As
filed with the Securities and Exchange Commission on September 18, 2020.
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
GUARDION
HEALTH SCIENCES, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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47-4428421
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(State
or other jurisdiction
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(I.R.S.
Employer
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of
incorporation or organization)
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Identification
No.)
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15150
Avenue of Science, Suite 200
San
Diego, California 92128
(858)
605-9055
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
David
Evans
Interim
Chief Executive Officer
15150
Avenue of Science, Suite 200
San
Diego, California 92128
(858)
605-9055
(Name,
address including zip code, and telephone number, including area code, of agent for service)
With
copies to:
David
I. Sunkin, Esq.
Sheppard,
Mullin, Richter & Hampton LLP
333
South Hope Street, 43rd Floor
Los
Angeles, CA 90071
(213)
620-1780
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, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [X]
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Smaller
reporting company [X]
Emerging
growth company [X]
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. [ ]
CALCULATION
OF REGISTRATION FEE
Title
of each class of securities
to
be registered
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Amount
to be
registered
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Proposed
maximum
offering
price per
share
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Proposed
maximum
aggregate
offering
price(3)
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Amount
of
registration
fee(4)
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Common Stock, $0.0001 par value per share
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Preferred Stock, $0.0001 par value per share
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Debt Securities
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Warrants
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Rights
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Units
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(1)
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(2)
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$
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75,000,000
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(1)
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$
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9,735
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(1)
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An
indeterminate number of securities or aggregate principal amount, as the case may be, of common stock and preferred stock,
such indeterminate principal amount of debt securities, such indeterminate number of warrants and rights to purchase common
stock, preferred stock or debt securities, and such indeterminate number of units, as shall have an aggregate initial offering
price not to exceed $75,000,000. If any debt securities are issued at an original issue discount, then the offering price
of such debt securities shall be in such greater principal amount as shall result in an aggregate offering price not to exceed
$75,000,000, less the aggregate offering price of any securities previously issued hereunder. Any securities issued hereunder
may be sold separately or as units with other securities issued hereunder. The proposed maximum initial offering price per
unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities
registered hereunder. The securities registered also include such indeterminate amounts and numbers of debt securities, common
stock and preferred stock as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities
registered hereunder, including under any applicable antidilution provisions. Pursuant to Rule 416(a) under the Securities
Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional
number of securities as may be offered or issued from time to time upon stock splits, stock dividends, recapitalizations or
similar transactions.
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(2)
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The
proposed maximum aggregate offering price per unit will be determined from time to time by the Registrant in connection with
the sale and issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security
pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.
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(4)
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The
registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.
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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 that specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act or until this Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy
these securities until the registration statement filed with the U.S. Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities, and we are not soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
PRELIMINARY
PROSPECTUS
Subject
to completion, dated September 18, 2020
Guardion
Health Sciences, Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Rights
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, debt securities,
warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually
or as units comprised of one or more of the other securities, having an aggregate initial offering price not exceeding $75,000,000.
This
prospectus provides a general description of the securities we may offer. Each time we sell a particular class or series of securities,
we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus supplement and any
related free writing prospectus may also add, update or change information contained in this prospectus. We may also authorize
one or more free writing prospectuses to be provided to you in connection with these offerings. You should read carefully this
prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated
by reference herein or therein before you invest in any of our securities.
The
specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in one
or more supplements to this prospectus. This prospectus may not be used to consummate sales of any of these securities unless
it is accompanied by a prospectus supplement. Before investing, you should carefully read this prospectus and any related prospectus
supplement.
Our common stock is presently
listed on The Nasdaq Capital Market under the symbol “GHSI.” On September 17, 2020, the last reported sale
price of our common stock was $0.2275 per share. The applicable prospectus supplement will contain information, where applicable,
as to any other listing on The Nasdaq Capital Market or any securities market or other exchange of the securities, if any, covered
by the prospectus supplement. Prospective purchasers of our securities are urged to obtain current information as to the market
prices of our securities, where applicable
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters, dealers,
or through a combination of these methods on a continuous or delayed basis. See “Plan of Distribution” in this
prospectus. We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement.
If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being
delivered, we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The price to
the public of such securities and the net proceeds we expect to receive from any such sale will also be included in a prospectus
supplement.
The
aggregate market value of our outstanding common stock held by non-affiliates was approximately $37,743,778 million which was
calculated based on 85,470,512 shares of outstanding common stock held by non-affiliates as of September 18, 2020, and a price
per share of $0.4416, the closing price of our common stock on August 10, 2020. Pursuant to General Instruction I.B.6 of Form
S-3, in no event will we sell securities pursuant to this registration statement with a value more than one-third of the aggregate
market value of our common stock held by non-affiliates in any 12-month period, so long as the aggregate market value of our common
stock held by non-affiliates is less than $75.0 million. In the event that subsequent to the effective date of this registration
statement, the aggregate market value of our outstanding common stock held by non-affiliates equals or exceeds $75.0 million,
then the one-third limitation on sales shall not apply to additional sales made pursuant to this registration statement. We have
not sold any securities pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar months prior to, and including,
the date of this registration statement.
Investing
in our securities involves various risks. See “Risk Factors” contained herein for more information on these
risks. Additional risks will be described in the related prospectus supplements under the heading “Risk Factors.”
You should review that section of the related prospectus supplements for a discussion of matters that investors in our securities
should consider.
Neither
the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities,
or passed upon the adequacy or accuracy of this prospectus or any accompanying prospectus supplement. Any representation to the
contrary is a criminal offense.
The
date of this prospectus is , 2020.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or SEC, using a
“shelf” registration process. Under this shelf registration statement, we may sell from time to time in one or more
offerings of common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities,
either individually or as units comprised of a combination of one or more of the other securities in one or more offerings up
to a total dollar amount of $75,000,000. This prospectus provides you with a general description of the securities we may offer.
Each time we sell any type or series of securities under this prospectus, we will provide a prospectus supplement that will contain
more specific information about the terms of that offering.
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. We may add, update or
change in a prospectus supplement or free writing prospectus any of the information contained in this prospectus or in the documents
we have incorporated by reference into this prospectus. We may also authorize one or more free writing prospectuses to be provided
to you that may contain material information relating to these offerings. This prospectus, together with the applicable prospectus
supplement, any related free writing prospectus and the documents incorporated by reference into this prospectus and the applicable
prospectus supplement, will include all material information relating to the applicable offering. You should carefully read both
this prospectus and the applicable prospectus supplement and any related free writing prospectus, together with the additional
information described under “Where You Can Find More Information,” before buying any of the securities being
offered.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus, any accompanying prospectus supplement or any related free writing prospectus
that we may authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus or an accompanying prospectus supplement, or any related free writing prospectus that we may authorize
to be provided to you. This prospectus, the accompanying prospectus supplement and any related free writing prospectus, if any,
do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities
to which they relate, nor do this prospectus, the accompanying prospectus supplement or any related free writing prospectus, if
any, constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it
is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this
prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to
the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date
subsequent to the date of the document incorporated by reference (as our business, financial condition, results of operations
and prospects may have changed since that date), even though this prospectus, any applicable prospectus supplement or any related
free writing prospectus is delivered or securities are sold on a later date.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement,
including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to
be, nor is it, a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate
only as of the date when made and subject to such conditions, limitations and restrictions contained in such agreements. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus may not be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the
extent there are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference,
the document with the most recent date will control.
As
permitted by the rules and regulations of the SEC, the registration statement, of which this prospectus forms a part, includes
additional information not contained in this prospectus. You may read the registration statement and the other reports we file
with the SEC at the SEC’s web site or at the SEC’s offices described below under the heading “Where You Can
Find Additional Information.”
Company
References
In
this prospectus “the Company,” “we,” “us,” and “our” refer to Guardion Health
Sciences, Inc., a Delaware corporation, and its subsidiaries, unless the context otherwise requires.
SUMMARY
Overview
The
Company is a specialty health sciences company (1) that has developed medical foods and medical devices in the ocular health space
and (2) that has developed and is developing nutraceuticals that the Company believes will provide supportive health benefits
to consumers.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various series of debt securities and warrants or rights to purchase
any of such securities, either individually or in units, from time to time under this prospectus, together with any applicable
prospectus supplement and related free writing prospectus, at prices and on terms to be determined by market conditions at the
time of offering. If we issue any debt securities at a discount from their original stated principal amount, then, for purposes
of calculating the total dollar amount of all securities issued under this prospectus, we will treat the initial offering price
of the debt securities as the total original principal amount of the debt securities. Each time we offer securities under this
prospectus, we will provide offerees with a prospectus supplement that will describe the specific amounts, prices and other important
terms of the securities being offered, including, to the extent applicable:
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designation
or classification;
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aggregate
principal amount or aggregate offering price;
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maturity,
if applicable;
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original
issue discount, if any;
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rates
and times of payment of interest or dividends, if any;
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redemption,
conversion, exchange or sinking fund terms, if any;
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conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or
exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
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ranking;
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restrictive
covenants, if any;
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voting
or other rights, if any; and
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important
United States federal income tax considerations.
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A
prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update,
or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement
or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness
of the registration statement of which this prospectus is a part.
We
may sell the securities to or through underwriters, dealers or agents or directly to purchasers. We, as well as any agents acting
on our behalf, reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. Each prospectus
supplement will set forth the names of any underwriters, dealers or agents involved in the sale of securities described in that
prospectus supplement and any applicable fee, commission or discount arrangements with them, details regarding any over-allotment
option granted to them, and net proceeds to us. The following is a summary of the securities we may offer with this prospectus.
Common
Stock
We
currently have authorized 250,000,000 shares of common stock, par value $0.001 per share. As of September 18, 2020, 88,327,312
shares of common stock were issued and outstanding. We may offer shares of our common stock either alone or underlying other registered
securities convertible into or exercisable for our common stock. Holders of our common stock are entitled to such dividends as
our board of directors (the “Board of Directors” or “Board”) may declare from time to time out of legally
available funds, subject to the preferential rights of the holders of any shares of our preferred stock that are outstanding or
that we may issue in the future. Currently, we do not pay any dividends on our common stock. Each holder of our common stock is
entitled to one vote per share. In this prospectus, we provide a general description of, among other things, the rights and restrictions
that apply to holders of our common stock.
Preferred
Stock
We
currently have authorized 10,000,000 shares of preferred stock, par value $0.001. There are currently no shares of preferred stock
outstanding. Any authorized and undesignated shares of preferred stock may be issued from time to time in one or more additional
series pursuant to a resolution or resolutions providing for such issue duly adopted by our Board of Directors (authority to do
so being hereby expressly vested in the Board of Directors). The Board of Directors is further authorized, subject to limitations
prescribed by law, to fix by resolution or resolutions the designations, powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, of any wholly unissued series of preferred stock, including without limitation authority
to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any such series, and
the number of shares constituting any such series and the designation thereof, or any of the foregoing.
The
rights, preferences, privileges, and restrictions granted to or imposed upon any series of preferred stock that we offer and sell
under this prospectus and applicable prospectus supplements will be set forth in a certificate of designation relating to the
series. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate
of designation that describes the terms of the series of preferred stock we are offering before the issuance of shares of that
series of preferred stock. You should read any prospectus supplement and any free writing prospectus that we may authorize to
be provided to you related to the series of preferred stock being offered, as well as the complete certificate of designation
that contains the terms of the applicable series of preferred stock.
Debt
Securities
We
may offer general debt obligations, which may be secured or unsecured, senior or subordinated, and convertible into shares of
our common stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together as
the “debt securities.” We may issue debt securities under a note purchase agreement or under an indenture to be entered
between us and a trustee and forms of the senior and subordinated indentures are included as an exhibit to the registration statement
of which this prospectus is a part. The indentures do not limit the amount of securities that may be issued under it and provides
that debt securities may be issued in one or more series. The senior debt securities will have the same rank as all of our other
indebtedness that is not subordinated. The subordinated debt securities will be subordinated to our senior debt on terms set forth
in the applicable prospectus supplement. In addition, the subordinated debt securities will be effectively subordinated to creditors
and preferred stockholders of our subsidiaries. Our Board of Directors will determine the terms of each series of debt securities
being offered. This prospectus contains only general terms and provisions of the debt securities. The applicable prospectus supplement
will describe the particular terms of the debt securities offered thereby. You should read any prospectus supplement and any free
writing prospectus that we may authorize to be provided to you related to the series of debt securities being offered, as well
as the complete note agreements and/or indentures that contain the terms of the debt securities. Forms of indentures have been
filed as exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of debt securities being offered will be incorporated by reference into the registration statement
of which this prospectus is a part from reports we file with the SEC.
Warrants
We
may offer warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue the warrants
by themselves or together with common stock, preferred stock or debt securities, and the warrants may be attached to or separate
from any offered securities. Any warrants issued under this prospectus may be evidenced by warrant certificates. Warrants may
be issued under a separate warrant agreement to be entered into between us and the investors or a warrant agent. Our Board of
Directors will determine the terms of the warrants. This prospectus contains only general terms and provisions of the warrants.
The applicable prospectus supplement will describe the particular terms of the warrants being offered thereby. You should read
any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of
warrants being offered, as well as the complete warrant agreements that contain the terms of the warrants. Specific warrant agreements
will contain additional important terms and provisions and will be incorporated by reference into the registration statement of
which this prospectus is a part from reports we file with the SEC.
Rights
We
may issue rights to our stockholders to purchase shares of our common stock, preferred stock or the other securities described
in this prospectus. We may offer rights separately or together with one or more additional rights, debt securities, preferred
stock, common stock or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus
supplement. Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or
trust company, as rights agent. The rights agent will act solely as our agent in connection with the certificates relating to
the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any
holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and
provisions of the rights to which any prospectus supplement may relate. The particular terms of the rights to which any prospectus
supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described
in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement or rights certificates
described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed
to have been superseded by that prospectus supplement. Specific rights agreements will contain additional important terms and
provisions and will be incorporated by reference into the registration statement of which this prospectus is a part from reports
we file with the SEC.
Units
We
may offer units consisting of our common stock or preferred stock, debt securities and/or warrants to purchase any of these securities
in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement.
We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate
the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units. This
prospectus contains only a summary of certain general features of the units. The applicable prospectus supplement will describe
the particular features of the units being offered thereby. You should read any prospectus supplement and any free writing prospectus
that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements
that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and will
be incorporated by reference into the registration statement of which this prospectus is a part from reports we file with the
SEC.
Corporate
Information
Guardion
Health Sciences, Inc. was formed under the name P4L Health Sciences, LLC in December 2009 in California as a limited liability
company. The Company changed its name to Guardion Health Sciences, LLC in December 2009. In June 2015, the Company converted into
a Delaware “C” corporation. Our fiscal year end is December 31. Our principal executive offices are located at 15150
Avenue of Science, Suite 200, San Diego, California 92128. Our telephone number is 858-605-9055. Our website address is www.
guardionhealth.com. The information contained on, or that can be accessed through, our website is not a part of this registration
statement or the accompanying prospectus.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. This prospectus contains, and the prospectus supplement applicable
to each offering of our securities will contain, a discussion of the risks applicable to an investment in our securities. Prior
to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the
heading “Risk Factors” in this prospectus and the applicable prospectus supplement, together with all of the
other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference
in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk
Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March
30, 2020, and any updates described in 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. The risks and uncertainties we have described are not the only ones we face. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. The occurrence
of any of these known or unknown risks might cause you to lose all or part of your investment in the offered securities.
FORWARD-LOOKING
STATEMENTS
This
prospectus and any accompanying prospectus supplement, including the documents that we incorporate by reference, contains forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and
Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Any statements in this prospectus
and any accompanying prospectus supplement about our expectations, beliefs, plans, objectives, assumptions or future events or
performance are not historical facts and are forward-looking statements. These statements are often, but not always, made through
the use of words or phrases such as “believe,” “will,” “expect,” “anticipate,”
“estimate,” “intend,” “plan,” and “would.” For example, statements concerning
financial condition, possible or assumed future results of operations, growth opportunities, industry ranking, plans and objectives
of management, markets for our common stock and future management and organizational structure are all forward-looking statements.
Forward-looking statements are not guarantees of performance. They involve known and unknown risks, uncertainties and assumptions
that may cause actual results, levels of activity, performance or achievements to differ materially from any results, levels of
activity, performance or achievements expressed or implied by any forward-looking statement.
Any
forward-looking statements are qualified in their entirety by reference to the risk factors discussed throughout this prospectus
and any accompanying prospectus supplement. You should read this prospectus and any accompanying prospectus supplement and the
documents that we reference herein and therein and have filed as exhibits to the registration statement, of which this prospectus
is part, completely and with the understanding that our actual future results may be materially different from what we expect.
You should assume that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as
of the date on the front cover of this prospectus or such prospectus supplement only. Because the risk factors referred to on
page 5 of this prospectus and incorporated herein by reference could cause actual results or outcomes to differ materially
from those expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any
forward-looking statements. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake
no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement
is made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for
us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent
to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking
statements. We qualify all of the information presented in this prospectus and any accompanying prospectus supplement, and particularly
our forward-looking statements, by these cautionary statements.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities offered under this prospectus for general corporate purposes, including
the development and commercialization of our products, research and development, general and administrative expenses, business,
license or technology acquisitions, and working capital and capital expenditures. We may also use the net proceeds to repay any
debts and/or invest in or acquire complementary businesses, products, or technologies, although we have no current commitments
or agreements with respect to any such investments or acquisitions as of the date of this prospectus. We have not determined the
amount of net proceeds to be used specifically for the foregoing purposes. As a result, our management will have broad discretion
in the allocation of the net proceeds and investors will be relying on the judgment of our management regarding the application
of the proceeds of any sale of the securities. Pending use of the net proceeds, we intend to invest the proceeds in short-term,
investment-grade, interest-bearing instruments.
Each
time we offer securities under this prospectus, we will describe the intended use of the net proceeds from that offering in the
applicable prospectus supplement. The actual amount of net proceeds we spend on a particular use will depend on many factors,
including, our future capital expenditures, the amount of cash required by our operations, and our future revenue growth, if any.
Therefore, we will retain broad discretion in the use of the net proceeds.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock, together with any additional information we include in any applicable prospectus supplement
or any related free writing prospectus, summarizes the material terms and provisions of our common stock and the preferred stock
that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future common stock
or preferred stock that we may offer, we will describe the particular terms of any class or series of these securities in more
detail in the applicable prospectus supplement. For the complete terms of our common stock and preferred stock, please refer to
our Certificate of Incorporation, as amended (the “Certificate of Incorporation”) and our second amended and restated
bylaws (the “Bylaws”) that are incorporated by reference into the registration statement of which this prospectus
is a part or may be incorporated by reference in this prospectus or any applicable prospectus supplement. The terms of these securities
may also be affected by Delaware General Corporation Law (the “DGCL”). The summary below and that contained in any
applicable prospectus supplement or any related free writing prospectus are qualified in their entirety by reference to our Certificate
of Incorporation and our amended and restated bylaws.
As
of the date of this prospectus, our authorized capital stock consisted of 250,000,000 shares of common stock, $0.001 par value
per share, and 10,000,000 shares of preferred stock, $0.001 par value per share. Our Board may establish the rights and preferences
of the preferred stock from time to time. As of September 18, 2020, there were 88,327,312 shares of our common stock issued and
outstanding and no shares of preferred stock issued and outstanding.
Common
Stock
We
are authorized to issue up to a total of 250,000,000 shares of common stock, par value $0.001 per share. Holders of our common
stock are entitled to one vote for each share held on all matters submitted to a vote of our stockholders. Holders of our common
stock have no cumulative voting rights. All shares of common stock offered hereby will, when issued, be fully paid and nonassessable,
including shares of common stock issued upon the exercise of common stock warrants or subscription rights, if any.
Further,
holders of our common stock have no preemptive or conversion rights or other subscription rights. Upon our liquidation, dissolution
or winding- up, holders of our common stock are entitled to share in all assets remaining after payment of all liabilities and
the liquidation preferences of any of our outstanding shares of preferred stock. Subject to preferences that may be applicable
to any outstanding shares of preferred stock, holders of our common stock are entitled to receive dividends, if any, as may be
declared from time to time by our Board of Directors out of our assets which are legally available. Such dividends, if any, are
payable in cash, in property or in shares of capital stock.
The
holders of a majority of the shares of our capital stock, represented in person or by proxy, are necessary to constitute a quorum
for the transaction of business at any meeting. If a quorum is present, an action by stockholders entitled to vote on a matter
is approved if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action, with
the exception of the election of directors, which requires a plurality of the votes cast.
Preferred
Stock
Our
board of directors has the authority, without further action by the stockholders, to issue up to 10,000,000 shares of preferred
stock in one or more series and to fix the designations, powers, preferences, privileges, and relative participating, optional,
or special rights as well as the qualifications, limitations, or restrictions of the preferred stock, including dividend rights,
conversion rights, voting rights, terms of redemption, and liquidation preferences, any or all of which may be greater than the
rights of the common stock. Our board of directors, without stockholder approval, can issue convertible preferred stock with voting,
conversion, or other rights that could adversely affect the voting power and other rights of the holders of common stock. Preferred
stock could be issued quickly with terms calculated to delay or prevent a change of control or make removal of management more
difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock,
and may adversely affect the voting and other rights of the holders of common stock. At present, we have no plans to issue any
shares of preferred stock following this offering.
Anti-Takeover
Effects of Provisions of Delaware State Law
We
are governed by the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a public
Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a
period of three years after the date of the transaction in which the person became an interested stockholder, unless:
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the
transaction was approved by the board of directors prior to the time that the stockholder became an interested stockholder;
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upon
consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding shares
owned by directors who are also officers of the corporation and shares owned by employee stock plans in which employee participants
do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or
exchange offer; or
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at
or subsequent to the time the stockholder became an interested stockholder, the business combination was approved by the board
of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative
vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
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In
general, Section 203 defines a “business combination” to include mergers, asset sales and other transactions resulting
in financial benefit to a stockholder and an “interested stockholder” as a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the corporation’s outstanding voting stock. These provisions
may have the effect of delaying, deferring or preventing changes in control of our company.
Our
certificate of incorporation and our bylaws include a number of provisions that could deter hostile takeovers or delay or prevent
changes in control of our board of directors or management team, including the following:
Board
of Directors Vacancies. Our bylaws authorize only our board of directors to fill vacant directorships, including newly created
seats. In addition, the number of directors constituting our board of directors will be permitted to be set only by a resolution
adopted by a majority vote of our entire board of directors. These provisions would prevent a stockholder from increasing the
size of our board of directors and then gaining control of our board of directors by filling the resulting vacancies with its
own nominees. This will make it more difficult to change the composition of our board of directors and will promote continuity
of management.
Ability
of Stockholders to Call Special Meetings. Our Certificate of Incorporation and Bylaws provide that stockholders can only call
a special meeting if stockholders holding over 50% of all issued and outstanding shares of the Corporation entitled to vote at
a meeting do so.
Advance
Notice Requirements. Our Bylaws establish advance notice procedures with regard to stockholder proposals relating to the nomination
of candidates for election as directors or new business to be brought before meetings of stockholders. These procedures provide
that notice of such stockholder proposals must be timely given in writing to the Secretary of the Company prior to the meeting
at which the action is to be taken. The notice must contain certain information specified in our Bylaws.
Exclusive
Forum Provision. In accordance with an exclusive forum provision set forth in the Bylaws, unless the Company consents in writing
to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum
for certain state law based actions including certain derivative actions or proceedings brought on behalf of the Company; an action
asserting a breach of fiduciary duty owed by an officer, a director, employee or to the shareholders of the Company; any claim
arising under Delaware corporate law; and any action asserting a claim governed by the internal affairs doctrine.
No
Cumulative Voting. The Delaware General Corporation Law provides that stockholders are not entitled to cumulate votes in the
election of directors unless a corporation’s certificate of incorporation provides otherwise. Our certificate of incorporation
does not provide for cumulative voting.
Issuance
of Undesignated Preferred Stock. Our board of directors will have the authority, without further action by our stockholders,
to issue up to 10,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated
from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock would enable our
board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer,
proxy contest or other means.
Listing
Our
common stock is listed on The Nasdaq Capital Market under the trading symbol “GHSI.”
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is VStock Transfer, LLC.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements or free writing
prospectuses, summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. We
may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. While the terms we have summarized below will apply generally to any future debt securities we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement
or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement may differ from the terms
we describe below. However, no prospectus supplement shall fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness. As of the date of
this prospectus, we have no outstanding registered debt securities. Unless the context requires otherwise, whenever we refer to
the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular series
of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior
indenture. We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that
we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to
the registration statement, of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We use
the term “trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated
indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures
are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related
free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indentures
that contains the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth
or determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be
issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount
for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt
securities being offered, including:
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the
title;
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the
principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
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any
limit on the amount that may be issued;
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms and who the depositary will be;
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the
maturity date;
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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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the
annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the
terms of the subordination of any series of subordinated debt;
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the
place where payments will be made;
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restrictions
on transfer, sale or other assignment, if any;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to
any optional or provisional redemption provisions and the terms of those redemption provisions;
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provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which
we are obligated, pursuant thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt
securities and the currency or currency unit in which the debt securities are payable;
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whether
the indenture will restrict our ability or the ability of our subsidiaries, if any, to:
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incur
additional indebtedness;
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issue
additional securities;
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create
liens;
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pay
dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries;
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redeem
capital stock;
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
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make
investments or other restricted payments;
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sell
or otherwise dispose of assets;
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enter
into sale-leaseback transactions;
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engage
in transactions with stockholders or affiliates;
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issue
or sell stock of our subsidiaries; or
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effect
a consolidation or merger;
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial
ratios;
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a
discussion of certain material or special United States federal income tax considerations applicable to the debt securities;
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information
describing any book-entry features;
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the
applicability of the provisions in the indenture on discharge;
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whether
the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof;
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional
events of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
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Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into
or exchangeable for our common stock, our preferred stock or other securities (including securities of a third party). We will
include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include
provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including securities
of a third party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other
securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property
must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have
received if they had converted the debt securities before the consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events
of default under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or
repurchase or otherwise, and the time for payment has not been extended;
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if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice
from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series; and
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if
specified events of bankruptcy, insolvency or reorganization occur.
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We
will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt
securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the
unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due
to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any,
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or
other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event
of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver
shall cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding.
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The
indentures will provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise
of its powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however,
may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial
to the rights of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability.
Prior to taking any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and
liabilities that would be incurred by taking or not taking such action.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written
request and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss,
liability or expense or to be incurred in compliance with instituting the proceeding as trustee; and
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and
offer.
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These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The
indentures will provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee,
the trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it
is known by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been
cured or waived. Except in the case of a default in the payment of principal or premium of, or interest on, any debt security
or certain other defaults specified in an indenture, the trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the executive committee or a trust committee of directors, or responsible officers of the trustee,
in good faith determine that withholding notice is in the best interests of holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture
without the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture;
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to
comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;”
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of debt securities, as set forth in the indenture;
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to
provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided
under “Description of Debt Securities—General,” to establish the form of any certifications required
to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities;
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to
evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to
provide for uncertificated debt securities and to make all appropriate changes for such purpose;
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to
add such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or
the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions
an event of default or to surrender any right or power conferred to us in the indenture; or
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to
change anything that does not adversely affect the interests of any holder of debt securities of any series in any material
respect.
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addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may issue
or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may
only make the following changes with the consent of each holder of any outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon
the redemption or repurchase of any debt securities; or
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver.
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Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement
applicable to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or
more series of debt securities, except for specified obligations, including obligations to:
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register
the transfer or exchange of debt securities of the series;
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replace
stolen, lost or mutilated debt securities of the series;
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maintain
paying agencies;
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hold
monies for payment in trust;
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recover
excess money held by the trustee;
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compensate
and indemnify the trustee; and
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appoint
any successor trustee.
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In
order to exercise our rights to be discharged, we will deposit with the trustee money or government obligations sufficient to
pay all the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in
the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures will provide
that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be
deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus
supplement with respect to that series. See “Legal Ownership of Securities” below for a further description
of the terms relating to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for
other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and
ending at the close of business on the day of the mailing; or
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part.
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Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest payment.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt
securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The
senior indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing
any other secured or unsecured debt.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which
may consist of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series.
Warrants may be offered independently or together with common stock, preferred stock or debt securities offered by any prospectus
supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally
to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants that
we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any
warrants offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will
fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described
in this prospectus at the time of its effectiveness.
We
may issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. If selected,
the warrant agent will act solely as an agent of ours in connection with the warrants and will not act as an agent for the holders
or beneficial owners of the warrants. If applicable, we will file as exhibits to the registration statement of which this prospectus
is a part, or will incorporate by reference from a Current Report on Form 8-K that we file with the SEC, the form of warrant agreement,
including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering before
the issuance of the related series of warrants. The following summaries of material provisions of the warrants and the warrant
agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant
certificate applicable to a particular series of warrants. We urge you to read the applicable prospectus supplement and any applicable
free writing prospectus related to the particular series of warrants that we sell under this prospectus, as well as the complete
warrant agreements and warrant certificates that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants, including:
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the
offering price and aggregate number of warrants offered;
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the
currency for which the warrants may be purchased;
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such security;
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in
the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon
such exercise;
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the
terms of any rights to redeem or call the warrants;
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the
dates on which the right to exercise the warrants will commence and expire;
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the
manner in which the warrant agreements and warrants may be modified;
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United
States federal income tax consequences of holding or exercising the warrants;
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the
terms of the securities issuable upon exercise of the warrants; and
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon
such exercise, including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in
the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon
our liquidation, dissolution or winding up or to exercise voting rights, if any.
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Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth
in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to deliver to us or the warrant agent as applicable.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities
purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we
will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement,
holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Enforceability
of Rights by Holders of Warrants
If
selected, each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation
or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for
more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make
any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION
OF RIGHTS
General
We
may issue rights to our stockholders to purchase shares of our common stock, preferred stock or the other securities described
in this prospectus. We may offer rights separately or together with one or more additional rights, debt securities, preferred
stock, common stock or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus
supplement. Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or
trust company, as rights agent. The rights agent will act solely as our agent in connection with the certificates relating to
the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any
holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and
provisions of the rights to which any prospectus supplement may relate. The particular terms of the rights to which any prospectus
supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described
in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement or rights certificates
described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed
to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights certificate
for additional information before you decide whether to purchase any of our rights. We will provide in a prospectus supplement
the following terms of the rights being issued:
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the
date of determining the stockholders entitled to the rights distribution;
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the
aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise of the rights;
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the
exercise price;
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the
aggregate number of rights issued;
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whether
the rights are transferrable and the date, if any, on and after which the rights may be separately transferred;
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the
date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will
expire;
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the
method by which holders of rights will be entitled to exercise;
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the
conditions to the completion of the offering, if any;
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the
withdrawal, termination and cancellation rights, if any;
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whether
there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any;
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whether
stockholders are entitled to oversubscription rights, if any;
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any
applicable material U.S. federal income tax considerations; and
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any
other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise
of the rights, as applicable.
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Each
right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock, preferred stock or
other securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up
to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the shares of common stock, preferred stock or other securities, as applicable,
purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer
any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through
a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights
Agent
The
rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus.
While
the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe
the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally
change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus
at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a Current Report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series of units
we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions
of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any
combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any
time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock,
preferred stock, debt security or warrant included in each unit, respectively.
Unit
Agent
The
name and address of the unit agent, if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship
of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series
of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal
action its rights as holder under any security included in the unit.
We,
the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested,
despite any notice to the contrary. See “Legal Ownership of Securities.”
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable
trustee or depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons
are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below,
indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect
holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities
may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary
on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary
as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along
the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders,
and not legal holders, of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to
hold their securities in their own names or in “street name.” Securities held by an investor in street name would
be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold
only a beneficial interest in those securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers
and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any
such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not legal holders,
of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security
or has no choice because we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even
if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders
but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event,
we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal
holders contact the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you should check with your own institution to find out:
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it handles securities payments and notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the holders’ consent, if ever required;
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whether
and how you can instruct it to send you securities registered in your own name so you can be a legal holder, if that is permitted
in the future;
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how
it would exercise rights under the securities if there were a default or other event triggering the need for holders to act
to protect their interests; and
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if
the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
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Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the
name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called
the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, NY,
known as DTC, will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We describe those situations below under “—Special Situations
When A Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will
be the sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted
to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker,
bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus,
an investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect
holder of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the
security will be represented by a global security at all times unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be
held through any book-entry clearing system.
Special
Considerations For Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an
indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his
or her interest in the securities, except in the special situations we describe below;
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an
investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe above;
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an
investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry form;
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an
investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing
the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
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the
depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in the global security. We and any applicable trustee have no responsibility for
any aspect of the depositary’s actions or for its records of ownership interests in the global security. We and the
trustee also do not supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security
within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
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financial
institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest
in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not
responsible for the actions of any of those intermediaries
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Special
Situations When A Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street
name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in
securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street
name investors above.
A
global security will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within 90 days;
|
|
|
|
|
●
|
if
we notify any applicable trustee that we wish to terminate that global security; or
|
|
|
|
|
●
|
if
an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
|
The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to
the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and
neither we, nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered hereby in one or more of the following ways from time to time:
|
●
|
through
agents to the public or to investors;
|
|
●
|
to
underwriters for resale to the public or to investors;
|
|
●
|
negotiated
transactions;
|
|
●
|
directly
to investors; or
|
|
●
|
through
a combination of any of these methods of sale.
|
As
set forth in more detail below, the securities may be distributed from time to time in one or more transactions:
|
●
|
at
a fixed price or prices, which may be changed;
|
|
●
|
at
market prices prevailing at the time of sale;
|
|
●
|
at
prices related to such prevailing market prices; or
|
We
will set forth in a prospectus supplement the terms of that particular offering of securities, including:
|
●
|
the
name or names of any agents or underwriters;
|
|
●
|
the
purchase price of the securities being offered and the proceeds we will receive from
the sale;
|
|
●
|
any
over-allotment options under which underwriters may purchase additional securities from
us;
|
|
●
|
any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation;
|
|
●
|
any
initial public offering price;
|
|
●
|
any
discounts or concessions allowed or re-allowed or paid to dealers; and
|
|
●
|
any
securities exchanges or markets on which such securities may be listed.
|
Only
underwriters named in an applicable prospectus supplement are underwriters of the securities offered by that prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name
of each underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation
of the underwriters and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more investment banking firms or others, as designated.
If an underwriting syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement.
If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their own accounts and may
be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or
at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or re-allowed
or paid to dealers may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the obligations
of the underwriters to purchase the offered securities will be subject to conditions precedent and the underwriters will be obligated
to purchase all of the offered securities if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering
price, with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms
of any over-allotment option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will
sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to
be determined by the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified
in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering
and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase 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. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers
of the common stock for whom they act as agents in the form of discounts, concessions or commissions. Underwriters may sell the
securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that
participate in the distribution of the securities, and any institutional investors or others that purchase common stock directly
and then resell the securities, may be deemed to be underwriters, and any discounts or commissions received by them from us and
any profit on the resale of the common stock by them may be deemed to be underwriting discounts and commissions under the Securities
Act.
We
may provide agents and underwriters with indemnification against particular civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities.
Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act.
In addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities
not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement
indicates, in connection with such a transaction, the third parties may, pursuant to this prospectus and the applicable prospectus
supplement, sell securities covered by this prospectus and the applicable prospectus supplement. If so, the third party may use
securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short
positions. We may also loan or pledge securities covered by this prospectus and the applicable prospectus supplement to third
parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant
to this prospectus and the applicable prospectus supplement. The third party in such sale transactions will be an underwriter
and will be identified in the applicable prospectus supplement or in a post-effective amendment.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In those
circumstances, such persons would cover such over-allotments or short positions by purchasing in the open market or by exercising
the over-allotment option granted to those persons. In addition, those persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to
underwriters or dealers participating in any such offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at
any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions described
above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on The Nasdaq Capital Market. We may elect to list any other class
or series of securities on any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of
the securities.
In
order to comply with the securities laws of some U.S. states or territories, if applicable, the securities offered pursuant to
this prospectus will be sold in those states only through registered or licensed brokers or dealers. In addition, in some states
securities may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from
the registration or qualification requirement is available and complied with.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance
with Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Overallotment involves
sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters
to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction
to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of these activities at any time.
Any
underwriters who are qualified market makers on The Nasdaq Capital Market may engage in passive market making transactions in
the securities on The Nasdaq Capital Market in accordance with Rule 103 of Regulation M, during the business day prior to the
pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must
display its bid at a price not in excess of the highest independent bid for such security. If all independent bids are lowered
below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase
limits are exceeded.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Sheppard, Mullin, Richter & Hampton
LLP, Los Angeles, California. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel
that we will name in the applicable prospectus supplement.
EXPERTS
Weinberg
& Company, P.A., independent registered public accounting firm, has audited our consolidated financial statements as of December
31, 2019 and 2018, and for the years then ended, as set forth in their report thereon, which is incorporated by reference in this
prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on
Weinberg & Company, P.A.’s report, given on their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s
rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain all the
information that is included in the registration statement. You will find additional information about us in the registration
statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily
complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the
SEC for a more complete understanding of the document or matter.
You
may read and copy the registration statement, as well as our reports, proxy statements, and other information, at the SEC’s
Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information
about the operation of the Public Reference Room. The SEC maintains an Internet site that contains reports, proxy and information
statements, and other information regarding issuers that file electronically with the SEC. The SEC’s Internet site can be
found at http://www.sec.gov. You can also obtain copies of materials we file with the SEC from our website found at www.guardionhealth.com.
Information on our website does not constitute a part of, nor is it incorporated in any way, into this prospectus and should not
be relied upon in connection with making an investment decision.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows
us to disclose important information to you by referring you to those other documents. The information incorporated by reference
is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede
this information. We filed a registration statement on Form S-1 under the Securities Act with the SEC with respect to the securities
being offered pursuant to this prospectus. This prospectus omits certain information contained in the registration statement,
as permitted by the SEC. You should refer to the registration statement, including the exhibits, for further information about
us and the securities being offered pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain
documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement
is qualified in all respects by that reference. Copies of all or any part of the registration statement, including the documents
incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed
above in “Where You Can Find More Information”. We are incorporating by reference the documents listed below, which
we have already filed with the SEC, and all documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act, except as to any portion of any future report or document that is not deemed filed under such provisions:
1.
The Company’s Annual Report on Form 10-K for the year ended December 31, 2019;
2.
The Company’s Quarterly Reports for the quarters ended March 31, 2020 and June 30, 2020;
3.
The Company’s Current Reports on Form 8-K filed on April 1, 2020, April 21, 2020, June 16, 2020, July 23, 2020, and September
4, 2020; and
4.
The description of the Company’s common stock contained in our Registration Statement on Form 8-A12B filed with the SEC
on April 4, 2019.
We
also incorporate by reference all documents (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and
exhibits filed on such form that are related to such items) that are subsequently filed by us with the Securities and Exchange
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of the
securities made by this prospectus (including documents filed after the date of the initial Registration Statement of which this
prospectus is a part and prior to the effectiveness of the Registration Statement). These documents include periodic reports,
such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements.
Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus
will be deemed to be modified or superseded to the extent that a statement contained in this prospectus or any subsequently filed
document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement.
You
may request a copy of these filings, at no cost, by writing or telephoning us at the following address: Vincent J. Roth, the Company’s
General Counsel, at Guardion Health Sciences, Inc., 15150 Avenue of Science, Suite 200, San Diego, CA 92128; Tel: 858-605-9055.
We maintain a website at https://guardionhealth.com/sec-filings/. You may access our annual reports on Form 10-K, quarterly reports
on Form 10-Q, current reports on Form 8-K and other reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange
Act with the SEC free of charge at our website as soon as reasonably practicable after such material is electronically filed with,
or furnished to, the SEC. The information contained in, or that can be accessed through, our website is not incorporated by reference
in, and is not part of, this prospectus.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being
registered hereby, other than underwriting discounts and commissions, all of which shall be borne by the Registrant. All of such
fees and expenses, except for the SEC registration fee and the FINRA filing fee, are estimated:
SEC registration fee
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|
$
|
9,735
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|
Legal fees and expenses
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|
|
*
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|
Printing fees and expenses
|
|
|
*
|
|
Accounting fees and expenses
|
|
|
*
|
|
Miscellaneous fees and expenses
|
|
|
*
|
|
Total
|
|
$
|
*
|
|
|
*
|
These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this
time. The applicable prospectus supplement will set forth the estimated amount of expenses of any offering of securities.
|
Item
15. Indemnification of Officers and Directors.
Each
person who was or is made a party or is threatened to be made a party to or is involved (including, without limitation, as a witness)
in any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter
a “proceeding”), by reason of the fact that such person is or was a director of the Company or is or was serving at
the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Company to the full extent authorized by the General Corporation Law of the
State of Delaware (“Delaware Code”), as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law
permitted the Company to provide prior to such amendment), or by other applicable law as then in effect, against all expense,
liability and loss (including attorney’s fees, judgments, fines, ERISA excise taxes or penalties and amounts to be paid
in settlement) actually and reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit
of the indemnitee’s heirs, executors and administrators. The right to indemnification conferred shall be a contract right
and shall include the right to be paid by the Company the expenses incurred in defending any such proceeding in advance of its
final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware Code requires,
an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee while a director or officer, including, without limitation, service to
an employee benefit plan) shall be made only upon delivery to the Company of an undertaking, by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined that such indemnitee is not entitled to be indemnified under.
Any person who is or was serving as a director of a wholly owned subsidiary of the Company shall be deemed, for indemnification
purposes, to be a director or officer of the Company entitled to indemnification under the Company’s Bylaws and the Delaware
Code. The Company may by action of its Board of Directors, grant rights to indemnification and advancement of expenses to employees
and agents of the Company with the same scope and effects as the indemnification provisions for officers and directors.
Item
16. Exhibits.
a)
Exhibits.
Exhibit
Number
|
|
Description
of Document
|
1.1*
|
|
Form of Underwriting Agreement
|
3.1
|
|
Certificate of Incorporation in Delaware and amendment thereto (filed with the Registration Statement on Form S-1 filed with the SEC on February 11, 2016)
|
3.2
|
|
Certificate of Amendment to Certificate of Incorporation (filed on Form 8-K on February 1, 2019 and incorporated herein by reference)
|
3.3
|
|
Certificate of Amendment to Certificate of Incorporation filed and effective with the Delaware Secretary of State on December 6, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s current report on Form 8-K, filed with the SEC on December 10, 2019)
|
3.4
|
|
Second Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Company’s current report on Form 8-K, filed with the SEC on October 22, 2019)
|
4.1*
|
|
Form of Certificate of Designation with respect
to Preferred Stock
|
4.2
|
|
Form of Senior Indenture
|
4.3
|
|
Form of Subordinated Indenture
|
4.4*
|
|
Form of Senior Note
|
4.5*
|
|
Form of Subordinated Note
|
4.6*
|
|
Form of Warrant
|
4.7*
|
|
Form of Warrant Agreement
|
4.8*
|
|
Form of Rights Agreement and Rights Certificate
|
4.9*
|
|
Form of Unit Agreement
|
5.1
|
|
Opinion of Sheppard, Mullin, Richter & Hampton LLP as to the legality of the securities being registered
|
23.1
|
|
Consent of Weinberg & Company, P.A.
|
23.2
|
|
Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.1)
|
24.1
|
|
Power of Attorney (included on signature pages to the registration statement)
|
25.1*
|
|
Statement of Eligibility of Trustee on Form
T-1 under the Trust Indenture Act of 1939, as amended
|
|
*
|
To
the extent applicable, to be filed by an amendment or as an exhibit to a document filed
under the Securities Exchange Act of 1934, as amended, and incorporated by reference
herein.
|
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided,
however , that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided , however , that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes 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 Commission under Section 305(b)(2) of the Trust Indenture Act.
(c)
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.
(d)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized on September 18, 2020.
|
GUARDION
HEALTH SCIENCES, INC.
|
|
|
|
By:
|
/s/
David Evans
|
|
Name:
|
David Evans
|
|
Title:
|
Interim Chief Executive
Officer
|
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David Evans or Robert Weingarten,
or either of them, as his true and lawful attorney-in-fact and agent with full power of substitution and re-substitution, for
him and in his name, place and stead, in any and all capacities to sign any or all amendments (including, without limitation,
post-effective amendments) to this Registration Statement, any related Registration Statement filed pursuant to Rule 462(b) under
the Securities Act of 1933 and any or all pre- or post-effective amendments thereto, and to file the same, with all exhibits thereto,
and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about
the premises, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming that said
attorneys-in-fact and agent, or any substitute or substitutes for him, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, the following persons in the capacities and on the dates indicated have signed
this Registration Statement below.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
David Evans
|
|
Interim CEO, Interim
President and Director
|
|
September 18,
2020
|
David Evans
|
|
(Principal Executive
Officer)
|
|
|
|
|
|
|
|
/s/
Andrew C. Schmidt
|
|
Vice President and
Chief Financial Officer
|
|
September 18,
2020
|
Andrew C. Schmidt
|
|
(Principal Accounting
and Financial Officer)
|
|
|
|
|
|
|
|
/s/
Robert N. Weingarten
|
|
Chairman of the
Board of Directors
|
|
September 18,
2020
|
Robert N. Weingarten
|
|
|
|
|
|
|
|
|
|
/s/
Mark Goldstone
|
|
Director
|
|
September 18,
2020
|
Mark Goldstone
|
|
|
|
|
|
|
|
|
|
/s/
Donald A. Gagliano
|
|
Director
|
|
September 18,
2020
|
Donald A. Gagliano
|
|
|
|
|
|
|
|
|
|
/s/
Kelly Anderson
|
|
Director
|
|
September 18,
2020
|
Kelly Anderson
|
|
|
|
|
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