As
filed with the Securities and Exchange Commission on October 12, 2016
Registration
No. 333-
213874
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT
NO. 1
TO
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
LONG
ISLAND ICED TEA CORP.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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47-2624098
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
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Incorporation or Organization)
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Identification
Number)
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116
Charlotte Avenue
Hicksville,
NY 11801
(855)
542-2832
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Philip
Thomas
Chief
Executive Officer
Long
Island Iced Tea Corp.
116
Charlotte Avenue
Hicksville,
NY 11801
(855)
542-2832
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(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Office)
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(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
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Copies
to
:
David
Alan Miller, Esq.
Jeffrey
M. Gallant, Esq.
Graubard
Miller
405
Lexington Avenue, 11
th
Floor
New
York, New York 10174
Telephone:
(212) 818-8800
Fax:
(212) 818-8881
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. [X]
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933,
please check the following box and list the Securities Act of 1933 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 of 1933, check the following box
and list the Securities Act of 1933 registration statement number of the earlier effective registration statement for the same
offering. [ ]
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act of 1933, 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 of 1933, 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 Securities Exchange Act of 1934.
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ]
(Do not check if a smaller reporting company)
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Smaller
reporting company [X]
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CALCULATION
OF REGISTRATION FEE
Title
of each class of
securities to be registered(1)
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Amount
to be registered
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Proposed
maximum
offering price per
unit
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Proposed
maximum
aggregate
offering price
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Amount of registration fee(3)
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Common stock, par value $.0001 per share
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(2
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)
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(2
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)
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(2
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)
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—
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Preferred stock, par value $.0001 per share
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(2
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)
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(2
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)
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(2
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)
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—
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Warrants
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(2
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)
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(2
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)
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(2
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)
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—
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Debt Securities
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(2
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)
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(2
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)
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(2
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)
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—
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Units(4)
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(2
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)
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(2
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)
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(2
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)
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—
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Total
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$
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50,000,000
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$
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5,035.00
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(5)
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(1)
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This
registration statement covers such indeterminate number of shares of common stock and preferred stock, such indeterminate
number of warrants to purchase common stock, preferred stock or other securities offered hereby and such indeterminate principal
amount of debt securities of the registrant and such indeterminate number of units comprised of the other securities covered
by this registration statement as have an aggregate initial offering price not to exceed $50,000,000. The securities registered
hereunder are to be issued from time to time at prices to be determined. The securities registered hereunder also include
such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion or exchange of preferred
stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the anti-dilution
provisions of any such securities to be offered hereby. In addition, pursuant to Rule 416 under the Securities Act of 1933,
as amended, this registration statement shall be deemed to cover such additional number of securities as may be offered or
issued in connection with any stock splits, stock dividends or similar transactions.
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(2)
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Omitted
pursuant to General Instruction II.D of Form S-3 and Rule 457(o) promulgated under the Securities Act of 1933, as amended.
The proposed amount to be registered, maximum offering price per unit and maximum aggregate offering price per class of security
will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities
registered hereunder.
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(3)
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Calculated
pursuant to Rule 457(o) promulgated under the Securities Act of 1933, as amended.
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(4)
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Any
securities registered hereunder may be sold separately or as units with other securities registered hereunder.
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(5)
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Previously
paid.
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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 or until the registration statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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The
information in this prospectus is not complete and may be changed. We 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 is
not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
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Preliminary
Prospectus
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Subject
to Completion
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Dated
October 12, 2016
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Long
Island Iced Tea Corp.
$50,000,000
COMMON
STOCK, PREFERRED STOCK, WARRANTS, DEBT SECURITIES AND UNITS
We
will offer and sell from time to time shares of common stock, shares of preferred stock, warrants, debt securities and/or units
comprised of one or more of the foregoing classes of securities, at an aggregate initial offering price not to exceed
$50,000,000
.
The securities may be offered separately, together, or in series, and in amounts, at prices and on other terms to be determined
at the time of each offering. We will provide the specific terms of the securities to be sold in a prospectus supplement.
We
may sell the securities directly to investors, to or through underwriters or dealers or through agents designated from time to
time, among other methods. The prospectus supplement for each offering will describe in detail the specific plan of distribution
for the securities. The prospectus supplement also will set forth the price to the public of such securities, any placement agent’s
fees or underwriter’s discounts and commissions, and the net proceeds we expect to receive from the sale of the securities.
Our
common stock is listed for trading on the NASDAQ Capital Market under the symbol “LTEA.” On October 10, 2016,
the last reported sale price of our common stock was $4.33 . As of the date of this prospectus, none of the other securities
that we may offer by this prospectus are listed on any national securities exchange or automated quotation system.
As
of October 10, 2016, the aggregate market value of our outstanding voting and nonvoting common equity held by non-affiliates
was $14,485,686, based on a last sale price of $4.33 per share of our common stock and 3,345,424 outstanding shares
of our common stock held by non-affiliates as of such date. As of the date hereof, excluding the securities offered hereby, none
of our securities have been sold pursuant to General Instruction I.B.6 of Form S-3 during the preceding 12 months.
We
are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 and have elected to
comply with certain reduced public company reporting requirements.
Investing
in our securities involves a high degree of risk. See the section entitled “
Risk Factors
” appearing on page
9 in this prospectus and elsewhere in any supplements for a discussion of information that should be considered in connection
with an investment in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is _______, 2016
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission using a “shelf”
registration process. Under this shelf process, we may, from time to time, sell or issue any of the combination of securities
described in this prospectus in one or more offerings with a maximum aggregate offering price of up to $50,000,000.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this prospectus. If there is any inconsistency between the information in
this prospectus and any prospectus supplement, you should rely on the information in that prospectus supplement. You should read
both this prospectus and any prospectus supplement, together with the additional information described below under the heading
“
Where You Can Find More Information
” and “
Information Incorporated by Reference
.”
You
should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement relating
to a particular offering. We have not authorized anyone to provide you with different information and, if provided, such information
or representations must not be relied upon as having been authorized by us. Neither this prospectus nor any prospectus supplement
nor any related issuer free writing prospectus shall constitute an offer to sell or a solicitation of an offer to buy offered
securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation. This prospectus
does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits.
You
should not assume that the information appearing in this prospectus is accurate as of any date other than the date on the front
cover of this prospectus. You should not assume that the information contained in any prospectus supplement or in the documents
incorporated by reference herein or therein is accurate as of any date other than the respective dates of those documents. Our
business, financial condition, results of operations, and prospects may have changed since that date.
References
in this prospectus to “LIIT,” the “Company,” and “we,” “us” and “our”
refer to Long Island Iced Tea Corp., a Delaware corporation, and its subsidiaries, Long Island Brand Beverages LLC, or “LIBB,”
and Cullen Agricultural Holding Corp., or “Cullen.”
PROSPECTUS
SUMMARY
This
summary description about us and our business highlights selected information contained elsewhere in this prospectus or incorporated
in this prospectus by reference. This summary does not contain all of the information you should consider before deciding to invest
in our securities. You should carefully read this entire prospectus and any applicable prospectus supplement, including each of
the documents incorporated herein or therein by reference, before making an investment decision. Investors should carefully consider
the information set forth under the caption “Risk Factors” below and appearing elsewhere in this prospectus, including
those described in documents incorporated by reference herein, and those described in any applicable prospectus supplement.
Our
Company
Overview
We
are a holding company operating through our wholly-owned subsidiary, LIBB. We are engaged in the production and distribution of
premium Non-Alcoholic Ready-to-Drink, or “NARTD,” iced tea in the beverage industry. We are currently organized around
our flagship brand Long Island Iced Tea
®
. The Long Island Iced Tea name for a cocktail originated in Long Island
in the 1970’s, and its national recognition is such that it is ranked as the fourth most popular cocktail in restaurants
and bars in the U.S. (Source: Nielsen CGA, On-Premise Consumer Survey, 2016). Our premium NARTD tea is made from a proprietary
recipe and with quality components. Long Island Iced Tea
®
is sold in 12 states across the U.S., primarily on the
East Coast, through a network of national and regional retail chains and distributors. Our mission is to provide consumers with
premium iced tea offered at an affordable price.
We
aspire to be a market leader in the development of iced tea beverages that are convenient and appealing to consumers. There are
two major target markets for Long Island Iced Tea
®
: consumers on the go and health conscious consumers. Consumers
on the go are families, employees, students and other consumers who lead a busy lifestyle. With increasingly hectic and demanding
schedules, there is a need for products that are accessible and readily available. Health conscious consumers are individuals
who are becoming more interested and better educated on what is included in their diets, causing them to shift away from options
perceived as less healthy such as carbonated soft drinks, or “CSDs,” towards alternative beverages such as iced tea.
We
have begun exploring entry into the $215 billion U.S. alcohol industry, with the hope to establish ourselves as a multi-product
alcoholic and non-alcoholic beverage company.
In
addition, we have begun exploring global export opportunities, with product now distributed in South Korea and many Caribbean
nations. We have just announced a partnership with a Canadian distributor which will see our portfolio distributed nationally
across Canada.
Industry
Opportunity
Non-Alcoholic
Beverage Market
Globally,
NARTD tea products are ranked as the 4
th
largest beverage category, behind carbonated soft drinks, water and dairy.
The non-alcohol iced tea global category size is estimated at $55 billion, and is estimated to be growing at a 6.6% compound annual
growth rate, or “CAGR.” (Source: Euromonitor International, “Versatility of RTD Tea Generates Bright Spot in
Global Soft Drinks”, May 2014).
The
U.S. non-alcoholic liquid refreshment beverage market consists of a number of different products, and CSDs are the top selling
beverage category. However, consumers are increasingly coming to view CSDs (typically caffeinated as well as high in sugar and
preservatives) with disfavor. Total volume of cases sold in the CSD category declined 0.9% in 2014, 3% in 2013 and 1.2% in 2012.
(Source: Beverage-Digest, “Special Issue: U.S. Beverage Results for 2014”, March 2015).
CSDs
have historically dominated the non-alcoholic liquid refreshment beverage market and been primarily controlled by two industry
giants, Coca-Cola and Pepsico. However, a number of beverages began to emerge in the 1990s as alternatives to CSDs as part of
a societal shift towards beverages that are perceived to be healthier. The alternative beverage category of the market has resulted
in the birth of multiple new product segments that include sports drinks, energy drinks and NARTD teas.
According
to a 2014 IBISWorld industry report, the U.S. NARTD tea segment was expected to have $5.3 billion of revenues in 2014, a 3.3%
increase from the prior year and a 6.1% annualized growth rate over the five years from 2009 to 2014. (Source: IBISWorld Industry
Report OD4297, “RTD Tea Production in the US”, December 2014). The industry report also forecasted an annualized revenue
growth rate of 10.2% between 2014 and 2019, with revenues reaching $8.6 billion in 2019.
Consumers
have shown special interest in perceived healthier versions of NARTD teas, preferring all natural and diet teas.
Products
and Services Segmentation 2014 ($5.3 billion)
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All-Natural Tea
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36.1
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%
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Diet Tea
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25.8
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%
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Fruit-Flavored Tea
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20.2
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%
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Organic Tea
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10.3
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%
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Herbal Tea
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7.6
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%
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(Source:
IBISWorld Industry Report OD4297, “RTD Tea Production in the US”, December 2014)
The
existence of this trend toward healthier versions of products is reinforced by a 2015 Nielsen “Health and Wellness”
study, where six key elements of our premium liquid (corn free, hormone/antibiotic free, non-gmo, gluten free, natural, and no
artificial color/flavor) rank in the top 20 of four-year CAGR, when measured against 64 “Health and Wellness” categories.
Potential
Expansion into Alcoholic Beverage Market
We
have begun exploring the development, production, marketing and distribution of alcoholic beverages, to augment our current NARTD
tea business. In June 2015, we engaged Julian Davidson, who has many years of experience in the alcohol industry, as a consultant
to help evaluate the opportunity, as well as to assist in our core NARTD tea business. In June 2016, Mr. Davidson became our Executive
Chairman.
The
alcohol beverage market consists of beer, cider/perry, ready-to-drink/high-strength premixes, spirits and wine. The total sales
of U.S. alcohol beverage market reached $215 billion in 2014, growing at a 3.3% CAGR from 2009 to 2014. Of that $215 billion,
46.8% was from beer, 1.0% from cider/perry, 2.5% from alcoholic ready-to-drink, or “ARTD,” beverages and high-strength
premixes, 30.5% from spirits and 19.2% from wine. (Source: Euromonitor International, “Passport: Alcoholic Drinks in the
US,” June 2015).
Our
Products and Services
Long
Island Iced Tea® was first launched in the New York metro market by LIBB in July 2011, positioning itself as a premium iced
tea beverage offered at an affordable price. We help differentiate ourselves from competitors with a proprietary recipe and quality
components. Long Island Iced Tea® is a 100% brewed tea, using black tea leaves and purified water via reverse osmosis. It
is gluten-free, free of genetically modified organisms, or “GMOs,” and certified Kosher with no artificial colors
or preservatives.
Long
Island Iced Tea® is primarily produced and bottled in the U.S. Northeast. This production in the Northeast, combined with
its “Made in America” tag-line and brand name, all improve its credentials as a part of the local community from which
we take our name.
We
have developed ten flavors of Long Island Iced Tea® in an effort to ensure that our products meet the desired taste preferences
of consumers. Regular flavors, which use natural cane sugar as a sweetener, include lemon, peach, raspberry, green tea & honey,
half tea & half lemonade, guava, mango, and sweet tea. Diet flavors, which use sucralose (generic Splenda) instead of natural
cane sugar as a sweetener, include diet lemon and diet peach. These flavors are currently available in twelve packs of 20 ounce
polyethylene terephthalate bottles.
We
have also recently developed three twenty-four pack of sixty calorie flavors that are served in twelve ounce bottles. The sixty
calorie flavors have reduced sugar content, are caffeine free and include mango, peach, and raspberry. This package was designed
to meet certain nutritional guidelines for sales in schools. During May 2015, we launched four flavors, lemon, peach, mango, and
green tea and honey, in gallon containers. During February 2016, we also launched sweet tea, which is also served in a gallon
container.
Also
during February 2016, we began exploring the sale of aloe juice products as part of our product line. The aloe juice product is
purchased in its finished form from a supplier. In addition, during April 2016, we launched a private label line, consisting of
four flavors, for one of our existing customers.
Our
Competitive Strengths
We
believe that a differentiated brand will be a key competitive strength in the NARTD tea segment. Key points of differentiation
for Long Island Iced Tea® include:
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●
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A
better and bolder tasting bottled iced tea as a result of premium ingredients that include natural cane sugar (sucralose for
diet flavors), hot-filled using black and green tea leaves, that is offered at an affordable price;
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Immediate
global recognition of the “Long Island Iced Tea” phrase associated with the cocktail;
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Made
in America;
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Strong
Northeast roots where it is locally produced;
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The
use of non-GMO ingredients; and
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Our
product being corn free, hormone/antibiotic free, gluten free, natural and having no artificial color/flavor.
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The
NARTD tea market is a crowded space and, as a result, we believe in pricing our products competitively. We highlight to consumers
our use of premium ingredients and our affordable price. The suggested retail price for a 20 ounce bottle of Long Island Iced
Tea® is $1.00 to $1.50 and the suggested retail price for a 12 ounce bottle is $1.00 to $1.25. The suggested retail price
for our gallon containers is $2.99 to $3.49. Management has set pricing levels to reflect current pricing dynamics in the industry.
There has been downward pressure on prices, which management believes is caused by the entrance of major multinational beverage
corporations into the alternative beverage category, leading to consolidation in the industry.
Our
Business Strategies
In
addition to a potential expansion into ARTD beverages, we are seeking to organically grow our NARTD tea and related product sales.
We
intend to increase our market share in our existing geographic markets and expand into additional geographic markets in the U.S.,
capitalizing on an iconic name with unique brand awareness to create a familiar and easily recognizable non-alcoholic iced tea.
We also are exploring international markets on a highly selective and limited basis, which may include royalty and licensing agreements.
As discussed below in “
— Our Customers
,” we generally focus our sales efforts on approaching beverage
distributors and taking advantage of their unique positioning in the retail industry. However, a portion of our sales efforts
are also dedicated to direct sales to retailers, because some wholesale chains such as Sam’s Club and Costco request direct
shipments from the product supplier. In addition, we are exploring several new sales channels. We currently are conducting a small
scale business trial in which we sell our beverage product alongside other snacks in vending machines. We also commenced selling
our twelve ounce lower calorie products in schools, in some cases through sales to purchasing cooperatives that represent multiple
school districts, but also via the vending machine business trial.
During
the quarter ended December 31, 2015, we determined the brand had sufficient scale, distribution and volume per point of distribution
to test market expansion into (1) additional U.S. states, (2) significant new regional chains, and (3) national chains. To facilitate
this expansion, we recruited Joseph Caramele, our Vice President of National Sales & Marketing. Mr. Caramele had spent the
previous nine years working in national and chain account sales for Arizona Beverages USA, at which time he oversaw the regional
and national chain account expansion. Since October 1, 2015, we have introduced our products in Florida and selected states in
the Midwest, and have reached agreement with a limited number of regional and national chains. We recently began receiving purchase
orders from these accounts, and incorporating their logistics and delivery requirements into our systems. Aligned with this expansionary
plan, we have increased the number of full time employees in our sales staff to meet the demands of these initiatives.
As
part of our marketing efforts, we commonly use store demos, as we have found a positive correlation between demos and sales especially
at the introduction phase in new stores. We expect to continue using store demos in order to increase brand awareness and sales
as we continue to expand into new markets. We also use co-op advertising (advertisements by retailers that include the specific
mention of manufacturers, who, in turn, repay the retailers for all or part of the cost of the advertisement) and special promotions,
together with its retail partners, so as to complement other marketing efforts towards brand awareness.
We
also seek to expand our product line. From time to time, we explore and test market potential new NARTD products that may, in
the future, contribute to our operating performance. In addition, we are currently testing certain complementary products that
will sit alongside our flagship Long Island Brand tea. We also may consider exploring strategic acquisitions from time to time,
although this is not a primary business focus.
Our
Customers
We
sell our products to a mix of independent mid-to-large size beverage distributors who in turn sell to retail outlets, such as
big chain supermarkets, mass merchants, convenience stores, restaurants and hotels principally in the New York, New Jersey, Connecticut
and Pennsylvania markets. We have also begun expansion into other geographic markets, such as Florida, Virginia, Massachusetts,
New Hampshire, Nevada, Rhode Island and parts of the Midwest. Our products are currently available in twelve states that have
a cumulative population of 100 million. While we primarily sell our products indirectly through distributors, at times we sell
directly to the retail outlets and we may sell to certain retail outlets both directly and indirectly through distributors. We
also sell our products directly to the distribution facilities of some of our retailers and through “road shows,”
which are temporary installations at retail outlets staffed by our employees or contractors.
For
the six months ended June 30, 2016, one customer, Garden Foods, accounted for 12% of our net sales. For the year ended December
31, 2015, one customer, Wakefern Food Corp., accounted for 10% of net sales. For the year ended December 31, 2014, our top three
customers, Costco Wholesale, Windmill Distributing, and CFG Distributors LLC, accounted for 32%, 16% and 14%, of net sales, respectively.
Our
sales are typically governed by short-term purchase orders. We do not have any material contracts or other material arrangements
with our customers or distributors and do not obtain commitments from them to purchase or sell a minimum amount of our products
or to purchase or sell such products at a minimum price. Because our sales may be concentrated with a few customers, our results
of operations may be materially adversely affected if one of these customers significantly reduces the volume of its purchases
or demands a reduction in price, which may occur at any time due to the absence of such purchase commitments.
Management
Our
management team consists of persons with substantial experience in the beverage industry. Philip Thomas, our Chief Executive Officer
and LIBB’s co-founder, has over 16 years of beverage experience. Julian Davidson, our Executive Chairman, has over 25 years
of experience in the beverage industry, including most recently serving as Chief Executive Officer of Independent Liquor NZ’s
businesses in New Zealand, the U.S. and Canada. Independent Liquor NZ is a manufacturer and distributor of pre-mixed ARTD beverages,
as well as having beer, spirit and cider portfolios. Richard Allen, our Chief Financial Officer, has over 30 years of experience
in the beverage and food industries, including roles at Beverage Innovations, Cadbury Schweppes and Snapple. Joseph Caramele,
our Vice President of National Sales & Marketing, has substantial experience in the beverage industry, having spent the past
nine years at Arizona Beverages USA, most recently as Executive National Sales Director for the past five years. As Executive
National Sales Director, he managed a team of 85 individuals and portfolio of over 100 accounts with annual retail sales estimated
to be over $850 million. We intend to expand our current management and recruit other skilled officers and employees with experience
relevant to our business focus as needed.
Recent
Developments
On
July 28 and 29, 2016, we sold an aggregate of 1,270,156 shares of our common stock in a public offering, or the “Public
Offering,” at an offering price of $5.50 per share, pursuant to our registration statement on Form S-1 (File No. 333-210669).
The sale generated gross proceeds of $6,985,858 and net proceeds of $6,084,831 after deducting commissions and other offering
expenses. In connection with sale of the shares, our common stock was approved for listing on the NASDAQ Capital Market.
In
connection with the sale of the shares in the Public Offering, we completed a recapitalization with Brentwood LIIT (NZ) Ltd.,
or the “Recapitalization.” Brentwood LIIT (NZ) Ltd., or “Brentwood,” is our lender under that certain
Credit and Security Agreement, or the “Credit Agreement,” dated as of November 23, 2015 and amended as of January
10, 2016 and April 8, 2016, by and among us, LIBB and Brentwood (as successor in interest to Brentwood LIIT, Inc.). The Credit
Agreement provides for a revolving credit facility. The loans made by Brentwood under the credit facility are evidenced by a secured
convertible promissory note, or the “Brentwood Note,” which is convertible into shares of our common stock at a conversion
price of $4.00 per share. In addition, in connection with the establishment of the credit facility, the Company issued to Brentwood
a warrant, or the “Brentwood Warrant,” to purchase 1,111,111 shares of our common stock, at an exercise price of $4.50
per share, expiring on November 23, 2018. Pursuant to the Recapitalization, all of the outstanding principal and interest under
the Brentwood Note was converted into 421,972 shares of our common stock and the Brentwood Warrant was exchanged for 486,111 shares
of our common stock. We may continue to request advances under the credit facility subject to the terms and conditions of the
Credit Agreement, except that, in connection with the Recapitalization, the maximum amount of loans that may be made under the
credit facility was reduced to $3,500,000. Brentwood is owned by Eric Watson, who beneficially owns approximately 18.2% of our
outstanding Common Stock, and KA#2 Ltd., which beneficially owns approximately 4.8% of our outstanding Common Stock.
Implications
of Being an Emerging Growth Company
We
are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act, or the “JOBS Act.”
As an emerging growth company, we are eligible to take advantage of certain exemptions from various reporting requirements that
are applicable to other public companies that are not emerging growth companies. These include, but are not limited to, not being
required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, or the “Sarbanes-Oxley
Act,” reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and
exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and the requirement to obtain
stockholder approval of any golden parachute payments not previously approved.
In
addition, Section 107 of the JOBS Act provides that an emerging growth company can take advantage of an extended transition period
provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended, or “Securities Act,” for complying with
new or revised accounting standards. We have irrevocably opted not to take advantage of such extended transition period, and will
be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
We
can remain an emerging growth company until December 31, 2020. However, if any of our non-convertible debt issued within a three-year
period or our total revenues exceed $1 billion or the market value of our shares of common stock that are held by non-affiliates
exceeds $700 million on the last day of the second fiscal quarter of any given fiscal year, we would cease to be an emerging growth
company as of the following fiscal year.
Corporate
Information
We
were incorporated on December 23, 2014 in the State of Delaware as a wholly owned subsidiary of Cullen.
On
May 27, 2015, we closed the business combination, or the “Business Combination,” contemplated by the Agreement and
Plan of Reorganization, or the “Merger Agreement,” dated as of December 31, 2014 and amended as of April 23, 2015,
by and among Cullen, us, Cullen Merger Sub, Inc., LIBB Acquisition Sub, LLC, LIBB, Philip Thomas and Thomas Panza, who formerly
owned a majority of the outstanding membership units of LIBB, and the other former members of LIBB executing a joinder thereto.
Pursuant to the Merger Agreement, (i) Cullen Merger Sub, Inc. merged with and into Cullen, with Cullen surviving as a wholly owned
subsidiary of ours and the stockholders of Cullen receiving one share of our common stock for every 15 shares of Cullen common
stock held by them and (ii) LIBB Acquisition Sub, LLC merged with and into LIBB, with LIBB surviving as a wholly owned subsidiary
of ours and the members of LIBB receiving an aggregate of 2,633,334 shares of our common stock.
Upon
the closing of the Business Combination, we became the new public company, Cullen and LIBB became wholly-owned subsidiaries of
ours and the stockholders of Cullen and the members of LIBB became our stockholders. In addition, the historical financial statements
of LIBB became our financial statements. As a result of the Business Combination, the business of LIBB became our business. Cullen
is currently inactive and no significant operations are being undertaken by it as of the date of this prospectus. LIBB was formed
as a limited liability company under the laws of New York on February 18, 2011.
Our
principal executive offices are located at 116 Charlotte Avenue, Hicksville, NY 11801. Our telephone number is (855) 542-2832.
Our website address is
www.longislandicedtea.com
. The information contained on, or accessible from, our corporate website
is not part of this prospectus and you should not consider information contained on our website to be a part of this prospectus
or in deciding whether to purchase our common stock.
The
Securities We May Offer
We
may offer up to $50,000,000 of common stock, preferred stock, warrants, debt securities and/or units comprised of one or more
of the foregoing classes of securities, in one or more offerings and in any combination. This prospectus provides you with a general
description of the securities we may offer. A prospectus supplement, which we will provide each time we offer securities, will
describe the specific amounts, prices and terms of these securities.
Common
Stock
The
holders of common stock are entitled to one vote for each share held of record on all matters to be voted on by stockholders.
Subject to any preferential rights of any outstanding preferred stock, holders of our common stock are entitled to receive ratably
the dividends, if any, as may be declared from time to time by the board of directors out of legally available funds. If there
is a liquidation, dissolution or winding up of our company, holders of our common stock would be entitled to share ratably in
our net assets legally available for distribution to stockholders after the payment of all our debts and liabilities and any preferential
rights of any outstanding preferred stock.
Preferred
Stock
Our
amended and restated certificate of incorporation authorizes the issuance of preferred stock with such designations, rights and
preferences as may be determined from time to time by our board of directors, without stockholder approval. We have summarized
some of the general terms and provisions of the preferred stock that we may issue in “
Description of Capital Stock
.”
A prospectus supplement will describe the particular terms of any series of preferred stock offered from time to time, and may
supplement or change the terms outlined below.
Warrants
We
may issue warrants for the purchase of common stock, preferred stock debt securities or any combination thereof. We have summarized
some of the general terms and provisions of the warrants that we may issue in “
Description of Warrants
.” A
prospectus supplement will describe the particular terms of any warrants offered from time to time, and may supplement or change
the terms outlined below.
Debt
Securities
We
may offer any combination of senior debt securities or subordinated debt securities. The subordinated debt securities generally
will be entitled to payment only after payment of our senior debt. Senior debt securities will be unsubordinated obligations and
will rank equal with all our other unsubordinated debt. Subordinated debt securities will be paid only if all payments due under
our senior indebtedness, including any outstanding senior debt securities, have been made. We may issue the senior debt securities
and the subordinated debt securities under separate indentures between us, as issuer, and the trustee or trustees identified in
a prospectus supplement. We have summarized some of the general terms and provisions of the debt securities that we may issue
in “
Description of Debt Securities
.” A prospectus supplement will describe the particular terms of any debt
securities offered from time to time, and may supplement or change the terms outlined below.
Units
We
may issue units comprised of one or more of the other classes of securities issued by us as described in this prospectus 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.
We have summarized some of the general terms and provisions of the warrants that we may issue in “
Description of Units
.”
A prospectus supplement will describe the particular terms of any units offered from time to time, and may supplement or change
the terms outlined below.
RISK
FACTORS
Any
investment in our securities involves a high degree of risk. Potential investors are urged to read and consider the risks and
uncertainties relating to an investment in our company set forth under “
Risk Factors
” in the prospectus supplement
relating to a particular offering, together with all of the other information contained or incorporated by reference in the prospectus
supplement or contained or incorporated by reference in this prospectus. Potential investors also should read and consider the
risks and uncertainties discussed under the item “
Risk Factors
” in our annual report on Form 10-K and our quarterly
reports on Form 10-Q, all of which are incorporated herein by reference, and may be amended, supplemented or superseded from time
to time by other reports we file with the SEC in the future and any prospectus supplement related to a particular offering. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business and results
of operations. If any of these risks actually occur, our business, financial condition or results of operations could be seriously
harmed. In that event, the market price for our common stock could decline and you may lose all or part of your investment.
RATIO
OF EARNINGS TO FIXED CHARGES
The
table below sets forth our ratio of earnings to fixed charges on a historical basis for the periods indicated. The ratios are
calculated by dividing earnings by fixed charges. For the purposes of computing the ratio of earnings to fixed charges, earnings
consist of pretax losses from continuing operations plus fixed charges. Fixed charges consist of interest expense, including estimates
of interest inherent in rental expense. Where the ratio is less than 1:1 coverage, the deficiency is set forth. The information
set forth in the table should be read in conjunction with the financial information incorporated by reference into this prospectus.
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For
the Six Months Ended
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For
the Year Ended December 31,
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June
30, 2016
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2015
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2014
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2013
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2012
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2011
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Ratio of earnings to fixed charges(A)
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—
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—
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—
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—
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—
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—
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Deficiency of earnings to
fixed charges
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$
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3,499,236
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$
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3,180,269
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$
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3,032,845
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$
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264,120
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$
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128,824
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$
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60,525
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(A)
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Due
to our losses from continuing operations, the ratio earnings to fixed charges is less than 1:1 coverage for all periods presented.
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We
had no shares of preferred stock outstanding for any period presented. As a result, the ratio of earnings to combined fixed charges
and preferred stock dividends is the same as the ratio of earnings to fixed charges.
NOTE
ON FORWARD-LOOKING STATEMENTS
This
prospectus, each prospectus supplement and the documents incorporated by reference in this prospectus and each prospectus supplement
include and will include forward-looking statements in addition to historical and current information. These forward-looking statements
appear and will appear throughout such documents, including under “
Prospectus Summary
” in this prospectus;
under “
Risk Factors
” in each prospectus supplement; under the items “
Business
,” “
Risk
Factors
” and “
Management’s Discussion and Analysis of Financial Condition and Results of Operations
”
in our annual report on Form 10-K; and under the items “
Management’s Discussion and Analysis of Financial Condition
and Results of Operations
” and “
Risk Factors
” in our quarterly reports on Form 10-Q. These forward-looking
statements relate to matters such as our industry, business strategy, goals and expectations concerning our market position, future
operations, margins, profitability, capital expenditures, liquidity and capital resources and other financial and operating information.
We may use the words such as “anticipate,” “assume,” “believe,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “plan,” “potential,”
“predict,” “project,” “future,” “will,” “seek,” “foreseeable”
and similar terms and phrases to identify forward-looking statements in this prospectus.
The
forward-looking statements contained in this prospectus are based on management’s current expectations and are subject to
uncertainty and changes in circumstances. We cannot assure you that future developments affecting us will be those that we have
anticipated. Actual results may differ materially from these expectations due to changes in global, regional or local economic,
business, competitive, market, regulatory and other factors, many of which are beyond our control. We believe that these factors
include those risks and uncertainties described under “
Risk Factors
” in each prospectus supplement and under
the item “
Risk Factors
” in our annual report on Form 10-K and quarterly reports on Form 10-Q, as well as the
following:
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We
operate in highly competitive markets.
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We
may not effectively respond to changing consumer preferences, trends, health concerns and other factors.
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Costs
for our raw materials may increase substantially.
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Fluctuations
in our results of operations from quarter to quarter could have a disproportionate effect on our overall financial condition
and results of operations.
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We
depend on a small number of large retailers for a significant portion of our sales.
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Our
intellectual property rights could be infringed or we could infringe the intellectual property rights of others, and adverse
events regarding licensed intellectual property, including termination of distribution rights, could harm our business.
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We
have experienced cash losses from operations and our ability to grow and compete in the future will be adversely affected
if adequate capital is not available to us.
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Our
new product line has minimal gross margins, may not generate sufficient revenue or other benefits to justify its introduction
and may divert sales from our higher margin existing product lines.
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We
have a limited operating history.
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Should
one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, our actual results
may vary in material respects from those projected in these forward-looking statements. Any forward-looking statement made by
us in this prospectus speaks only as of the date of this prospectus. Factors or events that could cause our actual results to
differ may emerge from time to time, and it is not possible for us to predict all of them. We undertake no obligation to publicly
update any forward-looking statement, whether as a result of new information, future developments or otherwise, except as may
be required by any applicable securities laws.
USE
OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, the net proceeds from the sale of the securities offered hereby will
be used for general corporate purposes, including working capital, sales and marketing activities, product development, general
and administrative matters, capital expenditures and acquisitions. Pending the application of such proceeds, we expect to invest
the proceeds in short-term, interest bearing, investment-grade marketable securities or money market obligations.
DESCRIPTION
OF CAPITAL STOCK
Introduction
In
the discussion that follows, we have summarized selected provisions of our amended and restated certificate of incorporation,
bylaws and the Delaware General Corporation Law, or “DGCL,” relating to our capital stock. This summary is not complete.
This discussion is subject to the relevant provisions of Delaware law and is qualified in its entirety by reference to our certificate
of incorporation and our bylaws. You should read the provisions of our certificate of incorporation and our bylaws as currently
in effect for provisions that may be important to you.
Authorized
Capital Stock
We
are authorized to issue up to 36,000,000 shares of capital stock consisting of: 35,000,000 shares of common stock, par value $0.0001
per share, and 1,000,000 shares of preferred stock, par value of $0.0001 per share. As of October 10, 2016, there were
7,236,256 shares of common stock issued and outstanding and no shares of preferred stock issued and outstanding.
Common
Stock
The
holders of common stock are entitled to one vote for each share held of record on all matters to be voted on by stockholders.
There is no cumulative voting with respect to the election of directors, with the result that the holders of more than 50% of
the shares voted for the election of directors can elect all of the directors. Subject to any preferential rights of any outstanding
preferred stock, holders of our common stock are entitled to receive ratably the dividends, if any, as may be declared from time
to time by the board of directors out of legally available funds. If there is a liquidation, dissolution or winding up of our
company, holders of our common stock would be entitled to share ratably in our net assets legally available for distribution to
stockholders after the payment of all our debts and liabilities and any preferential rights of any outstanding preferred stock.
Holders of our common stock do not have any conversion, preemptive or other subscription rights and there are no sinking fund
or redemption provisions applicable to the common stock.
Preferred
Stock
Our
amended and restated certificate of incorporation authorizes the issuance of 1,000,000 shares of preferred stock with such designations,
rights and preferences as may be determined from time to time by our board of directors. Accordingly, our board of directors will
be empowered, without stockholder approval, to issue preferred stock with dividend, liquidation, conversion, voting or other rights
which could adversely affect the voting power or other rights of the holders of our common stock. In addition, the preferred stock
could be utilized as a method of discouraging, delaying or preventing a change in control of our company.
The
following outlines some of the general terms and provisions of the preferred stock that we may issue. A prospectus supplement
will describe the particular terms of any preferred stock offered from time to time, and may supplement or change the terms outlined
below. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, a form of the certificate of designations that sets forth the terms of the particular
preferred stock we are offering. The summary of such terms contained in this prospectus and in the applicable prospectus supplement
is qualified in its entirety by reference to such form of certificate of designations. We urge you to read the form of certificate
of designations and the additional description of the terms of the preferred stock included in the prospectus supplement.
If
we offer a series of preferred stock, we will describe the specific terms of that series in a prospectus supplement, including:
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the
title of the series of preferred stock and the number of shares offered;
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the
price at which the preferred stock will be issued;
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the
dividend rate, if any, the dates on which the dividends will be payable and other terms relating to the payment of dividends
on the preferred stock;
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the
voting rights of the preferred stock;
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whether
the preferred stock is redeemable or subject to a sinking fund, and the terms of any such redemption or sinking fund;
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whether
the preferred stock is convertible into any other securities, and the terms and conditions of any such conversion;
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the
liquidation preference of the preferred stock; and
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any
additional rights, preferences and limitations of the preferred stock.
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When
the consideration for which the board of directors authorized the issuance of shares is received, the shares of preferred stock
will be fully paid and nonassessable.
Dividends
We
do not intend to pay cash dividends in the future. The payment of dividends will be entirely within the discretion of our then
board of directors and will be contingent upon our revenues and earnings, if any, capital requirements and general financial condition
subsequent to completion of the mergers.
Warrants,
Options and Convertible Securities
We
presently have outstanding (i) warrants to purchase up to 404,475 shares of common stock at an exercise price of $6.00 per share
that were issued in private placement offerings conducted by us, (ii) warrants to purchase 34,573 shares of common stock at an
exercise price of $4.50 per share that were issued to the placement agent in the private placement offerings (and its designees),
(iii) employee stock options to purchase 194,667 shares of common stock at an exercise price of $3.75 per share held by certain
of our executive officers, (iv) employee stock options to purchase 286,744 shares of common stock at an exercise price of $5.50
per share held by our executive chairman, and (v) warrants to purchase 31,754 shares of common stock at any exercise price of
$6.875 per share that were issued to the placement agent in a public offering conducted by us. Furthermore, we may issue additional
equity awards covering up to 466,667 shares of common stock under our 2015 Long-Term Incentive Equity Plan. The plan provides
for the grant of stock options, stock appreciation rights, restricted stock and other stock-based awards to, among others, the
officers, directors, employees and consultants of us and our subsidiaries.
We
also have outstanding a convertible secured promissory note, which is held by the lender under our senior secured revolving credit
facility. The principal balance of the note and accrued interest thereon is convertible into shares of our common stock at $4.00
per share. However, as of date of this prospectus, there was no principal balance or accrued interest outstanding under the note.
Limitation
on Directors’ Liability
Our
amended and restated certificate of incorporation provides that no director of ours will be personally liable to us or any of
our stockholders for monetary damages arising from the director’s breach of fiduciary duty as a director. However, this
does not apply with respect to any action in which the director would be liable under Section 174 of the DGCL nor does it apply
with respect to any liability in which the director (i) breached his duty of loyalty to us or our stockholders; (ii) did not act
in good faith or, in failing to act, did not act in good faith; (iii) acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation
of law; or (iv) derived an improper personal benefit. This provision could have the effect of reducing the likelihood of derivative
litigation against our directors and may discourage or deter our stockholders or management from bringing a lawsuit against our
directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefited us and our
stockholders.
Our
amended and restated certificate of incorporation also provides that we will indemnify any director or officer of ours to the
fullest extent permitted by law. Our bylaws further provide that we will indemnify to the fullest extent permitted by law any
person who becomes party to a proceeding by reason of the fact that he is or was an director, officer, employee or agent of ours,
or by reason of the fact that he is or was serving at our request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. We have entered, and intend to continue to enter, into separate indemnification
agreements with our directors, executive officers and other key employees, in addition to the indemnification provided for in
our amended and restated certificate of incorporation and bylaws. We also maintain directors’ and officers’ liability
insurance.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or person controlling
us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
Anti-Takeover
Provisions
Provisions
of the DGCL and our amended and restated certificate of incorporation and bylaws could make it more difficult to acquire us by
means of a tender offer, a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, summarized
below, are expected to discourage certain types of coercive takeover practices and takeover bids that our board of directors may
consider inadequate and to encourage persons seeking to acquire control of us to first negotiate with our board of directors.
We believe that the benefits of increased protection of our ability to negotiate with the proponent of an unfriendly or unsolicited
proposal to acquire or restructure us outweigh the disadvantages of discouraging takeover or acquisition proposals because, among
other things, negotiation of these proposals could result in improved terms for our stockholders.
Delaware
Anti-Takeover Statute.
We are subject to Section 203 of the DGCL, an anti-takeover statute. In general, Section 203 of the
DGCL prohibits a publicly-held Delaware corporation from engaging in a “business combination” with an “interested
stockholder” for a period of three years following the time the person became an interested stockholder, unless the business
combination or the acquisition of shares that resulted in a stockholder becoming an interested stockholder is approved in a prescribed
manner. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting
in a financial benefit to the interested stockholder. Generally, an “interested stockholder” is a person who, together
with affiliates and associates, owns (or within three years prior to the determination of interested stockholder status did own)
15% or more of a corporation’s voting stock. The existence of this provision would be expected to have an anti-takeover
effect with respect to transactions not approved in advance by the board of directors, including discouraging attempts that might
result in a premium over the market price for the shares of common stock held by stockholders.
Amendments
to Our Certificate of Incorporation.
Under the DGCL, the affirmative vote of a majority of the outstanding shares entitled
to vote thereon and a majority of the outstanding stock of each class entitled to vote thereon is required to amend a corporation’s
certificate of incorporation. Under the DGCL, the holders of the outstanding shares of a class of our capital stock shall be entitled
to vote as a class upon a proposed amendment, whether or not entitled to vote thereon by the certificate of incorporation, if
the amendment would:
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increase
or decrease the aggregate number of authorized shares of such class;
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increase
or decrease the par value of the shares of such class; or
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alter
or change the powers, preferences or special rights of the shares of such class so as to affect them adversely.
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If
any proposed amendment would alter or change the powers, preferences or special rights of one or more series of any class of our
capital stock so as to affect them adversely, but shall not so affect the entire class, then only the shares of the series so
affected by the amendment shall be considered a separate class for the purposes of this provision.
Classified
Board
. Our board of directors is divided into two classes. The number of directors in each class is as nearly equal as possible.
Commencing at the first annual meeting of stockholders, and at each annual meeting thereafter, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at the second succeeding annual meeting of stockholders
after their election. The classified board may extend the time required to make any change in control of the board when compared
to a corporation with an unclassified board. It may take two annual meetings for our stockholders to effect a change in control
of the board, because in certain circumstances less than a majority of the members of the board will be elected at a given annual
meeting. Because our board is classified and our amended and restated certificate of incorporation does not otherwise provide,
under Delaware law, our directors may only be removed for cause.
Vacancies
in the Board of Directors.
Our amended and restated certificate of incorporation and bylaws provide that, subject to limitations,
any vacancy occurring in our board of directors for any reason may be filled by a majority of the remaining members of our board
of directors then in office, even if such majority is less than a quorum. Each director so elected shall hold office until the
expiration of the term for the class for which such director is chosen. Each such directors shall hold office until his or her
successor is elected and qualified, or until the earlier of his or her death, resignation or removal.
Special
Meetings of Stockholders.
Under our bylaws, special meetings of stockholders may be called by the directors, or the president
or the chairman, and shall be called by the secretary at the request in writing of stockholders owning a majority in amount of
the entire capital stock of the corporation issued and outstanding and entitled to vote.
No
Cumulative Voting.
The DGCL provides that stockholders are denied the right to cumulate votes in the election of directors
unless our certificate of incorporation provides otherwise. Our certificate of incorporation does not provide for cumulative voting.
Listing
Our
common stock is listed on the NASDAQ Capital Market under the symbol “LTEA.” As of the date of this prospectus, no
other class of capital stock that we may offer by this prospectus is listed on any national securities exchange or automated quotation
system.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company, 17 Battery Place, New York,
New York 10004, and can be reached at (212) 509-4000. The transfer agent and registrar for any series of preferred stock will
be set forth in the applicable prospectus supplement.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of common stock, preferred stock, debt securities or any combination thereof. Warrants may
be issued independently or together with other securities and may be attached to or separate from any offered securities. We may
issue the warrants directly or under warrant agreements to be entered into between a warrant agent and us. Any warrant agent will
act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for
or with any holders or beneficial owners of warrants.
The
following outlines some of the general terms and provisions of the warrants that we may issue. A prospectus supplement will describe
the particular terms of any warrants offered from time to time, and may supplement or change the terms outlined below. We will
file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, a form of the warrant or form of the warrant agreement and warrant certificate that sets forth the
terms of the particular warrants we are offering. The summary of such terms contained in this prospectus and in the applicable
prospectus supplement is qualified in its entirety by reference to such warrant or warrant agreement and warrant certificate.
We urge you to read the warrant or warrant agreement and warrant certificate and the additional description of the terms of the
warrants included in the prospectus supplement.
General
The
prospectus supplement relating to a particular issue of warrants will describe the terms of the warrants, including the following:
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the
title of the warrants;
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the
offering price for the warrants, if any;
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the
aggregate number of the warrants;
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the
designation and terms of the common stock, preferred stock, debt securities or combination thereof that may be purchased upon
exercise of the warrants;
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if
applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued
with each security;
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if
applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
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the
number of shares and price of common stock or preferred stock, or the designation and aggregate principal amount of debt securities,
that may be purchased upon exercise of a warrant;
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the
dates on which the right to exercise the warrants commence and expire;
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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if
applicable, a discussion of material U.S. federal income tax considerations;
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anti-dilution
provisions of the warrants, if any;
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redemption
or call provisions, if any, applicable to the warrants; and
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the
warrants.
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Exercise
of Warrants
Each
warrant will entitle the holder of the warrant to purchase at the exercise price set forth in the applicable prospectus supplement
the principal amount of debt securities or shares of common stock or preferred stock being offered. Holders may exercise warrants
at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will be void. Holders may exercise warrants as set forth in the prospectus
supplement relating to the warrants being offered.
Until
a holder exercises the warrants to purchase any securities underlying the warrants, the holder will not have any rights as a holder
of the underlying securities by virtue of ownership of warrants.
DESCRIPTION
OF DEBT SECURITIES
We
may offer any combination of senior debt securities or subordinated debt securities. We may issue the senior debt securities and
the subordinated debt securities under separate indentures between us, as issuer, and the trustee or trustees identified in a
prospectus supplement. Further information regarding the trustee may be provided in the prospectus supplement. The form for each
type of indenture is filed as an exhibit to the registration statement of which this prospectus is a part.
The
following outlines some of the general terms and provisions of the debt securities that we may issue. A prospectus supplement
will describe the particular terms of any debt securities offered from time to time, and may supplement or change the terms outlined
below. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, a form of the indenture supplement that sets forth the terms of the particular debt securities
we are offering. The summary of such debt securities contained in this prospectus and in the applicable prospectus supplement
is qualified in its entirety by reference to the indentures and the applicable indenture supplement. We urge you to read the indentures,
the applicable indenture supplement and the additional description of the debt securities in the prospectus supplement.
General
Within
the total dollar amount of this shelf registration statement, we may issue an unlimited principal amount of debt securities in
separate series. We may specify a maximum aggregate principal amount for the debt securities of any series. The debt securities
will have terms that are consistent with the indentures. Senior debt securities will be unsubordinated obligations and will rank
equal with all our other unsubordinated debt. Subordinated debt securities will be paid only if all payments due under our senior
indebtedness, including any outstanding senior debt securities, have been made.
The
indentures might not limit the amount of other debt that we may incur or whether that debt is senior to the debt securities offered
by this prospectus, and might not contain financial or similar restrictive covenants. The indentures might not contain any provision
to protect holders of debt securities against a sudden or dramatic decline in our ability to pay our debt.
The
prospectus supplement will describe the debt securities and the price or prices at which we will offer the debt securities. The
description will include:
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the
title and form of the debt securities;
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any
limit on the aggregate principal amount of the debt securities or the series of which they are a part;
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the
date or dates on which we must repay the principal, the maturity date and the principal amount due at maturity and whether
the securities will be offered at a price such that they will be deemed an “original issue discount”;
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the
person to whom any interest on a debt security of the series will be paid;
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the
rate or rates at which the debt securities will bear interest;
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if
any, the date or dates from which interest will accrue, and the dates on which we must pay interest;
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the
place or places where we must pay the principal and any premium or interest on the debt securities;
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the
terms and conditions on which we may redeem any debt security, if at all;
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any
obligation to redeem or purchase any debt securities, and the terms and conditions on which we must do so;
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the
denominations in which we may issue the debt securities;
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the
currency in which we will pay the principal of and any premium or interest on the debt securities and whether we may pay in
property other than cash, including our securities;
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the
principal amount of the debt securities that we will pay upon declaration of acceleration of their maturity;
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a
United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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if
applicable, that the debt securities are defeasible and the terms of such defeasance;
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if
applicable, the terms of any right to convert debt securities into, or exchange debt securities for, debt securities, preferred
stock and common stock or other securities or property;
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whether
we will issue the debt securities in the form of one or more global securities and, if so, the respective depositaries for
the global securities and the terms of the global securities;
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the
subordination provisions that will apply to any subordinated debt securities;
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any
addition to or change in the events of default applicable to the debt securities and any change in the right of the trustee
or the holders to declare the principal amount of any of the debt securities due and payable;
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any
addition to or change in the covenants in the indentures; and
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any
other terms of the debt securities not inconsistent with the applicable indentures.
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We
may sell the debt securities at a substantial discount below their stated principal amount. We will describe U.S. federal income
tax considerations, if any, applicable to debt securities sold at an original issue discount in the prospectus supplement. An
“original issue discount security” is any debt security sold for less than its face value, and which provides that
the holder cannot receive the full face value if maturity is accelerated. The prospectus supplement relating to any original issue
discount securities will describe the particular provisions relating to acceleration of the maturity upon the occurrence of an
event of default. In addition, we will describe U.S. federal income tax or other considerations applicable to any debt securities
that are denominated in a currency or unit other than U.S. dollars in the prospectus supplement.
Conversion
and Exchange Rights
The
prospectus supplement will describe, if applicable, the terms on which you may convert debt securities into or exchange them for
debt securities, preferred stock and common stock or other securities or property. The conversion or exchange may be mandatory
or may be at our option or at your option. The prospectus supplement will describe how the amount of debt securities, number of
shares of preferred stock and common stock or other securities or property to be received upon conversion or exchange would be
calculated.
Subordination
of Subordinated Debt Securities
The
indebtedness underlying any subordinated debt securities will be payable only if all payments due under our senior indebtedness,
as defined in the applicable indenture and any indenture supplement, including any outstanding senior debt securities, have been
made. If we distribute our assets to creditors upon any dissolution, winding-up, liquidation or reorganization or in bankruptcy,
insolvency, receivership or similar proceedings, we must first pay all amounts due or to become due on all senior indebtedness
before we pay the principal of, or any premium or interest on, the subordinated debt securities. In the event the subordinated
debt securities are accelerated because of an event of default, we may not make any payment on the subordinated debt securities
until we have paid all senior indebtedness or the acceleration is rescinded. If the payment of subordinated debt securities accelerates
because of an event of default, we must promptly notify holders of senior indebtedness of the acceleration.
If
we experience a bankruptcy, dissolution or reorganization, holders of senior indebtedness may receive more, ratably, and holders
of subordinated debt securities may receive less, ratably, than our other creditors. The indenture for subordinated debt securities
may not limit our ability to incur additional senior indebtedness.
Form,
Exchange and Transfer
We
will issue debt securities only in fully registered form, without coupons, and only in denominations of $1,000 and integral multiples
thereof, unless the prospectus supplement provides otherwise. The holder of a debt security may elect, subject to the terms of
the indentures and the limitations applicable to global securities, to exchange them for other debt securities of the same series
of any authorized denomination and of similar terms and aggregate principal amount.
Holders
of debt securities may present them for exchange as provided above or for registration of transfer, duly endorsed or with the
form of transfer duly executed, at the office of the transfer agent we designate for that purpose. We will not impose a service
charge for any registration of transfer or exchange of debt securities, but we may require a payment sufficient to cover any tax
or other governmental charge payable in connection with the transfer or exchange. We will name the transfer agent in the prospectus
supplement. We may 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, but we must maintain a transfer agent in each place where we will make payment
on debt securities.
If
we redeem the debt securities, we will not be required to issue, register the transfer of or exchange any debt security during
a specified period prior to mailing a notice of redemption. We are not required to register the transfer of or exchange of any
debt security selected for redemption, except the unredeemed portion of the debt security being redeemed.
Global
Securities
The
debt securities may be represented, in whole or in part, by one or more global securities that will have an aggregate principal
amount equal to that of all debt securities of that series. Each global security will be registered in the name of a depositary
identified in the prospectus supplement. We will deposit the global security with the depositary or a custodian, and the global
security will bear a legend regarding the restrictions on exchanges and registration of transfer.
No
global security may be exchanged in whole or in part for debt securities registered, and no transfer of a global security in whole
or in part may be registered, in the name of any person other than the depositary or any nominee or successor of the depositary
unless:
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the
depositary is unwilling or unable to continue as depositary; or
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the
depositary is no longer in good standing under the Securities Exchange Act of 1934, as amended, or “Exchange Act,”
or other applicable statute or regulation.
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The
depositary will determine how all securities issued in exchange for a global security will be registered.
As
long as the depositary or its nominee is the registered holder of a global security, we will consider the depositary or the nominee
to be the sole owner and holder of the global security and the underlying debt securities. Except as stated above, owners of beneficial
interests in a global security will not be entitled to have the global security or any debt security registered in their names,
will not receive physical delivery of certificated debt securities and will not be considered to be the owners or holders of the
global security or underlying debt securities. We will make all payments of principal, premium and interest on a global security
to the depositary or its nominee. The laws of some jurisdictions require that some purchasers of securities take physical delivery
of such securities in definitive form. These laws may prevent you from transferring your beneficial interests in a global security.
Only
institutions that have accounts with the depositary or its nominee and persons that hold beneficial interests through the depositary
or its nominee may own beneficial interests in a global security. The depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of debt securities represented by the global security to the accounts of its
participants. Ownership of beneficial interests in a global security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the depositary or any such participant.
The
policies and procedures of the depositary may govern payments, transfers, exchanges and other matters relating to beneficial interests
in a global security. We and the trustee will assume no responsibility or liability for any aspect of the depositary’s or
any participant’s records relating to, or for payments made on account of, beneficial interests in a global security.
Payment
and Paying Agents
We
will pay principal and any premium or interest on a debt security to the person in whose name the debt security is registered
at the close of business on the regular record date for such interest.
We
will pay principal and any premium or interest on the debt securities at the office of our designated paying agent. Unless the
prospectus supplement indicates otherwise, the corporate trust office of the trustee will be the paying agent for the debt securities.
Any
other paying agents we designate for the debt securities of a particular series will be named in the prospectus supplement. We
may designate additional paying agents, rescind the designation of any paying agent or approve a change in the office through
which any paying agent acts, but we must maintain a paying agent in each place of payment for the debt securities.
The
paying agent will return to us all money we pay to it for the payment of the principal, premium or interest on any debt security
that remains unclaimed for a specified period. Thereafter, the holder may look only to us for payment, as an unsecured general
creditor.
Consolidation,
Merger and Sale of Assets
Under
the terms of the indentures, so long as any securities remain outstanding, we may not consolidate or enter into a share exchange
with or merge into any other person, in a transaction in which we are not the surviving corporation, or sell, convey, transfer
or lease our properties and assets substantially as an entirety to any person, unless:
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the
successor assumes our obligations under the debt securities and the indentures; and
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we
meet the other conditions described in the indentures.
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Events
of Default
Each
of the following will constitute an event of default under each indenture:
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failure
to pay any interest on any debt security when due, for more than a specified number of days past the due date;
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failure
to pay any principal or deposit any sinking fund payment when due;
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failure
to perform any covenant or agreement in the indenture that continues for a specified number of days after written notice has
been given by the trustee or the holders of a specified percentage in aggregate principal amount of the debt securities of
that series;
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events
of bankruptcy, insolvency or reorganization; and
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any
other event of default specified in the prospectus supplement.
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If
an event of default occurs and continues, both the trustee and holders of a specified percentage in aggregate principal amount
of the outstanding securities of that series may declare the principal amount of the debt securities of that series to be immediately
due and payable. The holders of a majority in aggregate principal amount of the outstanding securities of that series may rescind
and annul the acceleration if all events of default, other than the nonpayment of accelerated principal, have been cured or waived.
Except
for its duties in case of an event of default, the trustee will not be obligated to exercise any of its rights or powers at the
request or direction of any of the holders, unless the holders have offered the trustee reasonable indemnity. If they provide
this indemnification and subject to conditions specified in the applicable indenture, the holders of a majority in aggregate principal
amount of the outstanding securities of any series may 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.
No
holder of a debt security of any series may institute any proceeding with respect to the indentures, or for the appointment of
a receiver or a trustee, or for any other remedy, unless:
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the
holder has previously given the trustee written notice of a continuing event of default;
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the
holders of a specified percentage in aggregate principal amount of the outstanding securities of that series have made a written
request upon the trustee, and have offered reasonable indemnity to the trustee, to institute the proceeding;
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the
trustee has failed to institute the proceeding for a specified period of time after its receipt of the notification; and
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the
trustee has not received a direction inconsistent with the request within a specified number of days from the holders of a
specified percentage in aggregate principal amount of the outstanding securities of that series.
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Modification
and Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters, including:
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to
fix any ambiguity, defect or inconsistency in the indenture; and
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to
change anything that does not materially adversely affect the interests of any holder of debt securities of any series.
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In
addition, under the indentures, the rights of holders of a series of notes 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, we and the trustee may only make the following changes with the consent of the holder of any outstanding
debt securities affected:
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extending
the fixed maturity of the series of notes;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption,
of any debt securities; or
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reducing
the percentage of debt securities the holders of which are required to consent to any amendment.
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The
holders of a majority in principal amount of the outstanding debt securities of any series may waive any past default under the
indenture with respect to debt securities of that series, except a default in the payment of principal, premium or interest on
any debt security of that series or in respect of a covenant or provision of the indenture that cannot be amended without each
holder’s consent.
Except
in limited circumstances, we may set any day as a record date for the purpose of determining the holders of outstanding debt securities
of any series entitled to give or take any direction, notice, consent, waiver or other action under the indentures. In limited
circumstances, the trustee may set a record date. To be effective, the action must be taken by holders of the requisite principal
amount of such debt securities within a specified period following the record date.
Defeasance
To the extent stated in the prospectus supplement,
we may elect to apply the provisions in the indentures relating to defeasance and discharge of indebtedness, or to defeasance of
restrictive covenants, to the debt securities of any series. The indentures provide that, upon satisfaction of the requirements
described below, we may terminate all of our obligations under the debt securities of any series and the applicable indenture,
known as legal defeasance, other than our obligation:
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to maintain a registrar and paying agents and hold monies for payment in trust;
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to register the transfer or exchange of the notes; and
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to replace mutilated, destroyed, lost or stolen notes.
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In addition, we may terminate our obligation
to comply with any restrictive covenants under the debt securities of any series or the applicable indenture, known as covenant
defeasance.
We may exercise our legal defeasance option
even if we have previously exercised our covenant defeasance option. If we exercise either defeasance option, payment of the notes
may not be accelerated because of the occurrence of events of default.
To exercise either defeasance option as to
debt securities of any series, we must irrevocably deposit in trust with the trustee money and/or obligations backed by the full
faith and credit of the United States that will provide money in an amount sufficient in the written opinion of a nationally recognized
firm of independent public accountants to pay the principal of, premium, if any, and each installment of interest on the debt securities.
We may only establish this trust if, among other things:
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no event of default shall have occurred or be continuing;
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in the case of legal defeasance, we have delivered to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the Internal Revenue Service a ruling or there has been a change in law, which in the opinion of our counsel, provides that holders of the debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
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in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; and
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we satisfy other customary conditions precedent described in the applicable indenture.
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Notices
We will mail notices to holders of debt securities
as indicated in the prospectus supplement.
Title
We may treat the person in whose name a debt
security is registered as the absolute owner, whether or not such debt security may be overdue, for the purpose of making payment
and for all other purposes.
Governing Law
The indentures and the debt securities will
be governed by and construed in accordance with the laws of the State of New York.
DESCRIPTION OF THE UNITS
We may issue units comprised of one or more
of the other classes of securities described in this prospectus 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 units may be, but are not required to be,
issued under unit agreements to be entered into between us and a unit agent, as detailed in the prospectus supplement relating
to the units being offered. We will file as an exhibit to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, a form of the unit agreement and unit certificate, if any, that
sets forth the terms of the particular units we are offering. The summary of such terms contained in this prospectus and in the
applicable prospectus supplement is qualified in its entirety by reference to such unit agreement and unit certificate. We urge
you to read the unit agreement and unit certificate, if any, and the additional description of the terms of the units included
in the prospectus supplement.
The prospectus supplement will describe the
units and the price or prices at which we will offer the units. The description will include:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances the securities comprising the units may be held or transferred separately;
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a description of the terms of any unit agreement governing the units;
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a description of the provisions for the payment, settlement, transfer or exchange of the units;
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a discussion of material federal income tax considerations, if applicable; and
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whether the units if issued as a separate security will be issued in fully registered or global form.
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The descriptions of the units in this prospectus
and in any prospectus supplement are summaries of the material provisions of the applicable agreements.
PLAN OF DISTRIBUTION OF SECURITIES
We may sell or issue the securities offered
by this prospectus from time to time in any one or more of the following ways:
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through underwriters or dealers;
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through agents;
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directly to purchasers or a single purchaser; or
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through a combination of any of these methods.
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The manner in which we may sell some or all
of the securities covered by this prospectus includes, without limitation, through:
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a rights offering;
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exercises of warrants or other rights;
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an “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, to or through a market maker or into an existing trading market on an exchange or otherwise;
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a block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as principal, in order to facilitate the transaction;
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purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account;
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ordinary brokerage transactions and transactions in which a broker solicits purchasers; and
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privately negotiated transactions.
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The distribution of the securities may be effected
from time to time in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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at market prices prevailing at the time of sale;
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at varying prices determined at the time of sale; or
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at negotiated prices.
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For each offering of securities hereunder,
we will describe the method of distribution of such securities, among other things, in a prospectus supplement. A prospectus supplement
will set forth the terms of the offering of the securities, including:
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the name or names of any agents or underwriters;
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the purchase price of the securities being offered and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any initial public offering price;
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●
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any discounts or concessions allowed or reallowed or paid to dealers; and
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●
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any securities exchanges or markets on which such securities may be listed.
|
Sales Through Underwriters or Dealers
If underwriters are used in the sale of the
securities, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one
or more transactions. The securities may be either offered to the public through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. Unless otherwise set forth in the applicable prospectus supplement, the obligations
of the underwriters to purchase the securities will be subject to certain conditions precedent and the underwriters will be obligated
to purchase all of the securities if any are purchased. Any initial public offering price and any discounts or concessions allowed
or paid to dealers may be changed from time to time.
If a dealer is used in the sale of the securities,
we will sell such securities to the dealer, as principal. The dealer may then resell such securities to the public at varying prices
to be determined by such dealer at the time of resale. We may negotiate and pay dealers’ commissions, discounts or concessions
for their services. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities Act of 1933,
as amended, of our securities so offered and sold.
Direct Sales and Sales Through Agents
We may sell the securities directly, in which
case no underwriters or agents would be involved, or we may sell the securities through agents designated by us from time to time.
If agents are used in the sale of the securities, the agent will not purchase any securities for its own account, but will arrange
for the sale of the securities. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts
basis for the period of its appointment. We may negotiate and pay agent’s fees or commissions for their services. If the
securities are sold directly by us, we may sell the securities to institutional investors or others who may be deemed to be underwriters
within the meaning of the Securities Act of 1933, as amended, with respect to any sale of those securities.
Delayed Delivery Contracts
We may authorize underwriters, dealers or agents
to solicit offers by institutional investors, such as commercial banks and investment companies, to purchase the securities from
us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment
and delivery on a specified date in the future. The conditions to these contracts and the commissions payable for solicitation
of the contracts will be set forth in the applicable prospectus supplement.
At-the-Market Offerings
Underwriters, dealers or agents could make
sales in an “at-the-market” offering, directly on the NASDAQ Capital Market, the existing trading market for our common
stock, or such other exchange or automated quotation system on which our securities trade, or to or through a market maker other
than on an exchange.
Rights Offerings
We may issue the securities as a dividend or
distribution or in a subscription rights offering to our existing security holders. 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 standby underwriters 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.
Compensation
In compliance with the guidelines of the Financial
Industry Regulatory Authority, Inc., or FINRA, all discounts, commissions or agency fees or other items constituting underwriting
compensation to be received by any FINRA member or independent broker-dealer will be disclosed in the applicable prospectus supplement.
Indemnification
Any underwriters and agents may be entitled
to indemnification by us against certain civil liabilities, including liabilities under the Securities Act of 1933, as amended,
or to contribution with respect to payments which the agents or underwriters may be required to make in respect of their liabilities.
Stabilization Activities
During and after an offering through underwriters,
the underwriters may purchase and sell the securities in the open market. These transactions may include over allotment and stabilizing
transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also
impose a penalty bid, whereby selling concessions allowed to syndicate members or other broker-dealers for the offered securities
sold for their account may be reclaimed by the syndicate if such offered securities are repurchased by the syndicate in stabilizing
or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities,
which may be higher than the price that might otherwise prevail in the open market. If commenced, these activities may be discontinued
at any time.
Passive Market Making
Any underwriters who are qualified market makers
may engage in passive market making transactions in the securities in accordance with Rule 103 of Regulation M.
Trading Markets
Unless otherwise specified in the applicable
prospectus supplement, securities offered under this prospectus will be a new issue and, other than the common stock, which is
quoted on the NASDAQ Capital Market, will have no established trading market. We may elect to list any other class or series of
securities on an exchange, and in the case of the common stock, on any additional exchange, but, unless otherwise specified in
the applicable prospectus supplement, we shall not be obligated to do so. Any underwriters to whom securities are sold for public
offering and sale may make a market in the securities, but the underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. The securities may or may not be listed on a national securities exchange or a foreign
securities exchange. No assurance can be given as to the liquidity of the trading market for any of the securities.
Other Matters
Any underwriters, dealers and agents, 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 ordinary course of business.
We will bear all costs, expenses and fees associated
with the registration of the securities offered.
LEGAL MATTERS
The validity of the securities offered will
be passed on for us by our counsel, Graubard Miller, New York, New York.
EXPERTS
The financial statements incorporated in this
prospectus by reference to the annual report on Form 10-K for the year ended December 31, 2015 have been so incorporated in reliance
on the report of Marcum LLP, an independent registered certified public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the Securities and Exchange Commission. Our SEC filings are available to the public
over the Internet at the SEC’s web site at http://www.sec.gov. You may also read and copy any document we file with the SEC
at the SEC’s public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information about the public reference room.
We have filed with the SEC a registration statement
under the Securities Act relating to the offering of these securities. 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.
The registration statement and our SEC filings,
including the documents referred to below under “
Information Incorporated by Reference
,” are also available
on our website,
www.longislandicedtea.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.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference
the information we file with it, which means that we can disclose important information to you by referring you to those documents.
The information incorporated by reference is an important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. This prospectus incorporates by reference our documents listed below
and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until all of the securities
are sold or the offering is terminated:
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●
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Annual Report on Form 10-K for the fiscal year ended December 31, 2015 (filed March 22, 2016);
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●
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Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2016 (filed May 9, 2016) and June 30, 2016 (filed August 15, 2016);
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●
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Current Reports on Form 8-K dated January 18, 2016 (filed January 20, 2016), January 21, 2016
(filed January 21, 2016), February 3, 2016 (filed February 3, 2016), February 8, 2016 (filed on February 8, 2016), February
11, 2016 (filed February 11, 2016), February 26, 2016 (filed February 26, 2016), March 14, 2015 (filed March 17, 2016), March
22, 2016 (filed March 23, 2016), April 1, 2016 (filed April 5, 2016), April 7, 2017 (filed April 8, 2016), April 19, 2016
(filed April 19, 2016), May 9, 2016 (filed May 10, 2016), May 10, 2016 (filed May 10, 2016), June 6, 2016 (filed June 10,
2016), July 28, 2016 (filed August 1, 2016), August 4, 2016 (filed August 5, 2016), August 18, 2016 (filed August 24, 2016) ,
September 19, 2016 (filed September 23, 2016) and September 29, 2016 (filed October 5, 2016) ; and
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●
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Form 8-A filed on June 20, 2016 registering our common stock under Section 12(b) of the Exchange Act.
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Any statement contained in a document filed
before the date of this prospectus and 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 modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Any information
that we file after the date of this prospectus with the SEC and incorporated by reference herein will automatically update and
supersede the information contained in this prospectus and in any document previously incorporated by reference in this prospectus.
Notwithstanding the foregoing, we are not incorporating any document or portion thereof or other information, including exhibits
to the foregoing, deemed to have been furnished and not filed in accordance with SEC rule.
Will provide you with a copy of any or all
of the information that has been incorporated by reference in this prospectus, without charge, upon written or oral request directed
to Long Island Iced Tea Corp., Attention: Investor Relations, 116 Charlotte Avenue, Hicksville, NY 11801, telephone number (855)
542-2832. You may also access the documents incorporated by reference as described under “
Where You Can Find More Information
.”
Long Island Iced Tea Corp.
COMMON STOCK
PREFERRED STOCK
WARRANTS
DEBT SECURITIES
UNITS
PROSPECTUS
_______, 2016
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other
Expenses of Issuance and Distribution.
The estimated expenses in connection with the sale of the securities
being registered hereby, are as follows:
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SEC registration fee
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$
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5,035.00
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FINRA filing fee
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(1
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)
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Listing fees and expenses
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(1
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)
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Accounting fees and expenses
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(1
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)
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Legal fees and expenses
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(1
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)
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|
Printing expenses
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(1
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)
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|
Transfer agent fees and expenses
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(1
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)
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|
Miscellaneous
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|
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(1
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)
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Total
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(1
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)
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(1)
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These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
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All expenses, other than the SEC registration
fee, are estimated. The actual expenses incurred will depend on the securities offered, the number of issuances and the nature
of the offerings.
Item 15. Indemnification
of Directors and Officers.
Our amended and restated certificate of incorporation
provides that no director of ours will be personally liable to us or any of our stockholders for monetary damages arising from
the director’s breach of fiduciary duty as a director. However, this does not apply with respect to any action in which the
director would be liable under Section 174 of the DGCL nor does it apply with respect to any liability in which the director (i)
breached his duty of loyalty to us or its stockholders; (ii) did not act in good faith or, in failing to act, did not act in good
faith; (iii) acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have
acted in a manner involving intentional misconduct or a knowing violation of law; or (iv) derived an improper personal benefit.
This provision could have the effect of reducing the likelihood of derivative litigation against our directors and may discourage
or deter our stockholders or management from bringing a lawsuit against our directors for breach of their duty of care, even though
such an action, if successful, might otherwise have benefited us and our stockholders.
Our amended and restated certificate of incorporation
also provides that we will indemnify any director or officer of ours to the fullest extent permitted by law. Our bylaws further
provide that we will indemnify to the fullest extent permitted by law any person who becomes party to a proceeding by reason of
the fact that he is or was an director, officer, employee or agent of ours, or by reason of the fact that he is or was serving
at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
We have entered, and intend to continue to enter, into separate indemnification agreements with our directors, executive officers
and other key employees, in addition to the indemnification provided for in our amended and restated certificate of incorporation
and bylaws. We also maintain directors’ and officers’ liability insurance.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or person controlling us pursuant to the foregoing provisions,
we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and
is therefore unenforceable.
Item 16. Exhibits
A list of the exhibits required by Item 601
of Regulation S-K to be filed as part of this registration statement is set forth in the Exhibit Index on page II-5.
Item 17. Undertakings
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii)
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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;
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Provided
,
however
,
that:
Paragraphs (1)(i), (1)(ii) and (1)(iii)
of this section do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2)
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That, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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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.
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(5)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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(A)
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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
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(B)
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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.
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(6)
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
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The undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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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;
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(iii)
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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
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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.
(j) The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act 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 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, hereunto duly authorized,
in Hicksville, New York on October 12, 2016.
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LONG ISLAND ICED TEA CORP.
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By:
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/s/ Philip Thomas
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Name:
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Philip Thomas
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Title:
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Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signatures
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Title
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Date
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By:
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/s/ Philip Thomas
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Chief Executive Officer (Principal
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October 12,
2016
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Philip Thomas
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Executive Officer)
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By:
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*
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Chief Financial Officer (Principal Financial
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October 12, 2016
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Richard Allen
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Officer and Principal Accounting Officer)
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By:
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*
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Executive Chairman
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October 12, 2016
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Julian Davidson
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By:
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*
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Director
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|
October 12, 2016
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Edward Hanson
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By:
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*
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Director
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October 12, 2016
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Kerry Kennedy
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By:
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*
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Director
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October 12, 2016
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Richard Roberts
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By:
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*
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Director
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October 12, 2016
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Paul Vassilakos
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By:
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*
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Director
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October 12, 2016
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Tom Cardella
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* By:
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/s/
Philip Thomas
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Philip Thomas, Attorney-in-fact
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EXHIBIT INDEX
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Exhibit No.
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Description
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1.1
|
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Form of Underwriting Agreement.*
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3.1
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Amended and Restated Certificate of Incorporation (incorporated by reference from Annex C of the proxy statement/prospectus that forms a part of the Company’s Registration Statement on Form S-4 (File No. 333-201527), originally filed on January 15, 2015).
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3.2
|
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Bylaws (incorporated from Annex D of the proxy statement/prospectus that forms a part of the Company’s Registration Statement on Form S-4 (File No. 333-201527), originally filed on January 15, 2015).
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4.1
|
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Specimen Common Stock Certificate (incorporated by reference from Exhibit 4.1 to the Company’s Registration Statement on Form S-4 (File No. 333-201527).
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4.2
|
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Preferred Stock Certificate of Designations.*
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4.3
|
|
Warrant Agreement.*
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4.4
|
|
Form of Indenture
for Senior Debt Securities between the Registrant and Trustee to be designated. ***
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4.5
|
|
Form of Indenture
for Subordinated Debt Securities between the Registrant and Trustee to be designated. ***
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4.6
|
|
Unit Agreement.*
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5.1
|
|
Opinion of Graubard
Miller. ***
|
|
|
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|
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10.1
|
|
Form of Securities Purchase Agreement.*
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12.1
|
|
Statement re: Computation
of Ratio of Earnings to Fixed Charges and Preference Dividends. ***
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23.1
|
|
Consent of Marcum
LLP.
***
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23.2
|
|
Consent of Graubard Miller (included in its opinion filed as Exhibit 5.1).
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24.1
|
|
Power of Attorney
(set forth on signature page of the initial filing of this registration statement ).
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25.1
|
|
Statement of Eligibility of Trustee on Form T-1 with respect to the Senior Debt Indenture.**
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|
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25.2
|
|
Statement of Eligibility of Trustee on Form T-1 with respect to the Subordinated Debt Indenture.**
|
|
*
|
To be filed, if applicable, subsequent to the effectiveness of this Registration Statement by an amendment to this Registration Statement or by incorporation by reference through a Current Report on Form 8-K filed in connection with an offering of securities.
|
|
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|
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**
|
To be filed by amendment or pursuant to the Trust Indenture Act of 1939 Section 305(b)(2), if applicable.
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***
|
Previously filed.
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