As
filed with the Securities and Exchange Commission on June 21, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
PROPHASE
LABS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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23-2577138
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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711
Stewart Avenue, Suite 200
Garden
City, New York 11530
(215)
345-0919
(Address,
including zip code, and telephone number, including area
code,
of registrant’s principal executive offices)
Ted
Karkus
Chief
Executive Officer
ProPhase
Labs, Inc.
711
Stewart Avenue, Suite 200
Garden
City, New York 11530
(215)
345-0919
(Name,
address, including zip code, and telephone number, including area
code,
of agent for service)
Copies
to:
Herbert
Kozlov, Esq.
Wendy
Grasso, Esq.
Reed
Smith LLP
599
Lexington Avenue
New
York, NY 10022
(212)
521-5400
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined
by the registrant.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: [ ]
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box: [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [X]
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Smaller
reporting company [X]
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Emerging
growth company [ ]
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If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act.
CALCULATION
OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount to be Registered(1)
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Proposed Maximum Offering Price per Unit(2)
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Proposed Maximum Aggregate Offering Price(2)(3)
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Amount of Registration Fee(3)
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Common Stock, $0.0005 par value
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—
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—
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—
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—
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Preferred Stock, $0.0005 par value
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Units
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—
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—
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—
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—
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Total
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$
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75,000,000
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$
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8,183
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(4)
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(1)
There are being registered hereunder such indeterminate number of shares of common stock and preferred stock and such indeterminate number
of warrants and units as shall have an aggregate initial offering price not to exceed $75,000,000. Any securities registered hereunder
may be sold separately or as units with other securities registered hereunder. The securities registered also include such indeterminate
number of shares of common stock and preferred stock as may be issued upon conversion or exchange of convertible or exchangeable securities
being registered hereunder or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under
the Securities Act of 1933, as amended, the shares being registered hereunder include such indeterminate number of shares of common stock
as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
(2)
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection
with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant
to General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended.
(3)
Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended, based on the proposed maximum aggregate offering price.
(4)
On June 25, 2018, the registrant filed a shelf registration statement on Form S-3 (File No. 333-225875) (the “Prior S-3 Registration
Statement”) to register securities with an aggregate maximum offering price of $75,000,000, and paid a $9,337.50 registration fee
in connection therewith. An aggregate of $12,000,000 securities were not sold under the Prior S-3 Registration Statement. In accordance
with Rule 457(p) of the Securities Act of 1933, as amended, the registrant offsets the registration fee for this registration statement
on Form S-3 by $1,494 (the portion of the registration fee paid at the time of the filing of the Prior S-3 Registration Statement for
the securities that were never sold under the Prior S-3 Registration Statement). As a result of such offset, a registration fee of $6,689
is being paid herewith.
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
THE
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING
AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT
TO COMPLETION, DATED JUNE 21, 2021
PROSPECTUS
PROPHASE
LABS, INC.
$75,000,000
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
UNITS
This
prospectus will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering,
up to $75,000,000 in aggregate principal amount of our common stock, preferred stock, warrants and/or units in one or more offerings.
We may offer these securities separately or together in units.
This
prospectus describes the general terms of the securities we may offer and the general manner in which these securities will be offered.
We will provide you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements
will specify the securities being offered and also the specific manner in which the securities will be offered and may also supplement,
update or amend information contained in this document. You should read this prospectus and any prospectus supplement, as well as any
documents incorporated by reference into this prospectus or any prospectus supplement, carefully before you invest.
Our
securities may be sold directly by us to you, through agents designated from time to time or to or through underwriters or dealers. For
additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus
and in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities with respect to
which this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, commissions or discounts
and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds
that we expect to receive from such sale will also be set forth in a prospectus supplement.
Our
common stock is listed on the Nasdaq Capital Market, under the symbol “PRPH.” On June 18, 2021, the last reported
sale price of our common stock on the Nasdaq Capital Market was $5.66 per share.
Investing
in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully
the risks that we have described on page 2 of this prospectus under the caption “Risk Factors.” We may include specific risk
factors in supplements to this prospectus under the caption “Risk Factors.” This prospectus may not be used to sell our securities
unless accompanied by a prospectus supplement.
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 , 2021
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf”
registration process. Under this shelf registration process, we may offer shares of our common stock, preferred stock and/or warrants,
either individually or in units, in one or more offerings, with a total value of up to $75,000,000. This prospectus provides you with
a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will
provide a prospectus supplement that will contain specific information about the terms of that offering.
This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update
or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security
that is not registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable
prospectus supplements and the documents incorporated by reference into this prospectus, includes all material information relating to
the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the
information and documents incorporated herein by reference and the additional information under the heading “Where You Can Find
More Information” before making an investment decision.
You
should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus.
No dealer, salesperson or other person is authorized to give any information or to represent anything not contained or incorporated by
reference in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell
only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume
that the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and
that any information we have incorporated herein 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
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in the accompanying prospectus were made solely for the benefit of the parties to such agreement, including,
in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This
prospectus may not be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the extent
there are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference, the document
with the most recent date will control.
Unless
the context otherwise requires, “ProPhase,” “the Company,” “we,” “us,” “our”
and similar terms refer to ProPhase Labs, Inc.
PROSPECTUS
SUMMARY
The
following is a summary of what we believe to be the most important aspects of our business and the offering of our securities under this
prospectus. We urge you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated
financial statements and other information incorporated by reference from our other filings with the SEC or included in any applicable
prospectus supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus
supplements and in our most recent annual and quarterly filings with the SEC, as well as other information in this prospectus and any
prospectus supplements and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk
factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment
in our securities.
The
Company
We
are a diversified medical science and technology company with deep experience with over-the-counter (“OTC”) consumer healthcare
products and dietary supplements. We conduct our operations through two operating segments: diagnostic services and consumer products.
Until late fiscal year 2020, we were engaged primarily in the research, development, manufacture, distribution, marketing and sale of
OTC consumer healthcare products and dietary supplements in the United States. This includes the development and marketing of dietary
supplements under the TK Supplements® brand. However commencing in December 2020, we also began offering COVID-19 and
other Respiratory Pathogen Panel (“RPP”) molecular tests through our new diagnostic service business.
Our
wholly-owned subsidiary, Pharmaloz Manufacturing, Inc. (“PMI”), is a full-service contract manufacturer and private label
developer of a broad range of non-GMO, organic and natural-based cough drops and lozenges and OTC drug and dietary supplement products.
Our
wholly-owned subsidiary, ProPhase Diagnostics, Inc. (“ProPhase Diagnostics”), which was formed on October 9, 2020, offers
a variety of medical tests, including COVID-19 and RPP molecular tests. On October 23, 2020, we completed the acquisition of all of the
issued and outstanding shares of capital stock of Confucius Plaza Medical Laboratory Corp. (“CPM”), which operates a 4,000
square foot Clinical Laboratory Improvement Amendments (“CLIA”) accredited laboratory located in Old Bridge, New Jersey,
for approximately $2.5 million. As a result of the acquisition of CPM, we entered into a new business line, diagnostic services. In December
2020, we expanded our diagnostic service business with the signing of a lease and the recent build out of a second, larger CLIA accredited
laboratory in Garden City, New York. Operations at this second facility commenced in February 2021.
In
addition, we continue to actively pursue acquisition opportunities for other companies, technologies and products within and outside
the consumer products industry.
Contract
Manufacturing Services
PMI
provides consumer product development, pre-commercialization services, production, warehousing and distribution services for its customers.
Our manufacturing facility, which is located in Lebanon, Pennsylvania, is registered with the U.S. Food and Drug Administration (the
“FDA”) and is a certified organic and kosher.
TK
Supplements® Product Line
Our
TK Supplements® product line is dedicated to promoting better health, energy and sexual vitality. Each of our herbal supplements
is researched to determine the optimum blend of ingredients to ensure our customers receive premium quality products. To achieve this,
we formulate with the highest quality ingredients derived from nature and ingredients enhanced by science. Our TK Supplements®
product line includes Legendz XL®, a male sexual enhancement and Triple Edge XL®, an energy and stamina
booster.
In
Fiscal 2020, we extended our distribution of Legendz XL® to include more customer accounts including national chain drug
retailers, internet-based retailers and several regional retailers and leveraged our existing infrastructure and retail distribution
platform. We have produced and refined a television commercial and initiated television and digital media testing for Legendz XL®
for marketing to consumers. We have also completed a broad series of clinical studies that support important product claims that
we have incorporated into our product packaging and marketing communications for Legendz XL®.
We
also introduced Triple Edge XL® to a limited number of retail customers in Fiscal 2020 and have gained distribution with
one large national chain drug retailer.
Diagnostic
Services
ProPhase
Diagnostics offers a variety of important medical diagnostic testing services, including, among other, COVID-19 testing and RPP molecular
tests. We offer both nasal swab testing and saliva testing, and are a preferred lab for Spectrum Solutions, the manufacturer and supplier
of the first FDA EUA (Emergency Use Authorization) authorized saliva collection kit used for COVID-19 testing. We currently operate two
lab facilities including (i) our facility located in Old Bridge, New Jersey, acquired in October 2020, with capacity to process up to
10,000 COVID-19 tests per day and (ii) our facility located in Garden City, New York, which opened in January 2021, and commenced operations
in February 2021, with capacity to process up to 50,000 COVID-19 tests per day.
Corporate
Information
We
were initially organized in Nevada in July 1989. Effective June 18, 2015, we changed our state of incorporation from the State of Nevada
to the State of Delaware. Our principal executive offices are located at 711 Stewart Avenue, Suite 200, Garden City, New York 11530 and
our telephone number is 215-345-0919.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully consider the risks referenced below and described in the documents
incorporated by reference in this prospectus and any prospectus supplement, as well as other information we include or incorporate by
reference into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial
condition or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price
of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This
prospectus and the documents incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties.
Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including
the risks described in our period reports filed with the SEC, which are incorporated by reference in this prospectus.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, including the documents that we incorporate by reference, may contain 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 Securities Exchange Act of 1934, as amended,
or the Exchange Act.
Forward-looking
statements in this prospectus and any accompanying prospectus supplement give our current expectations or forecasts of future events.
You can identify these statements by the fact that they do not relate strictly to historical or current facts. You can find many (but
not all) of these statements by looking for words such as “approximates,” “believes,” “hopes,” “expects,”
“anticipates,” “estimates,” “projects,” “intends,” “plans,” “would,”
“should,” “could,” “may” or other similar expressions in this prospectus and any prospectus supplement.
In particular, forward-looking statements include statements relating to future actions, prospective products and applications, customers,
technologies, future performance or future financial results. 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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Our
dependence on our largest manufacturing customers;
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Our
ability to successfully offer, perform and generate revenues from our new diagnostic services;
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Our
ability to generate sufficient profits from RPP Molecular tests and other tests if and when demand for COVID-19 testing decreases
or becomes no longer necessary;
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Our
ability to secure additional capital, when needed to support our diagnostic services business and product development and commercialization
programs;
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Potential
disruptions to our supply chain or increases to the price of or adulteration of key raw materials or supplies;
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Potential
disruptions in our ability to manufacture our products and those of others;
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Seasonal
fluctuations in demand for the products we manufacture at our manufacturing facility;
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Our
ability to successfully develop and commercialize our existing products and any new products;
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Our
ability to compete effectively, including our ability to maintain and increase our markets and/or market share in the markets in
which we do business;
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Our
ability to attract, retain and motivate our key employees;
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Our
ability to protect our proprietary rights;
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Our
ability to comply with regulatory requirements applicable to our businesses; and
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Our
dependence on third parties to provide services critical to our lab diagnostic services business;
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Although
we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels
of activity, performance or achievements. The forward-looking statements are based upon management’s beliefs and assumptions and
are made as of the date of this prospectus. We undertake no obligation to publicly update or revise any forward-looking statements included
in this prospectus to conform such statements to actual results or changes in our expectations, except as otherwise required by law.
You should not place undue reliance on these forward-looking statements.
USE
OF PROCEEDS
We
cannot assure you that we will receive any proceeds in connection with securities that may be offered pursuant to this prospectus. Unless
otherwise indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this
prospectus for our operations and for other general corporate purposes, including, but not limited to, our internal research and development
programs, general working capital and possible future acquisitions. We have not determined the amounts we plan to spend on any of the
areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds,
if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending application of the net
proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing securities or
apply them to the reduction of short-term indebtedness.
DESCRIPTION
OF CAPITAL STOCK
General
Our
authorized capital stock consists of 51,000,000 shares, all with a par value of $0.0005 per share, 50,000,000 of which are designated
as common stock and 1,000,000 of which are designated as preferred stock.
The
following description of our capital stock and certain provisions of our Certificate of Incorporation and our Amended and Restated Bylaws,
or Bylaws, are summaries and are qualified by reference to our Certificate of Incorporation and our Bylaws.
As
of June 18, 2021, we had 15,154,253 shares of our common stock outstanding and zero shares of preferred stock outstanding. As of June
18, 2021, we also had outstanding options to acquire 4,397,750 shares of our common stock, having a weighted-average exercise price of
$3.05 per share, and warrants to purchase 905,000 shares of our common stock, having a weighted-average exercise price of $8.05 per share.
Common
Stock
The
holders of our common stock are entitled to one vote per share on all matters to be voted upon by the stockholders, except on matters
relating solely to terms of preferred stock. Subject to preferences that may be applicable to any outstanding preferred stock, the holders
of common stock will be entitled to receive ratably such dividends, if any, as may be declared from time to time by the board of directors
out of funds legally available therefor. In the event of our liquidation, dissolution or winding up, the holders of our common stock
will be entitled to share ratably in all assets remaining after payment of liabilities, subject to prior distribution rights of preferred
stock, if any, then outstanding. The holders of our common stock will have no preemptive or conversion rights or other subscription rights.
There will be no redemption or sinking fund provisions applicable to our common stock.
Preferred
Stock
Pursuant
to the terms of our Certificate of Incorporation, our board of directors has the authority to issue preferred stock in one or more series
and to fix the number of shares constituting such series and the designation of such series, the voting powers, if any, of the shares
of such series, and the preferences and relative participating, optional or other special rights, if any, and any qualifications, limitations
or restrictions thereof, of the shares of such series, without further vote or action by the stockholders. Although we have no present
plans to issue any shares of preferred stock, the issuance of shares of preferred stock, could decrease the amount of earnings and assets
available for distribution to the holders of common stock, could adversely affect the rights and powers, including voting rights, of
the common stock, and could have the effect of delaying, deterring or preventing a change of control of us or an unsolicited acquisition
proposal.
Anti-Takeover
Effects of Delaware Law and Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
The
provisions of Delaware law and our Certificate of Incorporation and Bylaws, could discourage or make it more difficult to accomplish
a proxy contest or other change in our management or the acquisition of control by a holder of a substantial amount of our voting stock.
It is possible that these provisions could make it more difficult to accomplish, or could deter, transactions that stockholders may otherwise
consider to be in their best interests or in our best interests. These provisions are intended to enhance the likelihood of continuity
and stability in the composition of our board of directors and in the policies formulated by the board of directors and to discourage
certain types of transactions that may involve an actual or threatened change of our control. These provisions are designed to reduce
our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may be used in proxy fights. Such provisions
also may have the effect of preventing changes in our management.
Delaware
Statutory Business Combinations Provision. We are subject to the anti-takeover provisions of Section 203 of the Delaware General
Corporation Law, or the DGCL. Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three years after the date of the transaction in which the person became
an interested stockholder, unless the business combination is, or the transaction in which the person became an interested stockholder
was, approved in a prescribed manner or another prescribed exception applies. For purposes of Section 203, a “business combination”
is defined broadly to include a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder,
and, subject to certain exceptions, an “interested stockholder” is a person who, together with his or her affiliates and
associates, owns, or within three years prior, did own, 15% or more of the corporation’s voting stock.
Blank-Check
Preferred Stock. Our board of directors is authorized to issue, without stockholder approval, preferred stock, the rights of which
will be determined at the discretion of the board of directors and that, if issued, could operate as a “poison pill” to dilute
the stock ownership of a potential hostile acquirer to prevent an acquisition that our board of directors does not approve.
Special
Meetings of Stockholders. Special meetings of the stockholders may be called at any time only by the Chairman of the board of directors
or the board of directors, subject to the rights of the holders of any series of preferred stock then outstanding.
No
Written Consent of Stockholders. Our Bylaws provide that all stockholder actions are required to be taken by a vote of the stockholders
at an annual or special meeting, and that stockholders may not take any action by written consent in lieu of a meeting.
Advance
Notice Provisions for Stockholder Proposals and Stockholder Nominations of Directors. Our Bylaws provide that, for nominations to
the board of directors or for other business to be properly brought by a stockholder before a meeting of stockholders, the stockholder
must first have given timely notice of the proposal in writing to our Secretary. For an annual meeting, a stockholder’s notice
generally must be delivered not less than 90 days or more than 120 days prior to the anniversary of the previous year’s annual
meeting.
Election
and Removal of Directors. Except as may otherwise be provided by the DGCL, any director or the entire board of directors may be removed,
with or without cause, at an annual meeting or a special meeting called for that purpose, by the affirmative vote of the holders of a
majority of the shares then entitled to vote at an election of directors. Vacancies on our board of directors resulting from the removal
of directors and newly created directorships resulting from any increase in the number of directors may be filled solely by the affirmative
vote of a majority of the remaining directors then in office. This system of electing and removing directors may discourage a third party
from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders
to replace a majority of our directors. Our Certificate of Incorporation and Bylaws do not provide for cumulative voting in the election
of directors.
Exclusive
Jurisdiction. Our Bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery
of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company,
(ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the
Company or the Company’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate
of Incorporation or the Bylaws, or (iv) any action asserting a claim against the Company governed by the internal affairs doctrine.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
Stock
Market Listing
Our
common stock is listed on The Nasdaq Capital Market under the symbol “PRPH.”
DESCRIPTION
OF WARRANTS
General
We
may issue warrants to purchase shares of our common stock and/or preferred stock. We may offer warrants separately or together with one
or more additional warrants, common stock, or preferred stock, or any combination of those securities in the form of units, as described
in the applicable prospectus supplement. Each series of warrants will be issued under a separate warrant agreement to be entered into
between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the certificates
relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with
any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and provisions
of the rights to which any prospectus supplement may relate. The particular terms of the warrant to which any prospectus supplement may
relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable
prospectus supplement. To the extent that any particular terms of the warrant, warrant agreement or warrant certificates described in
a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded
by that prospectus supplement. We encourage you to read the applicable warrant agreement and warrant certificate for additional information
before you decide whether to purchase any of our rights.
We
will provide in a prospectus supplement the following terms of the warrants being issued:
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the
specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the
currency or currency units in which the offering price, if any, and the exercise price are payable;
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the
designation, amount and terms of the securities purchasable upon exercise of the warrants;
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if
applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise
of the warrants;
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if
applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise,
and a description of that series of our preferred stock;
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the
date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;
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whether
the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security
included in that unit;
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any
applicable material U.S. federal income tax consequences;
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the
identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars
or other agents;
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the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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if
applicable, the date from and after which the warrants and the common stock and/or preferred stock will be separately transferable;
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information
with respect to book-entry procedures, if any;
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the
anti-dilution provisions of the warrants, if any;
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any
redemption or call provisions;
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whether
the warrants may be sold separately or with other securities as parts of units; and
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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Warrant
Agent
The
warrant agent for any warrants we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
The
following description, together with the additional information that we include in any applicable prospectus supplements summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more
detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms
described below.
We
will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series
of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of
the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus
supplements related to the particular series of units that we may offer under this prospectus, and the complete unit agreement and any
supplemental agreements that contain the terms of the units.
General
We
may issue units consisting of common stock, preferred stock and/or warrants for the purchase of common stock or preferred stock in one
or more series, in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included
in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each security included in the unit. The unit
agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately,
at any time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately;
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any
provisions of the governing unit agreement;
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the
price or prices at which such units will be issued;
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the
applicable United States federal income tax considerations relating to the units; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The
provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description
of Capital Stock” and “Description of Warrants” will apply to each unit, as applicable, and to any common stock, preferred
stock or warrant included in each unit, as applicable.
Unit
Agent
The
name and address of the unit agent for any units we offer will be set forth in the applicable prospectus supplement.
Issuance
in Series
We
may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit
agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
PLAN
OF DISTRIBUTION
General
Plan of Distribution
We
may offer securities under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block
trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents or (3) directly
to one or more purchasers, or through a combination of such methods. We may distribute the securities from time to time in one or more
transactions at:
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a
fixed price or prices, which may be changed from time to time;
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market
prices prevailing at the time of sale;
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prices
related to the prevailing market prices; or
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negotiated
prices.
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We
may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers
to purchase the securities from time to time. We will name in a prospectus supplement any underwriter or agent involved in the offer
or sale of the securities.
If
we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If
we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with
the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter
will use to make re-sales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of the
securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions.
The underwriter may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts,
concessions or commissions.
With
respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement
information regarding any 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. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, 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. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities
under the Securities Act, or to contribute to payments they may be required to make in respect thereof.
If
so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit
offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery
on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities
sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions
with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed
delivery contracts will not be subject to any conditions except that:
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the
purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which that institution is subject; and
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if
the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased
such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility
in respect of the validity or performance of delayed delivery contracts.
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Shares
of our common stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for listing and
trading on the Nasdaq Capital Market. The applicable prospectus supplement will contain information, where applicable, as to any other
listing, if any, on the Nasdaq Capital Market or any securities market or other securities exchange of the securities covered by the
prospectus supplement. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
In
order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve
the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would
cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In
addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in
the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed
if the securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
In
compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount
to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant
to this prospectus and any applicable prospectus supplement.
The
underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course of
their business.
LEGAL
MATTERS
Reed
Smith LLP, New York, New York, will pass upon the validity of the issuance of the securities to be offered by this prospectus.
EXPERTS
The
consolidated balance sheet of ProPhase Labs, Inc. and Subsidiaries as of December 31, 2020, and the related consolidated statements of
operations and other comprehensive income (loss), statements of changes in stockholders’ equity, and cash flows for the year ended
December 31, 2020, and the related notes, have been audited by Friedman LLP, independent registered public accounting firm, as stated
in their report, which is incorporated herein by reference. The consolidated balance sheet of ProPhase Labs, Inc. and Subsidiaries as
of December 31, 2019, and the related consolidated statements of operations and other comprehensive income (loss), stockholders’
equity, and cash flows for the year then ended December 31, 2019, and the related notes, have been audited by EisnerAmper LLP, independent
registered public accounting firm, as stated in their report which is incorporated herein by reference. Such financial statements have
been incorporated herein by reference in reliance on the report of such firm given upon their authority as experts in accounting and
auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a reporting company and file annual, quarterly and current reports, proxy statements and other information with the SEC. We have
filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities we are offering under
this prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to
the registration statement. For further information with respect to us and the securities offered under this prospectus, we refer you
to the registration statement and the exhibits filed as a part of the registration statement. The SEC maintains an Internet site that
contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including
ProPhase Labs, Inc. The SEC’s Internet site can be found at www.sec.gov. We maintain a website at www.prophaselabs.com.
Information found on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should
not consider it part of this prospectus.
INCORPORATION
OF INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other documents. The information incorporated by reference is an important part
of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus
omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement
and any prospectus supplement filed hereafter, including the exhibits, for further information about us and the securities we may offer
pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated
by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference.
Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained
upon payment of the prescribed rates at the offices of the SEC listed above in “Where You Can Find More Information.” The
documents we are incorporating by reference are:
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2020 filed on March 31, 2021;
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021, filed on May 14, 2021;
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our
Current Reports on Form 8-K filed on January 7, 2021, January 15, 2021, January 20, 2021, May 13, 2021, May 21, 2021, and June 15, 2021; and
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the
description of the Company’s Common Stock filed as Exhibit 4.3 to the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2019, filed with the Commission on March 26, 2020.
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In
addition, all documents that the Company files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the
filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the date of filing of such documents, except as to any document or portion of
any document that is deemed furnished and not filed.
Pursuant
to Rule 412 under the Securities Act, any statement contained in the documents incorporated or deemed to be incorporated by reference
in this Registration Statement shall be deemed to be modified, superseded or replaced for purposes of this Registration Statement to
the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated
by reference in this Registration Statement modifies, supersedes or replaces such statement. Any such statement so modified, superseded
or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a part of this Registration Statement.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and distribution
of the securities being registered. All of the amounts shown are estimated except the SEC Registration Fee.
SEC Registration Fee
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$
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6,689
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Legal Fees and Expenses
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*
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Accounting Fees and Expenses
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*
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Miscellaneous
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*
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Total
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$
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*
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*
These fees will be dependent on the type of securities offered and number of offerings and, therefore, cannot be estimated at this
time. In accordance with Rule 430B under the Securities Act, additional information regarding estimated fees and expenses will be provided
at the time information as to an offering is included in a prospectus supplement.
Item
15. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law permits a corporation to indemnify any director, officer, employee or agent of the corporation,
or person serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any action, suit or proceeding brought against such person, if such person acted
in good faith and in a manner that the person reasonably believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful.
In a derivative action, (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses
actually and reasonably incurred by the person in connection with the defense or settlement of such an action or suit if such person
acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the court in which the action or suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
The
Registrant’s certificate of incorporation and amended and restated bylaws provide that the Registrant shall indemnify, to the fullest
extent permitted by the Delaware General Corporation Law, as the same may be amended or supplemented from time to time, any and all past,
present and future directors and officers of the Registrant, and any other persons to which the Delaware General Corporation Law permits
the Registrant to provide indemnification (“Indemnified Persons”), from and against any and all costs, expenses (including
attorneys’ fees), damages, judgments, penalties, fines, punitive damages, excise taxes assessed with respect to an employee benefit
plan and amounts paid in settlement in connection with any action, suit or proceeding in which the director or officer may be involved
as a party or otherwise, by reason of the fact that such person was serving as a director, officer, employee or agent of the Registrant,
including service with respect to an employee benefit plan.
The
Registrant’s amended and restated bylaws provide that the right to indemnification shall include the right to be paid by the Registrant
the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer
(and not in any capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the Registrant of an undertaking, by or on behalf of such Indemnified Person, to repay
all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal
that such indemnitee is not entitled to be indemnified for such expenses under the bylaws or otherwise. Under the terms of the amended
and restated bylaws, if the Registrant does not pay a proper claim for indemnification in full within 60 days after receiving a written
claim for such indemnification, except in the case of a claim for an advancement of expenses, in which case the applicable period shall
be 20 days, the claimant may bring an action against the Company to recover the unpaid amount of the claim.
Pursuant
to Section 102(b)(7) of the Delaware General Corporation Law, the Company’s certificate of incorporation eliminates the liability
of a director to the Company or its stockholders for monetary damages for a breach of fiduciary duty as a director, except for liabilities
arising:
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from
any breach of the director’s duty of loyalty to the Company or its stockholders;
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from
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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under
Section 174 of the Delaware General Corporation Law; or
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from
any transaction from which the director derived an improper personal benefit.
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The
Company has also entered into substantially identical indemnity agreements with each member of the Board of Directors and Mr. Ted Karkus,
the Company’s Chairman and Chief Executive Officer. These agreements provide, among other things, that we will indemnify each director
and Mr. Karkus in the event that they become a party or otherwise a participant in any action or proceeding on account of their service
as a director or officer of the Company (or service for another corporation or entity in any capacity at the request of the Company)
to the fullest extent permitted by applicable law. Under the indemnity agreement, we will pay, in advance of the final disposition of
any such action or proceeding, expenses (including attorneys’ fees) incurred by our directors or officers in defending or otherwise
responding to such action or proceeding upon receipt of a written undertaking from the directors or officers to repay the amount advanced
consistent with applicable law in the event that a court shall ultimately determine that he or she is not entitled to be indemnified
for such expenses. The contractual rights to indemnification provided by the indemnity agreements are subject to the limitations and
conditions specified in the agreements, and are in addition to any other rights each director and officer may have under our amended
and restated bylaws, each as amended from time to time, and applicable law.
Directors
and officers of the Company are also covered by directors’ and officers’ liability insurance under which they are insured
(subject to certain exceptions and limitations specified in the policy) against expenses and liabilities arising out of proceedings to
which they are parties by reason of being or having been directors or officers. Under these policies, the insurer, on the Company’s
behalf, may also pay amounts for which the Company has granted indemnification to the directors or officers.
Item
16. Exhibits
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Exhibit
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Description
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1.1*
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Form
of Underwriting Agreement
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2.1†+
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Asset Purchase Agreement, dated January 6, 2017, by and between ProPhase Labs, Inc., Meda Consumer Healthcare Inc. and Mylan Inc., as Buyer Guarantor (incorporated by reference to Exhibit 2.1 of Form 8-K (File No. 000-21617) filed on March 29, 2017).
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2.2†+
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Manufacturing Agreement, dated March 29, 2017, by and between Meda Consumer Healthcare Inc., Pharmaloz Manufacturing, Inc. and Prophase Labs, Inc. (incorporated by reference to Exhibit 2.2 of Form 8-K (File No. 000-21617) filed on March 29, 2017).
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4.1
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Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.1 of Form 10-KSB/A (File No. 000-21617) filed on April 4, 1997).
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4.2
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Description of Common Stock (incorporated by reference to Exhibit 4.3 of the Annual Report on Form 10-K (File No. 000-21617) filed on March 26, 2020).
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4.3*
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Certificate
of designation, preferences and rights with respect to any preferred stock issued hereunder
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4.4*
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Form
of Warrant Agreement and Warrant Certificate
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4.5*
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Form
of Unit Agreement and Unit
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5.1
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Opinion of Reed Smith LLP with respect to the legality of the securities being registered
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23.1
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Consent of Friedman LLP, Independent Registered Public Accounting Firm
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23.2
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Consent of EisnerAmper LLP, Independent Registered Public Accounting Firm
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23.3
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Consent of Reed Smith LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (included on applicable signature pages)
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*
To be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.
†
Confidential treatment granted as to portions of the exhibit. Confidential materials omitted and filed separately with the Securities
and Exchange Commission.
+
Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally
a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request.
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% 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;
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
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
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person
of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act, or the Act, in accordance with the rules and regulations prescribed
by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, thereto duly authorized, in the Garden City, State of New York, on June 21, 2021.
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PROPHASE
LABS, INC.
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By:
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/s/
Ted Karkus
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Ted
Karkus, Chairman of the Board, Chief Executive Officer and Director
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS that each of the undersigned directors and officers of ProPhase Labs, Inc. hereby appoints Ted Karkus and Monica
Brady, and each of them acting singly, as his or her true and lawful attorney-in-fact and agent, for him or her and in his or her name,
place and stead, with full power to act alone, to sign on his or her behalf and in the capacity set forth below, any and all amendments
and post-effective amendments and supplements to this Registration Statement on Form S-3 and to file each such amendment and post-effective
amendment and supplements to this Registration Statement, with all exhibits thereto, and any and all other documents in connection therewith,
with the Securities and Exchange Commission, hereby granting unto said attorney-in-fact and agent full power and authority to do and
perform any and all acts and things requisite and necessary or appropriate to be done in and about the premises as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent 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 by the following persons in
the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/
Ted Karkus
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Chairman
of the Board and Chief Executive Officer (Principal
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June
21, 2021
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Ted
Karkus
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Executive
Officer)
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/s/
Monica Brady
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Chief
Financial Officer
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June
21, 2021
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Monica
Brady
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(Principal
Financial Officer and Principal Accounting Officer)
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/s/
Jason Barr
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Director
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June 21, 2021
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Jason
Barr
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/s/
Louis Gleckel
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Director
|
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June
21, 2021
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Louis
Gleckel
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|
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/s/
Warren Hirsch
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Director
|
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June
21, 2021
|
Warren
Hirsch
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