As filed with the Securities and Exchange Commission on November 9, 2015October 21, 2021
Registration No. 333- 333-259612
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
AMENDMENT NO. 1 TO FORM S-3
| Delaware | 33-1135689 | |||||||||||||
| State or Other Jurisdiction of Incorporation or | I.R.S. Employer Identification Number | |||||||||||||
| 800 S. Commerce St. Las Vegas, NV 89106 702-701-9514 | ||||||||||||||
| Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices | ||||||||||||||
Kai-Shing Tao Chairman and Chief Executive Officer Remark Holdings, Inc. 800 S. Commerce St. Las Vegas, NV 89106 (702) 701-9514 | ||||||||||||||
| Name, Address Including Zip Code, | ||||||||||||||
With a copy to:
| Robert H. Friedman, Esq. | ||||||
Olshan Frome Wolosky LLP | ||||||
1325 Avenue | ||||||
| of the Americas | ||||||
| New York, | ||||||
| NY 10019 Telephone: (212) 451-2300 | ||||||
Facsimile: (212) 451-2222 | ||||||
Approximate Date of Commencement of Proposed Sale to the Public:From time to time after the effective date of this registration statement, as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o☐
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. x☑
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. o☐
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. o☐
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. o☐
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. o☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”filer,” “smaller reporting company” and “smaller reporting“emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||||||||||
| Non-accelerated filer | ☑ | Smaller reporting company | ☑ | |||||||||||
| Emerging growth company | ☐ | |||||||||||||
Title of Each Class of Securities to be Registered(1) | Amount to be Registered(1) | Proposed Maximum Offering Price(2) | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
| Common stock, par value $0.001 per share | 14,227,086 | $4.23 | $60,180,574 | $6,061 |
| The information in this prospectus is not complete and may be changed. |
PROSPECTUS
Common Stock and
Warrants
Debt Securities
Units
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This prospectus provides you with a general description of the securities we may offer and sell. We will provide specific terms of any offering in a supplement to this prospectus. Any prospectus supplement may also add, update, or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement, as well as the documents incorporated or deemed to be incorporated by reference in this prospectus, carefully before you purchase any of the securities offered hereby.
These securities may be sold directly by us, through dealers or agents designated from time to time, to or through publicunderwriters or private transactions at fixed prices, at prevailing market prices, at varyingdealers or at privately negotiated prices. See “Planthrough a combination of Distribution” beginningthese methods on page 21 for more information about howa continuous or delayed basis. The names of any underwriters, dealers, or agents involved in the selling stockholders may sell or disposesale of our securities and their shares.compensation and the nature of our arrangements with them will be described in a prospectus supplement.
Our common stock is traded on the NASDAQNasdaq Capital Market under the symbol “MARK.” The last reported sales price of our common stock on the NASDAQNasdaq Capital Market on November 3, 2015October 15, 2021 was $4.31$0.88 per share.
We are a holding company incorporated in Delaware and not a Chinese operating company. As a holding company, we conduct a significant part of our operations through our subsidiaries and through contractual arrangements with variable interest entities (“VIEs”) based in China. To address challenges resulting from laws, policies and practices that may disfavor foreign-owned entities that operate within industries deemed sensitive by the Chinese government, we use the VIE structure to replicate foreign investment in Chinese-based companies. We own 100% of the equity of a wholly foreign owned enterprise (“WFOE”), which has entered into contractual arrangements with the VIEs, which are owned by members of our management team in China and/or by third parties. For a description of the VIE structure and our contractual arrangements with the VIEs, see “Prospectus
Summary—Corporate Structure.” As a result of our use of the VIE structure, you may never directly hold equity interests in any of the VIEs.
Because we do not directly hold equity interests in the VIEs, we are subject to risks and uncertainties of the interpretations and applications of Chinese laws and regulations, including but not limited to, the validity and enforcement of the contractual arrangements among the WFOE, the VIEs and the shareholders of the VIEs. We are also subject to the risks and uncertainties about any future actions of the Chinese government in this regard that could disallow the VIE structure, which would likely result in a material change in our operations, and the value of our common stock may depreciate significantly or become worthless. See “Risk Factors—Risks Relating to our Corporate Structure” and “Risk Factors—Risks Relating to Doing Business in China.”
We are subject to certain legal and operational risks associated with having a significant portion of our operations in China. Chinese laws and regulations governing our current business operations are sometimes vague and uncertain, and as a result these risks could result in a material change in our operations, significant depreciation of the value of our common stock, or a complete hindrance of our ability to offer or continue to offer our securities to investors. Recently, the Chinese government adopted a series of regulatory actions and issued statements to regulate business operations in China, including those related to the use of variable interest entities, data security and anti-monopoly concerns. As of the date of this prospectus, our Company and subsidiaries and the VIEs have not been involved in any investigations on cybersecurity review initiated by any Chinese regulatory authority, nor has any of them received any inquiry, notice or sanction. As of the date of this prospectus, no relevant laws or regulations in China explicitly require us to seek approval from the China Securities Regulatory Commission (the “CSRC”) for any securities listings. As of the date of this prospectus, our Company and subsidiaries and the VIEs have not received any inquiry, notice, warning or sanctions from the CSRC or any other Chinese governmental authorities relating to securities listings. However, since these statements and regulatory actions are newly published, official guidance and related implementation rules have not been issued. It is highly uncertain what potential impact such modified or new laws and regulations will have on our ability to conduct our business, accept investments or list or maintain a listing on a U.S. or foreign exchange. See “Risk Factors—Risks Relating to Doing Business in China.”
As used in this prospectus, references to “Remark Holdings,” “the Company,” “we,” “us” or “our” refer to Remark Holdings, Inc., the Delaware holding company, and its subsidiaries, excluding the VIEs.
This prospectus may not be used to consummate a sale of our securities unless accompanied by a prospectus supplement relating to the offered securities.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors”“Risk Factors” beginning on page 63 of this prospectus and “Risk Factors” in our most recent Annual Report on Form 10-K, which is incorporated by reference herein, as well as in any other subsequently filed annual, quarterly or current reports and the applicable prospectus supplement, before investing in our common stock.securities.
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Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2015____________________, 2021
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration process. Under thisthe shelf registration process, the selling stockholders or their permitted pledgees, assignees and successors-in-interestwe may from time to time sell any combination of the securities described in this prospectus in one or more offerings.offerings up to a maximum aggregate initial offering price of $50,000,000.
As used in this prospectus, unless the context requires otherwise, (i) references to “selling stockholders” refer to those stockholders listed herein in the section titled “Selling Stockholders” beginning on page 19 of this prospectus and their donees, pledgees, transferees or other successors-in-interest, (ii) references to “Remark Media,Holdings,” “the Company,” “we,” “us” or “our” refer to Remark Media,Holdings, Inc. and its subsidiaries and (iii) references to our “common stock” refer to, excluding the common stock of the Company, par value $0.001 per share.VIEs .
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PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere or incorporated by reference in this prospectus. This summary may not contain all the information that you should consider before determining whether to invest in our securities. You should read thisthe entire prospectus carefully, including the information included in the “Risk Factors” section, as well as our consolidated financial statements, notes to the consolidated financial statements and the other information incorporated by reference into this prospectus, before making an investment decision.
Business Overview
Remark Media is a global digital media company focusing onHoldings, Inc. and subsidiaries (“Remark”, “we”, “us”, or “our”), and its consolidated variable-interest entities, are primarily technology-focused. Our KanKan data intelligence platform serves as the 18-to-34-year-old (the “millennial”). Our primary operations consistbasis for our development and deployment of owningartificial-intelligence-based solutions for businesses in many industries and operating digital media properties, such as websites and applications for mobile devices that provide unique, dynamic digital media experiences in multiple content verticals including travel, personal finance, social media, young adult lifestyle, and entertainment. Our websites and mobile applications provide what we believe are compelling content, trusted brands, and valuable resources for consumers.geographies. We also own and operate an approximately 5.2% interest (as of June 30, 2015)e-commerce digital media property focused on a luxury beach lifestyle.
We were originally incorporated in Sharecare,Delaware in March 2006 as HSW International, Inc. (“Sharecare”), a leading online healthwe changed our name to Remark Media, Inc. in December 2011, and wellness engagement platform. We are headquarteredas our business continued to evolve, we changed our name to Remark Holdings, Inc. in Las Vegas, Nevada, with additional operations in Beijing and Chengdu, China. April 2017.
Our common stock, par value $0.001 per share, is listed on the NASDAQNasdaq Capital Market under the ticker symbol MARK.
Corporate Structure
We are a holding company incorporated in Delaware and not a Chinese operating company. As a holding company, we conduct a significant part of our operations through our subsidiaries and through contractual arrangements with the VIEs based in China.To address challenges resulting from laws, policies and practices that may disfavor foreign-owned entities that operate within industries deemed sensitive by the Chinese government, we use the VIE structure to replicate foreign investment in Chinese-based companies. We own 100% of the equity of a WFOE, which has entered into contractual arrangements with the VIEs, which are owned by members of our management team in China and/or by third parties. As a result of our use of the VIE structure, you may never directly hold equity interests in any of the VIEs. Any securities we offer pursuant to this prospectus and any applicable prospectus supplement will be securities of Remark Holdings, Inc., the Delaware holding company, not of the VIEs.
We fund the registered capital and operating expenses of the VIEs by extending loans to the shareholders of the VIEs. We believe that we are the primary beneficiary of the VIEs because the contractual arrangements governing the relationship between the VIEs and our WFOE, which include an exclusive call option agreement, exclusive business cooperation agreement, a proxy agreement and an equity pledge agreement, enable us to (i) exercise effective control over the VIEs, (ii) receive substantially all of the economic benefits of the VIEs, and (iii) have an exclusive call option to purchase, at any time, all or part of the equity interests in and/or assets of the VIEs to the extent permitted by Chinese laws.
The following diagram illustrates our corporate structure, including our significant subsidiaries, and the relationship between our WFOE and the VIEs as of the date of this prospectus. The diagram omits certain entities which are immaterial to our results of operations and financial condition. Equity interests depicted in this diagram are 100% owned. The relationships between each of Chengdu Remark Technology Co., Ltd., Hangzhou Shufeng Technology Co., Ltd., Remark Data Technology Co., Ltd. and Bonet (Beijing) Technology LLC, which constitute the VIEs, on the one hand, and KanKan Technology (Shanghai) Co., Ltd., our WFOE, on the other hand, as
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illustrated in the following diagram are governed by contractual arrangements and do not constitute equity ownership.
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Because we do not directly hold equity interests in the VIEs, we are subject to risks and uncertainties of the interpretations and applications of Chinese laws and regulations, including but not limited to, the validity and enforcement of the contractual arrangements among the WFOE, the VIEs and the shareholders of the VIEs. We are also subject to the risks and uncertainties about any future actions of the Chinese government in this regard that could disallow the VIE structure, which would likely result in a material change in our operations and may cause the value of our common stock to depreciate significantly or become worthless.
The contractual arrangements may not be as effective as direct ownership in providing operational control. For instance, the VIEs and their shareholders could breach their contractual arrangements with us by, among other things, failing to conduct their operations in an acceptable manner or taking other actions that are detrimental to our interests. The shareholders of the VIEs may not act in the best interests of our Company or may not perform their obligations under these contracts. Such risks exist throughout the period in which we intend to operate certain portions of our business through the contractual arrangements with the VIEs. In the event that the VIEs or their shareholders fail to perform their respective obligations under the contractual arrangements, we may have to incur substantial costs and expend additional resources to enforce such arrangements. In addition, even if legal actions are taken to enforce such arrangements, there is uncertainty as to whether Chinese courts would recognize or enforce judgments of U.S. courts against us or such persons predicated upon the civil liability provisions of the securities laws of the United States or any state. See “Risk Factors—Risks Relating to Our Corporate Structure—We rely on contractual arrangements with the VIEs and their shareholders for a significant portion of our business operations. These arrangements may not be as effective as direct ownership in providing operational control. Any failure by the VIEs or their shareholders to perform their obligations under such contractual arrangements would have a material and adverse effect on our business.”
We are subject to certain legal and operational risks associated with having a significant portion of our operations in China. Chinese laws and regulations governing our current business operations are sometimes vague and uncertain, and as a result these risks may result in material changes in our operations, significant depreciation of the value of our common stock, or a complete hindrance of our ability to offer or continue to offer our securities to investors. Recently, the Chinese government adopted a series of regulatory actions and issued statements to regulate business operations in China, including those related to the use of variable interest entities, data security and anti-monopoly concerns. As of the date of this prospectus, neither we nor the VIEs have been involved in any investigations on cybersecurity review initiated by any Chinese regulatory authority, nor has any of them received any inquiry, notice or sanction. As of the date of this prospectus, no relevant laws or regulations in China explicitly require us to seek approval from the CSRC for any securities listing. As of the date of this prospectus, neither we nor the VIEs have received any inquiry, notice, warning or sanctions regarding our planned overseas listing from the CSRC or any other Chinese governmental authorities relating to securities listings. However, since these statements and regulatory actions are newly published, official guidance and related implementation rules have not been issued. It is highly uncertain what potential impact such modified or new laws and regulations will have on our ability to conduct our business, accept investments or list or maintain a listing on a U.S. or foreign exchange.
As of the date of this prospectus, we and the VIEs are not required to seek permissions from the CSRC, the Cyberspace Administration of China (the “CAC”), or any other entity that is required to approve of the operations of the VIEs. Nevertheless, Chinese regulatory authorities may in the future promulgate laws, regulations or implement rules that require us, our subsidiaries or the VIEs to obtain permissions from such regulatory authorities to approve the operations of the VIEs or any securities listing.
Summary of Risk Factors
Investing in our securities involves a high degree of risk. You should review carefully all of the information contained in this prospectus before making an investment in our securities. The following list summarizes some, but not all, of these risks. Please read the information in the section titled “Risk Factors” for a more thorough description of these and other risks.
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Risks Relating to Our Corporate Structure
•We rely on contractual arrangements with the VIEs and their shareholders for a significant portion of our business operations. These arrangements may not be as effective as direct ownership in providing operational control. Any failure by the VIEs or their shareholders to perform their obligations under such contractual arrangements would have a material and adverse effect on our business.
•If the Chinese government determines that the contractual arrangements constituting part of the VIE structure do not comply with Chinese regulations, or if these regulations change or are interpreted differently in the future, our common stock may decline in value or become worthless if we are unable to assert our contractual control rights over the assets of the VIEs that constitute a significant portion of our operations.
•The shareholders of the VIEs may have actual or potential conflicts of interest with us, which may materially and adversely affect our business and financial condition.
•The contractual arrangements with the VIEs may be subject to scrutiny by China’s tax authorities. Any adjustment of related party transaction pricing could lead to additional taxes, and therefore substantially reduce our consolidated net income and the value of your investment.
Risks Relating to Doing Business in China
•Changes in China’s economic, political or social conditions, as well as possible interventions and influences of any government policies and actions, could have a material adverse effect on our business and operations and the value of our common stock.
•Uncertainties with respect to the Chinese legal system could adversely affect us.
•We may be liable for improper use or appropriation of personal information provided by our customers and any failure to comply with Chinese laws and regulations over data security could result in materially adverse impact on our business, results of operations and the value of our common stock.
•Trading in our securities may be prohibited under the Holding Foreign Companies Accountable Act if the PCAOB determines that it cannot inspect or fully investigate our auditors, and as a result, Nasdaq may determine to delist our securities.
Risks Relating to Our Common Stock
•Our stock price has fluctuated considerably and is likely to remain volatile, and various factors could negatively affect the market price or market for our common stock.
•The concentration of our stock ownership may limit individual stockholder ability to influence corporate matters.
•A significant number of additional shares of our common stock may be issued under the terms of existing securities, which issuances would substantially dilute existing stockholders and may depress the market price of our common stock.
•Provisions in our corporate charter documents and under Delaware law could make an acquisition of Remark more difficult, which acquisition may be beneficial to stockholders.
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We have never declared or paid dividends or distributions on our common equity. We currently intend to retain all available funds and any future consolidated earnings to fund our operations and continue the development and growth of our business; therefore, we do not anticipate paying any cash dividends.
Under Delaware law, a Delaware corporation’s ability to pay cash dividends on its capital stock requires the corporation to have either net profits or positive net assets (total assets less total liabilities) over its capital. If we determine to pay dividends on any of our common stock in the future, as a holding company, we may rely on dividends and other distributions on equity from our WFOE for cash requirements, including the funds necessary to pay dividends and other cash contributions to our stockholders.
Our WFOE’s ability to distribute dividends is based upon its distributable earnings. Current Chinese regulations permit our WFOE to pay dividends to their shareholders only out of its registered capital amount, if any, as determined in accordance with Chinese accounting standards and regulations. If our WFOE incurs debt in the future, the instruments governing the debt may restrict its ability to pay dividends or make other payments to us. Any limitation on the ability of our WFOE to distribute dividends or other payments to us could materially and adversely limit our ability to grow, make investments or acquisitions that could be beneficial to our businesses, pay dividends or otherwise fund and conduct our business. In addition, any cash dividends or distributions of assets by our WFOE to its stockholder are subject to a Chinese withholding tax of as much as 10%.
The Chinese government also imposes controls on the conversion of Renminbi (“RMB”) into foreign currencies and the remittance of currencies out of China. Therefore, we may experience difficulties in completing the administrative procedures necessary to obtain and remit foreign currency for the payment of dividends from our profits, if any. If we are unable to receive all of the revenues from our operations through the current VIE contractual arrangements, we may be unable to pay dividends on our common stock.
For us to pay dividends to our stockholders, we will rely on payments made from the VIEs to our WFOE in accordance with the VIE contractual arrangements, and the distribution of payments from the WFOE to the Delaware holding company as dividends. Certain payments from the VIEs to the WFOE pursuant to the VIE contractual arrangements are subject to Chinese taxes, including a 6% VAT and 25% enterprise income tax.
Our Company’s Ability to Settle Amounts Owed under the VIE Contractual Arrangements
Under the VIE contractual arrangements, the VIEs are obligated to make payments to our WFOE, in cash or in kind, at the WFOE’s request. We will be able to settle amounts owed under the VIE contractual arrangements through dividends paid by our WFOE to our Company. Such ability may be restricted or limited as follows:
First, any payments from the VIEs to our WFOE are subject to Chinese taxes, including a 6% VAT and 25% enterprise income tax.
Second, current Chinese regulations permit our WFOE to pay dividends to their shareholders only out of its registered capital amount, if any, as determined in accordance with Chinese accounting standards and regulations. In
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addition, if our WFOE incurs debt in the future, the instruments governing the debt may restrict its ability to pay dividends or make other payments to the Delaware holding company.
Third, the Chinese government also imposes controls on the conversion of RMB into foreign currencies and the remittance of currencies out of China. Therefore, we may experience difficulties in completing the administrative procedures necessary to obtain and remit foreign currency for the payment of dividends from profits, if any.
Condensed Consolidating Financial Schedule
The following tables depict the financial position, results of operations and cash flows for Remark Holdings, Inc., the Delaware parent, the consolidated VIEs and any eliminating adjustments separately, as of the same dates and for the same periods for which audited consolidated financial statements are required.
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| REMARK HOLDINGS, INC. AND SUBSIDIARIES | ||||||||||||||||||||||||||
| Consolidating Balance Sheets | ||||||||||||||||||||||||||
| As of December 31, 2020 | ||||||||||||||||||||||||||
| Corporate & Non-VIE Entities | VIEs | Eliminating Entries | Consolidated Total | |||||||||||||||||||||||
| Assets | ||||||||||||||||||||||||||
| Cash | $ | 576 | $ | 278 | $ | — | $ | 854 | ||||||||||||||||||
| Trade accounts receivable | 177 | 4,850 | — | 5,027 | ||||||||||||||||||||||
| Inventory, net | 762 | 112 | — | 874 | ||||||||||||||||||||||
| Prepaid expense and other current assets | 1,795 | 248 | — | 2,043 | ||||||||||||||||||||||
| Total current assets | $ | 3,310 | $ | 5,488 | $ | — | $ | 8,798 | ||||||||||||||||||
| Property and equipment, net | 278 | 43 | — | 321 | ||||||||||||||||||||||
| Operating lease assets | 211 | 281 | — | 492 | ||||||||||||||||||||||
| Investment in unconsolidated affiliate | 32,690 | — | (31,660) | 1,030 | ||||||||||||||||||||||
| Other long-term assets | 90,234 | 21,183 | (110,747) | 670 | ||||||||||||||||||||||
| Total Assets | $ | 126,723 | $ | 26,995 | $ | (142,407) | $ | 11,311 | ||||||||||||||||||
| Liabilities and Stockholders' Equity (Deficit) | ||||||||||||||||||||||||||
| Accounts payable | $ | 4,934 | $ | 3,655 | $ | — | $ | 8,589 | ||||||||||||||||||
| Accrued expense and other current liabilities | 2,878 | 3,782 | — | 6,660 | ||||||||||||||||||||||
| Contract liability | 163 | 147 | — | 310 | ||||||||||||||||||||||
| Notes payable, net | 1,500 | — | — | 1,500 | ||||||||||||||||||||||
| Total current liabilities | $ | 9,475 | $ | 7,584 | $ | — | $ | 17,059 | ||||||||||||||||||
| Operating lease liabilities - long term | 115 | 79 | — | 194 | ||||||||||||||||||||||
| Warrant liability | 1,725 | — | — | 1,725 | ||||||||||||||||||||||
| Long- term debt, net | 1,425 | — | — | 1,425 | ||||||||||||||||||||||
| Other liabilities | 75,605 | 35,177 | (110,782) | — | ||||||||||||||||||||||
| Total Liabilities | $ | 88,345 | $ | 42,840 | $ | (110,782) | $ | 20,403 | ||||||||||||||||||
| Common stock | 100 | 163 | (163) | 100 | ||||||||||||||||||||||
| Additional paid-in-capital | 375,501 | 7,520 | (31,475) | 351,546 | ||||||||||||||||||||||
| Accumulated other comprehensive income | 716 | (955) | 13 | (226) | ||||||||||||||||||||||
| Accumulated deficit | (337,939) | (22,573) | — | (360,512) | ||||||||||||||||||||||
| Total stockholders' equity (deficit) | $ | 38,378 | $ | (15,845) | $ | (31,625) | $ | (9,092) | ||||||||||||||||||
| Total liabilities and stockholders' equity | $ | 126,723 | $ | 26,995 | $ | (142,407) | $ | 11,311 | ||||||||||||||||||
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| REMARK HOLDINGS, INC. AND SUBSIDIARIES | ||||||||||||||||||||||||||
| Consolidating Balance Sheets | ||||||||||||||||||||||||||
| As of December 31, 2019 | ||||||||||||||||||||||||||
| Corporate & Non-VIE Entities | VIEs | Eliminating Entries | Consolidated Total | |||||||||||||||||||||||
| Assets | ||||||||||||||||||||||||||
| Cash | $ | 222 | $ | 50 | $ | — | $ | 272 | ||||||||||||||||||
| Trade accounts receivable | 102 | 1,862 | — | 1,964 | ||||||||||||||||||||||
| Prepaid expense and other current assets | 465 | 4,158 | — | 4,623 | ||||||||||||||||||||||
| Total current assets | $ | 789 | $ | 6,070 | $ | — | $ | 6,859 | ||||||||||||||||||
| Property and equipment, net | 119 | 222 | — | 341 | ||||||||||||||||||||||
| Operating lease assets | 4,170 | 189 | — | 4,359 | ||||||||||||||||||||||
| Investment in unconsolidated affiliate | 32,690 | 905 | (31,660) | 1,935 | ||||||||||||||||||||||
| Intangible assets, net | 482 | 27 | — | 509 | ||||||||||||||||||||||
| Other long-term assets | 62,343 | 15,999 | (77,518) | 824 | ||||||||||||||||||||||
| Total Assets | $ | 100,593 | $ | 23,412 | $ | (109,178) | $ | 14,827 | ||||||||||||||||||
| Liabilities and Stockholders' Equity (Deficit) | ||||||||||||||||||||||||||
| Accounts payable | $ | 5,939 | $ | 2,187 | $ | — | $ | 8,126 | ||||||||||||||||||
| Accrued expense and other current liabilities | 5,506 | 8,820 | — | 14,326 | ||||||||||||||||||||||
| Contract liability | 112 | 201 | — | 313 | ||||||||||||||||||||||
| Notes payable, net | 3,000 | — | — | 3,000 | ||||||||||||||||||||||
| Current portion of long-term debt | 12,025 | — | — | 12,025 | ||||||||||||||||||||||
| Total current liabilities | $ | 26,582 | $ | 11,208 | $ | — | $ | 37,790 | ||||||||||||||||||
| Operating lease liabilities - long term | 4,576 | 74 | — | 4,650 | ||||||||||||||||||||||
| Warrant liability | 115 | — | — | 115 | ||||||||||||||||||||||
| Other liabilities | 52,215 | 25,319 | (77,534) | — | ||||||||||||||||||||||
| Total Liabilities | $ | 83,488 | $ | 36,601 | $ | (77,534) | $ | 42,555 | ||||||||||||||||||
| Common stock | 51 | 163 | (163) | 51 | ||||||||||||||||||||||
| Additional paid-in-capital | 343,231 | 7,519 | (31,475) | 319,275 | ||||||||||||||||||||||
| Accumulated other comprehensive income | 71 | (292) | (6) | (227) | ||||||||||||||||||||||
| Accumulated deficit | (326,248) | (20,579) | — | (346,827) | ||||||||||||||||||||||
| Total stockholders' equity (deficit) | $ | 17,105 | $ | (13,189) | $ | (31,644) | $ | (27,728) | ||||||||||||||||||
| Total liabilities and stockholders' equity | $ | 100,593 | $ | 23,412 | $ | (109,178) | $ | 14,827 | ||||||||||||||||||
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| REMARK HOLDINGS, INC. & SUBSIDIARIES | |||||||||||||||||||||||
| Consolidating Statement of Operations and Comprehensive Loss | |||||||||||||||||||||||
| Year Ended December 31, 2020 | |||||||||||||||||||||||
| Corporate & Non-VIE Entities | VIEs | Eliminating Entries | Consolidated Total | ||||||||||||||||||||
| Revenue | $ | 2,269 | $ | 7,876 | $ | — | $ | 10,145 | |||||||||||||||
| Cost and expense | |||||||||||||||||||||||
| Cost of revenue (excluding depreciation and amortization) | 1,090 | 5,332 | — | 6,422 | |||||||||||||||||||
| Sales and marketing | 1,459 | 1,919 | — | 3,378 | |||||||||||||||||||
| Technology and development | 2,534 | 1,608 | — | 4,142 | |||||||||||||||||||
| General and administrative | 8,906 | 462 | — | 9,368 | |||||||||||||||||||
| Depreciation and amortization | 163 | 145 | — | 308 | |||||||||||||||||||
| Impairments | 409 | 363 | — | 772 | |||||||||||||||||||
| Other operating expense | — | — | — | — | |||||||||||||||||||
| Total cost and expense | 14,561 | 9,829 | — | 24,390 | |||||||||||||||||||
| Operating loss | (12,292) | (1,953) | — | (14,245) | |||||||||||||||||||
| Other income (expense) | |||||||||||||||||||||||
| Interest expense | (1,306) | (36) | — | (1,342) | |||||||||||||||||||
| Other income (expense), net | 5 | (5) | — | — | |||||||||||||||||||
| Change in fair value of warrant liability | (1,610) | — | — | (1,610) | |||||||||||||||||||
| Gain on lease termination | 3,582 | — | — | 3,582 | |||||||||||||||||||
| Other loss | (69) | (1) | — | (70) | |||||||||||||||||||
| Total other income (expense), net | 602 | (42) | — | 560 | |||||||||||||||||||
| Net loss | $ | (11,690) | $ | (1,995) | $ | — | $ | (13,685) | |||||||||||||||
| Other comprehensive loss | |||||||||||||||||||||||
| Foreign currency translation adjustments | — | 1 | — | 1 | |||||||||||||||||||
| Comprehensive loss | $ | (11,690) | $ | (1,994) | $ | — | $ | (13,684) | |||||||||||||||
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| REMARK HOLDINGS, INC. & SUBSIDIARIES | |||||||||||||||||||||||
| Consolidating Statement of Operations and Comprehensive Loss | |||||||||||||||||||||||
| Year Ended December 31, 2019 | |||||||||||||||||||||||
| Corporate & Non-VIE Entities | VIEs | Eliminating Entries | Consolidated Total | ||||||||||||||||||||
| Revenue | $ | 1,425 | $ | 3,595 | $ | — | $ | 5,020 | |||||||||||||||
| Cost and expense | |||||||||||||||||||||||
| Cost of revenue (excluding depreciation and amortization) | 885 | 2,629 | — | 3,514 | |||||||||||||||||||
| Sales and marketing | 2,256 | 747 | — | 3,003 | |||||||||||||||||||
| Technology and development | 606 | 2,967 | — | 3,573 | |||||||||||||||||||
| General and administrative | 10,839 | 3,335 | — | 14,174 | |||||||||||||||||||
| Depreciation and amortization | 476 | 506 | — | 982 | |||||||||||||||||||
| Impairments | 180 | 2,342 | — | 2,522 | |||||||||||||||||||
| Other operating expense | — | 6 | — | 6 | |||||||||||||||||||
| Total cost and expense | 15,242 | 12,532 | — | 27,774 | |||||||||||||||||||
| Operating loss | (13,817) | (8,937) | — | (22,754) | |||||||||||||||||||
| Other income (expense) | |||||||||||||||||||||||
| Interest expense | (1,848) | (28) | — | (1,876) | |||||||||||||||||||
| Other income, net | 140 | 390 | — | 530 | |||||||||||||||||||
| Change in fair value of warrant liability | 1,268 | — | — | 1,268 | |||||||||||||||||||
| Other loss | (27) | (145) | — | (172) | |||||||||||||||||||
| Total other income (expense), net | (467) | 217 | — | (250) | |||||||||||||||||||
| Loss from continuing operations | $ | (14,284) | $ | (8,720) | $ | — | $ | (23,004) | |||||||||||||||
| Loss from discontinued operations | (2,610) | — | — | (2,610) | |||||||||||||||||||
| Net loss | $ | (16,894) | $ | (8,720) | $ | — | $ | (25,614) | |||||||||||||||
| Other comprehensive loss | |||||||||||||||||||||||
| Foreign currency translation adjustments | (288) | 29 | — | (259) | |||||||||||||||||||
| Comprehensive loss | $ | (17,182) | $ | (8,691) | $ | — | $ | (25,873) | |||||||||||||||
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| REMARK HOLDINGS, INC. & SUBSIDIARIES | |||||||||||||||||||||||
| Consolidating Statement of Cash Flows | |||||||||||||||||||||||
| Year Ended December 31, 2020 | |||||||||||||||||||||||
| Corporate & Non-VIE Entities | VIEs | Eliminating Entries | Consolidated Total | ||||||||||||||||||||
| Cash flows from operating activities: | |||||||||||||||||||||||
| Net loss | $ | (11,690) | $ | (1,995) | $ | — | $ | (13,685) | |||||||||||||||
| Adjustments to reconcile net loss to net cash used in operating activities: | |||||||||||||||||||||||
| Change in fair value of warrant liability | 1,610 | — | — | 1,610 | |||||||||||||||||||
| Depreciation, amortization and impairments | 162 | 146 | — | 308 | |||||||||||||||||||
| Share-based compensation | 797 | — | — | 797 | |||||||||||||||||||
| Gain on lease termination | (3,582) | — | — | (3,582) | |||||||||||||||||||
| Loss on disposal of long-lived assets | 41 | 36 | — | 77 | |||||||||||||||||||
| Loss on impairment of intangible assets | 409 | 363 | — | 772 | |||||||||||||||||||
| Other | 333 | (64) | — | 269 | |||||||||||||||||||
| Changes in operating assets and liabilities: | — | ||||||||||||||||||||||
| Accounts receivable | (70) | (2,755) | — | (2,825) | |||||||||||||||||||
| Prepaid expenses and other current assets | (1,938) | 1,159 | — | (779) | |||||||||||||||||||
| Operating lease assets | 155 | (82) | — | 73 | |||||||||||||||||||
| Other long-term assets | (27,890) | (4,206) | 32,096 | — | |||||||||||||||||||
| Accounts payable | (362) | (558) | — | (920) | |||||||||||||||||||
| Deferred revenue | 44 | (71) | — | (27) | |||||||||||||||||||
| Operating lease liabilities | (137) | 2 | — | (135) | |||||||||||||||||||
| Other liabilities | 23,386 | 8,253 | (31,639) | — | |||||||||||||||||||
| Net cash provided by (used in) operating activities | $ | (18,732) | $ | 228 | $ | 457 | $ | (18,047) | |||||||||||||||
| Cash flows from investing activities: | |||||||||||||||||||||||
| Purchases of property, equipment and software | (290) | — | — | (290) | |||||||||||||||||||
| Net cash used in investing activities | $ | (290) | $ | — | $ | — | $ | (290) | |||||||||||||||
| Cash flows from financing activities: | |||||||||||||||||||||||
| Proceeds from issuance of common stock, net | 32,135 | — | — | 32,135 | |||||||||||||||||||
| Proceeds from debt issuance | 1,425 | — | — | 1,425 | |||||||||||||||||||
| Repayments of debt | (13,781) | — | — | (13,781) | |||||||||||||||||||
| Payment of contingent consideration in business acquisitions | (860) | — | — | (860) | |||||||||||||||||||
| Net cash provided by financing activities | $ | 18,919 | $ | — | $ | — | $ | 18,919 | |||||||||||||||
| Net change in cash | $ | (103) | $ | 228 | $ | 457 | $ | 582 | |||||||||||||||
| Cash: | |||||||||||||||||||||||
| Beginning of period | 222 | 50 | — | 272 | |||||||||||||||||||
| End of period | $ | 119 | $ | 278 | $ | 457 | $ | 854 | |||||||||||||||
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| REMARK HOLDINGS, INC. & SUBSIDIARIES | |||||||||||||||||||||||
| Consolidating Statement of Cash Flows | |||||||||||||||||||||||
| Year Ended December 31, 2019 | |||||||||||||||||||||||
| Corporate & Non-VIE Entities | VIEs | Eliminating Entries | Consolidated Total | ||||||||||||||||||||
| Cash flows from operating activities: | |||||||||||||||||||||||
| Net loss | (16,893) | (8,721) | — | (25,614) | |||||||||||||||||||
| Income from discontinued operations | 2,610 | — | — | 2,610 | |||||||||||||||||||
| Adjustments to reconcile net loss to net cash used in operating activities: | |||||||||||||||||||||||
| Change in fair value of warrant liability | (1,268) | — | — | (1,268) | |||||||||||||||||||
| Depreciation, amortization and impairments | 475 | 507 | — | 982 | |||||||||||||||||||
| Share-based compensation | 319 | — | — | 319 | |||||||||||||||||||
| Amortization of debt costs and discount | 1,436 | — | — | 1,436 | |||||||||||||||||||
| Loss on disposal of long-lived assets | — | 150 | — | 150 | |||||||||||||||||||
| Loss on impairment of intangible assets | 180 | 2,342 | — | 2,522 | |||||||||||||||||||
| Other | 715 | 30 | — | 745 | |||||||||||||||||||
| Changes in operating assets and liabilities: | |||||||||||||||||||||||
| Accounts receivable | (47) | 3,799 | — | 3,752 | |||||||||||||||||||
| Prepaid expenses and other current assets | 438 | 1,166 | — | 1,604 | |||||||||||||||||||
| Operating lease assets | 641 | (117) | — | 524 | |||||||||||||||||||
| Other long-term assets | 7,117 | (3,217) | (3,900) | — | |||||||||||||||||||
| Accounts payable | (1,586) | 173 | — | (1,413) | |||||||||||||||||||
| Deferred revenue | 4,080 | (3,871) | — | 209 | |||||||||||||||||||
| Operating lease liabilities | 1,011 | (198) | — | 813 | |||||||||||||||||||
| Other liabilities | (21,906) | 7,900 | 14,006 | — | |||||||||||||||||||
| Net cash used in continuing operating activities | $ | (22,678) | $ | (57) | $ | 10,106 | $ | (12,629) | |||||||||||||||
| Net cash used in discontinued operating activities | (7,159) | — | — | (7,159) | |||||||||||||||||||
| Net cash used in operating activities | $ | (29,837) | $ | (57) | $ | 10,106 | $ | (19,788) | |||||||||||||||
| Cash flows from investing activities: | |||||||||||||||||||||||
| Proceeds from sale of business | 30,000 | — | — | 30,000 | |||||||||||||||||||
| Purchases of property, equipment and software | (3) | (5) | — | (8) | |||||||||||||||||||
| Payment of payroll costs capitalized to software in progress | — | (127) | — | (127) | |||||||||||||||||||
| Net cash provided by (used in) continuing investing activities | $ | 29,997 | $ | (132) | $ | — | $ | 29,865 | |||||||||||||||
| Net cash used in discontinued investing activities | (18,396) | — | — | (18,396) | |||||||||||||||||||
| Net cash provided by (used in) investing activities | $ | 11,601 | $ | (132) | $ | — | $ | 11,469 | |||||||||||||||
| Cash flows from financing activities: | |||||||||||||||||||||||
| Proceeds from issuance of common stock, net | 10,844 | — | — | 10,844 | |||||||||||||||||||
| Payment of loan fees and deb issuance costs | (2,275) | — | — | (2,275) | |||||||||||||||||||
| Repayments of debt | (25,526) | — | — | (25,526) | |||||||||||||||||||
| Net cash provided by financing activities | $ | (16,957) | $ | — | $ | — | $ | (16,957) | |||||||||||||||
| Net change in cash | $ | (35,193) | $ | (189) | $ | 10,106 | $ | (25,276) | |||||||||||||||
| Cash: | |||||||||||||||||||||||
| Beginning of period | 25,308 | 240 | — | 25,548 | |||||||||||||||||||
| End of period | $ | (9,885) | $ | 51 | $ | 10,106 | $ | 272 | |||||||||||||||
Our Address
Our principal executive offices are located at 800 S. Commerce Street, Las Vegas, NV 89106, and our telephone number is (702) 701-9514.
Before you invest in any of Contentsthe securities offered hereby, you should carefully consider all the information in this prospectus, including matters set forth under the heading “Risk Factors.”
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RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider the following risk factors, as well as those set forth in our most recent Annual Report on Form 10-K filed with the SEC, which are incorporated by reference into this prospectus, as well as the other information set forth in this prospectus and the documents incorporated by reference herein, and therein, before deciding whether to invest in our common stock. Additional risks and uncertainties that we are unaware of may become important factors that affect us. If any of these risks actually occur, our business, financial condition or operating results may suffer, the trading price of our common stock could decline, and you may lose all or part of your investment.
Risks Relating to Our Business and IndustryCorporate Structure
We have relied on contractual arrangements with the VIEs to operate our business in China. The regulatory framework for privacy issues worldwide is currently in flux and is likely to remain sorevenues contributed by the VIEs constituted a majority of our total revenues for the foreseeable future. Practices regarding the collection, use, storage, transmissionfiscal years ended December 31, 2019 and security of personal information by companies operating over the Internet have recently come under increased public scrutiny. The U.S. Congress and federal agencies, including the Federal Trade Commission (“FTC”) and the Department of Commerce, are reviewing the need for greater regulation for the collection and use of information concerning consumer behavior on the Internet, including regulation aimed at restricting certain targeted advertising practices. Some U.S. courts are also considering the applicability of existing federal and state statutes, including computer trespass and wiretapping laws, to the collection and exchange of information online. Countries in other regions, most notably Asia, Eastern Europe and Latin America, are increasingly implementing new privacy regulations, resulting in additional compliance burdens and uncertainty as to how some of these laws will be interpreted.2020.
In the event that the VIEs or their shareholders fail to perform their respective obligations under the contractual arrangements, we may have to incur substantial costs and could consume substantialexpend additional resources and create significant uncertainties. Any legal action againstto enforce such arrangements. For example, if the shareholders of a VIE refuse to transfer their equity interest in the VIE to us or our collaborators could lead to:
If the FTC issued a letter reiterating the guidance it issued in 2002, which recommended that all search engine companies ensure that all paid search results are clearly distinguished from non-paid results,Chinese government determines that the usecontractual arrangements constituting part of paid searchthe VIE structure do not comply with Chinese regulations, or if these regulations change or are interpreted differently in the future, our common stock may decline in value or become worthless if we are unable to assert our contractual control rights over the assets of the VIEs that constitute a significant portion of our operations.
Recently, the Chinese government adopted a series of regulatory actions and issued statements to regulate business operations in China, including those related to variable interest entities. These recent statements indicate an intent by the Chinese government to exert more oversight and control over offerings that are conducted overseas
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and/or foreign investment in China-based issuers. As of the date of this prospectus, there are no relevant laws or regulations in China that prohibit our Company or any of our subsidiaries from listing or offering securities in the United States. However, since these statements and regulatory actions by the Chinese government are newly published, official guidance and related implementation rules have not been issued. Future action taken by the Chinese government could significantly limit or completely hinder our ability to offer or continue to offer securities to investors and cause the value of our common stock to significantly depreciate or become worthless. In addition, although we believe that our corporate structure and the VIE contractual arrangements comply with current applicable Chinese laws and regulations, in the event that the Chinese government determines that the contractual arrangements constituting part of the VIE structure do not comply with Chinese regulations, or if these regulations change or are interpreted differently in the future, we may be unable to assert our contractual control rights over the assets of the VIEs, and our common stock may decline in value or become worthless.
The shareholders of the VIEs may have actual or potential conflicts of interest with us, which may materially and adversely affect our business and financial condition.
As of the date of this prospectus, we are not aware of any conflicts between the shareholders of the VIEs and us. However, the shareholders of the VIEs may have actual or potential conflicts of interest with us in the future. These shareholders may refuse to sign or breach, or cause the VIEs to breach, or refuse to renew, the existing contractual arrangements we have with them and the VIEs, which would have a material and adverse effect on our ability to effectively control the VIEs and receive economic benefits from the VIEs. For example, the shareholders may be able to cause our agreements with the VIEs to be performed in a manner adverse to us by, among other things, failing to remit payments due under the contractual arrangements to us on a timely basis. We cannot assure you that when conflicts of interest arise any or all of these shareholders will act in the best interests of our Company or such conflicts will be resolved in our favor. Currently, we do not have any arrangements to address potential conflicts of interest between these shareholders and our Company. If we cannot resolve any conflict of interest or dispute between us and these shareholders, we would have to rely on legal proceedings, which could result in disruption of our business and subject us to substantial uncertainty as to the outcome of any such legal proceedings.
The contractual arrangements with the VIEs may be subject to scrutiny by China’s tax authorities. Any adjustment of related party transaction pricing could lead to additional taxes, and therefore substantially reduce our consolidated net income and the value of your investment.
The tax regime in China is clearlyrapidly evolving and conspicuously explainedthere is significant uncertainty for Chinese taxpayers as Chinese tax laws may be interpreted in significantly different ways. China’s tax authorities may assert that we or the VIEs or their shareholders are required to pay additional taxes on previous or future revenue or income. In particular, under applicable Chinese laws, rules and disclosedregulations, arrangements and transactions among related parties, such as the contractual arrangements with the VIEs, may be subject to audit or challenge by China’s tax authorities. If China’s tax authorities determine that other disclosures are made to avoid misleading users aboutany contractual arrangements were not entered into on an arm’s length basis and therefore constitute a favorable transfer pricing, the possible effectsChina tax liabilities of paid search listingsthe relevant subsidiaries, VIEs or the shareholders of the VIEs could be increased, which could increase our overall tax liabilities. In addition, China’s tax authorities may impose interest on search results. The adoption oflate payments. Our net income may be materially reduced if our tax liabilities increase. It is uncertain whether any new China laws, rules or regulations relating to placement of paid search advertisementsVIE structures will be adopted or, user privacy, defamationif adopted, what they would provide.
If we or taxation may inhibit the growth in useany of the Internet, whichVIEs are found to be in turn,violation of any existing or future China laws, rules or regulations, or if we fail to obtain or maintain any of the required permits or approvals, the relevant China regulatory authorities would have broad discretion to take action in dealing with these violations or failures, including revoking the business and operating licenses of the VIEs, requiring us to discontinue or restrict our operations, restricting our right to collect revenue, blocking one or more of our websites, requiring us to restructure our operations or taking other regulatory or enforcement actions against us. The imposition of any of these measures could decrease the demand for our services and increase our cost of doing business or otherwise haveresult in a material adverse effect on our ability to conduct all or any portion of our business prospects,operations. In addition, it is
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unclear what impact Chinese government actions would have on us and on our ability to consolidate the financial condition and results of operations.
Risks Relating to Doing Business in China
Changes in China’s economic, political or social conditions, as well as possible interventions and stock price following the acquisition. Even if the combined company is able to integrate the business operations successfully, there can be no assurance that this integration will result in the realizationinfluences of the anticipated benefits of synergies, innovationany government policies and operational efficiencies or that these benefits will be achieved within a reasonable period of time and cost effectively.
A significant portion of our operations are conducted through our WFOE and the China-based VIEs. Accordingly, our business, financial condition, results of operations and cash flows. Furthermore,prospects may be influenced to a significant degree by political, economic, social conditions and government policies in China generally. The Chinese economy differs from the economies of most developed countries in many respects, including the level of government involvement, level of development, growth into new areas may require changes to our cost structure, modifications to our infrastructurerate, control of foreign exchange and exposure to new regulatory, legal and competitive risks.
While the Chinese economy has experienced significant growth over the past decades, growth has been uneven, both geographically and among various sectors of these partners maythe economy. Any adverse changes in economic conditions in China, in the policies of the Chinese government or in the laws and regulations in China could have a material adverse effect on the overall economic growth of China. Such developments could adversely affect our business and operating results, lead to reduction in demand for our services and adversely affect our competitive position. COVID-19 had a severe and negative impact on Chinese and global economy in 2020. Whether this will lead to a prolonged downturn in the economy is still unknown. The Chinese government has implemented various measures to encourage economic growth and guide the allocation of resources. Some of these measures may benefit the overall Chinese economy, but may have a negative effect on us. In addition, in the past the Chinese government has implemented certain measures, including interest rate adjustment, to control the pace of economic growth. These measures may cause decreased economic activity in China, which may adversely affect our business and operating results.
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Uncertainties with respect to the Chinese legal system could adversely affect us.
The Chinese legal system is a civil law system based on written statutes. Unlike the common law system, prior court decisions under the civil law system may be cited for reference but have limited precedential value. Since these laws and regulations are relatively new and the Chinese legal system continues to rapidly evolve, the interpretations of many laws, regulations and rules are not always uniform and the enforcement of these laws, regulations and rules involves uncertainties.
In 1979, the Chinese government began to promulgate a comprehensive system of laws and regulations governing economic matters in general. The overall effect of legislation over the past three decades has significantly enhanced the protections afforded to various forms of foreign investments in China. However, China has not developed a fully integrated legal system, and recently enacted laws and regulations may not sufficiently cover all aspects of economic activities in China. In particular, the interpretation and enforcement of these laws and regulations involve uncertainties. Since Chinese administrative and court authorities have significant discretion in interpreting and implementing statutory provisions and contractual terms, it may be difficult to evaluate the outcome of administrative and court proceedings and the level of legal protection we enjoy. These uncertainties may affect our judgment on the relevance of legal requirements and our ability to enforce our contractual rights or tort claims. In addition, the regulatory uncertainties may be exploited through unmerited or frivolous legal actions or threats in attempts to extract payments or benefits from us.
Furthermore, the Chinese legal system is based in part on government policies and internal rules, some of which are not published on a timely basis or at all and may have retroactive effect. As a result, we may not be aware of our violation of any of these policies and rules until sometime after the violation. In addition, any administrative and court proceedings in China may be protracted, resulting in substantial costs and diversion of resources and management attention.
In addition, we are subject to risks and uncertainties of the interpretations and applications of Chinese laws and regulations, including but not limited to, the validity and enforcement of the VIE contractual arrangements. we are also subject to the risks and uncertainties about any future actions of the Chinese government in this regard that could disallow the VIE structure, which would likely result in a material change in our operations, and the value of our common stock may depreciate significantly or become worthless.
We may be liable for improper use or appropriation of personal information provided by our customers and any failure to comply with Chinese laws and regulations over data security could result in materially adverse impact on our business, financial position and results of operations but wouldand the value of our common stock.
Our business involves collecting and retaining certain internal and external data and information including that of our customers and supplies. The integrity and protection of such information and data are crucial to us and our business. Owners of such data and information expect that we will adequately protect their personal information. We are required by applicable laws to keep strictly confidential the personal information that we collect, and to take adequate security measures to safeguard such information.
The PRC Criminal Law, as amended by its Amendment 7 (effective on February 28, 2009) and Amendment 9 (effective on November 1, 2015), prohibits institutions, companies and their employees from selling or otherwise illegally disclosing a citizen’s personal information obtained in performing duties or providing services or obtaining such information through theft or other illegal ways. On November 7, 2016, the Standing Committee of the PRC National People’s Congress issued the Cyber Security Law of the PRC (the “Cyber Security Law”), which became effective on June 1, 2017. Pursuant to the Cyber Security Law, network operators must not, without users’ consent, collect their personal information, and may only collect users’ personal information necessary to provide their services. Providers are also obliged to provide security maintenance for their products and services and shall
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comply with provisions regarding the protection of personal information as stipulated under the relevant laws and regulations.
The Civil Code of the PRC (issued by the PRC National People’s Congress on May 28, 2020 and effective from January 1, 2021) provides legal basis for privacy and personal information infringement claims under the Chinese civil laws. Chinese regulators, including the CAC, the Ministry of Industry and Information Technology, and the Ministry of Public Security, have been increasingly focused on regulation in data security and data protection.
On August 20, 2021, the Standing Committee of the 13th National People's Congress of China issued the final version of the Personal Information Protection Law (the "PIPL"), which becomes effective on November 1, 2021.The PIPL imposes on China-based data processers (such as the VIEs) significant obligations with respect to, among other things, obtaining, processing and cross-border transferring personal information.The PIPL may subject a data processor to a penalty of as much as RMB50 million or 5% of the preceding year’s turnover.
The Chinese regulatory requirements regarding cybersecurity are evolving. For instance, various regulatory bodies in China, including the CAC, the Ministry of Public Security and the State Administration for Market Regulation, have enforced data privacy and protection laws and regulations with varying and evolving standards and interpretations. In April 2020, the Chinese government promulgated Cybersecurity Review Measures, which came into effect on June 1, 2020. According to the Cybersecurity Review Measures, operators of critical information infrastructure must pass a cybersecurity review when purchasing network products and services which do or may affect national security.
In July 2021, the CAC and other related authorities released the draft amendment to the Cybersecurity Review Measures for public comments through July 25, 2021. The draft amendment proposes the following key changes:
•companies who are engaged in data processing are also subject to the regulatory scope;
•the CSRC is included as one of the regulatory authorities for purposes of jointly establishing the state cybersecurity review working mechanism;
•the operators (including both operators of critical information infrastructure and relevant parties who are engaged in data processing) holding more than one million users/users’ (which are to be further specified) individual information and seeking a listing outside China shall file for cybersecurity review with the Cybersecurity Review Office; and
•the risks of core data, material data or large amounts of personal information being stolen, leaked, destroyed, damaged, illegally used or transmitted to overseas parties and the risks of critical information infrastructure, core data, material data or large amounts of personal information being influenced, controlled or used maliciously shall be collectively taken into consideration during the cybersecurity review process.
Currently, the draft amendment has been released for public comment only, and its implementation provisions and anticipated adoption or effective date remains substantially uncertain and may be subject to change. If the draft amendment is adopted into law in the future, we may become subject to enhanced cybersecurity review. Certain internet platforms in China have been reportedly subject to heightened regulatory scrutiny in relation to cybersecurity matters. As of the date of this prospectus, neither we nor any of the VIEs have been subject to heightened regulatory scrutiny with respect to cybersecurity matters, nor have we or any of the VIEs been informed by any Chinese governmental authority of any requirement that we file for a cybersecurity review. However, if we are deemed to be a critical information infrastructure operator or a company that is engaged in data processing and holds personal information of more than one million users, we could be subject to Chinese cybersecurity review.
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As there remains significant uncertainty in the interpretation and enforcement of relevant Chinese cybersecurity laws and regulations, we could be subject to cybersecurity review, and if so, we may not be expectedable to pass such review. In addition, we could become subject to enhanced cybersecurity review or investigations launched by Chinese regulators in the future. Any failure or delay in the completion of the cybersecurity review procedures or any other non-compliance with the related laws and regulations may result in fines or other penalties, including suspension of business, website closure, removal of our app from the relevant app stores, and revocation of prerequisite licenses, as well as reputational damage or legal proceedings or actions against us, which may have material adverse effect on our business, financial condition or results of operations. As of the date of this prospectus, neither we nor any of the VIEs have been involved in any investigations on cybersecurity review initiated by the CAC or any other Chinese regulatory authority, nor have we or any of the VIEs received any inquiry, notice or sanction in such respect. We believe that we are in compliance with the aforementioned regulations and policies that have been issued by the CAC.
On June 10, 2021, the Standing Committee of the National People’s Congress of China (the “SCNPC”) promulgated the PRC Data Security Law, which will take effect in September 2021. The PRC Data Security Law imposes data security and privacy obligations on entities and individuals carrying out data activities, and introduces a data classification and hierarchical protection system based on the importance of data in economic and social development, and the degree of harm it will cause to national security, public interests, or legitimate rights and interests of individuals or organizations when such data is tampered with, destroyed, leaked, illegally acquired or used. The PRC Data Security Law also provides for a national security review procedure for data activities that may affect national security and imposes export restrictions on certain data an information.
As of the date of this prospectus, we do not expect that the current Chinese laws on cybersecurity or data security, or that the PIPL, when effective, would have a material adverse impact on our cash flowsbusiness operations. However, as uncertainties remain regarding the interpretation and implementation of these laws and regulations, we cannot assure you that we will comply with such regulations in all respects and we may be ordered to rectify or liquidity.terminate any actions that are deemed illegal by regulatory authorities. We may also become subject to fines and/or other sanctions which may have material adverse effect on our business, operations and financial condition.
Trading in our operating resultssecurities may be prohibited under the Holding Foreign Companies Accountable Act if the PCAOB determines that it cannot inspect or fully investigate our auditors, and as a result, Nasdaq may determine to fluctuatedelist our securities.
The Holding Foreign Companies Accountable Act (the “HFCA Act”) was enacted on December 18, 2020. The HFCA Act states if the SEC determines that a company has filed audit reports issued by a registered public accounting firm that has not been subject to inspection by the PCAOB for three consecutive years beginning in 2021, the SEC shall prohibit such shares from being traded on a quarterly basis, which may makenational securities exchange or in the over the counter trading market in the United States.
On March 24, 2021, the SEC adopted interim final rules relating to the implementation of certain disclosure and documentation requirements of the HFCA Act. A company will be required to comply with these rules if the SEC identifies it difficultas having a “non-inspection” year under a process to predict our future performance.be subsequently established by the SEC. The SEC is assessing how to implement other requirements of the HFCA Act, including the listing and trading prohibition requirements described above.
Our quarterly results have fluctuatedcurrent independent registered public accounting firm, as an auditor of companies that are traded publicly in the pastUnited States and will likely fluctuatea firm registered with the PCAOB, is subject to laws in the future dueUnited States pursuant to a varietywhich the PCAOB conducts regular inspections to assess their compliance with the applicable professional standards. We are not aware of factors, many of which may be outsideany reasons to believe or conclude that the PCAOB has been or is currently unable to inspect our current auditors, or that our current auditors would not permit an inspection by the PCAOB. However, given the recent developments, we cannot assure you whether Nasdaq or regulatory authorities would apply
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additional and more stringent criteria to us after considering the effectiveness of our control. Specifically, we expectauditor’s audit procedures and quality control procedures, adequacy of personnel and training, or sufficiency of resources, geographic reach or experience as it relates to the revenuesaudit of our financial statements.
The SEC may propose additional rules or guidance that could impact us if our auditor is not subject to PCAOB inspection. For example, on August 6, 2020, the President’s Working Group on Financial Markets (the “PWG”) issued the Report on Protecting United States Investors from Significant Risks from Chinese Companies to the then President of the United States. This report recommended the SEC implement five recommendations to address companies from jurisdictions that do not provide the PCAOB with sufficient access to fulfil its statutory mandate. Some of the concepts of these recommendations were implemented with the enactment of the HFCA Act. However, some of the recommendations were more stringent than the HFCA Act. For example, if a company’s auditor was not subject to PCAOB inspection, the report recommended that the transition period before a company would be delisted would end on January 1, 2022.
The SEC has announced that the SEC staff is preparing a consolidated proposal for the rules regarding the implementation of the HFCA Act and to address the recommendations in the PWG report. It is unclear when the SEC will complete its rulemaking and when such rules will become effective and what, if any, of the PWG recommendations will be adopted. The implications of this possible regulation in addition to the requirements of the HFCA Act are uncertain. Such uncertainty could cause the market price of our shares to be materially and adversely affected, and our securities could be delisted or prohibited from being traded on a national securities exchange earlier than would be required by the HFCA Act. If our shares are unable to be listed on another securities exchange by then, such a delisting would substantially impair your ability to sell or purchase our shares when you wish to do so, and the risk and uncertainty associated with a potential delisting would have a negative impact on the price of our tax-related service businesses to be largely seasonal in nature, with peak revenues occurring during January through April, corresponding to the U.S. tax season.common stock.
Risks Relating to this Offering and Our Common Stock
Our stock price has fluctuated considerably and is likely to remain volatile, and various factors could negatively affect the market price or market for our common stock.
The trading price of our common stock has been and may continue to be volatile. From January 1, 2013,2019 through November 3, 2015,June 30, 2021, the high and low sales prices for our common stock were $9.11$4.72 and $1.12,$0.25, respectively. In addition to the factors discussed in this prospectus, theThe trading price of our common stock may fluctuate significantly in response to numerous factors, many of which are beyond our control, including:
•minimal third-party research regarding our company; and
•the current and anticipated future operating performance and equity valuation of Sharecare, Inc., in which we have a significant equity investment.
In addition, the stock market in general, and the market prices for Internet-related companies in particular, have experienced volatility that often has been unrelated to the operating performance of such companies. TheseSuch broad market and industry fluctuations may adversely affect the price of our stock, regardless of our operating performance.
The concentration of our stock ownership may limit individual stockholder ability to influence corporate matters.
As of November 3, 2015,October 15, 2021 , our Chairman and Chief Executive Officer, Kai-Shing Tao, may be deemed to beneficially own 6,780,63410,200,634 shares, or 33.0%9.7% of our common stock, and Ashford Capital Management, Inc.Lawrence Rosen may be deemed to beneficially own 1,488,3385,418,616 shares, or 7.7%5.4% of our common stock. The interests of these stockholders may not always coincide with the interests of other stockholders, and they may act in a manner that advances their best interests and not necessarily those of other stockholders, and might affect the prevailing market price for our securities.
If these stockholders act together, they may be able to exert significant control over our management and affairs requiring stockholder approval, including approval of significant corporate actions. ThisSuch concentration of ownership may have the effect of delaying or preventing a change in control and might adversely affect the market price of our common stock.
A significant number of additional shares of our common stock may be issued uponunder the exercise or conversionterms of existing securities, which issuances would substantially dilute existing stockholders and may depress the market price of our common stock.
As of November 3, 2015,October 15, 2021 , we had outstanding stock options toallowing for the purchase 4,339,778of as many as approximately 14.9 million shares of common stock andstock. Also outstanding were warrants to purchase 12,397,111 shareswe issued as part of common stock outstanding. Such warrants include the Acquisition Warrants and the Financing Warrantconsideration for our acquisition of assets of China Branding Group Limited (“CBG”), providing for the right to purchase a total of 11,181,83340,000 shares of common stock at ana per-share exercise prices of $10.00 (the “CBG Acquisition Warrants”) and warrants we issued pursuant to a settlement agreement that we entered into with CBG and its joint official liquidators, providing for the right to purchase 5,710,000 shares of common stock at a per share exercise price of $9.00, which warrants$6.00 (the “CBG Settlement Warrants”).
The CBG Acquisition Warrants and the CBG Settlement Warrants are exercisable on a cashless basis only, such that they cannot be exercised for the entire amount of shares purchasable under such warrants, and thereforethey effectively cannot be exercised to purchase shares of common stock unless the applicable market value of the common stock exceeds the applicable exercise price under the terms thereof.
The issuance of these shares of common stock pursuant to the warrants described above would substantially dilute the proportionate ownership and voting power of existing stockholders, and their issuance, or the possibility of their issuance, may depress the market price of our common stock.
Provisions in our corporate charter documents and under Delaware law could make an acquisition of the CompanyRemark more difficult, which acquisition may be beneficial to stockholders.
Provisions in our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, as well as provisions of the General Corporation Law of the State of Delaware (“DGCL”(the “DGCL”), which may discourage, delay or prevent a merger with, acquisition of or other change in control of Remark, even if such a change in control would be beneficial to our stockholders, include the following:
•we have authorized, undesignated preferred stock, the terms of which may be established and shares of which may be issued without stockholder approval.
Additionally, Section 203 of the DGCL prohibits a person who owns in excess of 15% of our outstanding voting stock from merging or combining with us for a period of three years after the date of the transaction in which
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the person acquired in excess of 15% of our outstanding voting stock, unless the merger or combination is approved in a prescribed manner. We have not opted out of the restriction under Section 203, as permitted under the DGCL.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The information included or incorporated by reference in this prospectus contains “forward-looking statements” about our plans, strategies, objectives, goals or expectations. You will find forward-looking statements including information relating to future events, future financial performance, strategies, expectations, competitive environment and regulation. The forward-looking statements are contained principally in the sections entitled “Prospectus Summary” and “Risk Factors.” Words such as “may,” “should,” “could,” “would,” “predicts,” “potential,” “continue,”Factors”. These forward-looking statements are identifiable by words or phrases indicating that we or our management “expects,” “anticipates,” “future,” “intends,” “plans,” “believes,” or “estimates,” or that a particular occurrence or event “will,” “may,” “could,” “should,” or “will likely” result, occur or be pursued or “continue” in the future, that the “outlook” or “trend” is toward a particular result or occurrence, that a development is an “opportunity,” “priority,” “strategy,” “focus,” that we are “positioned” for a particular result, or similarly stated expectations. Undue reliance should not be placed on these forward-looking statements, which speak only as of the date of this prospectus, other report, release, presentation, or statement.
In addition to other risks and similar expressions,uncertainties described in connection with the forward-looking statements contained in this prospectus and other periodic reports filed with the SEC, there are many important factors that could cause actual results to differ materially. Such risks and uncertainties include general business conditions, changes in overall economic conditions, our ability to integrate acquired assets, the impact of competition and other factors which are often beyond our control.
This should not be construed as well as statements in future tense, identify forward-looking statements. These statements involve known and unknown risks, uncertaintiesa complete list of all of the economic, competitive, governmental, technological and other factors that could causeadversely affect our actualexpected consolidated financial position, results levels of activity, performanceoperations or achievement to differ materially from those expressed or implied by these forward-looking statements. Theseliquidity. Additional risks and uncertainties include, among others:
USE OF PROCEEDS
Except as a result of new information, future events or otherwise.
PLAN OF DISTRIBUTION
We may sell securities described in disposing of securities covered by this prospectus. We will bear the costs, fees and expenses incurred to effect the registration of securities covered by this prospectus including all registration fees and filing fees, NASDAQ listing fees and fees and expenses of our counsel and our independent registered public accounting firm.
•through underwriters;
•through dealers;
•through agents;
•directly to purchasers; or
•through a combination of any of these methods or any other method permitted by law.
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In addition, we may issue the date hereof, of upsecurities as a dividend or distribution or in a subscription rights offering to 14,227,086 shares of our common stock by the selling stockholders named below, and their pledgees, assigneesexisting security holders.
We may directly solicit offers to purchase securities, or other successors-in-interest. The following table sets forth the name of each selling stockholder, the number of shares of common stock owned beneficially by each selling stockholder as of November 3, 2015, the number of shares of common stock thatagents may be offered pursuantdesignated to thissolicit such offers. In the prospectus and the number of shares of common stocksupplement relating to such offering, we will name any agent that could be owned by each selling stockholder after this offering, assuming the sale of all shares offered by this prospectus. All of the information below with respect to the selling stockholders is based on information provided to the Company by the selling stockholders.
Each prospectus supplement will describe the method of distribution of the selling stockholders orsecurities and any of their respective affiliates has held a position or office, or had any other material relationship, with us or our affiliates during the past three years. Noneapplicable restrictions. The distribution of the selling stockholders is a broker-dealer or affiliate of any broker-dealer.
•at a fixed price, or prices, which may be changed informationfrom time to time;
•at market prices prevailing at the time of sale;
•at prices related to such prevailing market prices; or
•at negotiated prices.
The prospectus supplement with respect to the securities of a particular series will describe the terms of the offering of the securities, including the following:
•the name of the agent or any underwriters;
•the public offering or purchase price;
•any discounts and commissions to be allowed or paid to the agent or underwriters;
•all other items constituting underwriting compensation;
•any discounts and commissions to be allowed or paid to dealers; and
•any exchanges on which the securities will be listed.
If any underwriters or agents are used in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement, sales agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
In connection with the offering of securities, we may grant to the underwriters an option to purchase additional securities with an additional underwriting commission, as may be set forth in the accompanying prospectus supplement. If we grant any such option, the terms of such option will be set forth in an amendmentthe prospectus supplement for such securities.
If a dealer is used in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the registration statement or a supplement to this prospectus, to the extent required by law.
dealer, as principal. The amounts and percentages of common stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares voting power, which includes the power to vote or direct the voting of a security, or investment power, which includes the power to dispose of or to direct the disposition of a security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Securities that can be so acquired are deemed to be outstanding for purposes of computing such person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed a beneficial owner of the same securities and a persondealer, who may be deemed to be a beneficial owner ofan “underwriter” as that term is defined in the Securities Act, may then resell such securities as to which such person has no economic interest. Except as otherwise noted herein, to our knowledge, each selling stockholder has sole voting and investment power with respect to the indicated shares of common stock.
| Shares Beneficially Owned Prior to | Maximum Number of | Shares Beneficially Owned After the Offering(1) | |||||
| Name | the Offering | Shares Offered | Number | Percent(2) | |||
| Alyson Fine Marmur 2010 Legacy Trust | 101,575 | 101,575(3) | 0 | – | |||
| Amy Greenspun Arenson 2010 Legacy Trust | 375,148 | 1,455,485(4) | 0 | – | |||
| DRG Holdings, LP | 198,224 | 1,122,928(5) | 0 | – | |||
| DRG Legacy Limited Partnership | 268,089 | 1,518,683(6) | 0 | – | |||
| G.C. Investments, LLC | 518,630 | 1,855,289(7) | 0 | – | |||
| James Adam Greenspun 2010 Legacy Trust | 252,364 | 2,256,922(8) | 0 | – | |||
| Jeffrey Aaron Fine 2010 Legacy Trust | 101,582 | 101,582(9) | 0 | – | |||
| Jonathan M. Fine 2010 Legacy Trust | 101,575 | 101,575(10) | 0 | – | |||
| Kathryn A. Fine 2010 Legacy Trust | 101,575 | 101,575(11) | 0 | – | |||
MGG Specialty Finance Fund LP(12) | 0 | 3,354,550(13) | 0 | – | |||
| Moira Greenspun Tarmy 2010 Legacy Trust | 252,364 | 2,256,922(14) | 0 | – | |||
If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the sale, at varying prices determinedstandby underwriters
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a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
Agents, underwriters, dealers and other persons may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
•the purchase by an institution of the securities covered under that contract shall not at the time of sale,delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
•if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or at negotiated prices. Exceptperformance of delayed delivery contracts.
Offered securities may also be offered and sold, if so indicated in the prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as otherwise provided herein,principals for their own accounts or as agents for us. Any remarketing firm will be identified and the selling stockholdersterms of its agreement, if any, with us and its compensation will be described in the applicable prospectus supplement. Remarketing firms may use anybe deemed to be underwriters in connection with their remarketing of offered securities.
Certain agents, underwriters and dealers, and their associates and affiliates, may be customers of, have borrowing relationships with, engage in other transactions with, or perform services, including investment banking services, for us or one or more of our respective affiliates in the following methods when selling securities:ordinary course of business.
We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into hedgingderivative transactions with broker-dealersthird parties, or other financial institutions, whichsell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may in turn engagesell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securitiesor to close out their short positions, orany related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus supplement (or a post-effective
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amendment). In addition, we may otherwise loan or pledge the common stocksecurities to broker-dealersa financial institution or other third party that in turn may sell these securities. The selling stockholders may also enter into optionthe securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other transactions with broker-dealers or other financial institutions or the creation of one or more derivativethird party may transfer its economic short position to investors in our securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
Under Rule 15c6-1 of the proceeds from this offering.
The securities may be new issues of securities and their affiliates. In addition,may have no established trading market. The securities may or may not be listed on a national securities exchange. We can make no assurance as to the extent applicable we will make copiesliquidity of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholdersexistence of trading markets for the purpose of satisfying the prospectus delivery requirementsany of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions involving the sale of the shares against certain liabilities, including liabilities arising under the Securities Act.securities.
The underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of persons other than our affiliates.business for which they receive compensation.
DESCRIPTION OF CAPITAL STOCK
General
Our Amended and Restated Certificate of Incorporation, or Charter, authorizes us to issue up to 51,000,000176,000,000 shares, including 50,000,000175,000,000 shares of common stock, par value $0.001 per share, and 1,000,000 shares of preferred stock, par value $0.001 per share, of which 50,000 shares have been designated as shares of Series A Junior Participating Preferred Stock.share. As of close of business on November 3, 2015,October 15, 2021 , there were 19,435,382105,108,724 shares of common stock issued and outstanding and no shares of Series A Junior Participating Preferred Stockpreferred stock issued and outstanding.
The following descriptions are summaries of the material provisions and terms of our capital stock and are qualified by reference to our Amended and Restated Certificate of Incorporation, or Charter, and our Amended and Restated Bylaws, or Bylaws, each as amended to date.Bylaws.
Common Stock
Each share of common stock entitles its holder to one vote on all matters to be voted upon by the stockholders. Common stockholders are not entitled to cumulative voting with respect to the election of directors. Subject to the preferences of any outstanding shares of preferred stock, holders of common stock may receive ratably any dividends that our Board of Directors (our “Board”) may declare out of funds legally available for that purpose. In the event of our liquidation, dissolution or winding up, the holders of common stock are entitled to share ratably in all assets remaining after payment of liabilities and liquidation preferences of any outstanding shares of preferred stock. The
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common stock has no preemptive rights, conversion rights or other subscription rights or redemption or sinking fund provisions.
Preferred Stock
Under our Charter, our Board is authorized generally without stockholder approval to issue shares of preferred stock in one or more series and, in connection with the creation of each such series, to fix the number of shares of such series and designate the powers, preferences and rights of such series, including dividend rights, redemption rights, liquidation preferences, sinking fund provisions, conversion rights and voting rights, any or all of which may be greater than the rights of the common stock.
•the Stockholder Approval. We intend to seek the Stockholder Approval at a special meeting of stockholders within 90 days after the closing of the Vegas.com Acquisition.title and stated value;
•the liquidation preference per share;
•the purchase price;
•the dividend rate, period and payment date, and method of calculation for dividends;
•whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
•the procedures for any auction and remarketing, if any;
•the provisions for a sinking fund, if any;
•the provisions for redemption or repurchase, if applicable, and any restrictions on our common stock issuable uponability to exercise those redemption and repurchase rights;
•any listing of the Financing Warrant andpreferred stock on any securities exchange or market;
•whether the exercise price thereof are subject to anti-dilution protection; (iii) we have the right to exercise all or any portion of the Financing Warrant if at any time following its issuance the closing price of our commonpreferred stock is greater than or equal to $14.00; and (iv) the holder has the right to sell the Financing Warrant back to Remark on its expiration date in exchange for $3.0 million in cash (reduced pro rata based on the percentage of the Financing Warrant exercised) (the “Financing Put Option”).
•whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period;
•voting rights, if any, of the preferred stock;
•preemptive rights, if any;
•restrictions on transfer, sale or other assignment, if any;
•whether interests in the preferred stock will be represented by depositary shares;
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•a discussion of any material United States federal income tax considerations applicable to purchase 236,194the preferred stock;
•the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
•any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
•any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
If we issue shares of our commonpreferred stock in a private placement on February 29, 2012. The 2012 Registration Rights Agreement provides that promptly following the closing of the private placement, but no later than 30 days thereafter, the Company would prepare and file with the SEC a registration statement on Form S-3 covering the resale ofunder this prospectus, the shares of common stockwill be fully paid and the shares underlying the 2012 Investor Warrants sold. The 2012 Registration Rights Agreement also provides for certain piggyback registration rights, among other things. The Company filed a registration statement on Form S-3 covering these shares with the SEC on March 23, 2012, which was declared effective on March 30, 2012.non-assessable and will not have, or be subject to, any preemptive or similar rights.
Anti-Takeover Provisions
Provisions in our Charter and Bylaws, as well as provisions of the DGCL, which may discourage, delay or prevent a merger, with, acquisition of or other change in control of Remark, even if such a change in control would be beneficial to our stockholders,stockholders. These provisions include the following:
•we have authorized undesignated preferred stock, the terms of which may be established and shares of which may be issued without stockholder approval.
Additionally, Section 203 of the DGCL prohibits a person who owns in excess of 15% of our outstanding voting stock from merging or combining with us for a period of three years after the date of the transaction in which the person acquired in excess of 15% of our outstanding voting stock, unless the merger or combination is approved in a prescribed manner. We have not opted out of the restriction under Section 203, as permitted under the DGCL.
Listing
Our common stock is currently quoted on the NASDAQNasdaq Capital Market under the symbol “MARK”.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is Computershare LLC.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares of our common stock, preferred stock or of debt securities. Any of these warrants may be issued independently or together with any other securities offered by this prospectus and may be attached to or separate from those securities.
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We will evidence each series of warrants by warrant certificates that we will issue under a separate warrant agreement. We will enter into the warrant agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We will describe in the applicable prospectus supplement the terms of the 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 or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
•the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement 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 periods during which, and places at which, the warrants are exercisable;
•the manner of exercise;
•the dates on which the right to exercise the warrants will commence and expire;
•the manner in which the warrant agreement and warrants may be modified;
•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.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. Unless otherwise specified in the applicable prospectus supplement, we will issue the debt securities under an indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We have filed the form of indenture as an exhibit to the registration statement of which this prospectus is a part, and
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supplemental indentures and forms of debt securities specifying 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. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of the debt securities being offered.
The following summary of Contentsmaterial provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the terms of the debt securities.
General
The indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in the applicable prospectus supplement.
We also may issue indexed debt securities. Payments of principal of, and premium and interest on, indexed debt securities are determined with reference to the rate of exchange between the currency or currency unit in which the debt security is denominated and any other currency or currency unit specified by us, to the relationship between two or more currencies or currency units or by other similar methods or formulas specified in the applicable prospectus supplement.
We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
•the title of the series of debt securities;
•any limit upon the aggregate principal amount that may be issued;
•the maturity date or dates;
•the form of the debt securities of the series;
•the applicability of any guarantees;
•whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
•whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
•if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion shall be determined;
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•the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
•our right, if any, to defer payment of interest and the maximum length of any such deferral period;
•if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
•the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
•the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
•any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series;
•whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the depositary for such global security or securities;
•if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;
•if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof;
•additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant;
•additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable;
•additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
•additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
•additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture;
•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;
•whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made;
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•the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes;
•any restrictions on transfer, sale or assignment of the debt securities of the series; and
•any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture or the debt securities, as appropriate.
Events of Default
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect to any series of debt securities that we may issue:
•if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose;
•if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any;
•if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
•if specified events of bankruptcy, insolvency or reorganization occur.
If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate
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principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
•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. A holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only if:
•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 written request, such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the trustee in compliance with the request; and
•the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without the consent of any holders with respect to specific matters:
•to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series;
•to comply with the provisions described above under “Description of Debt Securities-Consolidation, Merger or Sale;”
•to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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•to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture;
•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 make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect;
•to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities-General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
•to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or
•to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act.
In addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
•extending the fixed maturity of any debt securities of any series;
•reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or
•reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:
•provide for payment;
•register the transfer or exchange of debt securities of the series;
•replace stolen, lost or mutilated debt securities of the series;
•pay principal of and premium and interest on any 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
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•appoint any successor trustee.
To exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
•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. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
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Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified in the applicable prospectus supplement. Global securities will be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for the individual debt securities, a global security may not be transferred except as a whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor. The specific terms of the depositary arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial interests in a global security will be described in the applicable prospectus supplement.
Governing Law
The indenture and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION OF UNITS
We may issue units consisting of common stock, preferred stock, warrants and debt securities 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 following:
•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;
•the price or prices at which such units will be issued;
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•the applicable United States federal income tax considerations relating to the units;
•any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
•any other terms of the units and of the securities comprising the units.
The provisions described in this section, as well as those described under “Description of Capital Stock,” “Description of Warrants,” and “Description of Debt Securities,” will apply to each unit and to any common stock, preferred stock, warrant or debt security included in each unit, respectively.
LEGAL MATTERS
The validity of the common stocksecurities offered hereby will be passed upon by Olshan Frome Wolosky LLP, New York, New York.
Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
Weinberg & Company, our independent registered public accounting firm, has audited our consolidated financial statements as of December 31, 2014 and 20132020 and for the yearsyear then ended, contained in our Annual Report on Form 10-K as amended on April 30, 2015, for the year ended December 31, 2014, and RSM US2020. Cherry Bekaert LLP, (f/k/a McGladrey LLP), Vegas.com’san independent registered public accounting firm, has audited theour consolidated financial statements of Vegas.com and its subsidiaries as of andDecember 31, 2019, contained in our Annual Report on Form 10-K for the yearsyear ended December 31, 2014 and 2013 contained in our Current Report on Form 8-K/A filed with the SEC on November 6, 2015.2020. These financial statements are incorporated by reference in this prospectus and elsewhere in this registration statement. Such financial statements are incorporated by reference in reliance on thesuch accounting firms’ reports given by such independent accounting firms upon their authority as experts in auditing and accounting.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the information contained in documents we file with it, which means that we can disclose important information to you by referring you to those documents already on file with the SEC that contain that information.documents. The information incorporatedwe incorporate by reference is considered to be part of this prospectus, and later information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future information filed (rather than furnished)filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, betweenuntil the sale of all of the securities that are part of this offering. The documents we are incorporating by reference are as follows:
•Our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 31, 2021, as amended on Form 10-K/A on April 30, 2021;
•Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, filed with the SEC on May 17, 2021, and our Quarterly Report on Form 10-Q for the quarter ended June 30, 2021, filed with the SEC on August 23, 2021;
•Our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on January 6, 2021, February 17, 2021, July 9, 2021, August 10, 2021, August 24, 2021, September 7, 2021and September 30, 2021; and
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•The description of our common stock contained in our registration statement on Form 8-A (Registration No. 001-33720) filed with the SEC on October 3, 2007, including any amendments or reports filed for the purpose of updating such description.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the initial registration statement and prior to effectiveness of the registration statement and after the date of this prospectus but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the terminationdate of the offeringfiling of the securities covered by this prospectus,such documents, provided, however, that we arethe registrant is not incorporating any information furnished under any ofeither Item 2.02 or Item 7.01 of any Current Report on Form 8-K. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, (and exhibitsas well as proxy statements.
Any document, and any statement contained in a document, incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein, or in any other subsequently filed ondocument that also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such form that are relateddocument or statement. Any such document or statement so modified or superseded shall not be deemed, except as so modified or superseded, to such items):constitute a part of this prospectus.
800 S. Commerce St.
Attention: Chief Executive Officer
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act. In accordance with the Exchange Act, we file periodic reports, proxy and information statements and other information with the SEC. You may read and copy any document we file at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. You may also request copies of such documents, upon payment of a duplicating fee, by writing to the SEC at the same address. You may obtain further information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. Our filings with the SEC are also available to the public over the Internet at the SEC’s website at www.sec.gov. You may also find documents we filed on our website at www.remarkmedia.com.www.remarkholdings.com. Information contained in or accessible through our website does not constitute a part of this prospectus.
Upon written or oral request, we will provide at no cost to the requester a copy of all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus. You may obtain copies of these documents from us, excluding the exhibits to such filings which we have not specifically incorporated by reference in such filings, at no cost, by requesting them in writing or by telephone at the following address:
Remark Media,Holdings, Inc.
Las Vegas, Nevada 89169NV 89106
Attention: Chief FinancialExecutive Officer
(702) 701-9514
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$50,000,000
Warrants
Debt Securities
| PROSPECTUS | ||||||||
, 2021
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.Distribution 1
The following table sets forth the fees and expenses payable by the registrant in connection with the offeringissuance and distribution of the securities being registered (other than brokerage commissions, discounts or other expenses relating to the sale of the securities by the selling stockholders), all of which will be paid by the Company.registered. All of the amounts shown are estimates, except for the SEC registration fee:
| SEC registration fee | $ | 5,455.00 | ||||||
| Accounting fees and expenses | 10,000.00 | |||||||
| Legal fees and expenses | 20,000.00 | |||||||
| Total | $ | 35,455.00 | ||||||
| SEC registration fee | $ | 6,061 | ||
Legal fees and expenses | $ | 20,000 | ||
Accounting fees and expenses | $ | 15,000 | ||
Miscellaneous fees and expenses | $ | 5,000 | ||
Total | $ | 46,061 |
1.Information regarding offering expenses is not currently known. The foregoing sets forth the general categories of expenses (other than underwriting compensation) that we anticipate we will incur in connection with the offering of securities under this registration statement. An estimate of our expenses in connection with the sale and distribution of the securities being offered will be included in the applicable prospectus supplement.
Item 15. Indemnification of Directors and Officers.
Our Charter provides that, to the fullest extent permitted by the DGCL,General Corporation Law of the State of Delaware (the “DGCL”), our directors shall not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director. Each of our Charter and Bylaws also provide as follows:
(a)The Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that the person is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
(b)The Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the
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person reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
(d)Any indemnification under sections (a) and (b) above (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in sections (a) and (b) above. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Company.
We have obtained liability insurance covering our directors and executive officers for claims asserted against them or incurred by them in such capacity.
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Item 16. Exhibits.
Exhibit Number | Description of Document | Form | Dated | Exhibit Number | Filed Herewith | |||||
| 2.1 | Unit Purchase Agreement, dated August 18, 2015, by and among Remark Media, Inc., Vegas.com, LLC and the sellers listed on the signature page thereto | 8-K | 8/20/2015 | 2.1 | ||||||
| 3.1 | Amended and Restated Certificate of Incorporation | 8-K | 12/30/2014 | 3.1 | ||||||
| 3.2 | Amended and Restated Bylaws | 8-K | 2/13/2015 | 3.1 | ||||||
| 4.1 | Form of specimen certificate of common stock of Remark Media, Inc. | 10-K | 3/23/2012 | 4.1 | ||||||
| 4.2 | Form of Acquisition Warrant, dated September 24, 2015 | 8-K | 9/28/2015 | 4.1 | ||||||
| 4.3 | Form of Financing Warrant, dated September 24, 2015 | 8-K | 9/28/2015 | 4.2 | ||||||
| 5.1 | Opinion of Olshan Frome Wolosky LLP | X | ||||||||
| 10.1 | Financing Agreement dated as of September 24, 2015 by and among Remark Media, Inc. and certain of its subsidiaries named as Borrowers and Guarantors, the Lenders and MGG Investment Group LP, as Collateral Agent and Administrative Agent for the Lenders | 8-K | 9/28/2015 | 10.2 | ||||||
| 10.2 | Registration Rights Agreement dated as of September 24, 2015 by and between Remark Media, Inc. and the Subscribers listed on the signature page thereto | 8-K | 9/28/2015 | 10.4 | ||||||
| 23.1 | Consent of Cherry Bekaert LLP | X | ||||||||
| 23.2 | Consent of RSM US LLP (f/k/a McGladrey LLP) | X | ||||||||
| 23.3 | Consent of Olshan Frome Wolosky LLP (included in Exhibit 5.1) | X | ||||||||
| 24.1 | Power of Attorney (included on the signature page hereto) | X |
| Incorporated Herein By Reference To | ||||||||||||||||||||||||||
| Exhibit Number | Description | Document | Filed On | Exhibit Number | ||||||||||||||||||||||
| 1.1 | Form of Underwriting Agreement | (1) | ||||||||||||||||||||||||
| 4.1 | 8-K | 12/30/14 | 3.1 | |||||||||||||||||||||||
| 4.2 | 8-K | 01/12/16 | 3.1 | |||||||||||||||||||||||
| 4.3 | 8-K | 06/08/16 | 3.1 | |||||||||||||||||||||||
| 4.4 | 8-K | 04/11/17 | 3.1 | |||||||||||||||||||||||
| 4.5 | 8-K | 07/09/21 | 3.1 | |||||||||||||||||||||||
| 4.6 | 8-K | 02/13/15 | 3.1 | |||||||||||||||||||||||
| 4.7 | 10-K | 03/23/12 | 4.1 | |||||||||||||||||||||||
| 4.8 | Form of Certificate of Designation of Preferred Stock | (1) | ||||||||||||||||||||||||
| 4.9 | Form of Certificate for Preferred Stock | (1) | ||||||||||||||||||||||||
| 4.10 | Form of Warrant Agreement | (1) | ||||||||||||||||||||||||
| 4.11 | Form of Warrant Certificate | (1) | ||||||||||||||||||||||||
| 4.12 | (2) | |||||||||||||||||||||||||
| 4.13 | Form of Debt Security | (1) | ||||||||||||||||||||||||
| 4.14 | Form of Unit Agreement | (1) | ||||||||||||||||||||||||
| 4.15 | Form of Unit Certificate | (1) | ||||||||||||||||||||||||
| 5.1 | (2) | |||||||||||||||||||||||||
| 23.1 | X | |||||||||||||||||||||||||
| 23.2 | X | |||||||||||||||||||||||||
| 23.3 | (2) | |||||||||||||||||||||||||
| 24.1 | (2) | |||||||||||||||||||||||||
| 25.1 | Form T-1 Statement of Eligibility of Trustee for Indenture under the Trust Indenture Act of 1939 | (1) | ||||||||||||||||||||||||
(1)If applicable, to be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
(2)Previously filed.
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Item 17. Undertakings.
(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;
(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 CommissionSEC pursuant to Rule 424(b) of the Securities Act if, in the aggregate, the changes in volume and price represent no more than 20twenty (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 the undertakings set forth in 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 CommissionSEC by the registrantRegistrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in thethis registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) of the Securities Act that is part of thethis registration statement.
(2)That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(ii)Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act 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 of the Securities Act, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be
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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 purposes of determining any liability under the Securities Act, each filing of the registrant’sRegistrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)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 in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act, of 1933, the registrantRegistrant 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 Las Vegas, State of Nevada, on the 6th21 stday of November, 2015.October , 2021.
| REMARK | ||||||||||||||
| By: | /s/ Kai-Shing Tao | |||||||||||||
| Name: | Kai-Shing Tao | |||||||||||||
| Title: | Chief Executive Officer and Chairman of the Board | |||||||||||||
Pursuant to the requirements of the Securities Act, of 1933, this Registration Statementregistration statement has been signed by the following persons in the capacities and on the datesdate indicated.
| Signature | Title | Date | ||||||||||||
/s/ Kai-Shing Tao | ||||||||||||||
| Kai-Shing Tao | Chief Executive Officer and Chairman (principal executive, financial and accounting officer) | October 21, 2021 | ||||||||||||
| * | ||||||||||||||
| Theodore Botts | Director | October 21, 2021 | ||||||||||||
| * | ||||||||||||||
| Brett Ratner | Director | October 21, 2021 | ||||||||||||
| * | ||||||||||||||
| Daniel Stein | Director | October 21, 2021 | ||||||||||||
| * | ||||||||||||||
| Elizabeth Xu | Director | October 21, 2021 | ||||||||||||
| * | By: | /s/ Kai-Shing Tao | ||||||
| Kai-Shing Tao | ||||||||
Exhibit Number | Description of Document | Form | Dated | Exhibit Number | Filed Herewith | |||||
| 2.1 | Unit Purchase Agreement, dated August 18, 2015, by and among Remark Media, Inc., Vegas.com, LLC and the sellers listed on the signature page thereto | 8-K | 8/20/2015 | 2.1 | ||||||
| 3.1 | Amended and Restated Certificate of Incorporation | 8-K | 12/30/2014 | 3.1 | ||||||
| 3.2 | Amended and Restated Bylaws | 8-K | 2/13/2015 | 3.1 | ||||||
| 4.1 | Form of specimen certificate of common stock of Remark Media, Inc. | 10-K | 3/23/2012 | 4.1 | ||||||
| 4.2 | Form of Acquisition Warrant, dated September 24, 2015 | 8-K | 9/28/2015 | 4.1 | ||||||
| 4.3 | Form of Financing Warrant, dated September 24, 2015 | 8-K | 9/28/2015 | 4.2 | ||||||
| 5.1 | Opinion of Olshan Frome Wolosky LLP | X | ||||||||
| 10.1 | Financing Agreement dated as of September 24, 2015 by and among Remark Media, Inc. and certain of its subsidiaries named as Borrowers and Guarantors, the Lenders and MGG Investment Group LP, as Collateral Agent and Administrative Agent for the Lenders | 8-K | 9/28/2015 | 10.2 | ||||||
| 10.2 | Registration Rights Agreement dated as of September 24, 2015 by and between Remark Media, Inc. and the Subscribers listed on the signature page thereto | 8-K | 9/28/2015 | 10.4 | ||||||
| 23.1 | Consent of Cherry Bekaert LLP | X | ||||||||
| 23.2 | Consent of RSM US LLP (f/k/a McGladrey LLP) | X | ||||||||
| 23.3 | Consent of Olshan Frome Wolosky LLP (included in Exhibit 5.1) | X | ||||||||
| 24.1 | Power of Attorney (included on the signature page hereto) | X |