern as described in Note 1b to the financial statements) of Kesselman & Kesselman, Certified Public Accountants
(Isr.), a member firm of PricewaterhouseCoopers International Limited, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting
requirements of the Exchange Act, and file annual, quarterly and current reports, proxy statements and other information with the SEC.
You may read and copy these reports, proxy statements and other information at the SEC’s public reference facilities at 100 F Street,
N.E., Room 1580, Washington, D.C. 20549. You can request copies of these documents by writing to the SEC and paying a fee for the copying
cost. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the public reference facilities. SEC filings are
also available at the SEC’s web site at www.sec.gov.
This prospectus is only part
of a registration statement on Form S-3 that we have filed with the SEC under the Securities Act and therefore omits certain information
contained in the registration statement. We have also filed exhibits and schedules with the registration statement that are excluded from
this prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any
contract or other document. You may inspect a copy of the registration statement, including the exhibits and schedules, without charge,
at the public reference room or obtain a copy from the SEC upon payment of the fees prescribed by the SEC.
Our SEC filings are also available
to the public on our website, actelis.com. The information on our website, however, is not, and should not be deemed to be,
a part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate
by reference” information that we file with them. Incorporation by reference allows us to disclose important information to you
by referring you to those other documents. The information incorporated by reference is an important part of this prospectus, and information
that we file later with the SEC will automatically update and supersede this information. This prospectus omits certain information contained
in the registration statement, as permitted by the SEC. You should refer to the registration statement and any prospectus supplement filed
hereafter, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements
in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement
are not necessarily complete and each statement is qualified in all respects by that reference. Copies of all or any part of the registration
statement, including the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at
the offices of the SEC listed above in “Where You Can Find More Information.” The documents we are incorporating by reference
are:
|
● |
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 26, 2024; |
|
|
|
|
● |
Our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2024 and June 30, 2024, as filed with the SEC on May 14, 2024 and August 14, 2024, respectively; |
|
|
|
|
● |
Our Current Reports on Form 8-K (excluding any reports or portions thereof that are deemed to be furnished and not filed) filed on January 8, 2024, February 12, 2024, February 14, 2024, March 14, 2024, March 26, 2024, April 2, 2024, May 2, 2024, May 14, 2024, May 15, 2024, May 23, 2024, May 23, 2024, June 6, 2024, June 14, 2024, June 18, 2024, June 20, 2024, June 28, 2024 July 2, 2024, July 24, 2024. July 30, 2024, August 2, 2024, August 14, 2024, August 16, 2024, August 19, 2024, August 20, 2024, August 28, 2024 and September 3, 2024. |
|
|
|
| ● | Our
definitive proxy statement on Schedule 14A relating to our 2024 annual meeting of stockholders filed on June 25, 2024; and |
|
|
|
|
● |
The
description of our common stock, which is contained in the registration statement on Form
8-A, filed with the SEC on June May 4, 2022, as supplemented by Exhibit
4.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2022, filed on March 29, 2023), and as may be
further updated or amended in any amendment or report filed for such purpose. |
We also incorporate by reference
all additional documents that we file with the Securities and Exchange Commission under the terms of Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act that are made after the date of the initial registration statement but prior to effectiveness of the registration statement
and after the date of this prospectus but prior to the termination of the offering of the securities covered by this prospectus. We are
not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not file in accordance with
Securities and Exchange Commission rules.
You may request, and we will
provide you with, a copy of these filings, at no cost, by calling us at +972-3-600-9030 or by writing to us at the following address:
Actelis Networks, Inc.
4039 Clipper Court
Fremont, California 94538
(510) 545-1045
Attention: Corporate Secretary
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. |
|
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION |
The following table sets forth
the costs and expenses payable by the Company in connection with the issuance and distribution of the securities being registered under
this registration statement. All expenses incurred with respect to the registration of the common stock will be borne by the Company.
All amounts are estimates, except the SEC registration fee.
SEC registration fee |
|
$ |
7,380 |
|
FINRA filing fees and expenses |
|
$ |
7,550 |
|
Transfer agent’s fees and expenses |
|
$ |
* |
|
Legal fees and expenses |
|
$ |
* |
|
Printing fees and expenses |
|
$ |
* |
|
Accounting fees and expenses |
|
$ |
* |
|
Miscellaneous fees and expenses |
|
$ |
* |
|
Total |
|
$ |
* |
|
* | These fees and expenses depend on the securities offered
and the number of issuances and accordingly cannot be estimated at this time. |
ITEM 15. |
|
INDEMNIFICATION OF DIRECTORS AND OFFICERS |
Our Certificate of Incorporation
and Restated Bylaws, each as amended to date, provide that our company will indemnify, to the fullest extent permitted by the General
Corporation Law of the State of Delaware, each person who is or was a director, officer, employee or agent of our company, or who serves
or served any other enterprise or organization at the request of our company. Pursuant to Delaware law, this includes elimination of liability
for monetary damages for breach of the directors’ fiduciary duty of care to our company and its stockholders. These provisions do
not eliminate the directors’ duty of care and, in appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition, each director will continue to be subject to liability for
breach of the director’s duty of loyalty to our company, for acts or omissions not in good faith or involving intentional misconduct,
for knowing violations of law, for any transaction from which the director derived an improper personal benefit, and for payment of dividends
or approval of stock repurchases or redemptions that are unlawful under Delaware Law. The provision also does not affect a director’s
responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws.
In addition, Section 145
of the Delaware Law provides that a corporation may indemnify any persons, including officers and directors, who are, or are threatened
to be made, party to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of the corporation, or is or was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided
such officer, director, employee or agent acted in good faith and in a manner the person reasonably believed to be in or not opposed to
the corporation’s best interests and, with respect to criminal proceedings, had no reasonable cause to believe that the person’s
conduct was unlawful. A Delaware corporation may indemnify officers or directors in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him or her against expenses (including attorneys’ fees) that he or she actually and reasonably
incurred.
The Company’s Certificate
of Incorporation and Restated Bylaws provide for indemnification of directors and officers to the fullest extent permitted by the Delaware
Law.
The exhibits listed in the
accompanying Exhibit Index are filed or incorporated by reference as part of this Registration Statement.
Exhibit No. |
|
Description |
1.1** |
|
Form of Underwriting
Agreement in connection with the offering of any securities |
3.1 |
|
Form of the Twenty-Fourth Amended and Restated Certificate of Incorporation of the Registrant, dated May 2, 2022 (as filed as Exhibit 3.5 to the Company’s Form S-1/A, filed on May 10, 2022) |
3.2 |
|
Amended and Restated Bylaws of Actelis Networks, Inc. (as filed as Exhibit 3.4 to the Company’s Form S-1/A, filed on May 10, 2022) |
4.1** |
|
Form of Common Stock Certificate |
4.2** |
|
Form of Senior Indenture |
4.3** |
|
Form of Subordinated Indenture |
4.4** |
|
Form of Senior Note |
4.5** |
|
Form of Subordinated Note |
4.6** |
|
Form of Warrant |
4.7** |
|
Form of Warrant Agreement |
4.8** |
|
Form of Unit Agreement |
5.1* |
|
Opinion of Greenberg Traurig LLP as to the legality of the securities being registered |
23.1* |
|
Consent of Greenberg Traurig LLP (included in Exhibit 5.1) |
23.2* |
|
Consent of Kesselman & Kesselman, Certified Public Accountants (Isr.) a member firm of PricewaterhouseCoopers International Limited, independent registered public accounting firm for the Company |
24.1 |
|
Power of Attorney (included on signature pages to the registration statement) |
25.1*** |
|
Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended. |
107* |
|
Filing Fee Table |
** | To the extent applicable, to be filed by an amendment or
as an exhibit to a document filed under the Securities Exchange Act of 1934, as amended, and incorporated by reference herein. |
*** | To be filed pursuant to Section 305(b)(2) of the Trust Indenture
Act of 1939. |
(a) The undersigned
registrant hereby undertakes:
(1) To file,
during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect
in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however,
that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove
from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date.
(6) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The undersigned
registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned
registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(j) The undersigned
registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations prescribed
by the SEC under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for 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 Fremont, on September
18, 2024.
|
ACTELIS NETWORKS, INC. |
|
|
|
|
By: |
/s/ Tuvia Barlev |
|
|
Tuvia Barlev |
|
|
Chief Executive Officer |
Each person whose signature
appears below constitutes and appoints Tuvia Barlev and Yoav Efron, and each of them severally, as his true and lawful attorney in fact
and agent, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to
sign any or all amendments (including post effective amendments) to the Registration Statement, and to sign any registration statement
for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, and all post effective amendments thereto, and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, each acting alone,
full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, each acting alone, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the
dates indicated.
Signature |
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Title |
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/s/ Tuvia Barlev |
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Chief Executive Officer and Chairman of the Board of Directors |
|
September 18, 2024 |
Tuvia Barlev |
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(Principal Executive Officer) |
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/s/ Yoav Efron |
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Chief Financial Officer and Deputy Chief Executive Officer |
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September 18, 2024 |
Yoav Efron |
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(Principal Financial Officer and Principal Accounting Officer) |
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/s/ Joseph Moscovitz |
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Director |
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September 18, 2024 |
Joseph Moscovitz |
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/s/ Gideon Marks |
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Director |
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September 18, 2024 |
Gideon Marks |
|
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/s/ Israel Niv |
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Director |
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September 18, 2024 |
Israel Niv |
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II-5
Exhibit 5.1
September 18, 2024
Actelis Networks, Inc.
4039 Clipper Court
Fremont, California 94538
Re: Actelis Networks, Inc. Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to
Actelis Networks, Inc., a Delaware corporation (the “Company”), in connection with a Registration Statement on Form S-3 (the “Registration
Statement”), to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of
1933, as amended (the “Securities Act”), relating to the proposed public offering on a delayed basis pursuant to Rule 415
under the Securities Act of up to an aggregate initial offer price of $50,000,000 of (i) shares of common stock, par value $0.001 per
share (“Common Stock”), including Common Stock as may from time to time be issued upon exchange of Debt Securities (as defined
below) or the exercise of Warrants or Units (each as defined below); (ii) debt securities (“Debt Securities”), which, unless
otherwise provided in any supplement to the prospectus forming a part of the Registration Statement relating to a particular series of
the Debt Securities, may be in the form of (a) senior debt securities to be issued pursuant to an indenture (the “Senior Indenture”)
proposed to be entered into between the Company and a trustee (the “Senior Trustee”), a form of which indenture is being
filed as an exhibit to the Registration Statement or (b) subordinated debt securities to be issued pursuant to an indenture (the “Subordinated
Indenture” and the Senior Indenture, each individually, an “Indenture”) proposed to be entered into between the Company
and a trustee (the “Subordinated Trustee” and the Senior Trustee, each individually, a “Trustee”), a form of
which indenture is being filed as an exhibit to the Registration Statement; (iii) warrants for the purchase of Common Stock or Debt Securities
(“Warrants”) pursuant to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered
into between the Company and one or more warrant agents to be named in the applicable Warrant Agreement (each, a “Warrant Agent”);
and (iv) units consisting of one or more of the Company’s Common Stock, Debt Securities or Warrants, or any combination of those
securities (“Units”), pursuant to one or more unit agreements (each, a “Unit Agreement”) proposed to be entered
into between the Company and one or more unit agents to be named in the applicable Unit Agreement (each, a “Unit Agent”).
The Common Stock, Debt Securities, Warrants and Units are collectively referred to herein as the “Securities.”
The Securities
may be sold from time to time as set forth in the Registration Statement and the prospectus which forms part of the Registration Statement
(the “Prospectus”) and as to be set forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
For purposes of
this opinion letter, we have assumed that each Indenture, in substantially the form reviewed by us, any supplemental indenture to each
such Indenture, each Warrant Agreement and each Unit Agreement will be duly authorized, executed and delivered by the applicable Trustee,
Warrant Agent or Unit Agent, as the case may be, and that any Debt Securities, Warrants or Units that may be issued will be manually authenticated,
signed or countersigned, as the case may be, by duly authorized officers of the applicable Trustee, Warrant Agent or Unit Agent, as the
case may be.
In arriving at
the opinions expressed below, we have examined signed copies of the Registration Statement, the prospectus and the form of indenture filed
as an exhibit to the Registration Statement. We have also examined and relied upon minutes of meetings of the Board of Directors of the
Company as provided to us by the Company, the Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws of the
Company, each as restated and/or amended to date (collectively, the “Charter Documents”), and such other documents as we have
deemed necessary for purposes of rendering the opinions hereinafter set forth. In such examination, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals and the conformity
to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such
copies. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied
upon statements and representations of the Company and its officers and other representatives and of public officials and others.
We have also assumed that (i)
the issuance, sale, amount and terms of the Securities to be offered from time to time will be duly authorized and determined by proper
action of the Board of Directors of the Company (the “Board”) consistent with the procedures and terms described in the Registration
Statement and the applicable Prospectus Supplement (each, a “Board Action”) and in accordance with the Charter Documents
and applicable Delaware law, (ii) the Registration Statement and any amendments thereto (including post-effective amendments) are effective
under the Securities Act, (iii) a Prospectus Supplement will have been filed with the Commission describing the Securities offered thereby,
(iv) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated
in the Registration Statement and the applicable Prospectus Supplement, (v) in the case of Debt Securities, (a) the applicable Indenture
will be duly authorized, executed and delivered by the trustee named therein, (b) the applicable Indenture will be duly qualified under
the Trust Indenture Act of 1939, as amended, and the applicable trustee will be duly eligible to serve as trustee, and (c) the Debt Securities
will be duly authenticated by the trustee named in the applicable Indenture; (vi) any Unit Agreement or Warrant Agreement, as applicable,
will be duly authorized, executed and delivered by all parties thereto other than the Company; (vii) a definitive purchase, underwriting
or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto, (viii) any securities issuable upon conversion, exchange, redemption or exercise of any Securities
being offered will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption
or exercise, (ix) the Securities as executed and delivered do not result in a default under or breach of any agreement or instrument
binding upon the Company, (x) with respect to shares of Common Stock offered, there will be sufficient shares of Common Stock authorized
under the Charter Documents and not otherwise reserved for issuance; and (xi) the Company will be validly existing as a corporation and
in good standing under the laws of the State of Delaware.
Based upon, subject
to and limited by the assumptions, qualifications and other limitations set forth herein, we are of the opinion that, as of the date hereof:
1.
With respect to the Common Stock, when (i) specifically authorized for issuance by proper action of the Company’s Board of
Directors or an authorized committee thereof (the “Authorizing Resolutions”), (ii) the terms of the issuance and sale of the
Common Stock have been duly established in conformity with the Charter Documents, (iii) the shares of Common Stock have been issued and
sold as contemplated by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement, and (iv) the Company
has received the consideration provided for in the Authorizing Resolutions and the applicable underwriting agreement or other purchase
agreement and such consideration per share is not less than the par value per share of the Common Stock, the Common Stock will be validly
issued, fully paid and nonassessable.
2.
With respect to the Debt Securities, when (i) specifically authorized for issuance by Authorizing Resolutions, (ii) the applicable
Indenture has been duly authorized, executed and delivered, (iii) the terms of the Debt Securities and of their issuance and sale have
been duly established in conformity with the applicable Indenture and the Authorizing Resolutions, (iv) such Debt Securities have been
duly executed and authenticated in accordance with the applicable Indenture and issued and sold as contemplated by the Registration Statement,
the Base Prospectus and the applicable Prospectus Supplement, and (v) the Company has received the consideration provided for in the Authorizing
Resolutions and the applicable underwriting agreement or other purchase agreement, such Debt Securities will constitute valid and binding
obligations of the Company enforceable against the Company in accordance with their terms, except that the enforceability thereof may
be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance or moratorium or other similar laws now or hereafter
existing which affect the rights and remedies of creditors generally and equitable principles of general applicability.
3.
With respect to the Warrants, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable
Warrant Agreement relating to the Warrants has been duly authorized, executed and delivered, (iii) the terms of the Warrants and of their
issuance and sale have been duly established in conformity with the applicable Warrant Agreement and the Authorizing Resolutions, (iv)
the Warrants have been duly executed and countersigned in accordance with the applicable Warrant Agreement and issued and sold as contemplated
by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement, and (v) the Company has received the consideration
provided for in the Authorizing Resolutions and the applicable underwriting agreement or other purchase agreement, such Warrants will
constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except that the
enforceability thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance or moratorium or
other similar laws now or hereafter existing which affect the rights and remedies of creditors generally and equitable principles of general
applicability.
4.
With respect to the Units, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable Unit
Agreement has been duly authorized, executed and delivered, (iii) the terms of the Units and of their issuance and sale have been duly
established in conformity with the applicable Unit Agreement and the Authorizing Resolutions, (iv) the Units have been duly executed and
delivered in accordance with the applicable Unit Agreement and issued and sold as contemplated by the Registration Statement, the Base
Prospectus and the applicable Prospectus Supplement, and (v) the Company has received the consideration provided for in the Authorizing
Resolutions and the applicable underwriting agreement or other purchase agreement, such Units will constitute valid and binding obligations
of the Company enforceable against the Company in accordance with their terms, except that the enforceability thereof may be limited by
or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance or moratorium or other similar laws now or hereafter existing
which affect the rights and remedies of creditors generally and equitable principles of general applicability.
We express no
opinion as to the applicability of, compliance with or effect of the laws of any jurisdiction other than the General Corporation Law of
the State of Delaware and, to the extent relevant to the opinions expressed herein, the laws of the State of New York.
This opinion speaks
only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including
any change of law or fact, that may occur after the date of this opinion that might affect the opinions expressed herein.
We hereby consent
to the submission of this opinion to the Commission as an exhibit to the Registration Statement. We hereby also consent to the reference
to our Firm under the caption “Legal Matters” in the Registration Statement. We do not admit in providing such consent that
we are included within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations
of the Commission thereunder.
|
Very
truly yours, |
|
|
|
/s/ Greenberg Traurig, LLP |
|
Greenberg Traurig, LLP |
Exhibit
23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of Actelis Networks, Inc. of our report dated March 26, 2024 relating to the financial
statements, which appears in Actelis Networks, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2023. We also consent
to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Kesselman & Kesselman |
|
Kesselman & Kesselman |
|
Certified Public Accountants (Isr.) |
|
A member firm of PricewaterhouseCoopers International Limited |
|
Tel-Aviv, Israel |
September 18, 2024 |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Actelis Networks, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities and Carry
Forward Securities
| |
Security
Type | |
Security
Class
Title | |
Fee
Calculation
or Carry
Forward
Rule | |
Amount
Registered (1) | | |
Proposed
Maximum
Offering
Price Per
Unit (2) | | |
Maximum
Aggregate
Offering
Price (3) | | |
Fee Rate | | |
Amount of
Registration
Fee (4) | |
Fees to Be Paid | |
Equity | |
Common Stock | |
| |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Debt | |
Debt Securities | |
| |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Equity | |
Warrants | |
| |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Equity | |
Units | |
457(o) | |
| | | |
| | | |
$ | 50,000,000 | | |
| 0.0001476 | | |
$ | 7,380.00 | |
| |
Total Offering Amounts | |
| | | |
| | | |
| | | |
| | | |
$ | 7,380.00 | |
| |
Total Fees Previously Paid | |
| | | |
| | | |
| | | |
| | | |
| — | |
| |
Total Fee Offsets | |
| | | |
| | | |
| | | |
| | | |
| — | |
| |
Net Fee Due | |
| | | |
| | | |
| | | |
| | | |
$ | 7,380.00 | |
| (1) | There are being registered under
this registration statement such indeterminate number of shares of common stock, debt securities, warrants, and units, as may be sold
by the registrant from time to time, which collectively shall have an aggregate initial offering price not to exceed $50,000,000. The
securities registered hereunder also include such indeterminate number of shares of common stock as may be issued upon conversion, exercise
or exchange of warrants that provide for such conversion into, exercise for or exchange into common stock. In addition, pursuant to Rule
416 under the Securities Act of 1933, as amended, or the Securities Act, the shares of common stock being registered hereunder include
such indeterminate number of shares as may be issuable with respect to the shares being registered hereunder as a result of stock splits,
stock dividends, or similar transactions. |
| (2) | Not specified as to each class
of securities to be registered pursuant to General Instruction II.D. of Form S-3. |
| (3) | An indeterminate aggregate amount
of securities is being registered as may from time to time be sold at indeterminate prices. |
| (4) | The registration fee has been
calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended, on the basis of the maximum aggregate offering price
of the securities listed. |
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