As filed with the Securities and Exchange
Commission on April 9, 2019
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
digital
turbine, inc.
(Exact name of registrant as specified in
its charter)
Delaware
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22-2267658
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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111 Nueces Street
Austin, Texas 78701
(512) 387-7717
(Address, including
zip code, and telephone number, including area code, of registrant’s principal executive offices)
Barrett Garrison
Chief Financial Officer
Digital Turbine, Inc.
111 Nueces Street
Austin, Texas 78701
(512) 387-7717
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
With a copy to:
Ben D. Orlanski, Esq.
Matthew S. O’Loughlin, Esq.
Manatt, Phelps & Phillips, LLP
11355 West Olympic Boulevard
Los Angeles, CA 90064
(310) 312-4000
(310) 312-4224 Facsimile
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 on 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, 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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x
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Non-accelerated filer
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¨
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Smaller reporting company
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¨
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Emerging growth company
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¨
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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
comply 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
(1)(2)
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Proposed
Maximum
Aggregate
Offering Price
Per
Unit
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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
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—
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—
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—
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—
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Preferred Stock
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—
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—
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—
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—
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Warrants (5)
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—
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—
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—
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—
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Debt Securities
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—
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—
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—
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—
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Units (6)
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—
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—
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—
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—
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Total
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—
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—
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$
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100,000,000
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$
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12,120
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(1)
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We are registering an indeterminate number of shares of common
stock, shares of preferred stock, debt securities, warrants to purchase shares of common
stock or preferred stock or debt securities and units consisting of some or all of the
forgoing securities, each of which may be offered from time to time at prices to be determined
at the time of any such offering. The aggregate offering price of these securities will
not exceed $100,000,000. Any securities registered hereunder may be sold separately from,
or together in the same offering with, other securities registered hereunder. The securities
registered also include such indeterminate amounts and numbers of shares of common stock
and preferred stock that may be issued upon the exercise of warrants registered hereunder
or, in the case of the common stock, upon the conversion of or in exchange for, or pursuant
to the antidilution provisions of, shares of preferred stock or debt securities registered
hereunder.
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(2)
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In accordance with Rule 416(a) under the Securities Act, the registrant
is also registering hereunder an indeterminate number of securities that may be issued
and resold resulting from stock splits, stock dividends or similar transactions.
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(3)
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Omitted as to each class of securities to be registered pursuant
to Rule 457(o) under the Securities Act and General Instruction II.D of Form S-3.
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(4)
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Calculated pursuant to Rule 457(o) under the Securities Act at
a rate equal to $121.20 per $1,000,000 of the proposed maximum aggregate offering price.
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(5)
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The warrants covered by this registration statement may be common
stock warrants, preferred stock warrants or warrants to purchase debt securities.
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(6)
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Each unit may or may not be issued under a unit agreement and will
represent an interest in two or more other securities, which may or may not be separable
from one another.
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The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until 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. The selling security holders may not sell these securities until the Registration Statement filed with the
Securities and Exchange Commission, of which this prospectus is a part, is effective. This prospectus is not an offer to sell
these securities and the selling security holders are not soliciting offers to buy these securities in any state where the offer
or sale is not permitted.
SUBJECT TO COMPLETION,
DATED APRIL 9, 2019
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
We may offer and sell from time to time, in
one or more offerings, together or separately, any combination of the securities described in this prospectus, which we refer
to as the “securities.” The aggregate initial offering price of the securities will not exceed $100,000,000. This
prospectus describes some of the general terms that may apply to the securities and the general manner in which they may be offered.
We will describe the specific terms of the securities that we offer, and the specific manner in which they may be offered, in
one or more supplements to this prospectus at the time of each offering and sale.
We may offer the securities on a continuous
or delayed basis from time to time directly or through underwriters, dealers or agents, in one or more public or private transactions,
or through any other means described in the section of this prospectus titled “Plan of Distribution.” The securities
may be offered at fixed prices, at market prices prevailing at the time of sale, at prices related to prevailing market prices
or at negotiated prices. If any offering involves underwriters, dealers or agents, we will describe our arrangements with them
in the prospectus supplement that relates to that offering.
This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement. Before investing, you should carefully read this prospectus and any related prospectus
supplement.
Our common stock is listed on The NASDAQ Stock
Market under the symbol “APPS.” On April 8, 2019, the last reported sale price of our common stock on The NASDAQ Stock
Market was $3.85 per share.
Investing in our securities involves risks.
See the section entitled “Risk Factors” beginning on page 8 of this prospectus and in the documents we file with the
Securities and Exchange Commission that are incorporated by reference into this prospectus for certain risks and uncertainties
you should consider.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2019.
TABLE OF CONTENTS
You should rely only on the information contained
or incorporated by reference in this prospectus. We have not authorized anyone to provide you with additional or different information.
If anyone provides you with different or inconsistent information, you should not rely on it. You should assume that the information
in this prospectus is accurate only as of the date on the front of that document and that any information we have incorporated
by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of
this prospectus or any sale of a security. We do not imply or represent by delivering this prospectus that Digital Turbine, Inc.,
or its business, financial condition or operating results, are unchanged after the date on the front of this prospectus or that
the information in this prospectus is correct as of any time after such date.
This prospectus does not constitute an offer
to sell or the solicitation of an offer to buy any securities other than the securities that are described in this prospectus,
nor does this prospectus 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.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission, or “SEC,” using a “shelf” registration process.
By using a shelf registration statement, we may, from time to time, sell any or all of the securities described as being offered
by us in this prospectus in one or more offerings.
This prospectus provides you with a general
description of the securities we may offer. Each time we offer and sell any of these securities we will provide a prospectus supplement
that contains specific information about the terms of that offering. We may also prepare free writing prospectuses that describe
particular securities. Any free writing prospectus should also be read in connection with this prospectus and with any prospectus
supplement referred to therein. In this prospectus, any reference to an applicable prospectus supplement may also refer to a free
writing prospectus, unless the context otherwise requires.
A prospectus supplement may also add, update
or change information contained in this prospectus. If there is any inconsistency between the information contained in this prospectus
and a prospectus supplement, then you should rely on the information in that prospectus supplement. Before purchasing any of our
securities, you should carefully read both this prospectus and each applicable prospectus supplement, together with the additional
information described under the headings “Where You Can Find More Information” and “Incorporation of Certain
Information by Reference.”
The registration statement of which this prospectus
is a part, including exhibits to that registration statement, provides additional information about us and the securities offered
under this prospectus. The registration statement may be read at the SEC’s website at http://www.sec.gov or at the SEC’s
office mentioned under the heading “Where You Can Find More Information” below. Whenever a reference is made in this
prospectus or any prospectus supplement to a contract or other document, the reference is only a summary and you should refer
to the exhibits that are a part of the registration statement for a copy of the contract or other document.
Unless the context otherwise indicates, the
use of the terms “we,” “our,” “us,” “Digital Turbine,” “DT,” or the
“Company” refer to the collective business and operations of Digital Turbine, Inc. and its subsidiaries. Our principal
operating subsidiaries are: Digital Turbine USA, Inc. (“DT USA”), Digital Turbine (EMEA) Ltd. (“DT EMEA”),
Digital Turbine Australia Pty Ltd (“DT APAC”), Digital Turbine Singapore Pte. Ltd. (“DT Singapore”), Digital
Turbine Luxembourg S.a.r.l. (“DT Luxembourg”), Digital Turbine Germany, GmbH (“DT Germany”), and Digital
Turbine Media, Inc. (“DT Media”), which we acquired on March 6, 2015.
You should rely only on the information
contained or incorporated by reference in this prospectus. We have not authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent information, you should not rely on it.
You should assume that the information appearing
in this prospectus, as well as information we previously filed with the SEC and have incorporated by reference, is accurate as
of the date of the front cover of this prospectus only. Our business, financial condition, operating results and prospects may
have changed since that date. Neither the delivery of this prospectus nor any distribution of securities pursuant to this prospectus
shall, under any circumstances, create any implication that there has been no change in the information set forth or incorporated
by reference into this prospectus or in our affairs since the date of this prospectus.
This prospectus does not constitute an offer
to sell, or a solicitation of an offer to purchase, the securities offered by this prospectus, in any jurisdiction to or from
any person to whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction.
WHERE YOU CAN FIND
MORE INFORMATION
We file annual, quarterly, and current reports,
proxy statements and other information with the SEC. You may read and copy any documents we file at the SEC’s Public Reference
Room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about
the public reference room. The SEC also maintains an Internet web site that contains reports, proxy, and information statements
and other information regarding registrants like us that file electronically with the SEC. The address of the site is
www.sec.gov
.
Our Internet address is
www.digitalturbine.com
and our investor relations website is located at
http://ir.digitalturbine.com
. We make available free of charge, on
or through our investor relations website, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form
8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended, or the Exchange Act, as soon as reasonably practicable after we electronically file such material with, or furnish
it to, the SEC.
This prospectus constitutes part of a registration
statement we filed with the SEC under the Securities Act. Under the registration statement, we may offer and sell from time to
time in one or more offerings, together or separately, any combination of the securities described in this prospectus of up to
an aggregate initial offering price of $100,000,000. This prospectus does not contain all of the information set forth in the
registration statement, certain parts of which are omitted in accordance with the rules and regulations of the SEC. For further
information with respect to us and our securities, reference is hereby made to the registration statement. The registration statement
may be inspected at the public reference facilities maintained by the SEC at the addresses set forth above. Statements contained
herein concerning any document filed as an exhibit are not necessarily complete, and, in each instance, reference is made to the
copy of such document filed as an exhibit to the registration statement. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN
INFORMATION BY REFERENCE
The SEC allows us to “incorporate by
reference” information from other documents that we file with it, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus.
Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of
this prospectus, while information that we file later with the SEC will automatically update and supersede the information
in this prospectus. We incorporate by reference into this prospectus and the registration statement of which this prospectus is
a part the information or documents listed below that we have filed with the SEC (Commission File No. 001-35958) (other
than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules):
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Our Annual
Report on Form 10-K for the fiscal year ended March 31, 2018 filed with the SEC on June
12, 2018 (including information specifically incorporated by reference into our Annual
Report on Form 10-K from our Definitive Proxy Statement on Schedule 14A for our 2018
annual meeting of stockholders filed with the SEC on July 30, 2018);
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·
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Our Quarterly
Reports on Form 10-Q for the period ended June 30, 2018 filed with the SEC on August
9, 2018, for the period ended September 30, 2018 filed with the SEC on November 5, 2018
and for the period ended December 31, 2018 filed with the SEC on February 5, 2019;
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·
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Our Current
Reports on Form 8-K filed with the SEC on May 1, 2018, June 6, 2018, June 12, 2018, June
12, 2018 (amended Form 8-K), July 5, 2018, August 3, 2018, August 14, 2018, September
10, 2018, September 19, 2018, October 16, 2018 and December 18, 2018; and
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The description
of our common stock contained in our registration statement on Form 8-A filed with the
SEC on June 6, 2013 and any amendment or report filed with the SEC for the purpose of
updating the description.
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All reports and other documents we subsequently
file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, which refer to as the “Exchange
Act” in this prospectus, prior to the termination of this offering, including all such documents we may file with the SEC
after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding
any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and
deemed to be part of this prospectus from the date of the filing of such reports and documents.
We hereby undertake to provide without charge
to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon request, orally or in writing,
of any such person, a copy of any and all of the information that has been or may be incorporated by reference in this prospectus,
other than exhibits to such documents, unless such exhibits have been specifically incorporated by reference thereto. Requests
for such copies should be directed to Investor Relations as follows:
Digital Turbine, Inc.
111 Nueces Street
Austin, Texas 78701
(512) 387-7717
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated
by reference in it, contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended,
or the Securities Act, and Section 21E of the Exchange Act. These statements may be made directly in this document or
they may be made part of this document by reference to other documents filed with the SEC, which is known as “incorporation
by reference.” You can find many (but not all) of these statements by looking for words such as “approximates,”
“believes,” “expects,” “anticipates,” “estimates,” “intends,” “plans,”
“would,” “could,” “may” or other similar expressions in this prospectus or the documents incorporated
by reference. These forward-looking statements are subject to certain risks and uncertainties that could cause actual results
to differ materially from our historical experience and our present expectations or projections. Factors that could cause actual
results to differ from those discussed in the forward-looking statements include, but are not limited to:
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risks associated
with Ignite adoption among existing customers (including the impact of possible delays
with major carrier and OEM partners in the roll out for mobile phones deploying Ignite)
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actual mobile
device sales and sell-through where Ignite is deployed is out of our control
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risks associated
with new privacy laws, such as the European Union’s GDPR and similar laws which
may require changes to our development and user interface for certain functionality of
our Ignite product
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risks associated
with the timing of Ignite software pushes to the embedded bases of carrier and OEM partners
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risks associated
with end user take rates of carrier and OEM software pushes which include Ignite
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new customer
adoption and time to revenue with new carrier and OEM partners is subject to delays and
factors out of our control
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risks associated
with fluctuations in the number of Ignite slots across US carrier partners
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required customization
and technical integration which may slow down time to revenue notwithstanding the existence
of a distribution agreement
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risk that strong
Apple iPhone sales could result in a disproportionately low amount of Android sales
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risks associated
with delays in major mobile phone launches, or the failure of such launches to achieve
the scale
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customer adoption
preferences that either we or the market may not expect
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the difficulty
of extrapolating monthly demand to quarterly demand
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the challenges,
given the Company’s comparatively small size, to expand the combined Company's
global reach, accelerate growth and create a scalable, low-capex business model that
drives EBITDA (as well as Adjusted EBITDA)
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ability as
a smaller Company to manage international operations
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varying and
often unpredictable levels of orders
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the challenges inherent in technology development necessary
to maintain the Company's competitive advantage such as adherence to release schedules
and the costs and time required for finalization and gaining market acceptance of new
products
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changes in
economic conditions and market demand
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rapid and complex
changes occurring in the mobile marketplace
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pricing and
other activities by competitors
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derivative
and warrant liabilities on our balance sheet will fluctuate as our stock price moves
and will also produce changes in our income statement; these fluctuations and changes
might materially impact our reported GAAP financials in an adverse manner, particularly
if our stock price were to rise
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technology
management risk as the Company needs to adapt to complex specifications of different
carriers and the management of a complex technology platform given the Company's relatively
limited resources, and
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other risks
including those described from time to time in Digital Turbine's filings on Forms 10-K
and 10-Q with the Securities and Exchange Commission (SEC), press releases and other
communications.
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We caution investors that any forward-looking
statements presented in this prospectus or the documents incorporated by reference herein, or those which we may make orally or
in writing from time to time, are based on our beliefs and assumptions, as well as information currently available to us. We
have based these forward-looking statements largely on our current expectations and projections about future events and trends
that we believe may affect our financial condition, operating results, business strategy, short-term and long-term business operations
and objectives, and financial needs. The actual outcome will be affected by known and unknown risks, trends, uncertainties and
factors that are beyond our control or ability to predict. Although we believe that our assumptions are reasonable, they
are not guarantees of future performance and some may inevitably prove to be incorrect. As a result, our actual future results
can be expected to differ from our expectations, and those differences may be material. Accordingly, investors should use
caution in relying on past forward-looking statements, which are based on known results and trends at the time they are made,
to anticipate future results or trends.
This prospectus and all subsequent written
and oral forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety
by the cautionary statements contained or referred to in this section. We do not undertake any obligation to release publicly
any revisions to our forward-looking statements to reflect events or circumstances after the dates that such statements are made.
For more information on the uncertainty of
forward-looking statements, see the section entitled “Risk Factors” beginning on page 8 of this prospectus, and the
“Risk Factors” contained in our Annual Report on Form 10-K and, to the extent applicable, our Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K.
PROSPECTUS SUMMARY
This summary highlights information contained
throughout this prospectus or incorporated by reference into this prospectus. This summary does not contain all of the information
that should be considered before investing in our securities. Investors should read the entire prospectus carefully, including
the more detailed information regarding our business, the risks of purchasing our securities discussed in this prospectus under
“Risk Factors” beginning on page 8 of this prospectus and in the documents incorporated by reference into this prospectus,
including our financial statements.
Overview
Company Overview
Digital Turbine, through its subsidiaries,
innovates at the convergence of media and mobile communications, delivering end-to-end products and solutions for mobile operators,
application advertisers, device original equipment manufacturers ("OEMs"), and other third parties to enable them to
effectively monetize mobile content and generate higher-value user acquisition.
Our Operator and OEM ("O&O")
business, an advertiser solution for unique and exclusive carrier and OEM inventory, is comprised of services including:
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o
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Ignite™
("Ignite"), a mobile device management platform with targeted application distribution
capabilities, and
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o
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Other
professional services directly related to the Ignite platform.
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Ignite is a mobile application management software
that enables mobile operators and OEMs to control, manage, and monetize applications installed at the time of activation and over
the life of a mobile device. Ignite allows mobile operators to personalize the application activation experience for customers
and monetize their home screens via Cost-Per-Install or CPI arrangements, Cost-Per-Placement or CPP arrangements, and/or Cost-Per-Action
or CPA arrangements with third-party advertisers. There are several different delivery methods available to operators and OEMs
on first boot of the device: Wizard, Silent, or Software Development Kit ("SDK"). Optional notification features are
available throughout the life cycle of the device, providing operators additional opportunity for advertising revenue streams.
The Company has launched Ignite with mobile operators and OEMs in North America, Latin America, Europe, Asia-Pacific, India, and
Israel.
Disposition of the Content Reporting
Segment and A&P Business
On April 29, 2018, the Company entered into
two distinct disposition agreements with respect to selected assets owned by our subsidiaries.
DT APAC and DT Singapore (together, “Pay
Seller”), each wholly-owned subsidiaries of the Company, entered into an Asset Purchase Pay Agreement (the “Pay Agreement”),
dated April 23, 2018, with Chargewave Ptd Ltd (“Pay Purchaser”) to sell certain assets (the “Pay Assets”)
owned by the Pay Seller related to the Company’s Direct Carrier Billing business. The Pay Purchaser is principally owned
and controlled by Jon Mooney, an officer of the Pay Seller. At the closing of the asset sale, Mr. Mooney was no longer employed
by the Company or Pay Seller. As consideration for this asset sale, Digital Turbine is entitled to receive certain license fees,
profit-sharing, and equity participation rights as outlined in the Company’s Form 8-K filed May 1, 2018 with the SEC. The
transaction was completed on July 1, 2018 with an effective date of July 1, 2018. With the sale of these assets, the Company has
determined that it will exit the reporting segment of the business previously referred to as the Content business. Please see
Item 1, Consolidated Financial Statements, Note 4—
Discontinued Operations
in our Quarterly Report on Form 10-Q for
the quarter ended December 31, 2018, for an update regarding our rights and liabilities related to the Pay Agreement and related
transactions.
DT Media, a wholly-owned subsidiary of the
Company, entered into an Asset Purchase Agreement (the “A&P Agreement”), dated April 28, 2018, with Creative Clicks
B.V. (the “A&P Purchaser”) to sell business relationships with various advertisers and publishers (the “A&P
Assets”) related to the Company’s Advertising and Publishing business. As consideration for this asset sale, we are
entitled to receive a percentage of the gross profit derived from these customer agreements for a period of three years as outlined
in the Company’s Form 8-K filed May 1, 2018 with the SEC. The transaction was completed on June 28, 2018 with an effective
date of June 1, 2018. With the sale of these assets, the Company has determined that it will exit the operating segment of the
business previously referred to as the A&P business, which was previously part of the Advertising segment, the Company's sole
continuing reporting segment. Please see Item 1, Consolidated Financial Statements, Note 4—Discontinued Operations in our
Quarterly Report on Form 10-Q for the quarter ended December 31, 2018, for an update regarding our rights and liabilities related
to the A&P Agreement and related transactions.
These dispositions will allow the Company to
benefit from a streamlined business model, simplified operating structure, and enhanced management focus.
With global headquarters in Austin, Texas and
offices in Durham, North Carolina, Berlin, San Francisco Singapore and Tel Aviv, Digital Turbine’s solutions are available
worldwide.
Available Information
Our Annual Report on Form 10-K, Quarterly Reports
on Form 10-Q, Current Reports on Form 8-K and amendments to reports filed or furnished pursuant to Sections 13(a) and 15(d) of
the Exchange Act, are available free of charge on our website at
http://www.digitalturbine.com
generally when such reports
are available on the Securities and Exchange Commission (“SEC”) website. The contents of our website are not incorporated
into this prospectus.
The public may read and copy any materials
we file with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. The public may obtain
information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an internet
site that contains reports, proxy and information statements and other information regarding issuers that file electronically
with the SEC at
http://www.sec.gov
.
Corporate Information
Our principal executive offices are located
at 111 Nueces Street, Austin, TX 78701 and our telephone number at that address is (512) 387-7717. Our website address is
www.digitalturbine.com
.
We do not incorporate the information on our website into this prospectus, and you should not consider it part of this prospectus.
You can obtain additional information regarding our business by reading our Annual Report on Form 10-K for the year ended March
31, 2018, our Quarterly Report on Form 10-Q for the quarters ended June 30, 2018, September 30, 2018 and December 31, 2018,
and the other reports we file with the SEC. See “Where You Can Find More Information.”
Our common stock is listed on The NASDAQ Stock
Market under the symbol “APPS.”
RISK FACTORS
Investment
in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. You should carefully
consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly
Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this prospectus, and all other information contained
or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors
and other information contained in the applicable prospectus supplement and any applicable free writing prospectus before acquiring
any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered
securities.
USE OF PROCEEDS
Except as otherwise specified in the applicable
prospectus supplement, we will use the net proceeds from the sale of securities offered under this prospectus for general corporate
purposes. These purposes may include working capital, repaying, reducing or refinancing indebtedness, financing acquisitions of
other companies that we believe will add to and/or expand our service offerings, repurchasing or redeeming our securities, investments,
and capital expenditures.
The precise amounts and the timing of our use
of the net proceeds will depend upon market conditions, the availability of other funds and other factors. Until we use the net
proceeds from the sale of any of our securities for general corporate purposes, we may use the net proceeds of an offering to
reduce our short-term indebtedness or for temporary investments, or we may hold the net proceeds in deposit accounts we maintain
at one or more depository institutions. We will have significant discretion in the use of any net proceeds. Investors will be
relying on the judgment of our management regarding the application of the proceeds of any sale of the securities.
DILUTION
We will set forth in a prospectus supplement
the following information regarding any material dilution of the equity interests of investors purchasing securities in an offering
by us under this prospectus, if required at that time:
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the net tangible
book value per share of our equity securities before and after the offering;
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the amount
of the increase in such net tangible book value per share attributable to the cash payments
made by purchasers in the offering; and
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the amount
of immediate dilution from the public offering price which will be absorbed by such purchases.
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DESCRIPTION OF OUR
CAPITAL STOCK
The following is a description of our common
stock and preferred stock. For the complete terms of our common stock and preferred stock, please refer to our certificate of
incorporation, as amended, and our bylaws, as amended, which have been previously filed with the SEC, and are incorporated by
reference. The terms of these securities may also be affected by the General Corporation Law of the State of Delaware. The summary
below is qualified in its entirety by reference to our certificate of incorporation and our bylaws, as either may be amended from
time to time after the date of this prospectus.
Authorized Capitalization
We have 202,000,000 shares of capital stock
authorized under our certificate of incorporation, consisting of 200,000,000 shares of common stock, par value $0.0001 per share,
and 2,000,000 shares of preferred stock, of which 100,000 have been designated as Series A Convertible Preferred Stock, par
value $0.0001 per share, or Series A Preferred Stock. As of April 3, 2019, we had 81,856,514 shares of common stock outstanding
and 100,000 shares of our Series A Preferred Stock outstanding, which are currently convertible into 20,000 shares of common
stock. Our authorized shares of common stock and preferred stock are available for issuance without further action by our stockholders,
unless such action is required by applicable law or the rules of any stock exchange or automated quotation system on which our
securities may be listed or traded. If the approval of our stockholders is not so required, our board of directors may determine
not to seek stockholder approval.
Common Stock
Holders of our common stock are entitled to
such dividends as may be declared by our board of directors out of funds legally available for such purpose, subject to any preferential
dividend rights of any then outstanding preferred stock. The shares of common stock are neither redeemable nor convertible. Holders
of common stock are not entitled to preemptive or subscription rights to purchase any of our securities under our charter documents.
Each holder of our common stock is entitled
to one vote for each such share outstanding in the holder’s name. No holder of common stock is entitled to cumulate votes
in voting for directors.
In the event of our liquidation, dissolution
or winding up, the holders of our common stock are entitled to receive pro rata our assets that are legally available for distribution,
after payments of all debts and other liabilities and subject to the prior rights of any holders of preferred stock then outstanding.
All of the outstanding shares of our common stock are, and the shares of common stock issued upon the conversion of any securities
convertible into our common stock will be, fully paid and non-assessable.
Our common stock is listed on The NASDAQ Stock
Market under the symbol “APPS.” American Stock Transfer is the transfer agent and registrar for our common stock.
Its address is 6201 15th Avenue Brooklyn, NY 11219, and its telephone number is (800) 937-5449.
Preferred Stock
Our certificate of incorporation permits us
to issue up to 2,000,000 shares of preferred stock in one or more series and with rights and preferences that may be fixed or
designated by our board of directors without any further action by our stockholders.
Subject to the limitations prescribed in our
certificate of incorporation and under Delaware law, our certificate of incorporation authorizes the board of directors, from
time to time by resolution and without further stockholder action, to provide for the issuance of shares of preferred stock, in
one or more series, and to fix the designation, powers, preferences and other rights of the shares and to fix the qualifications,
limitations and restrictions thereof. Although our board of directors has no present intention to issue any additional preferred
stock, the issuance of preferred stock could adversely affect the rights of holders of our common stock, including with respect
to voting, dividends and liquidation, by issuing shares of preferred stock with certain voting, conversion and/or redemption rights.
Such issuance of preferred stock may have the effect of delaying, deferring or preventing a change of control.
Preferred stock could thus be issued quickly
with terms calculated to delay or prevent a change in control of our company or to make removal of management more difficult.
Additionally, the issuance of preferred stock may decrease the market price of our common stock. The number of authorized shares
of preferred stock may be increased or decreased, but not decreased below the number of shares then outstanding plus the number
of such shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any
other outstanding securities issued by us that are convertible into or exercisable into preferred stock, by the affirmative vote
of the holders of a majority of our common stock without a vote of the holders of preferred stock, or any series of preferred
stock, unless a vote of any such holder is required pursuant to the terms of such series of preferred stock.
Series A Convertible Preferred Stock
We currently have 100,000 shares of our Series
A Preferred Stock designated, and as of December 31, 2018, we had 100,000 shares of our Series A Preferred Stock outstanding.
While shares of our Series A Preferred Stock are outstanding, holders of the Series A Preferred Stock are entitled to receive
any dividends if and when declared by the Company’s board of directors on the Company’s common stock on an as-converted
basis.
The Series A Preferred Stock is convertible
at any time at the option of the holder into shares of our common stock based on dividing the original purchase price plus the
amount of any accumulated but unpaid dividends, by the conversion price then in effect (as may be adjusted).
The Series A Preferred Stock is entitled to
vote together with the common stock as a single class (on an as-converted to common stock basis) on any matters submitted to the
holders of the Company’s common stock, together with any other voting rights provided to the Series A Preferred under law
or the General Corporation Law of the State of Delaware.
The Series A Preferred Stock is entitled to
receive, prior and in preference to our common stock or any other class designated as junior to the Series A Preferred Stock,
upon liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, or in the event of its insolvency,
an amount per share equal to the greater of (i) $10.00 per share of Series A Preferred Stock (subject to certain adjustments)
or (ii) such amount per share as would have been payable had the Series A Preferred Stock been converted into our common
stock immediately prior to such liquidation, dissolution or winding up. Each holder of Series A Preferred Stock also has the right
to a cash-out election in the event of certain transactions, including a consolidation or merger of the Company (excluding a transaction
involving a reincorporation or a merger with a wholly-owned subsidiary), a sale of all or substantially all of the assets of the
Company, the issuance by the Company in a single or integrated transaction shares of common stock (or securities convertible into
common stock) representing a majority of the shares of common stock outstanding immediately following such issuance, or any other
form of acquisition where the Company is the target and a change of control occurs such that the acquirer has the power to elect
a majority of the Company’s board of directors.
Anti-Takeover Effects of Certain Provisions of Delaware Law
The following is a summary of certain provisions
of Delaware law. This summary does not purport to be complete and is qualified in its entirety by reference to the corporate law
of Delaware and our certificate of incorporation and bylaws.
Effect of Delaware Anti-Takeover Statute
.
We may be subject to Section 203 of the Delaware General Corporation Law, an anti-takeover law. In general, Section 203
prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three
years following the date that the stockholder became an interested stockholder, unless:
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prior to that
date, the board of directors of the corporation approved either the business combination
or the transaction that resulted in the stockholder becoming an interested stockholder;
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upon consummation
of the transaction that 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 for purposes of determining
the number of shares of voting stock outstanding (but not the voting stock owned by the
interested stockholder) those shares owned by persons who are directors and officers
and by excluding employee stock plans in which employee participants do not have the
right to determine whether shares held subject to the plan will be tendered in a tender
or exchange offer; or
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on or subsequent
to that date, the business combination is approved by the board of directors of the corporation
and authorized at an annual or special meeting of stockholders, and not by written consent,
by the affirmative vote of at least 66⅔% of the outstanding voting stock that is
not owned by the interested stockholder.
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Section 203 defines “business combination”
to include the following:
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any merger
or consolidation involving the corporation and the interested stockholder;
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any sale, transfer,
pledge or other disposition of 10% or more of the assets of the corporation involving
the interested stockholder;
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subject to
certain exceptions, any transaction that results in the issuance or transfer by the corporation
of any stock of the corporation to the interested stockholder;
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any transaction
involving the corporation that has the effect of increasing the proportionate share of
the stock of any class or series of the corporation beneficially owned by the interested
stockholder; or
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the receipt
by the interested stockholder of the benefit of any loans, advances, guarantees, pledges
or other financial benefits provided by or through the corporation.
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In general, Section 203 defines an interested
stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation, or who
beneficially owns 15% or more of the outstanding voting stock of the corporation at any time within a three-year period immediately
prior to the date of determining whether such person is an interested stockholder, and any entity or person affiliated with or
controlling or controlled by any of these entities or persons.
DESCRIPTION OF DEBT
SECURITIES
We may issue debt securities from time to time,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we
have summarized below will apply generally to any debt securities that 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 and in any related
free writing prospectus that we may authorize to be distributed to you. The terms of any debt securities offered under a prospectus
supplement may differ from the terms described below.
We refer to the indenture we would enter if
we issued new debt securities as the indenture. Unless the context requires otherwise, whenever we refer to the indenture, we
also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the debt securities under the
indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture
Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration statement
of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms (which terms
have not currently been determined and are not currently known) 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 summary below and that contained in any
prospectus supplement is qualified in its entirety by reference to all of the provisions of the indenture applicable to a particular
series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses
related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the terms
of the debt securities.
General
The indenture does not limit the amount of
debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize
and may be in any currency that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially
all of our assets contained in the indenture, the terms of the indenture will not contain any covenants or other provisions designed
to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving
us.
We may issue the debt securities issued under
the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount.
These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original
issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms
of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be
described in more detail in any applicable prospectus supplement.
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 of the
series of debt securities;
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any limit upon the
aggregate principal amount that may be issued;
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the maturity date
or dates;
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the form of the
debt securities of the series;
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the applicability
of any guarantees;
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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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whether the debt
securities rank as senior debt, senior subordinated debt, subordinated debt or any combination
thereof, and the terms of any subordination;
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if the price (expressed
as a percentage of the aggregate principal amount thereof) at which such debt securities
will be issued is a price other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of the maturity thereof,
or if applicable, the portion of the principal amount of such debt securities that is
convertible into another security or the method by which any such portion shall be determined;
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the interest rate
or rates, which may be fixed or variable, or the method for determining the rate and
the date interest will begin to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for determining such dates;
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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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if applicable, the
date or dates after which, or the period or periods during which, and the price or prices
at which, we may, at our option, redeem the series of debt securities pursuant to any
optional or provisional redemption provisions and the terms of those redemption provisions;
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the date or dates,
if any, on which, and the price or prices at which we are obligated, pursuant to any
mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the
holder’s option to purchase, the series of debt securities and the currency or
currency unit in which the debt securities are payable;
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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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any and all terms,
if applicable, relating to any auction or remarketing of the debt securities of that
series and any security for our obligations with respect to such debt securities and
any other terms which may be advisable in connection with the marketing of debt securities
of that series;
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whether the debt
securities of the series shall be issued in whole or in part in the form of a global
security or securities; the terms and conditions, if any, upon which such global security
or securities may be exchanged in whole or in part for other individual securities; and
the depositary for such global security or securities;
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if applicable, the
provisions relating to conversion or exchange of any debt securities of the series and
the terms and conditions upon which such debt securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated
and may be adjusted, any mandatory or optional (at our option or the holders’ option)
conversion or exchange features, the applicable conversion or exchange period and the
manner of settlement for any conversion or exchange;
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if other than the
full principal amount thereof, the portion of the principal amount of debt securities
of the series which shall be payable upon declaration of acceleration of the maturity
thereof;
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additions to or
changes in the covenants applicable to the particular debt securities being issued, including,
among others, the consolidation, merger or sale covenant;
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additions to or
changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest,
if any, with respect to such securities to be due and payable;
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additions to or
changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
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additions to or
changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or
changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture;
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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;
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whether interest
will be payable in cash or additional debt securities at our or the holders’ option
and the terms and conditions upon which the election may be made;
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the terms and conditions,
if any, upon which we will pay amounts in addition to the stated interest, premium, if
any and principal amounts of the debt securities of the series to any holder that is
not a “United States person” for federal tax purposes;
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any restrictions
on transfer, sale or assignment of the debt securities of the series; and
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any other specific
terms, preferences, rights or limitations of, or restrictions on, the debt securities,
any other additions or changes in the provisions of the indenture, and any terms that
may be required by us or advisable under applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in the prospectus supplement
the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities
or other property or assets. We will include provisions as to settlement upon conversion or exchange and whether conversion or
exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of
shares of our common stock or our other securities or units of other property or assets that the holders of the series of debt
securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However,
any successor to or acquirer of such assets must assume all of our obligations under the indenture or the debt securities, as
appropriate.
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 indenture with
respect to any series of debt securities that we may issue:
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if we fail to pay
any installment of interest on any series of debt securities, as and when the same shall
become due and payable, and such default continues for a period of 90 days; provided,
however, that a valid extension of an interest payment period by us in accordance with
the terms of any indenture supplemental thereto shall not constitute a default in the
payment of interest for this purpose;
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if we fail to pay
the principal of, or premium, if any, on any series of debt securities as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration
or otherwise, or in any payment required by any sinking or analogous fund established
with respect to such series; provided, however, that a valid extension of the maturity
of such debt securities in accordance with the terms of any indenture supplemental thereto
shall not constitute a default in the payment of principal or premium, if any;
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if we fail to observe
or perform any other covenant or agreement contained in the debt securities or the indenture,
other than a covenant specifically relating to another series of debt securities, and
our failure continues for 90 days after we receive written notice of such failure,
requiring the same to be remedied and stating that such is a notice of default thereunder,
from the trustee or holders of at least 25% in aggregate principal amount of the outstanding
debt securities of the applicable series; and
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if specified events
of bankruptcy, insolvency or reorganization occur.
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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 of, premium, if any,
and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs
with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall
be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series
and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of
default.
Subject to the terms of the indenture, if an
event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of
its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities,
unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding
debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that
series, provided that:
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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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A holder of the debt securities of any series
will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies
only if:
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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 written request, and such holders have offered reasonable indemnity to the
trustee to institute 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.
We will periodically file statements with the
trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture
without the consent of any holders with respect to specific matters:
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to cure any ambiguity,
defect or inconsistency in the indenture or in the debt securities of any series;
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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 provide for uncertificated
debt securities in addition to or in place of certificated debt securities;
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to add to our covenants,
restrictions, conditions or provisions such new covenants, restrictions, conditions or
provisions for the benefit of the holders of all or any series of debt securities, to
make the occurrence, or the occurrence and the continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an event of default or to
surrender any right or power conferred upon us in the indenture;
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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 make any change
that does not adversely affect the interests of any holder of debt securities of any
series in any material respect;
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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 above under “Description of Debt Securities—General”
to establish the form of any certifications required to be furnished pursuant to the
terms of the indenture or any series of debt securities, or to add to the rights of the
holders of any series of debt securities;
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to evidence and
provide for the acceptance of appointment under any indenture by a successor trustee;
or
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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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In addition, under the indenture, the rights
of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of a majority
in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes
only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed
maturity of any debt securities of any series;
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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 of any series 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 will provide that we can elect
to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
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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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pay principal of
and premium and interest on any 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 must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any,
and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations
of $1,000 and any integral multiple thereof. The indenture 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 DTC, or another depositary named by us and identified in a prospectus supplement with respect to that series. To the extent
the debt securities of a series are issued in global form and as book-entry, a description of terms relating thereto will be set
forth in the applicable prospectus supplement.
At the option of the holder, subject to the
terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series,
in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the
limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents
for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We will name in the applicable prospectus
supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for
any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent
or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer
agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of
any series, we will not be required to:
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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 will undertake to perform only those duties as are specifically set
forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as
a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under
no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it
is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person
in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal of and any premium and
interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless
we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series.
We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee
for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two
years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security
thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will
be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture
Act is applicable.
DESCRIPTION OF WARRANTS
In this section, we describe the general terms
and provisions of the warrants that we may offer. The applicable prospectus supplement will describe the specific terms of the
warrants offered through that prospectus supplement and any general terms outlined in this section that will not apply to those
warrants.
We have outstanding warrants related
to our previously outstanding 8.75% convertible notes, which we refer to as the investor warrants. The investor warrants were
issued under a warrant agreement, which we refer to either as the investor warrants agreement, the warrant agreement governing
the investor warrants, or the like. The discussion in this section regarding a new warrant agreement we would enter if we were
to issue new warrants (i.e., other than the investor warrants)
does not relate to the investor warrants or the investor warrant
agreement, nor does this prospectus relate in any way to the investor warrants
. We refer to the warrant agreement we would
enter if we issued new warrants as the warrant agreement (without the term “investor” attached).
We may issue warrants from time to time in
one or more series for the purchase of our common stock or preferred stock or warrants to purchase debt securities or any combination
of those securities. Warrants may be issued independently or together with any shares of common stock or shares of preferred stock
or offered by any prospectus supplement and may be attached to or separate from common stock or preferred stock. Each series of
warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent, or any other bank
or trust company specified in the applicable prospectus supplement. The warrant agent will act as our agent in connection with
the warrants and will not assume any obligation or relationship of agency or trust for or with any holders of warrants or beneficial
owners of warrants. The specific terms of a series of warrants will be described in the applicable prospectus supplement relating
to that series of warrants along with any general provisions applicable to that series of warrants.
Terms.
If we offer warrants, the prospectus supplement
will describe the terms of the warrants, including the following if applicable to the particular offering:
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the title of
the warrants;
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the total number
and offering price of warrants;
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the number
of shares of common stock or preferred stock purchasable upon exercise of the warrants
and the price at which such securities may be purchased upon exercise;
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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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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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the date on
and after which the warrants and related common stock or preferred stock will be separately
transferable;
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the date on
with the right to exercise the warrants will commence and the date on which this right
will expire;
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the minimum
and maximum about of the warrants which may be exercised at any one time;
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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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a discussion
of federal income tax, accounting and other special consideration, procedures and limitations
relating to the warrants; and
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any other terms
of the warrants including terms, procedures and limitations related to the exchange and
exercise of the warrants.
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Warrants may be exchanged for new warrants
of different denominations, may be presented for registration of transfer and may be exercised at the office of the warrant agent
or any other office indicated in the prospectus supplement. Before the exercise of their warrants, holders of warrants will not
have any of the rights of holders of shares of common stock or shares of preferred stock purchasable upon exercise, including
the right to receive payments of dividends, if any, on the shares common stock or preferred stock purchasable upon such exercise
or to exercise any applicable right to vote, and 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.
Exercise of Warrants.
Each
warrant will entitle the holder to purchase a number of shares of common stock or shares of preferred stock at an exercise price
as will in each case be set forth in, or calculable from, the prospectus supplement relating to those warrants. Warrants may be
exercised at the times set forth in the prospectus supplement relating to the warrants. After the close of business on the expiration
date (or any later date to which the expiration date may be extended by us), unexercised warrants will become void. Subject to
any restrictions and additional requirements that may be set forth in the prospectus supplement relating thereto, warrants may
be exercised by delivery to the warrant agent of the certificate evidencing the warrants properly completed and duly executed
and of payment as provided in the prospectus supplement of the amount required to purchase shares of common stock or shares of
preferred stock purchasable upon such exercise. The exercise price will be the price applicable on the date of payment in full,
as set forth in the prospectus supplement relating to the warrants. Upon receipt of the payment and the certificate representing
the warrants to be exercised properly completed and duly executed at the office of the warrant agent or any other office indicated
in the prospectus supplement, we will, as soon as practicable, issue and deliver the shares of common stock or shares of preferred
stock purchasable upon such exercise. If fewer than all of the warrants represented by that certificate are exercised, a new certificate
will be issued for the remaining amount of warrants.
The description in the applicable prospectus
supplement and other offering material of any warrants we offer will not necessarily be complete and will be qualified in its
entirety by reference to the applicable warrant agreement, which will be filed with the SEC if we offer warrants. For more information
on how you can obtain copies of the applicable warrant agreement if we offer warrants, see “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference.” We urge you to read the applicable warrant agreement and
the applicable prospectus supplement and any other offering material in their entirety.
DESCRIPTION OF UNITS
In this section, we describe the general terms
and provisions of the units that we may offer. The applicable prospectus supplement will describe the specific terms of the units
offered through that prospectus supplement and any general terms outlined in this section that will not apply to those units.
We may issue units under one or more unit agreements,
each referred to as a unit agreement, to be entered into between us and a bank or trust company, as unit agent. The unit agent
will act solely as our agent in connection with the units governed by the unit agreement and will not assume any obligation or
relationship of agency or trust for or with any holders of units or interests in those units. We may issue units comprising one
or more of the securities described in this prospectus in any combination. Each unit will be issued so that the holder of the
unit also is 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.
The applicable prospectus supplement relating
to the units we may offer will include specific terms relating to the offering, including, among others: the designation and terms
of the units and of the securities comprising the units, and whether and under what circumstances those securities may be held
or transferred separately; the offering price of the units; any provision for the issuance, payment, settlement, transfer or exchange
of the units or of the securities comprising those units; whether the units will be issued in fully registered or global form;
and a discussion of federal income tax, accounting and other special considerations, procedures and limitations relating to the
units.
The description in the applicable prospectus
supplement and other offering material of any units we offer will not necessarily be complete and will be qualified in its entirety
by reference to the applicable unit agreement and unit certificate, which will be filed with the SEC if we offer units. For more
information on how you can obtain copies of the applicable unit agreement and unit certificate if we offer units, see “Where
You Can Find More Information” and “Incorporation of Certain Information by Reference.” We urge you to read
the applicable unit certificate and the applicable prospectus supplement and any other offering material in their entirety.
PLAN OF DISTRIBUTION
We may sell the securities
to one or more underwriters for public offering and sale by them or may sell the securities to investors directly or through agents
or dealers, directly to one or more purchasers or through a combination of any of these methods of sale, or in any manner, as
provided in the applicable prospectus supplement. The securities that we distribute by any of these methods may be sold to the
public, in one or more transactions, at a fixed price or prices that may be changed, at market prices prevailing at the time of
sale, at prices related to prevailing market prices, or at negotiated prices. We will identify the specific plan of distribution,
including any underwriters, dealers, agents or direct purchasers and their compensation, in the applicable prospectus supplement.
Our common stock or
preferred stock may be issued upon conversion, exercise or exchange of our securities. We reserve the right to sell securities
directly to investors on their own behalf in those jurisdictions where they are authorized to do so.
If we sell securities
to a dealer acting as principal, the dealer may resell such securities at varying prices to be determined by such dealer in its
discretion at the time of resale without consulting with us and such resale prices may not be disclosed in the applicable prospectus
supplement.
Underwriters may offer
and sell the securities at a fixed price or prices that may be changed, at market prices prevailing at the time of sale, at prices
related to prevailing market prices, or at negotiated prices. We also may, from time to time, authorize broker-dealers, acting
as our agents, to offer and sell the securities upon the terms and conditions described in the related prospectus supplement.
Underwriters or agents may receive compensation from us in the form of discounts or commissions and may also receive commissions
from purchasers of the securities. Underwriters may sell the securities to or through dealers, and the dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters, agents and/or commissions, which may be changed from
time to time, from the purchasers.
Any underwritten offering
may be on a best efforts or a firm commitment basis. We may also offer securities through subscription rights distributed to our
stockholders on a pro rata basis, which may or may not be transferable. In any distribution of subscription rights to stockholders,
if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties
or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to sell the unsubscribed
securities to third parties.
Any underwriting compensation
we pay to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth in the related prospectus supplement. Dealers
and agents participating in the distribution of the securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions
under the applicable securities laws. Underwriters, dealers and agents may be entitled, under agreements entered into with us,
to indemnification against and contribution toward certain civil liabilities, including any liabilities under the applicable securities
laws. We will describe any indemnification agreement in the applicable prospectus supplement.
We may enter into
derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the
third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open
borrowings of stock. The third party in such sale transactions will be an underwriter and will be identified in the applicable
prospectus supplement or a post-effective amendment.
If indicated in the
applicable prospectus supplement, we may authorize underwriters or other persons acting as our agents to solicit offers by institutions
or other suitable purchasers to purchase the securities from us at the public offering price set forth in the prospectus supplement,
pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in the prospectus supplement.
These purchasers may include, among others, commercial and savings banks, insurance companies, pension funds, investment companies
and educational and charitable institutions. Delayed delivery contracts will be subject to the condition that the purchase of
the securities covered by the delayed delivery contracts will not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which the purchaser is subject. The underwriters and agents will not have any responsibility
with respect to the validity or performance of these contracts.
Unless otherwise indicated
in the applicable prospectus supplement, any securities issued under this prospectus will be new issues of securities with no
established trading market (other than the common stock, which is listed on the NASDAQ Stock Market). If the company sell any
shares of the common stock pursuant to a prospectus supplement, such shares will be listed on the NASDAQ Stock Market, subject
to official notice of issuance. We may elect to list any other securities issued hereunder on any exchange, but we are not obligated
to do so. Any underwriters or agents to or through whom we sell securities for public offering and sale may make a market in the
securities, but the underwriters or agents will not be obligated to do so and may discontinue any market making at any time without
notice. We do not know how liquid the trading market for any of our securities will be.
To facilitate the
offering of any offered securities, certain persons participating in the offering may engage in transactions that stabilize, maintain,
or otherwise affect the price of such offered securities. These transactions may include over-allotment, syndicate covering transactions
and stabilizing transactions. Over-allotment involves sales of securities in excess of the principal amount of securities to be
purchased by the underwriters in an offering, which creates a short position for the underwriters. Covering transactions involve
purchases of the securities in the open market after the distribution has been completed in order to cover short positions. Stabilizing
transactions consist of certain bids or purchases of securities made for the purpose of preventing or retarding a decline in the
market price of the securities while the offering is in progress. These transactions may also involve imposing penalty bids, whereby
selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased
in connection with stabilization transactions. Any of these activities may have the effect of preventing or retarding a decline
in the market price of the securities being offered. They may also cause the price of the securities being offered to be higher
than the price that otherwise would exist in the open market in the absence of these transactions. These transactions may be conducted
in the over-the-counter market or otherwise. These transactions may be discontinued at any time.
Certain of the
underwriters, dealers or agents and their associates may engage in transactions with, and perform services for, us and our affiliates
in the ordinary course of business for which they may receive customary fees and expenses.
LEGAL MATTERS
The validity of the securities registered hereunder
will be passed upon for us by Manatt, Phelps & Phillips, LLP, Los Angeles, California. Manatt, Phelps & Phillips, LLP
owns 254,763 shares of common stock of the Company.
EXPERTS
Our consolidated financial statements as of
March 31, 2017 and 2018, and for each of the three years in the period ended March 31, 2018 have been incorporated by reference
herein in reliance upon the reports of SingerLewak LLP, independent registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in accounting.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth various expenses
that will be incurred in connection with this offering as it relates to this Registration Statement. All the amounts shown are
estimates, except for the SEC registration fee.
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Amount
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SEC registration fee
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$
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12,120
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Accounting fees and expenses
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$
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*
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Legal fees and expenses
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$
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*
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Printing and miscellaneous fees and expenses
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$
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*
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Total
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$
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*
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* These fees are calculated based on the securities offered and
the number of issuances, and accordingly, cannot be estimated at this time. The applicable prospectus supplement will set forth
the estimated amount of expenses in connection with any offering of securities.
The expenses set forth above relate solely
to the preparation and filing of this registration statement. We may incur additional expenses in connection with any offering
of the securities registered hereunder.
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Item 15.
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Indemnification of Directors and Officers
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We are a Delaware corporation. Section 102(b)(7)
of the Delaware General Corporation Law permits a corporation to eliminate the personal liability of its directors or its stockholders
for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty,
failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend
or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our certificate
of incorporation provides that no director shall be personally liable to us or our stockholders for monetary damages for any breach
of fiduciary duty as director, notwithstanding any provision of law imposing such liability, except to the extent that the Delaware
General Corporation Law prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty. Section
145 of the Delaware General Corporation Law provides that a corporation has the power to indemnify a director, officer, employee
or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred
by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason
of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall
be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication
of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall deem proper. Section 145 of the Delaware Law provides
that the provisions are not exclusive of other indemnification that may be granted by a corporation’s charter, bylaws, disinterested
director vote, stockholders vote, agreement or otherwise. The limitation of liability contained in our certificate of incorporation,
as amended, and the indemnification provision included in our bylaws, as amended, are consistent with Delaware Law Sections 102(b)(7)
and 145. We have purchased directors and officers liability insurance.
Section 145 of the Delaware Law authorizes
courts to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently
broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act of 1933, as amended. Our certificate of incorporation, as amended, and our bylaws, as amended,
provide for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by the Delaware
Law. In addition, we enter into indemnification agreements with our officers and directors in the ordinary course.
See the Exhibit Index which is incorporated
herein by reference.
(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.
(5) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(B) Each prospectus required to
be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section
10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to
the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Provided
,
however
, that no statement made
in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior
to such effective date.
(6) That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus
or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other
free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
(iv) Any other communications that
is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering
thereof.
(h) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant has duly caused this Registration Statement on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Austin, State of Texas, on April 9, 2019.
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DIGITAL TURBINE, INC.
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By:
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/s/ William Stone
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William Stone
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Chief Executive Officer
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KNOW ALL PERSONS BY
THESE PRESENTS
, that each person whose signature appears below constitutes and appoints William Stone and Barrett Garrison,
and each of them, as true and lawful attorneys-in-fact and agents, with full powers of substitution and resubstitution, for them
and in their name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments
and any related registration statements thereto filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and otherwise)
to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the SEC, and generally to do all such things in their names and behalf in their capacities as officers and directors to enable
the Company to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the SEC, granting
unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do
in person, ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the
dates indicated.
Name and Signature
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Title
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Date
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/s/ William Stone
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Chief Executive Officer
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April 9, 2019
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William Stone
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(Principal Executive Officer)
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/s/ Barrett Garrison
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Chief Financial Officer
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April 9, 2019
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Barrett Garrison
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(Principal Financial Officer)
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/s/ David Wesch
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Principal Financial Officer
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April 9, 2019
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David Wesch
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(Principal Accounting Officer)
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/s/ Rob Deutschman
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Chairman of the Board
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April 9, 2019
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Rob Deutschman
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/s/ Paul Schaeffer
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Director
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April 9, 2019
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Paul Schaeffer
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/s/ Christopher Rogers
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Director
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April 9, 2019
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Christopher Rogers
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/s/ Mohan S. Gyani
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Director
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April 9, 2019
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Mohan S. Gyani
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/s/ Jeff Karish
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Director
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April 9, 2019
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Jeff Karish
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/s/ Roy Chestnut
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Director
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April 9, 2019
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Roy Chestnut
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EXHIBIT INDEX
Exhibit
No.
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Description
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1.1
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Form of Underwriting Agreement (*)
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3.1
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Certificate
of Incorporation, incorporated by reference to our Current Report on Form 8-K (File No. 000-10039), filed with the Commission
on November 14, 2007.
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3.2
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Certificate
of Merger merging Mediavest, Inc., a New Jersey corporation, with and into NeuMedia Media, Inc., a Delaware corporation, as
filed with the Secretary of State of the State of Delaware, incorporated by reference to our Current Report on Form 8-K (File
No. 000-10039), filed with the Commission on November 14, 2007.
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3.3
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Certificate
of Ownership merging Mandalay Digital Group, Inc. into Neumedia, Inc., dated February 2, 2012, incorporated by reference
to our Annual Report on Form 10-K (File No. 000-10039), filed with the Commission on June 29, 2012.
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3.4
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Certificate
of Amendment of Certificate of Incorporation, dated August 14, 2012, incorporated by reference to Appendix B of the Registrant’s
Definitive Information Statement on Schedule 14C (File No. 000-10039), filed with the Commission on July 10, 2012.
|
|
|
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3.5
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Certificate
of Amendment of Certificate of Incorporation, dated March 28, 2013, incorporated by reference to our Current Report on
Form 8-K (File No. 000-10039), filed with the Commission on April 18, 2013.
|
|
|
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3.6
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Certificate
of Correction of Certificate of Amendment, dated April 9, 2013, incorporated by reference to our Current Report on Form
8-K (File No. 000-10039), filed with the Commission on April 18, 2013.
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|
|
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3.7
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Certificate
of Amendment of Certificate of Incorporation, as amended, filed with the Secretary of State of the State of Delaware on January
13, 2015, incorporated by reference to our Current Report on Form 8-K (File No. 000-35958), filed with the Commission on January
16, 2015.
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|
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3.8
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Bylaws,
incorporated by reference to our Current Report on Form 8-K (File No. 000-10039), filed with the Commission on November 14,
2007.
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|
|
|
3.9
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Certificate
of Amendment of the Bylaws of NeuMedia, Inc., dated February 2, 2012, incorporated by reference to our Current Report
on Form 8-K (File No. 000-10039), filed with the Commission on February 7, 2012.
|
|
|
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3.10
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Certificate
of Amendment of the Bylaws dated March 6, 2015, incorporated by reference to our Current Report on Form 8-K (File No. 001-35958)
filed with the Commission on March 11, 2015.
|
|
|
|
3.11
|
|
Amendment
of Bylaws of Digital Turbine, Inc., adopted March 17, 2015, incorporated by reference to our Current Report on Form 8-K (File
No. 000-35958), filed with the Commission on March 20, 2015.
|
|
|
|
4.1
|
|
Form
of Warrant Relating to Equity Financing Binding Term Sheet, dated as of March 1, 2012, incorporated by reference to our Annual
Report on Form 10-K (File No. 000-10039), filed with the Commission on June 29, 2012.
|
|
|
|
4.2
|
|
Form
of Warrant Relating to Equity Financing Binding Term Sheets, dated as of March 5, 2012, incorporated by reference to our Annual
Report on Form 10-K (File No. 000-10039), filed with the Commission on June 29, 2012.
|
4.3
|
|
Indenture,
dated as of September 28, 2016, dated September 28, 2016, incorporated by reference to our Current Report on Form 8-K (File
No. 001-35958) filed with the Commission on September 29, 2016.
|
|
|
|
4.4
|
|
Supplemental
Indenture, dated January 12, 2017, incorporated by reference to our registration statement on Form S-1/A (File No. 333-214321)
filed January 23, 2017.
|
|
|
|
4.4.1
|
|
Second
Supplemental Indenture, dated May 23, 2017, incorporated by reference to our Current Report on Form 8-K (File No. 001-35958)
filed with the Commission on May 24, 2017.
|
|
|
|
4.5
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|
Form
of 8.75% Convertible Notes due 2020, included in the Indenture, dated as of September 28, 2016, dated September 28, 2016,
incorporated by reference to our Current Report on Form 8-K (File No. 001-35958) filed with the Commission on September 29,
2016.
|
|
|
|
4.6
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|
Warrant
Agreement, dated as of September 28, 2016, incorporated by reference to our Current Report on Form 8-K (File No. 001-35958)
filed with the Commission on September 29, 2016.
|
|
|
|
4.6.1
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|
First
Amendment to Warrant Agreement, dated May 23, 2017, incorporated by reference to our Current Report on Form 8-K (File No.
001-35958) filed with the Commission on May 24, 2017.
|
|
|
|
4.7
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|
Registration
Rights Agreement, dated as of September 28, 2016, incorporated by reference to our Current Report on Form 8-K (File No. 001-35958)
filed with the Commission on September 29, 2016.
|
|
|
|
4.8
|
|
Specimen
of Common Stock Certificate, incorporated by reference to our registration statement on Form S-1/A (File No. 333-214321) filed
December 23, 2016.
|
|
|
|
4.9
|
|
Specimen of Preferred Stock Certificate and Form of Certificate of Designation of
Preferred Stock (*)
|
|
|
|
4.10
|
|
Form of Debt Securities Indenture
|
|
|
|
4.11
|
|
Form of Common Stock Warrant (including Warrant Certificate) (*)
|
|
|
|
4.12
|
|
Form of Preferred Stock Warrant (including Warrant Certificate) (*)
|
|
|
|
4.13
|
|
Form of Debt Securities Warrant Agreement (including Warrant Certificate) (*)
|
|
|
|
4.14
|
|
Form of Stock Purchase Unit (*)
|
|
|
|
5.1
|
|
Opinion of Manatt, Phelps &
Phillips, LLP
|
|
|
|
21.1
|
|
Subsidiaries
|
|
|
|
23.1
|
|
Consent of SingerLewak LLP
|
|
|
|
23.2
|
|
Consent of Manatt, Phelps &
Phillips, LLP, is contained in Exhibit 5.1 to this Registration Statement.
|
|
|
|
24
|
|
Powers of Attorney is contained on the signature page.
|
|
|
|
25
|
|
Form
T-1 of U.S. Bank, N.A. (with respect to the indenture governing the convertible notes), incorporated by reference to our registration
statement on Form S-1/A (File No. 333-214321) filed October 28, 2016.
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|
|
|
25.1
|
|
Statement of Eligibility of Trustee under Debt Securities Indenture (**)
|
|
|
|
|
|
*To be filed by an amendment or as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference, if applicable.
|
|
|
|
|
|
** To be filed in accordance with the requirement of Section 305(b)(2) of the Trust Indenture
Act of 1933, if applicable.
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