As filed with the Securities and Exchange Commission on September 24, 202113, 2023
Registration No. 333-257353333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pre-Effective Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MY SIZE, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 51-0394637 | |
| (State or Other Jurisdiction of | (I.R.S. Employer | |
| Incorporation or Organization) | Identification Number) |
4 Hayarden St.
P.O.B. 1026,
Airport City, 7010000
Israel
+972-3-600-9030
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, DE 19808
1-800-927-9800
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
David Huberman, Esq. Greenberg Traurig, LLP One Vanderbilt Avenue New York, NY 10017 +1 212 801 9337 | Andrey Yanai Barnea Electra City Tower 58 HaRakevet St. Tel Aviv 6777016, Israel Tel: +972-3-640-0600 |
|
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [ ]☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [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. [ ]☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]☐
If this Form is a registration statement filed pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [ ]☐
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | Accelerated filer | ||
| Non-accelerated filer | Smaller reporting company | ||
| Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. [ ]☐
CALCULATION OF REGISTRATION FEE
| Title of each class of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per share (2) | Proposed maximum aggregate offering price | Amount of registration fee (3) (4) | ||||||||||||
| Common Stock, $0.001 par value per share | 2,500,000 | $ | 1.28 | $ | 3,200,700 | $ | 349.12 | |||||||||
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
EXPLANATORY NOTE
My Size, Inc. is filing this pre-effective amendment to the Registration Statement on Form S-3 (File No. 333-257353) in order to update the section entitled “Information Incorporated by Reference” of the Registration Statement.
The information in this prospectus is not complete and may be changed. The selling stockholder named in this prospectus may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and the selling stockholder named in this prospectus is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 24, 202113, 2023
PROSPECTUS
2,500,0005,509,173 Shares
My Size, Inc.
Common Stock
TheThis prospectus relates to the resale, from time to time, by the selling stockholder namedstockholders identified in this prospectus, or the selling stockholder, may use this prospectus to offer and resell from time to timestockholders, of up to 2,500,0005,509,173 shares of our common stock, which arepar value $0.001 per share, issuable upon the sharesexercise of our common stock held by the selling stockholder.warrants, as further described below under “Prospectus Summary — Recent Developments — Warrant Repricing.”
The selling stockholder was issued these shares pursuant to an Amendment to a Purchase Agreement, or the Amendment between us, My Size Israel 2014 Ltd., or My Size Israel, a wholly owned subsidiary of ours, and the selling stockholder, which made certain amendments to a Purchase Agreement between the parties dated February 16, 2014, or the Purchase Agreement, which was entered into on May 26, 2021. Westockholders are registering the offer and resale of these shares of our common stock to satisfy an obligation set forthidentified in the Amendment, pursuant to which we agreed to register the resale of these shares of our common stock within a limited period of time following the date of the Amendment.
table commencing on page 6. We will not receive any of the proceeds from the sale of ourthe shares of common stock by the selling stockholder.
stockholders. All net proceeds from the sale of the shares of common stock covered by this prospectus will go to the selling stockholders. However, we may receive the proceeds from any exercise of warrants if the holders do not exercise the warrants on a cashless basis. See “Use of Proceeds.”
The selling stockholder,stockholders may sell all or its donees, pledgees, transferees or other successors-in-interest, may offer or resella portion of the shares of common stock from time to time in market transactions through publicany market on which our shares of common stock are then traded, in negotiated transactions or private transactionsotherwise, and at prices and on terms that will be determined by the then prevailing market prices, at prices related to prevailing market pricesprice or at privately negotiated prices. The selling stockholder will bear all commissions and discounts, if any, attributable to the saleprices directly or through a broker or brokers, who may act as agent or as principal or by a combination of shares. We will bear all costs, expenses and fees in connection with the registration of the shares. For additional information on thesuch methods of sale that may be used by the selling stockholder, seesale. See “Plan of Distribution” beginning on page 6 of this prospectus..
Our common stock is listed on the Nasdaq Capital Market under the symbol “MYSZ” and on the Tel Aviv Stock Exchange, or the TASE, under the symbol “MYSZ”. On September 23, 2021,12, 2023, the last reported sale price of our common stock on the Nasdaq Capital Market was $1.53$1.27 per share. On September 23, 2021,12, 2023, the last reported sale price of our shares of common stock on the TASE was NIS 4.165.09 or $1.299$1.340 per share (based on the exchange rate reported by the Bank of Israel on the same day).
Investing in our securities involves a high degree of risk. These risks are discussed in this prospectus under “Risk Factors” beginning on page 4 and in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, which are incorporated by reference in this prospectus and in any applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 20212023
TABLE OF CONTENTS
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC. As permitted by the rules and regulations of the SEC, the registration statement filed by us includes additional information not contained in this prospectus.
The selling stockholder may resell, from time to time, in one or more offerings, the shares of our common stock offered by this prospectus. Information about the selling stockholder may change over time. As permitted by the rules and regulations of the SEC, the registration statement filed by us includes additional information not contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at the SEC’s website or its offices described below under the heading “Where You Can Find More Information”.Information.”
You should rely only on the information that is contained or incorporated by reference in this prospectus or any applicable prospectus supplement.prospectus. We have not and the selling stockholder has not, authorized any other personanyone to provide you with information that is in addition to or different or additional information.from that contained in this prospectus. If anyone provides you with different or additionalinconsistent information, you should not rely on it. This prospectus is
We are not an offeroffering to sell nor isor solicit any security other than the selling stockholder seeking an offer to buy, the shares of common stock offered by this prospectusprospectus. In addition, we are not offering to sell or solicit any securities to or from any person in any jurisdiction where theit is unlawful to make this offer to or sale is not permitted. No offers or sales of any of the shares of our common stock are to be made in any jurisdiction in which suchsolicit an offer or sale is not permitted. You should assumefrom a person in that thejurisdiction. The information contained in this prospectus or in any applicable prospectus supplement is accurate only as of the date on the front cover thereof or the date of the document incorporated by reference,this prospectus only, regardless of the time of delivery of this prospectus or any applicable prospectus supplement or any sales of the shares of our common stock offered hereby or thereby.
You should read the entire prospectus and any prospectus supplement and any related issuer free writing prospectus, as well as the documents incorporated by reference into this prospectus or any prospectus supplement or any related issuer free writing prospectus, before making an investment decision. Neither the delivery of this prospectus or any prospectus supplement or any issuer free writing prospectus nor any sale made hereunder shall under any circumstances imply that the information contained or incorporated by reference herein or in any prospectus supplement or issuer free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus supplement or issuer free writing prospectus, as applicable. You should assume that the information appearing in this prospectus, any prospectus supplement or any document incorporated by reference herein or therein is accurate only as of the date of the applicable documents, regardless of the time of delivery of this prospectus or any sale of securities.our shares of common stock. Our business, financial condition, results of operations and prospects may have changed since that date.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed as exhibits to the registration statement, and you may obtain copies of those documents as described below under the section entitled “Where You Can Find More Information.”
Our financial statements are prepared and presented in accordance with United States generally accepted accounting principles, or U.S. GAAP. Our historical results do not necessarily indicate our expected results for any future periods.
Market data and certain industry data and forecasts used throughout this prospectus were obtained from sources we believe to be reliable, including market research databases, publicly available information, reports of governmental agencies and industry publications and surveys. We have relied on certain data from third-party sources, including internal surveys, industry forecasts and market research, which we believe to be reliable based on our management’s knowledge of the industry. Forecasts are particularly likely to be inaccurate, especially over long periods of time. In addition, we do not necessarily know what assumptions regarding general economic growth were used in preparing the third-party forecasts we cite. Statements as to our market position are based on the most currently available data. While we are not aware of any misstatements regarding the industry data presented in this prospectus, our estimates involve risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” in this prospectus.
Certain figures included in this prospectus have been subject to rounding adjustments. Accordingly, figures shown as totals in certain tables may not be an arithmetic aggregation of the figures that precede them.
We implemented a 1-for-25 reverse stock split of our outstanding shares of common stock that was effective on December 8, 2022. All share and related option and warrant information presented in this prospectus have been retroactively adjusted to reflect the reduced number of shares and the increase in the share price which resulted from this action.
All descriptions of our share capital in this prospectus, except the consolidated financial statements and the related notes incorporated by reference into this prospectus, assume the issuance of 1,748,012 shares of common stock underlying warrants exercised in August 2023, the issuance of which is held in abeyance subject to a beneficial ownership limitation provision in the warrant
| ii |
The following summary highlights certain information contained elsewhere in or incorporated by reference into this prospectus. Because this is only a summary, however, it does not contain all the information you should consider before investing in our securities and it is qualified in its entirety by, and should be read in conjunction with, the more detailed information included elsewhere in or incorporated by reference into this prospectus. Before you make an investment decision, you should read this entire prospectus carefully, including the risks of investing in our securities discussed under the section of this prospectus entitled “Risk Factors” and similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Unless the context otherwise requires, references to “we,” “our,” “us,” “My Size” or the “Company” in this prospectus mean My Size, Inc. on a consolidated basis with its wholly-owned subsidiary,subsidiaries, My Size (Israel) 2014 Ltd., Orgad International Marketing Ltd, and Naiz Bespoke Technologies, S.L., as applicable.
Overview
We are a creatoran omnichannel e-commerce platform and provider of mobile deviceAI-driven SaaS measurement solutions, including MySizeID and our recently acquired subsidiaries, Naiz Fit, which provides SaaS technology solutions that has developed innovativesolve size and fit issues and AI solutions designed to address shortcomingsfor smarter design through data driven decisions for fashion ecommerce companies, and Orgad, an online retailer operating in multiple verticals, including the e-commerce fashion/apparel, shipping/parcelglobal markets. To date, we have generated almost all our revenue as a third-party seller on Amazon. Our advanced software and do it yourself, or DIY, industries. Utilizing our sophisticated algorithms within our proprietary technology, wesolutions assists us in supply chain, identifying products that can calculatedrive growth and record measurements inprovides a variety of novel ways,user-friendly experience and most importantly, increase revenue for businesses across the globe.best customer service.
Our solutions can be utilizedflagship innovative tech products, MySizeID, enables shoppers to accurately takegenerate highly accurate measurements of their body to find the accurate fitting apparel by using our application on their mobile phone or through the MySizeID Widget: a variety of items viasimple questionnaire which uses a mobile device. By downloadingdatabase collected over the applicationyears.
MySizeID syncs the user’s measurement data to a smartphone,sizing chart integrated through a retailer’s (or a white labeled) mobile application, and only presents items for purchase that match their measurements to ensure a correct fit.
We are positioning ourselves as a consolidator of sizing solutions and a provider of a new digital experience due to recent technological developments for the user is then ablefashion industry needs. Our other product offerings include First Look Smart Mirror for physical stores and Smart Catalog to run the mobile device over the surface of an item the user wishesempower brand design teams, which are designed to measure. The information is then automatically sentincrease end consumer satisfaction, contributing to a cloud-based server where the dimensions are calculated through our proprietary algorithms,sustainable world and the accurate measurements (+ or - 2 centimeters) are then sent back to the user’s mobile device. We believe that the commercial applications for this technology are significant in many areas.
Currently, we are mainly focusing on the e-commerce fashion/apparel industry. In addition, our solutions address the shipping/parcel and DIY uses markets.
While we rollout our products to major retailers and apparel companies, there is a lead time for new customers to ramp up before we can recognize revenue. This lead time varies between customers, especially when the customer is a tier 1 retailer, where the integration process may take longer. Generally, first we integrate our product into a customer’s online platform, which is followed by piloting and implementation, and, assuming we are successful, commercial roll-out, all of which takes time before we expect it to impact our financial results in a meaningful way. While we have begun generating initial sales revenue, we do not expect to generate meaningful revenue during the upcoming quarters. Because of the numerous risks and uncertainties associated with the success of our market penetration and our dependence on the extent to which MySizeID is adopted and utilized, we are unable to predict the extent to which we will recognize revenue. We may be unable to successfully develop or market any of our current or proposed products or technologies, those products or technologies may not generate any revenues, and any revenues generated may not be sufficient for us to become profitable or thereafter maintain profitability.reducing operation costs.
Important Information about COVID-19
In late 2019, a novel strain of COVID-19, also known as coronavirus, was reported in Wuhan, China. While initially the outbreak was largely concentrated in China, it has now spread to Israel and the United States, and infections have been reported globally. Many countries around the world, including in Israel, have from time to time significant governmental measures implemented to control the spread of the virus, including temporary closure of businesses, severe restrictions on travel and the movement of people, and other material limitations on the conduct of business. These measures have resulted in work stoppages and other disruptions. We implemented remote working and work place protocols for our employees in accordance with Israeli government requirements. In addition, while we have seen an increased demand for MySizeID, the COVID-19 pandemic has had a particularly adverse impact on the retail industry and this has resulted in an adverse impact on our marketing and sales activities. For example, we have three ongoing pilots with international retailers that have been halted, we are unable to participate physically in industry conferences, our ability to meet with potential customers is limited, and in certain instances sales processes have been delayed or cancelled. The extent to which COVID-19 continues to impact our operations will depend on future developments, which are highly uncertain and cannot be predicted with confidence, including the duration and severity of the outbreak, and the actions that may be required to contain COVID-19 or treat its impact.
Recent Developments
Amendment to Purchase AgreementWarrant Repricing
On May 26, 2021,August 24, 2023, we My Size Israel and Shoshana Zigdon entered into an inducement offer letter agreement, or the Amendment, which madeInducement Letter, with a certain amendmentsholder, or the Holder, of certain of our existing warrants to purchase up to (i) 1,963,994 shares of our common stock issued on January 12, 2023 at an exercise price of $2.805 per share, or the Purchase Agreement.January 2023 Warrants, (ii) 6,864 shares of our common stock issued on January 17, 2020 at an exercise price of $94.00 per share, or the January 2020 Warrants, and (ii) 47,153 shares of our common stock issued on October 28, 2021 at an exercise price of $31.50 per share, or the October 2021 Warrants and together with the January 2023 Warrants and the January 2020 Warrants, the Existing Warrants, having terms ranging from 28 months to five and one-half years.
Pursuant to the Amendment, Ms. ZigdonInducement Letter, the Holder agreed to irrevocably waive (i) the rightexercise for cash its Existing Warrants to repurchase certain assets relatedpurchase an aggregate of 2,018,012 shares of our common stock at a reduced exercise price of $2.09 per share in consideration of our agreement to the collection of data for measurement purposes that My Size Israel acquired from Ms. Zigdon under the Purchase Agreement and upon which our business is substantially dependent,issue new common stock purchase warrants, or the Assets, and (ii) all past, present and future rights in anyNew Warrants, as described below, to purchase up to an aggregate of 5,367,912 shares of our common stock, or the intellectual property rights sold, transferred and assignedNew Warrant Shares, at an exercise price of $2.09 per share, or the Warrant Repricing.
We engaged H.C. Wainwright & Co., LLC, or Wainwright, to My Size Israel under the Purchase Agreement and any modifications, amendments or improvements made thereto, including, without limitation, any compensation, reward or any rights to royalties or to receive any payment or other consideration whatsoeveract as our exclusive placement agent in connection with such intellectual property rights,the transactions contemplated by the Inducement Letter. We also agreed to issue to Wainwright or its designees warrants, or the Waiver. In consideration of the Waiver, we issued 2,500,000Placement Agent Warrants, to purchase up to 141,261 shares of common stock (representing 7.0% of the Existing Warrants being exercised) which will have the same terms as the New Warrants except the Placement Agent Warrants have an exercise price equal to Ms. Zigdon, or$2.6125 per share (125% of the Shares.
Under the Purchase Agreement prior to the Amendment, Ms. Zigdon had a right to repurchase the Assets until June 16, 2021 at the marketreduced exercise price of the Assets as determined by a third party independent valuation. In addition, under the Purchase Agreement priorExisting Warrants). Similar to the Amendment, Ms. Zigdon would have had a right to receive 18% of My Size Israel’s operating profit, directly or indirectly connected withNew Warrants, the Assets, together with VAT for a period of seven yearsPlacement Agent Warrants are immediately exercisable from the enddate of issuance until the five and one-half year anniversary of such date. Upon any exercise for cash of any New Warrants, we agreed to issue to Wainwright warrants representing 7.0% of the development periodshares of My Size Israel’s measurement solution.common stock underlying such New Warrants.
UnderThe closing of the Amendment, wetransactions contemplated pursuant to the Inducement Letter occurred on August 28, 2023, or the Closing Date, subject to satisfaction of customary closing conditions. We also agreed that,to file this registration statement, or this Resale Registration Statement, providing for the resale of the New Warrant Shares issued or issuable upon the exercise of the New Warrants as soon as practicable but in any event no later than June 24, 2021 it shallafter the Closing Date, and to use commercially reasonable efforts to file a registration statement on Form S-3 (or Form S-1 if Form S-3 is unavailable) providing forhave such Resale Registration Statement declared effective by the resale by Ms. ZigdonSEC within 90 days following the date of the Shares, orInducement Letter and to keep the Resale Registration Statement and use our commercially reasonable efforts to cause such Registration Statement to become effective by July 26, 2021.at all times until no holder of the New Warrants owns any New Warrants or New Warrant Shares.
In the Amendment Ms. Zigdon agreed to a lock up of the Shares until November 1, 2021, and that following the effectiveness of the Registration Statement and subject to compliance with applicable securities laws, Ms. Zigdon will be entitled to sell one-fourth of the Shares each month beginning July 30, 2021.
Company Information
We were incorporated in the State of Delaware and commenced operations in September 1999 under the name Topspin Medical, Inc. In December 2013, we changed our name to Knowledgetree Ventures Inc. Subsequently, in February 2014, we changed our name to My Size, Inc. Our principal executive offices are located at 4 Hayarden, pob 1026, Airport City, Israel 7010000, and our telephone number is +972-3-600-9030. Our website address is www.MySizeID.com. The information on our website is not part of this prospectus. We have included our website address as a factual reference and do not intend it to be an active link to our website.
THE OFFERING
| Shares of common stock currently outstanding | 4,456,792 shares of common stock. | |
| Securities offered by the selling | Up to | |
| Shares of common stock to be outstanding assuming exercise of the | 9,965,965 shares of common stock. | |
| Selling | All of the shares of our common stock are being offered by the selling | |
| Use of Proceeds | We will not receive any proceeds from the sale of the shares | |
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| Risk Factors |
| Before investing in our |
| Listings | Our common stock is listed on the Nasdaq Capital Market under the symbol “MYSZ” and on the Tel Aviv Stock Exchange, or the TASE, under the symbol “MYSZ”. |
Unless otherwise indicated, the number of shares of common stock outstanding prior to and after this offering is based on 4,456,792 shares of common stock outstanding as of September 12, 2023, and excludes as of such date:
| ● | 119,883 shares of common stock issuable upon exercise of outstanding options under our 2017 Equity Incentive Plan at a weighted exercise price of $1.78; | |
| ● | 5,616 shares of common stock issuable upon exercise of outstanding options under our 2017 Consultant Equity Incentive Plan and non-plan options at a weighted exercise price of $15.93; | |
| ● | 3,523 shares of common stock reserved for potential future issuance pursuant to our 2017 Equity Incentive Plan and 2017 Consultant Equity Incentive Plan, combined; and | |
| ● | 5,790,276 shares of common stock issuable upon the exercise of warrants outstanding at a weighted exercise price of $3.14 per share (including the New Warrants and Placement Agent Warrants). |
Unless otherwise indicated, all information in this prospectus (i) assumes no exercise of the outstanding options or warrants described above, (ii) gives retroactive effect to the 1-for-25 reverse stock split effected on December 8, 2022, and (iii) the issuance of 1,748,012 shares of common stock underlying warrants exercised in August 2023, the issuance of which is held in abeyance subject to a beneficial ownership limitation provision in the warrant.
An investment in our securities involves certain risks. Before investing in our securities, you should carefully consider the risk set forth below, as well as the risks described in our most recent Annual Report on Form 10-K, any updates to those risks in our Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, together with all of the other information appearing in this prospectus or incorporated by reference into this prospectus. The risks so described are not the only risks facing our company.us. Additional risks not presently known to us or that we currently deem immaterial may also impair our business operations. Any of these risks could materially and adversely affect our business, financial condition, results of operations and cash flows and could result in a loss of all or part of your investment. In any case, the value of the securities offered by means of this prospectus could decline due to any of these risks, and you may lose all or part of your investment.
The sale of a substantial numberamount of our shares of our common stock in the public market, including resale of the shares issued tobeing registered hereunder in the selling stockholder,public market could adversely affect the prevailing market price forof our common stock.
We are registering for resale 2,500,0005,509,173 shares of our common stock that we have issued to the selling stockholder pursuant to the Amendment.stock. Sales of substantial amounts of shares of our shares of common stock in the public market, or the perception that such sales might occur, could adversely affect the market price of our shares of common stock, and the market value of our other securities. We cannot predict if and when the selling stockholderstockholders may sell such shares in the public markets. Furthermore, in the future, we may issue additional shares of our common stock or other equity or debt securities exercisable for, or convertible into shares of our common stock. Any such issuancesissuance could result in substantial dilution to our existing stockholdersshareholders and could cause our stock price to decline.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the information incorporated by referenceSecurities Exchange Act of 1934, as amended, or the Exchange Act. Any statements in this prospectus contain “forward-looking statements,” which include information relating toabout our expectations, beliefs, plans, objectives, assumptions or future events future financialor performance strategies, expectations, competitive environmentare not historical facts and regulation. Wordsare forward-looking statements. These statements are often, but not always, made through the use of words or phrases such as “may,“believe,” “should,“will,” “could,“expect,” “would,“anticipate,” “predicts,“estimate,” “potential,“intend,” “continue,“plan” and “would.” “expects,” “anticipates,” “future,” “intends,” “plans,” “believes,” “estimates,”For example, statements concerning financial condition, possible or assumed future results of operations, growth opportunities, industry ranking, plans and similar expressions, as well as statements inobjectives of management, markets for our common stock and future tense, identifymanagement and organizational structure are all forward-looking statements. Forward-looking statements shouldare not be read as a guaranteeguarantees of futureperformance. They involve known and unknown risks, uncertainties and assumptions that may cause actual results, levels of activity, performance or achievements to differ materially from any results, and will probably not be accurate indicationslevels of when suchactivity, performance or results will be achieved. Forward-lookingachievements expressed or implied by any forward-looking statement.
Any forward-looking statements are basedqualified in their entirety by reference to the risk factors discussed in this prospectus or in our Annual Report on information we have when those statements are made or our management’s good faith belief asForm 10-K that is incorporated by reference herein. Some of that time with respect to future events,the risks, uncertainties and are subject to risks and uncertaintiesassumptions that could cause actual performance or results to differ materially from those expressedestimates or projections contained in or suggested by the forward-looking statements. Important factors that could cause such differencesstatements include but are not limited to:
| ● | our history of losses and needs for additional capital to fund our operations and our inability to obtain additional capital on acceptable terms, or at all; | |
| ● | risks related to our ability to continue as a going concern; | |
| ● | ||
| the new and unproven nature of the measurement technology markets; | ||
| ● | our ability to achieve customer adoption of our products; | |
| ● | our ability to realize the benefits of our acquisitions of Orgad and Naiz; | |
| ● | our dependence on assets we purchased from a related | |
| ● | our ability to enhance our brand and increase market awareness; | |
| ● | our ability to introduce new products and continually enhance our product offerings; | |
| ● | the success of our strategic relationships with third parties; | |
| ● | information technology system failures or breaches of our network security; | |
| ● | competition from competitors; | |
| ● | our reliance on key members of our management team; | |
| ● | current or future litigation; | |
| ● | current or future unfavorable economic and market conditions and adverse developments with respect to financial institutions and associated liquidity risk; and | |
| ● | the impact of the political and security situation in Israel on our business. |
We will not receive any proceeds from the sale of the shares of our common stock by the selling stockholder.stockholders. All net proceeds from the sale of the shares of common stock covered by this prospectus will go to the selling stockholders. We expect that the selling stockholders will sell their shares of common stock as described under “Plan of Distribution.”
We may receive proceeds from the exercise of the New Warrants and Placement Agent Warrants and issuance of the underlying warrant shares to the extent that these warrants are exercised for cash. The New Warrants and Placement Agent Warrants, however, are exercisable on a cashless basis under certain circumstances. If all of the warrants mentioned above were exercised for cash in full, the proceeds would be approximately $11.6 million. We intend to use the net proceeds of such warrant exercise, if any, for general corporate purposes and working capital.
Pending any use, as described above, we intend to invest the net proceeds in high-quality, short-term, interest-bearing securities. We can make no assurances that any of the warrants and placement agent warrants will be exercised, or if exercised, that they will be exercised for cash, the quantity which will be exercised or in the period in which they will be exercised.
SELLING STOCKHOLDERSTOCKHOLDERS
The following table sets forth the number and percentage of shares of our common stock beneficially owned by the selling stockholder as of June 24, 2021, taking into account number of shares that may be offered under this prospectus and the number and percentage of our common stock beneficially owned by the selling stockholder assuming all of the shares offered under this prospectus are sold. Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to shares of our common stock. Generally, a person “beneficially owns” shares of our common stock if the person has or shares with others the right to vote those shares or to dispose of them, or if the person has the right to acquire voting or disposition rights within 60 days.
All information contained in the table below and the footnotes thereto is based upon information provided to us by the selling stockholder. The information in the table below and the footnotes thereto regarding shares of our common stock to be beneficially owned after the offering under this prospectus assumes the sale of all shares of our common stock being offered by the selling stockholder under this prospectus. The percentage ofstockholders are those shares of our common stock owned prior toissuable upon exercise of the New Warrants and afterPlacement Agent Warrants previously issued in connection with the offering under this prospectus is based on 15,038,327Warrant Repricing. For additional information regarding the issuance of those shares of our common stock outstanding asand warrants, see “Prospectus Summary — Recent Developments — Warrant Repricing” above. We are registering the shares of June 24, 2021. Unless otherwise indicatedcommon stock in the footnotesorder to this table, we believe thatpermit the selling stockholder has sole voting and investment powerstockholders to offer the shares of common stock for resale from time to time. Other than with respect to Wainwright, which acted as our placement agent in the Warrant Repricing in August 2023, each of the January 2023, October 2021, the January 2020, May 2020 financings and our former at-the-market offering facility that was established in September 2019, except for the ownership of the warrants and Placement Agent Warrants issued, and the shares of our common stock indicated as beneficially owned.
Except for the transaction described in Prospectus Summary--Amendmentissued and issuable pursuant to Purchase Agreement, neitherprior financings, the selling stockholder nor any of its affiliates, officers, directors or principal equity holdersstockholders have held any position or office ornot had any other material relationship with us or our affiliates within the past three years.
As usedThe table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number the shares of common stock beneficially owned by each selling stockholder, based on its ownership of the shares of common stock, including shares underlying the New Warrants or Placement Agent Warrants, as of September 12, 2023, assuming exercise of the New Warrants or Placement Agent Warrants held by the selling stockholders on that date, without regard to any limitations on conversions or exercises. The third column lists the maximum number of the shares of common stock being offered in this prospectus the term “selling stockholder” includesby the selling stockholder named belowstockholders. The fourth and any donees, pledgees, transferees or other successors-in-interest sellingfifth columns list the amount of the shares of our common stock receivedowned after the date of this prospectus from the selling stockholder as a gift, pledge, or other non-sale related transfer.
Theoffering, by number of the shares of common stock and percentage of outstanding the shares of common stock (assuming for the purpose of such percentage, 4,456,792 shares outstanding as of September 12, 2023) assuming in both cases the column “Maximum Numbersale of Shares Offered” represents all of the shares of our common stock that the selling stockholder may offer under this prospectus. The fourth column assumes the sale of all the shares of our common stock offered by the selling stockholder understockholders pursuant to this prospectus, and thatwithout regard to any limitations on conversions or exercises.
Under the selling stockholder does not acquire any additional shares of our common stock before the completionterms of the offering under this prospectus. However, becauseNew Warrants and Placement Agent Warrants issued in the Warrant Repricing, a selling stockholder may sell all or some ofnot exercise the shares offered under this prospectus from time to time, or in another permitted manner, we cannot assure you aswarrants to the actualextent such exercise would cause such selling stockholder, together with its affiliates, to beneficially own a number of shares of our common stock that will be sold bywhich would exceed 4.99% or 9.99%, as applicable, of our then outstanding shares of common stock following such exercise, excluding for purposes of such determination shares of common stock not yet issuable upon exercise of the selling stockholder or that will be held by the selling stockholder after completionwarrants and placement agent warrants which have not been exercised. The number of any sales.shares does not reflect this limitation. The selling stockholderstockholders may sell all, some all or none of thetheir shares of our common stock offered underor New Warrants or Placement Agent Warrants in this prospectus. We do not know how long the selling stockholder will hold the sharesoffering. See “Plan of our common stock offered under this prospectus before selling them, and we currently have no agreements, arrangements or understandings with the selling stockholder regarding the sale of any of the shares of our common stock.Distribution.”
| Selling Stockholder | Number of Shares of Common Stock Owned Prior to Offering | Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus | Number of Shares of Common Stock Owned After the Offering | Percentage of Shares of Common Stock Owned After the Offering | ||||||||||||
| Armistice Capital, LLC (1) | 7,385,924 | (2) | 5,367,912 | (3) | 2,018,012 | (4) | * | |||||||||
| Michael Vasinkevich (5) | 153,738 | (6) | 90,584 | (7) | 63,154 | (8) | * | |||||||||
| Noam Rubinstein (5) | 75,521 | (9) | 44,497 | (10) | 31,024 | (11) | * | |||||||||
| Craig Schwabe (5) | 8,092 | (12) | 4,768 | (13) | 3,324 | (14) | * | |||||||||
| Charles Worthman (5) | 2,396 | (15) | 1,412 | (16) | 984 | (17) | * | |||||||||
| Ownership Before Offering | Ownership After Offering | |||||||||||||||||||
| Selling Shareholder | Number of shares of common stock beneficially owned | Percentage of common stock beneficially owned | Maximum number of shares of common stock offered | Number of shares of common stock beneficially owned | Percentage of common stock beneficially owned | |||||||||||||||
| Shoshana Zigdon | 2,500,001 | 16.6 | % | 2,500,000 | 1 | * | ||||||||||||||
| * | Denotes less than 1%. |
| The securities are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”), and may be deemed to be beneficially owned by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. The warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Stockholder from exercising that portion of the warrants that would result in the Selling Stockholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The address of Armistice Capital Master Fund Ltd. is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022. | |
| (2) | Represents (i) 270,000 shares issued upon the exercise Existing Warrants in connection with the Warrant Repricing, (ii) 1,748,012 shares underlying Existing Warrants exercised in August 2023, the issuance of which is held in abeyance subject to a beneficial ownership limitation provision in the warrant, and (iii) 5,367,912 shares of common stock issuable upon exercise of New Warrants issued in connection with the Warrant Repricing. |
| (3) | Represents 5,367,912 shares of common stock issuable upon exercise of New Warrants issued in connection with the Warrant Repricing. |
| (4) | Represents (i) 270,000 shares issued upon the exercise Existing Warrants in connection with the Warrant Repricing and (ii) 1,748,012 shares underlying Existing Warrants exercised in August 2023, the issuance of which is held in abeyance subject to a beneficial ownership limitation provision in the warrant. |
| (5) | Referenced person is affiliated with Wainwright, a registered broker-dealer with a registered address of H.C. Wainwright & Co., LLC, 430 Park Ave, 3rd Floor, New York, NY 10022. Wainwright acted as our placement agent in our January 2020, May 2020, October 2021 and January 2023 financings and has acted as sales agent in our at-the-market equity offering. Referenced person has sole voting and dispositive power over the securities held, acquired the securities in the ordinary course of business and, at the time the securities were acquired, the selling stockholder had no agreement or understanding, directly or indirectly, with any person to distribute such securities. |
| (6) | Represents (i) 792 shares of common stock issuable upon exercise of placement agent warrants issued in our January 2020 private placement, (ii) 6,995 shares of common stock issuable upon exercise of placement agent warrants issued in our May 2020 offering, (iii) 11,288 shares of common stock issuable upon exercise of placement agent warrants issued in our October 2021 offering, (iv) 44,079 shares of common stock issuable upon exercise of placement agent warrants issued in connection with our January 2023 financing, and (v) 90,584 shares of common stock issuable upon exercise of Placement Agent Warrants issued in connection with the Warrant Repricing. |
| (7) | Represent 90,584 shares of common stock issuable upon exercise of Placement Agent Warrants issued in connection with the Warrant Repricing. |
| (8) | Represents (i) 792 shares of common stock issuable upon exercise of placement agent warrants issued in our January 2020 private placement, (ii) 6,995 shares of common stock issuable upon exercise of placement agent warrants issued in our May 2020 offering, (iii) 11,288 shares of common stock issuable upon exercise of placement agent warrants issued in our October 2021 offering, and (iv) 44,079 shares of common stock issuable upon exercise of placement agent warrants issued in connection with our January 2023 financing. |
| (9) | Represents (i) 389 shares of common stock issuable upon exercise of placement agent warrants issued in our January 2020 private placement, (ii) 3,436 shares of common stock issuable upon exercise of placement agent warrants issued in our May 2020 offering, (iii) 5,545 shares of common stock issuable upon exercise of placement agent warrants issued in our October 2021 offering, (iv) 21,654 shares of common stock issuable on exercise of placement agent warrants issued in connection with our January 2023 financing, and (v) 44,497 shares of common stock issuable upon exercise of Placement Agent Warrants issued in connection with the Warrant Repricing. |
| (10) | Represent 44,497 shares of common stock issuable upon exercise of Placement Agent Warrants issued in connection with the Warrant Repricing. |
| (11) | Represents (i) 389 shares of common stock issuable upon exercise of placement agent warrants issued in our January 2020 private placement, (ii) 3,436 shares of common stock issuable upon exercise of placement agent warrants issued in our May 2020 offering, (iii) 5,545 shares of common stock issuable upon exercise of placement agent warrants issued in our October 2021 offering, and (iv) 21,654 shares of common stock issuable on exercise of placement agent warrants issued in connection with our January 2023 financing. |
| (12) | Represents (i) 42 shares of common stock issuable upon exercise of placement agent warrants issued in our January 2020 private placement, (ii) 368 shares of common stock issuable upon exercise of placement agent warrants issued in our May 2020 offering, (iii) 594 shares of common stock issuable upon exercise of placement agent warrants issued in our October 2021 offering, (iv) 2,320 shares of common stock issuable upon exercise of placement agent warrants issued in connection with our January 2023 financing and (v) 4,768 shares of common stock issuable upon exercise of Placement Agent Warrants issued in connection with the Warrant Repricing. |
| (13) | Represent 4,768 shares of common stock issuable upon exercise of Placement Agent Warrants issued in connection with the Warrant Repricing. |
| (14) | Represents (i) 42 shares of common stock issuable upon exercise of placement agent warrants issued in our January 2020 private placement, (ii) 368 shares of common stock issuable upon exercise of placement agent warrants issued in our May 2020 offering, (iii) 594 shares of common stock issuable upon exercise of placement agent warrants issued in our October 2021 offering, and (iv) 2,320 shares of common stock issuable upon exercise of placement agent warrants issued in connection with our January 2023 financing. |
| (15) | Represents (i) 12 shares of common stock issuable upon exercise of placement agent warrants issued in our January 2020 private placement, (ii) 109 shares of common stock issuable upon exercise of placement agent warrants issued in our May 2020 offering, (iii) 176 shares of common stock issuable upon exercise of placement agent warrants issued in our October 2021 offering, (iv) 687 shares of common stock issuable upon exercise of placement agent warrants issued in connection with our January 2023 financing, and (v) 1,412 shares of common stock issuable upon exercise of Placement Agent Warrants issued in connection with the Warrant Repricing.. |
| (16) | Represent 1,412 shares of common stock issuable upon exercise of Placement Agent Warrants issued in connection with the Warrant Repricing. |
| (17) | Represents (i) 12 shares of common stock issuable upon exercise of placement agent warrants issued in our January 2020 private placement, (ii) 109 shares of common stock issuable upon exercise of placement agent warrants issued in our May 2020 offering, (iii) 176 shares of common stock issuable upon exercise of placement agent warrants issued in our October 2021 offering, and (iv) 687 shares of common stock issuable upon exercise of placement agent warrants issued in connection with our January 2023 financing. |
TheEach selling stockholder, including itsor the Selling Stockholders, of the securities and any of their pledgees, donees, transferees, distributees, beneficiaries or other successors in interest,assignees and successors-in-interest may, from time to time, offer somesell any or all of their securities covered hereby on the shares of our commonNasdaq Capital Market or any other stock offered under this prospectus. We will not receive any of the proceeds from the sale of the shares of our common stock offered under this prospectus by the selling stockholder. We will bear all fees and expenses incident to our obligation to register the shares of our common stock offered under this prospectus
The selling stockholder may sell allexchange, market or a portion of the shares of our common stock beneficially owned by it and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of our common stock are sold through underwriters or broker-dealers, the selling stockholder will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of our common stock may be sold on any national securities exchange or quotation servicetrading facility on which the securities may be listed or quoted at the time of sale, in the over-the-counter marketare traded or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at privately negotiated prices.private transactions. These sales may be effected in transactions, which may involve crossesat fixed or block transactions.
The selling stockholdernegotiated prices. A Selling Stockholder may use any one or more of the following methods when disposing of shares of our common stock or interests therein:selling securities:
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | |
| ● | block trades in which the | |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | |
| ● | an exchange distribution in accordance with the rules of the applicable exchange; | |
| ● | privately negotiated transactions; | |
| ● | settlement of short | |
| ● | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; | |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; | |
| ● | a combination of any such methods of sale; or | |
| ● | any other method permitted pursuant to applicable law. |
The selling stockholderSelling Stockholders may from time to time, pledge or grant a security interest in some or all of the shares of our common stock owned by it and, if it defaults in the performance of its secured obligations, the pledgees or secured parties may offer andalso sell the shares of our common stock, from time to time, under this prospectus, or under an amendment to this prospectussecurities under Rule 424(b)(3)144 or any other applicable provision ofexemption from registration under the Securities Act, amending the list of the selling stockholder to include the pledgee, transferee, or other successors in interest as selling stockholderif available, rather than under this prospectus. The selling stockholder also
Broker-dealers engaged by the Selling Stockholders may transferarrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the sharesSelling Stockholders (or, if any broker-dealer acts as agent for the purchaser of our common stocksecurities, from the purchaser) in other circumstances,amounts to be negotiated, but, except as set forth in whicha supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the transferees, pledgeescase of a principal transaction a markup or other successorsmarkdown in interest will be the selling beneficial owners for purposes of this prospectus.
compliance with FINRA Rule 2121.
In connection with the sale of shares of our common stockthe securities or interests therein, the selling stockholderSelling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of shares of our common stockthe securities in the course of hedging the positions it assumes.they assume. The selling stockholderSelling Stockholders may also sell shares of our common stocksecurities short and deliver these securities to close out itstheir short positions, or loan or pledge the shares of our common stocksecurities to broker-dealers that in turn may sell these securities. The selling stockholderSelling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation ofcreate one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares of our common stocksecurities offered underby this prospectus, which shares of our common stocksecurities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
Broker-dealers engaged by the selling stockholder may arrange for other broker-dealers to participate in sales. If the selling stockholder effects certain transactions by selling shares of our common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholder or commissions from purchasers of the shares of our common stock for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with applicable rules of the Financial Industry Regulatory Authority, Inc., or FINRA;The Selling Stockholders and in the case of a principal transaction a markup or markdown in compliance with applicable FINRA rules.
The aggregate proceeds to the selling stockholder from the sale of the shares of our common stock offered under this prospectus will be the purchase price of the shares of common stock less discounts or commissions, if any. The selling stockholder reserves the right to accept and, together with its agents from time to time, to reject, in whole or in part, any proposed purchase of shares of our common stock to be made directly or through agents. We will not receive any of the proceeds from the offering under this prospectus.
The selling stockholder also may resell all or a portion of the shares of our common stock offered under this prospectus in open market transactions in reliance upon Rule 144 under the Securities Act, provided that it meets the criteria and conforms to the requirements of that rule.
The selling stockholder and any underwriters, broker-dealers or agents that participateare involved in selling the sale of the shares of our common stock or interests thereinsecurities may be deemed to be “underwriters” within the meaning of Section 2(a)(11) of the Securities Act. Any discounts,Act in connection with such sales. In such event, any commissions concessionsreceived by such broker-dealers or agents and any profit they earn on anythe resale of the shares of our common stocksecurities purchased by them may be deemed to be underwriting commissions or discounts and commissions under the Securities Act. The selling stockholder is subjectEach Selling Stockholder has informed us that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
We are required to pay certain fees and expenses incurred by us incident to the prospectus delivery requirementsregistration of the securities. We have agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
ToWe agreed to keep this prospectus effective until the extent required pursuantearlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 424(b)144, without the requirement for us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the sharessecurities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of our common stock tosimilar effect. The resale securities will be sold the name of the selling stockholder, the purchase price and public offering price, the names of any agents, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the shares of our common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers.dealers if required under applicable state securities laws. In addition, in somecertain states, the shares of our common stockresale securities covered hereby may not be sold unless the sharesthey have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirementsrequirement is available and is complied with.
The selling stockholderUnder applicable rules and regulations under the Exchange Act, any other person participatingengaged in a salethe distribution of shares of ourthe resale securities may not simultaneously engage in market making activities with respect to the common stock registered under this prospectusfor the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, or the Exchange Act and the rules and regulations thereunder, including without limitation, to the extent applicable, Regulation M, of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of our common stock by the selling stockholder andSelling Stockholders or any other participating person. All of the foregoing may affect the marketability of the shares of our common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of our common stock. In addition, weWe will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholder for the purpose of satisfying the prospectus delivery requirementsSelling Stockholders and have informed them of the Securities Act. The selling stockholder may indemnify any broker-dealer that participates in transactions involvingneed to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale of the shares of our common stock against certain liabilities, including liabilities arising(including by compliance with Rule 172 under the Securities ActAct).
The validity of the securitiesshares of common stock offered by this prospectushereby will be passed upon for us by McDermott Will & Emery LLP, New York, New York.Greenberg Traurig, P.A., Tel Aviv, Israel. If the securities are distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by counsel identified in the applicable prospectus supplement.
The consolidated financial statements of My Size, Inc. and subsidiaries as of December 31, 20202022 and 20192021, and for each of the years in the two-year period ended December 31, 20202022, have been incorporated by reference herein in reliance upon the report of Somekh Chaikin, a Membermember firm of KPMG International, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
The audit report covering the December 31, 2022 consolidated financial statements contains an explanatory paragraph that states that the Company has incurred significant losses and negative cash flows from operations and has an accumulated deficit that raises substantial doubt about the Company’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act and in accordance therewith file annual, quarterly and current reports, proxy statements and other information with the SEC. Such reports, proxy statements and other information can be read and copied at the SEC’s public reference facilities at 100 F Street, N.E., Washington, D.C. 20549, at prescribed rates. Please call the SEC at 1-800-732-0330 for further information on the operation of the public reference facilities. In addition, the SEC maintains a website that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. The address of the SEC’s website is www.sec.gov.
We make available free of charge on or through our website at www.MySizeID.com, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with or otherwise furnish it to the SEC.
We have filed with the SEC a registration statement under the Securities Act, relating to the securities offered under this prospectus. The registration statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus does not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement, at prescribed rates, from the SEC at the address listed above, or for free at www.sec.gov. The registration statement and the documents referred to below under “Incorporation of Certain Information by Reference” are also available on our website, www.MySizeID.com.
We have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we have filed with it, which means that we can disclose important information to you by referring you to those documents. The information we incorporate by reference is an important part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future documents (excluding information furnished pursuant to Items 2.02 and 7.01 of Form 8-K) we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to the termination of the offering:
| ● | Our Annual Report on Form 10-K for the fiscal year ended December 31, | |
| ● | Our Quarterly | |
| ● | Our Quarterly Report on Form 10-Q for the quarter ended June 30, |
| ● | Our Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that relate to such items), filed with the SEC on the following dates: January | |
| ● | ||
The description of our common stock, which is contained in the registration statement on Form 8-A, |
Notwithstanding the foregoing, information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits, is not incorporated by reference in this prospectus.
The information about us contained in this prospectus should be read together with the information in the documents incorporated by reference. You may request a copy of any or all of these filings, at no cost, by writing or telephoning us at: Or Kles, Chief Financial Officer, 4 Hayarden, 4,POB 1026, Airport City, Israel 701000, telephone number 972-3-600-9030.+972-3- 6009030.
2,500,0005,509,173 Shares
My Size, Inc.
COMMON STOCK
PROSPECTUS
, 20212023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The fees andfollowing are the estimated expenses payable by us in connection with thisrelated to the filing of the registration statement of which this prospectus forms a part, all of which will be paid by us. With the exception of the SEC registration fee, all amounts are estimated as follows:estimates and may change:
| SEC Registration Fee | $ | 349.12 | $ | 788.64 | ||||
| Accounting Fees and Expenses | $ | 5,000 | $ | 30,000 | ||||
| Legal Fees and Expenses | $ | 10,000 | $ | 25,000 | ||||
| Printing Fees and Expenses | $ | 1,000 | $ | 1,000 | ||||
| Miscellaneous Fees and Expenses | $ | 1,500 | $ | 5,211.36 | ||||
| Total | $ | 17,849.12 | $ | 62,000 |
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses including attorneys’ fees, judgments, fines and amounts paid in settlement in connection with various actions, suits or proceedings, whether civil, criminal, administrative or investigative other than an action by or in the right of the corporation, a derivative action, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses including attorneys’ fees incurred in connection with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s certificate of incorporation, bylaws, agreement, a vote of stockholders or disinterested directors or otherwise.
Our Certificate of Incorporation and Bylaws provide that we will indemnify and hold harmless, to the fullest extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, each person that such section grants us the power to indemnify.
The Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:
| ● | any breach of the director’s duty of loyalty to the corporation or its stockholders; | |
| ● | acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; | |
| ● | payments of unlawful dividends or unlawful stock repurchases or redemptions; or | |
| ● | any transaction from which the director derived an improper personal benefit. |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, offices or controlling persons of ours, pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of ours in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
| II-1 |
Item 16. Exhibits and Financial Statement Schedules.
| * | Filed herewith |
Item 17. Undertakings
| (a) | The undersigned Registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| i. | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; | |
| ii. | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; | |
| 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 with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement
| (2) | That for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and this offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (i) | If the registrant is relying on Rule 430B: |
| (A) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and | ||
| (B) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that No statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. | ||
| (ii) | If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use. |
| II-4 |
| (5) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; | |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; | |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and | |
| (iv) | Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
| (b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 hereof, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Airport City, State of Israel on this September 24, 2021.13, 2023.
| MY SIZE, INC. | ||
| By: | /s/ Ronen Luzon | |
| Name: | Ronen Luzon | |
| Title: | Chief Executive Officer | |
KNOW ALL MEN BY THESE PRESENTED, that each directorWe, the undersigned directors and officerofficers of My Size, Inc. whose signature appears below, hereby appointsseverally constitute and appoint Ronen Luzon and Or Kles, and each of them severally, his or her true and lawful attorneys-in-fact and agents with full powers of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all supplements amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys- in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
| Name | Title | Date | ||
| /s/ Ronen Luzon | Chief Executive Officer and Director | September | ||
| Ronen Luzon | (principal executive officer) | |||
| /s/ Or Kles | Chief Financial Officer | September | ||
| Or Kles | (principal financial officer and principal accounting officer) | |||
| Director | September | |||
| Arik Kaufman | ||||
| Director | September | |||
| Oren Elmaliah | ||||
| Director | September | |||
| Oron Branitzky | ||||
| /s/ Guy Zimmerman | Director | September | ||
| Guy Zimmerman |
| II-6 |