Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-252196
The
information in this preliminary prospectus supplement and the accompanying prospectus, relating to an effective registration statement
under the Securities Act of 1933, as amended, is not complete and may be changed. This preliminary prospectus supplement and the accompanying
prospectus are not an offer to sell these securities and we are not soliciting an offer to buy these securities in any jurisdiction where
the offer or sale is not permitted.
| PRELIMINARY
PROSPECTUS SUPPLEMENT |
Subject
to Completion |
Dated
November 30, 2023 |
(to
Prospectus dated January 28, 2021)
Shares
of Common Stock
Pre-Funded
Warrants
Polar
Power, Inc.
We
are offering shares of our common stock, par value $0.0001 per share. The purchase price for each share is $ .
We
are also offering pre-funded warrants (each a “Pre-funded Warrant”) to purchase shares of our common stock, exercisable at
an exercise price of $0.0001 per share, to those purchasers whose purchase of common stock in this offering would otherwise result in
the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of
the purchaser, 9.99%) of our outstanding common stock immediately following the consummation of this offering. The purchase price of
each Pre-funded Warrant is equal to the price per share of common stock being sold to the public in this offering, minus $0.0001. The
Pre-funded Warrants will be immediately exercisable and may be exercised at any time until all of the Pre-funded Warrants are exercised
in full.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “POLA.” On November 29, 2023, the last reported
sale price of our common stock on The Nasdaq Capital Market was $0.80 per share. There is no established trading market for
the Pre-funded Warrants and we do not intend to list the Pre-funded Warrants on any securities exchange or nationally recognized trading
system.
As
of the date of this prospectus supplement, the aggregate market value of our outstanding common stock held by non-affiliates, or our
public float, was approximately $ based on outstanding shares of common stock held by non-affiliates and a per share price of , the
closing price of our common stock on , which is the highest closing sale price of our common stock on The Nasdaq Capital Market
within the prior 60 days. During the
12-calendar month period that ends on, and includes, the date of this prospectus supplement (but excluding this offering), we have
not offered and sold any of our securities pursuant to General Instruction I.B.6 of Form S-3.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page S-3 of this prospectus supplement
and the documents incorporated by reference into this prospectus supplement for a discussion of information that you should consider
in connection with an investment in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
| | |
Per Share | | |
Per Pre-Funded Warrant | | |
Total | |
| Public offering price | |
$ | | | |
$ | | | |
$ | | |
| Underwriting discounts and commissions (1) | |
$ | | | |
$ | | | |
$ | | |
| Proceeds to us, before expenses | |
$ | | | |
$ | | | |
$ | | |
| (1) |
We
refer you to “Underwriting” beginning on page S-10 of this prospectus supplement for additional information regarding
underwriters’ compensation. |
We
have granted a 45-day option to the representative of the underwriters to purchase up to additional shares of common stock (and/or Pre-funded
Warrants in lieu thereof) solely to cover over-allotments, if any.
The
underwriters expect to deliver the shares to purchasers on or about , 2023.
ThinkEquity
The
date of this prospectus supplement is , 2023.
TABLE
OF CONTENTS
PROSPECTUS
SUPPLEMENT
PROSPECTUS
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
prospectus supplement relates to the offering of our common stock and Pre-funded Warrants. Before buying any of the common stock or Pre-funded
Warrants that we are offering, you should carefully read the accompanying base prospectus, this prospectus supplement, any supplement
to this prospectus supplement, the information and documents incorporated herein by reference and the additional information under the
heading “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference.”
These documents contain important information that you should consider when making your investment decision.
We
provide information to you about this offering of our common stock and Pre-funded Warrants in two separate documents that are bound together:
(i) this prospectus supplement, which describes the specific details regarding this offering; and (ii) the accompanying base prospectus,
which provides general information, some of which may not apply to this offering. Generally, when we refer to this “prospectus,”
we are referring to both documents combined. If information in this prospectus supplement is inconsistent with the accompanying base
prospectus, you should rely on this prospectus supplement. To the extent there is a conflict between the information contained in this
prospectus supplement, on the one hand, and the information contained in any document incorporated by reference in this prospectus supplement,
on the other hand, you should rely on the information in this prospectus supplement. If any statement in one of these documents is inconsistent
with a statement in another document having a later date—for example, a document incorporated by reference into this prospectus
supplement—the statement in the document having the later date modifies or supersedes the earlier statement.
You
should rely only on this prospectus supplement and the information incorporated or deemed to be incorporated by reference in this prospectus
supplement or in any free writing prospectuses we provide you. We have not, and the underwriters have not, authorized anyone to provide
you with information that is in addition to, or different from, that contained or incorporated by reference in this prospectus supplement.
If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and the underwriters are not,
offering to sell securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information
contained or incorporated by reference in this prospectus supplement is accurate as of any date other than as of the date of this prospectus
supplement or in the case of the documents incorporated by reference, the date of such documents regardless of the time of delivery of
this prospectus supplement or any sale of our common stock and Pre-funded Warrants. Our business, financial condition, liquidity, results
of operations, and prospects may have changed since those dates.
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 herein 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 supplement and the accompanying prospectus contain summaries of certain provisions contained in some of the documents described
herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety
by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated herein
by reference as exhibits to the registration statement, and you may obtain copies of those documents as described below in the section
entitled “Where You Can Find More Information.”
This
prospectus supplement and the accompanying prospectus contain and incorporate by reference market data and industry statistics and forecasts
that are based on independent industry publications and other publicly-available information. Although we believe these sources are reliable,
we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. Although
we are not aware of any misstatements regarding the market and industry data presented in this prospectus supplement, accompanying prospectus
or the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change based on
various factors, including those discussed in the section entitled “Risk Factors” in this prospectus supplement and the accompanying
prospectus, and under similar headings in the other documents that are incorporated herein by reference. Accordingly, investors should
not place undue reliance on this information.
When
used in this prospectus supplement, the terms “Polar Power,” “we,” “our” and “us” refer
to Polar Power, Inc., unless otherwise specified.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus supplement, the base prospectus and the documents incorporated by reference into this prospectus supplement and the base prospectus
contain “forward-looking statements” and are intended to be covered by the safe harbor provided for under 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. These forward-looking statements involve substantial risks and uncertainties. All statements, other than statements
of historical facts, included in this prospectus supplement regarding our strategy, future events, future operations, future financial
position, future revenue, projected costs, prospects, plans, objectives of management and expected market growth, among others, are forward-looking
statements. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,”
“may,” “might,” “plan,” “predict,” “project,” “would,” “will,”
“should,” “could,” “objective,” “target,” “ongoing,” “contemplate,”
“potential” or “continue” or the negative of these terms and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain these identifying words.
We
may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place
undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations
disclosed in our forward-looking statements. We have included important factors in the cautionary statements included in this prospectus
supplement, particularly in the “Risk Factors” section, which could cause actual results or events to differ materially from
such forward-looking statements. Any forward-looking statement speaks only as of the date on which it is made, and we do not undertake
any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as
required by law.
PROSPECTUS
SUPPLEMENT SUMMARY
The
information below is a summary of the more detailed information included elsewhere in or incorporated by reference into this prospectus
supplement. Because this is only a summary, however, it does not contain all of the information that may be important to you. You should
carefully read this prospectus supplement and the accompanying base prospectus, including the documents incorporated by reference, which
are described under “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference”
in this prospectus supplement. You should also carefully consider the matters discussed in the section in this prospectus supplement
entitled “Risk Factors.”
When
used herein, unless the context requires otherwise, references to the “Company,” “we,” “our” and
“us” refer to Polar Power, Inc., a Delaware corporation, unless otherwise indicated or required by the context.
Our
Business
Overview
We
design, manufacture and sell DC power generators, renewable energy and cooling systems for applications primarily in the telecommunications
market and, to a lesser extent, in other markets, including military, electric vehicle, marine and industrial. We are continuously diversifying
our customer base and are selling our products into non-telecommunication markets and applications at an increasing rate.
Within
the various markets we service, our DC power systems provide reliable and low-cost DC power to service applications that do not have
access to the utility grid (i.e., prime power and mobile applications) or have critical power needs and cannot be without power in the
event of utility grid failure (i.e., back-up power applications).
It’s
more efficient to build power systems around the DC generator because it’s simpler to integrate with battery storage and solar
photovoltaics which also operate on DC. Many applications in communications, water pumping, lighting, vehicle and vessel propulsion,
security systems operate on DC power only. Many micro-grids and energy storage are DC based and use inverters to convert the DC to AC.
Serving
these various markets, we offer the following configurations of our DC power systems, with output power ranging from 5 kW to 50 kW:
| |
● |
Base
power systems. These stationary systems integrate a DC generator and automated controls with remote monitoring, which are
typically contained within an environmentally regulated enclosure. |
| |
|
|
| |
● |
Hybrid
power systems. These systems incorporate lithium-ion batteries (or other advanced battery chemistries) with our proprietary
battery management system into our standard DC power systems. |
| |
|
|
| |
● |
DC
solar hybrid power systems. These stationary systems incorporate photovoltaic and
other sources of renewable energy into our DC hybrid power systems.
Mobile
power systems. These are very light weight and compact power systems used for EV charging, robotics, communications, security. |
Our
DC power systems are available in diesel, natural gas, LPG / propane and renewable formats, with diesel, natural gas and propane gas
being the predominate formats.
Corporate
Information
We
were incorporated in 1979 in the State of Washington as Polar Products, Inc., and in 1991 we reincorporated in the State of California
as Polar Power, Inc. In December 2016, we reincorporated in the State of Delaware. Our principal executive offices are located at 249
E. Gardena Blvd., Gardena, California 90248. Our telephone number is (310) 830-9153 and our Internet website is www.polarpower.com.
The
Offering
| Common
stock offered by us |
|
shares. |
| |
|
|
| Pre-funded
Warrants offered by us |
|
Pre-funded
Warrants to purchase up to shares of common stock. Each Pre-funded Warrant entitles the holder
to purchase one share of common stock at an exercise price of $0.0001 per share. The purchase
price of each Pre-funded Warrant is equal to the price per share of common stock being sold
to the public in this offering minus $0.0001. The Pre-funded Warrants will be immediately
exercisable and may be exercised at any time until exercised in full.
This
prospectus also relates to the offering of common stock issuable upon exercise of the Pre-funded Warrants. |
| |
|
|
| Public
offering price |
|
$
per share of common stock ($ per Pre-funded Warrant). |
| |
|
|
| Underwriter’s
over-allotment option |
|
We
have granted a 45-day option to the underwriters, exercisable one or more times in whole or in part, to purchase up to an additional
shares of common stock and/or up to an additional Pre-funded Warrants, representing 15% of the shares of common stock and/or Pre-funded
Warrants sold in the offering, in each case, solely to cover over-allotments, if any. |
| |
|
|
| Common
stock outstanding immediately prior to this offering |
|
12,961,612
shares. |
| |
|
|
| Common
stock to be outstanding immediately after this offering |
|
shares,
assuming the full exercise of the Pre-funded Warrants (or shares if the underwriters exercise the over-allotment option to purchase
additional securities in full). |
| |
|
|
| Use
of proceeds |
|
We
expect to receive net proceeds from the sale of shares of our common stock and/or Pre-funded Warrants in this offering of approximately
$ , after deducting fees and our estimated offering expenses. We intend to use the net proceeds of this offering for general corporate
purposes, including working capital, research and development, capital expenditures and potential acquisitions. See “Use of
Proceeds” on page S-7. |
| |
|
|
| Risk
factors |
|
Investing
in our common stock and Pre-funded Warrants involves substantial risks. See “Risk Factors” beginning on page S-3 of
this prospectus supplement for a discussion of factors that you should read and consider before investing in our common stock and
Pre-funded Warrants. |
| |
|
|
| The
Nasdaq Capital Market symbol |
|
Our
common stock is listed on the Nasdaq Capital Market under the symbol “POLA.” There is no established trading market for
the Pre-funded Warrants, and we do not expect a trading market to develop. We do not intend to list the Pre-funded Warrants on any
securities exchange or nationally recognized trading system. |
The
number of shares of common stock shown above to be outstanding after this offering is based on the 12,961,612 shares outstanding as of
November 17, 2023 and excludes the following as of that date:
| |
● |
140,000
shares of common stock issuable upon the exercise
of outstanding options, having a weighted average exercise price of $5.22 per share; and |
| |
|
|
| |
● |
1,453,038
shares of common stock reserved for future issuance
under our 2016 Stock Incentive Plan, or 2016 Plan. |
Unless
otherwise indicated, this prospectus supplement reflects and assumes no exercise of the outstanding options and no exercise by the underwriters
of their over-allotment option described above.
RISK
FACTORS
Investing
in our shares of common stock and Pre-funded Warrants involves a high degree of risk. You should carefully consider the risks, uncertainties
and other factors described in our most recent Annual Report on Form 10-K, as supplemented and updated by subsequent quarterly reports
on Form 10-Q and current reports on Form 8-K that we have filed or will filed with the Securities and Exchange Commission, or the SEC,
and in other documents incorporated by reference to our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act and all other information contained or incorporated by reference in this prospectus supplement and the accompanying base prospectus,
including our consolidated financial statements and the related notes, before investing in our common stock. If any of these risks materialize,
our business, financial condition or results of operations could be materially harmed. In that case, the trading price of our common
stock could decline, and you may lose some or all of your investment. The risks and uncertainties we describe are not the only ones facing
us. Additional risks not presently known to us, or that we currently deem immaterial, may also impair our business operations. If any
of these risks were to occur, our business, financial condition, or results of operations would likely suffer. In that event, the trading
price of our common stock could decline, and you could lose all or part of your investment.
Risks
Related to Our Business
We
have received a class action complaint for damages related to alleged violations of certain provisions of the California Labor Code,
which could result in substantial costs.
From
time to time, we are a party to litigation arising in the ordinary course of our business. Related thereto, we have received a class
action complaint filed in the Superior Court of the State of California. The complaint was filed by a certain ex-employee, individually,
and on behalf of other members of the general public similarly situated, for damages related to alleged violations of certain provisions
of the California Labor Code, which could result in substantial costs. We plan to file a response denying all such claims in December
2023. While it is difficult to ascertain the outcome of this matter, we believe that it is without merit, and intend to vigorously defend
the action. We are currently unable to estimate the amount of potential damages, if any, we could incur as a result of this claim and
have not established a reserve for this litigation. Despite our beliefs about the merit of the claim, the costs related to defend this
action, as well as an award, if any, that an arbitrator or court were to issue in favor of the plaintiff(s), could substantially diminish
our available cash, or otherwise have a material adverse effect on the Company.
Risks
Related to This Offering and Ownership of Our Common Stock and Pre-funded Warrants
You
will experience immediate and substantial dilution in the net tangible book value per share of the common stock you purchase.
Since
the offering price per share of common stock being offered is substantially higher than the net tangible book value per share of our
common stock, you will suffer substantial dilution in the net tangible book value of the common stock you purchase in this offering.
Based on the offering price of (i) $ per share of common stock and (ii) $ per Pre-funded Warrants, if you purchase shares of common stock
and/or Pre-funded Warrants in this offering, you will suffer immediate and substantial dilution of $ per share in the net tangible book
value of the common stock.
We
have broad discretion as to the use of the net proceeds we receive from this offering and may not use them effectively.
We
retain broad discretion to use the net proceeds from this offering and may use the net proceeds for working capital needs, capital expenditures,
acquisitions and other general corporate purposes. Accordingly, you will have to rely upon the judgment of our management with respect
to the use of those net proceeds. Our stockholders may not agree with the manner in which our management chooses to allocate and spend
the net proceeds. Moreover, our management may use the net proceeds for corporate purposes that may not increase our profitability or
our market value. The failure by our management to allocate these funds effectively could harm our business. See “Use of Proceeds”
on page S-7.
Future
sales of substantial amounts of our common stock could adversely affect the market price of our common stock.
Future
sales of substantial amounts of our common stock, or securities convertible or exchangeable into shares of our common stock, into the
public market, including shares of our common stock issued upon exercise of options, or perceptions that those sales could occur, could
adversely affect the prevailing market price of our common stock and our ability to raise capital in the future.
Based
on the sale of (i) shares of our common stock and (ii) Pre-funded Warrants in this offering, we will be selling a number of shares of
common stock and/or Pre-funded Warrants which represents approximately % of the number of shares of common stock that we currently have
outstanding (assuming the immediate exercise of such Pre-Funded Warrants). Resales of substantial amounts of the shares of our common
stock issued in this offering, together with shares of our common stock issuable upon conversion or exercise of Pre-funded Warrants or
currently outstanding derivative securities, could have a negative effect on our stock price.
Our
stock price is highly volatile, which could result in substantial losses for investors purchasing shares of our common stock and in litigation
against us.
The
market price of our common stock has fluctuated significantly in the past and may continue to fluctuate significantly in the future.
The market price of our common stock may continue to fluctuate in response to one or more of the following factors, many of which are
beyond our control:
| |
● |
fluctuations
in the market prices of our DC power generators and related products; |
| |
|
|
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● |
fluctuations
in the costs of key production components; |
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|
|
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● |
the
volume and timing of the receipt of orders for our products from customers; |
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|
|
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● |
write-downs
of the value of our inventories; |
| |
|
|
| |
● |
competitive
pricing pressures; |
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|
|
| |
● |
anticipated
trends in our financial condition and results of operations; |
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|
|
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● |
changes
in market valuations of companies similar to us; |
| |
|
|
| |
● |
stock
market price and volume fluctuations generally; |
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|
|
| |
● |
regulatory
developments or increased enforcement; |
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|
|
| |
● |
fluctuations
in our quarterly or annual operating results; |
| |
|
|
| |
● |
additions
or departures of key personnel; |
| |
● |
our
ability to obtain any necessary financing; |
| |
|
|
| |
● |
our
financing activities and future sales of our common stock or other securities; and |
| |
|
|
| |
● |
our
ability to maintain contracts that are critical to our operations. |
The
price at which you purchase shares of our common stock may not be indicative of the price that will prevail in the trading market. You
may be unable to sell your shares of common stock at or above your purchase price, which may result in substantial losses to you and
which may include the complete loss of your investment. In the past, securities class action litigation has often been brought against
a company following periods of high stock price volatility. We may be the target of similar litigation in the future. Securities litigation
could result in substantial costs and divert management’s attention and our resources away from our business.
Because
we do not intend to pay any cash dividends on our shares of common stock in the near future, our stockholders will not be able to receive
a return on their shares unless and until they sell them.
We
intend to retain a significant portion of any future earnings to finance the development, operation and expansion of our business. We
do not anticipate paying any cash dividends on our common stock in the near future. The declaration, payment, and amount of any future
dividends will be made at the discretion of our board of directors, and will depend upon, among other things, the results of operations,
cash flows, and financial condition, operating and capital requirements, and other factors as our board of directors considers relevant.
There is no assurance that future dividends will be paid, and, if dividends are paid, there is no assurance with respect to the amount
of any such dividend. Unless our board of directors determines to pay dividends, our stockholders will be required to look to appreciation
of our common stock to realize a gain on their investment. There can be no assurance that this appreciation will occur.
Our failure to satisfy certain listing requirements may result in
our common stock being delisted from the Nasdaq Capital Market, which may make it more difficult for investors to sell shares of our common
stock.
Our common stock is listed on
Nasdaq. Nasdaq has several quantitative and qualitative requirements companies must comply with to maintain this listing, including a
$1.00 minimum bid price per share (the “Bid Price Rule”). On November 24, 2023, we received a deficiency letter from the
Listing Qualifications Department of The Nasdaq Stock Market (“Nasdaq”) indicating that our common stock is subject to potential
delisting from the Nasdaq because for a period of 30 consecutive business days, the bid price of our common stock has closed below the
minimum $1.00 per share requirement for continued inclusion under Nasdaq Marketplace Rule 5550(a)(2) (the “Bid Price Rule”).
The Nasdaq deficiency letter has no immediate effect on the listing of our common stock, and our common stock will continue to trade
on The Nasdaq Capital Market under the symbol “POLA” at this time.
The Nasdaq notice indicated
that, in accordance with Nasdaq Marketplace Rule 5810(c)(3)(A), we will be provided 180 calendar days, or until May 22, 2024, to regain
compliance. If, at any time before May 22, 2024, the bid price of our common stock closes at $1.00 per share or more for a minimum of
10 consecutive business days, Nasdaq staff will provide written notification that we have achieved compliance with the Bid Price Rule.
If we fail to regain compliance
with the Bid Price Rule before May 22, 2024 but meet all of the other applicable standards for initial listing on The Nasdaq Capital
Market with the exception of the minimum bid price, then we may be eligible to have an additional 180 calendar days, or until November
18, 2024, to regain compliance with the Bid Price Rule. If we do not regain compliance with the Bid Price Rule by the end of the compliance
period (or the second compliance period, if applicable), our common stock will become subject to delisting. In the event that we receive
notice that our common stock is being delisted, the Nasdaq listing rules permit us to appeal a delisting determination by Nasdaq to a
hearings panel.
We intend to monitor the closing
bid price of our common stock and may, if appropriate, consider available options to regain compliance with the Bid Price Rule. However,
there can be no assurance that we will be able to regain compliance with the Bid Price Rule or will otherwise be in compliance with other
Nasdaq listing rules. If the stock is delisted, we may trade
on the over-the-counter market, or even in the pink sheets, which would significantly decrease the liquidity of an investment in our
common stock.
The Nasdaq Capital Market
may seek to delist our common stock if it concludes this offering does not qualify as a Public Offering as defined under Nasdaq’s
stockholder approval rule.
The continued listing of our common stock on The Nasdaq Capital Market
depends on our compliance with the requirements for continued listing under the Nasdaq Marketplace Rules, including but not limited to
Market Place Rule 5635, or the stockholder approval rule. The stockholder approval rule prohibits the issuance of shares of common stock
(or derivatives) in excess of 20% of our outstanding shares of common stock without stockholder approval, unless those shares are sold
at a price that equals or exceeds the Minimum Price, as defined in the stockholder approval rule, or in what Nasdaq deems a Public Offering,
as defined in the stockholder approval rule. The securities sold in this offering may be sold at a significant discount to the Minimum
Price as defined in the stockholder approval rule, and we do not intend to obtain the approval of our stockholders for the issuance of
the securities in this offering. Accordingly, we have sought to conduct, and plan to continue to conduct, this offering as a Public Offering
as defined in the stockholder approval rule, which is a qualitative analysis based on several factors as determined by Nasdaq, including
by broadly marketing and offering these securities in a firm commitment underwritten offering registered under the Securities Act. Demand
for the securities sold by us in this offering, and the final offering price for these securities, will be determined following a broad
public marketing effort over several trading days, and final distribution of these securities will ultimately be determined by the underwriter.
Nasdaq has also published guidance that an offering of securities that are “deeply discounted” to the Minimum Price (for example
a discount of 50% or more) will typically preclude a determination that the offering qualifies as Public Offering for purposes of the
stockholder approval rule. We cannot assure you that Nasdaq will determine that this offering will be deemed a Public Offering under the
stockholder approval rule. If Nasdaq determines that this offering was not conducted in compliance with the stockholder approval rule,
Nasdaq may cite a deficiency and move to delist our common stock from The Nasdaq Capital Market. Upon a delisting from The Nasdaq Capital
Market, our stock would likely be traded in the over-the-counter inter-dealer quotation system, more commonly known as the OTC. OTC transactions
involve risks in addition to those associated with transactions in securities traded on the securities exchanges, such as The Nasdaq Capital
Market, or, together, Exchange-listed stocks. Many OTC stocks trade less frequently and in smaller volumes than Exchange-listed stocks.
Accordingly, our stock would be less liquid than it would be otherwise. Also, the prices of OTC stocks are often more volatile than Exchange-listed
stocks. Additionally, institutional investors are usually prohibited from investing in OTC stocks, and it might be more challenging to
raise capital when needed.
There
is no established public trading market for the Pre-funded Warrants being offered in this offering, and we do not expect a market to
develop for the Pre-funded Warrants.
There
is no established public trading market for the Pre-funded Warrants being offered in this offering, and we do not expect a market to
develop. In addition, we do not intend to apply to list the Pre-funded Warrants on any national securities exchange or other nationally
recognized trading system. Without an active market, the liquidity of the Pre-funded Warrants will be limited. Further, the existence
of the Pre-funded Warrants may act to reduce both the trading volume and the trading price of our common stock.
The
Pre-funded Warrants are speculative in nature.
Except
as otherwise provided in the Pre-funded Warrants, until holders of Pre-Funded Warrants acquire our common stock upon exercise of the
Pre-funded Warrants, holders of Pre-funded Warrants will have no rights with respect to our common stock underlying such Pre-funded Warrants.
Upon exercise of the Pre-funded Warrants, the holders will be entitled to exercise the rights of a stockholder of our common stock only
as to matters for which the record date occurs after the exercise date.
Moreover,
following this offering, the market value of the Pre-funded Warrants is uncertain. There can be no assurance that the market price of
our common stock will ever equal or exceed the price of the Pre-Funded Warrants, and, consequently, whether it will ever be profitable
for investors to exercise their Pre-funded Warrants.
USE
OF PROCEEDS
We
estimate that the net proceeds from the sale of our common stock and Pre-funded Warrants in this offering will be approximately $ after
deducting the estimated underwriting discounts and commissions and estimated expenses payable by us.
Our
expected use of the net proceeds from this offering represents our current intentions based upon our present plans and business condition.
As of the date of this prospectus, we cannot predict with certainty all of the particular uses for the net proceeds to be received upon
completion of this offering, or the amounts that we will actually spend on the uses set forth above. However, we currently intend to
use the net proceeds to us from this offering for general corporate purposes, including working capital, research and development, capital
expenditures and potential acquisitions. Pending the uses described above, we intend to invest the net proceeds from this offering in
short term, interest-bearing securities such as money market accounts, certificates of deposit, commercial paper, or direct or guaranteed
obligations of the U.S. government.
The
amounts and timing of our actual use of the net proceeds will vary depending on numerous factors, including our ability to gain access
to additional financing if needed. As a result, our management will have broad discretion in the application of the net proceeds, and
investors will be relying on our judgment regarding the application of the net proceeds of this offering. In addition, we might decide
to postpone or not pursue certain activities if the net proceeds from this offering and any other sources of cash are less than expected.
DIVIDEND
POLICY
We
have never paid cash dividends on our common stock and do not intend to pay cash dividends on our common stock in the foreseeable future.
We anticipate that we will retain any earnings for use in the continued development of our business.
DESCRIPTION
OF PRE-FUNDED WARRANTS
The
following is a brief summary of certain terms and conditions of the Pre-funded Warrants being offered in this offering. The following
description is subject in all respects to the provisions contained in the Pre-funded Warrants.
Form
The
form of Pre-funded Warrant will be filed as an exhibit to a Current Report on Form 8-K that we will file with the SEC.
Term
The
Pre-funded Warrants will not expire until they are fully exercised.
Exercisability
The
Pre-funded Warrants are exercisable at any time until they are fully exercised. The Pre-funded Warrants will be exercisable, at the option
of each holder, in whole or in part by delivering to us a duly executed exercise notice and payment of the exercise price. No fractional
shares of common stock will be issued in connection with the exercise of a Pre-funded Warrant. Rather, we will, at our election, either
pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the exercise price or round
up to the next whole common share. The holder of the Pre-funded Warrant may also satisfy its obligation to pay the exercise price through
a “cashless exercise,” in which the holder receives the net value of the Pre-funded Warrants in shares of common stock determined
according to the formula set forth in the Pre-funded Warrant.
Exercise
Limitations
Under
the terms of the Pre-funded Warrants, the Company may not effect the exercise of any such warrant, and a holder will not be entitled
to exercise any portion of any such warrant, if, upon giving effect to such exercise, the aggregate number of shares of common stock
beneficially owned by the holder (together with its affiliates, any other persons acting as a group together with the holder or any of
the holder’s affiliates, and any other persons whose beneficial ownership of common stock would or could be aggregated with the
holder’s for purposes of Section 13(d) or Section 16 of the Securities Exchange Act of 1934, as amended) would exceed 4.99% of
the number of shares of common stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined
in accordance with the terms of such warrant, which percentage may be increased or decreased at the holder’s election upon 61 days’
notice to the Company subject to the terms of such warrants, provided that such percentage may in no event exceed 9.99%.
Exercise
Price
The
exercise price of our shares of common stock purchasable upon the exercise of the Pre-funded Warrants is $0.0001 per share. The exercise
price of the Pre-funded Warrants and the number of shares of common stock issuable upon exercise of the Pre-funded Warrants is subject
to appropriate adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications
or similar events affecting our shares of common stock, as well as upon any distribution of assets, including cash, stock or other property,
to our stockholders.
Transferability
Subject
to applicable laws, the Pre-funded Warrants may be offered for sale, sold, transferred or assigned without our consent.
Exchange
Listing
We
do not intend to list the Pre-funded Warrants on The Nasdaq Capital Market, any other national securities exchange or any other nationally
recognized trading system.
Fundamental
Transactions
Upon
the consummation of a fundamental transaction (as described in the Pre-funded Warrants, and generally including any reorganization, recapitalization
or reclassification of our shares of common stock, the sale, transfer or other disposition of all or substantially all of our properties
or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding shares of common
stock, or any person or group becoming the beneficial owner of 50% of the voting power of our outstanding shares of common stock), the
holders of the pre-funded warrants will be entitled to receive, upon exercise of the Pre-funded Warrants, the kind and amount of securities,
cash or other property that such holders would have received had they exercised the pre-funded warrants immediately prior to such fundamental
transaction, without regard to any limitations on exercise contained in the Pre-funded Warrants. Notwithstanding the foregoing, in the
event of a fundamental transaction where the consideration consists solely of cash, solely of marketable securities or a combination
of cash and marketable securities, then each Pre-funded Warrants shall automatically be deemed to be exercised in full in a cashless
exercise effective immediately prior to and contingent upon the consummation of such fundamental transaction.
No
Rights as a Stockholder
Except
by virtue of such holder’s ownership of shares of common stock, the holder of a Pre-funded Warrant does not have the rights or
privileges of a holder of our shares of common stock, including any voting rights, until such holder exercises the Pre-funded Warrant.
Governing
Law
The
Pre-funded Warrants are governed by New York law.
DILUTION
If
you invest in our common stock and/or Pre-funded Warrants, you will experience dilution to the extent of the difference between the public
offering price per share/Pre-funded Warrant and the net tangible book value per share of our common stock immediately after this offering.
Our
net tangible book value as of September 30, 2023, was approximately $14,787,864, or $1.14 per share of our common stock.
“Net tangible book value” is total assets minus the sum of liabilities and intangible assets. “Net tangible book value
per share” is net tangible book value divided by the total number of shares outstanding. Dilution in net tangible book value per
share represents the difference between the amount per share paid by purchasers of shares of common stock in this offering and the net
tangible book value per share of our common stock immediately after this offering.
After
giving effect to the sale of shares of our common stock and Pre-funded Warrants in this offering at the public offering price of $ per
share and $ per Pre-funded Warrant and after deducting the estimated underwriting discounts and commissions and estimated offering expenses
payable by us, our as adjusted net tangible book value as of September 30, 2023, would have been approximately $ , or $ per share. This
represents an immediate increase in net tangible book value of $ per share to existing stockholders and immediate dilution in net tangible
book value of $ per share to new investors purchasing our common stock and Pre-funded Warrants in this offering at the public offering
price per share. The following table illustrates this dilution on a per share basis:
| Offering
price per share |
|
|
|
|
|
$ |
|
|
| Net
tangible book value per share as of September 30, 2023 |
|
$ |
1.14 |
|
|
|
|
|
| Increase
in net tangible book value per share attributable to new investors |
|
$ |
|
|
|
|
|
|
| As
adjusted net tangible book value per share after giving effect to this offering |
|
|
|
|
|
$ |
|
|
| Dilution
in net tangible book value per share to investors in this offering |
|
|
|
|
|
$ |
|
|
The
number of shares of common stock shown above to be outstanding after this offering is based on the 12,949,550 shares outstanding as of
September 30, 2023 and excludes the following as of that date:
| |
● |
140,000
shares of common stock issuable upon the exercise
of outstanding options, having a weighted average exercise price of $5.22 per share; |
| |
|
|
| |
● |
1,453,038 shares of common stock reserved for future
issuance under our 2016 Stock Incentive Plan, or 2016 Plan; and |
| |
|
|
| |
● |
12,062
shares of common stock issued after September 30, 2023. |
The
above illustration of dilution per share to the investors participating in this offering assumes no exercise of outstanding options to
purchase shares of our common stock and no exercise by the underwriters of their over-allotment option. To the extent that options outstanding
as of September 30, 2023 or issued thereafter have been or may be exercised or other shares issued, the investors purchasing shares of
our common stock and Pre-funded Warrants in this offering may experience further dilution.
UNDERWRITING
ThinkEquity
LLC, is acting as the representative of the underwriters of the offering. We have entered into an underwriting agreement dated , 2023
with the representative. Subject to the terms and conditions of the underwriting agreement, we have agreed to sell to each underwriter
named below, and each underwriter named below has severally agreed to purchase, at the public offering price less the underwriting discounts
set forth on the cover page of this prospectus, the number of shares of common stock (and/or Pre-funded Warrants in lieu thereof) at
the public offering price, less the underwriting discounts and commissions, as set forth on the cover page of this prospectus, the number
of shares of common stock (and/or Pre-funded Warrants in lieu thereof) listed next to its name in the following table:
| Underwriter |
|
Number
of Shares of Common Stock |
|
|
Number
of Pre-Funded Warrants |
|
| ThinkEquity
LLC |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Total |
|
|
|
|
|
|
|
|
The
underwriters are committed to purchase all the shares of common stock (and/or Pre-funded Warrants in lieu thereof) offered by the Company.
The obligations of the underwriters may be terminated upon the occurrence of certain events specified in the underwriting agreement.
Furthermore, the underwriting agreement provides that the obligations of the underwriters to pay for and accept delivery of the shares
offered by us in this prospectus are subject to various representations and warranties and other customary conditions specified in the
underwriting agreement, such as receipt by the underwriters of officers’ certificates and legal opinions.
We
have agreed to indemnify the underwriters against specified liabilities, including liabilities under the Securities Act, and to contribute
to payments the underwriters may be required to make in respect thereof.
The
underwriters are offering the shares of common stock (and/or Pre-funded Warrants in lieu thereof) subject to prior sale, when, as and
if issued to and accepted by them, subject to approval of legal matters by their counsel and other conditions specified in the underwriting
agreement. The underwriters reserve the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in
part.
We
have granted the Representative an over-allotment option. This option, which is exercisable for up to 45 days after the date of this
prospectus supplement, permits the underwriters to purchase up to an aggregate of additional shares of common stock (and/or Pre-funded
Warrants in lieu thereof) (equal to 15% of the total number of shares of common stock and/or Pre-funded Warrants sold in this offering)
at the public offering price per share, less underwriting discounts and commissions, solely to cover over-allotments, if any. If the
underwriters exercise this option in whole or in part, then the underwriters will be severally committed, subject to the conditions described
in the underwriting agreement, to purchase the additional shares of common stock (and/or Pre-funded Warrants in lieu thereof) in proportion
to their respective commitments set forth in the prior table.
Discounts,
Commissions and Reimbursement
The
representative has advised us that the underwriters propose to offer the shares of common stock (and/or Pre-funded Warrants in lieu thereof)
to the public at the public offering price per share set forth on the cover page of this prospectus supplement. The underwriters may
offer securities to securities dealers at that price less a concession of not more than $ per share or Pre-funded Warrant of which up
to $ per share or Pre-funded Warrant may be reallowed to other dealers. After the offering to the public, the public offering price and
other selling terms may be changed by the representative.
The
following table summarizes the underwriting discounts and commissions and proceeds, before expenses, to us:
| |
|
|
|
|
|
|
|
|
|
Total |
|
| |
|
Per
Share |
|
|
Per
Pre-Funded Warrant |
|
|
Without
Option |
|
|
With
Option |
|
| Public
offering price |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
| Underwriting
discounts and commissions (6%) |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
| Proceeds,
before expenses, to us |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
In
addition, we have also agreed to pay up to $75,000 of the representative’s actual accountable expenses for the offering.
We
estimate the expenses of this offering payable by us, not including underwriting discounts and commissions, will be approximately $ .
Lock-Up
Agreements
The
Company and each of its directors and officers have agreed for a period of (i) 60 days after the date of the underwriting agreement in
the case of directors and officers and (ii) two months after the date of the underwriting agreement in the case of the Company, without
the prior written consent of the representative, not to directly or indirectly:
| |
● |
issue
(in the case of us), offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any shares of common stock or other
capital stock or any securities convertible into or exercisable or exchangeable for our common stock or other capital stock; or |
| |
● |
in
the case of us, file or cause the filing of any registration statement under the Securities Act with respect to any shares of common
stock or other capital stock or any securities convertible into or exercisable or exchangeable for our common stock or other capital
stock; or |
| |
● |
complete
any offering of debt securities of the Company, other than entering into a line of credit, term loan arrangement or other debt instrument
with a traditional bank; or |
| |
● |
enter
into any swap or other agreement, arrangement, hedge or transaction that transfers to another, in whole or in part, directly or indirectly,
any of the economic consequences of ownership of our common stock or other capital stock or any securities convertible into or exercisable
or exchangeable for our common stock or other capital stock, whether any transaction described in any of the foregoing bullet points
is to be settled by delivery of our common stock or other capital stock, other securities, in cash or otherwise, or publicly announce
an intention to do any of the foregoing. |
Electronic
Offer, Sale and Distribution of Securities
A
prospectus in electronic format may be made available on the websites maintained by one or more of the underwriters or selling group
members. The representative may agree to allocate a number of securities to underwriters and selling group members for sale to its online
brokerage account holders. Internet distributions will be allocated by the underwriters and selling group members that will make internet
distributions on the same basis as other allocations. Other than the prospectus in electronic format, the information on these websites
is not part of, nor incorporated by reference into, this prospectus or the registration statement of which this prospectus forms a part,
has not been approved or endorsed by us, and should not be relied upon by investors.
Stabilization
In
connection with this offering, the underwriters may engage in stabilizing transactions, over-allotment transactions, syndicate-covering
transactions, penalty bids and purchases to cover positions created by short sales.
Stabilizing
transactions permit bids to purchase shares so long as the stabilizing bids do not exceed a specified maximum, and are engaged in for
the purpose of preventing or retarding a decline in the market price of the shares while the offering is in progress.
Syndicate
covering transactions involve purchases of shares in the open market after the distribution has been completed in order to cover syndicate
short positions.
Penalty
bids permit the representative to reclaim a selling concession from a syndicate member when the shares originally sold by that syndicate
member are purchased in stabilizing or syndicate covering transactions to cover syndicate short positions.
These
stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price
of our shares of common stock or preventing or retarding a decline in the market price of our shares of common stock. As a result, the
price of our common stock in the open market may be higher than it would otherwise be in the absence of these transactions. Neither we
nor the underwriters make any representation or prediction as to the effect that the transactions described above may have on the price
of our common stock. These transactions may be effected in the over-the-counter market or otherwise and, if commenced, may be discontinued
at any time.
Passive
Market Making
In
connection with this offering, the underwriters and any selling group members may engage in passive market making transactions in our
common shares on Nasdaq in accordance with Rule 103 of Regulation M under the Exchange Act during a period before the commencement of
offers or sales of common shares and/or Pre-Funded Warrants and extending through the completion of the distribution. A passive market
maker must display its bid at a price not in excess of the highest independent bid of that security. However, if all independent bids
are lowered below the passive market maker’s bid, that bid must then be lowered when specified purchase limits are exceeded.
Other
Relationships
Certain
of the underwriters and their affiliates may in the future provide various investment banking, commercial banking and other financial
services for us and our affiliates for which they may in the future receive customary fees.
Offer
restrictions outside the United States
Other
than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered
by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be
offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with
the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result
in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are
advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus.
This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in
any jurisdiction in which such an offer or a solicitation is unlawful.
Australia
This
prospectus is not a disclosure document under Chapter 6D of the Australian Corporations Act, has not been lodged with the Australian
Securities and Investments Commission and does not purport to include the information required of a disclosure document under Chapter
6D of the Australian Corporations Act. Accordingly, (i) the offer of the securities under this prospectus is only made to persons to
whom it is lawful to offer the securities without disclosure under Chapter 6D of the Australian Corporations Act under one or more exemptions
set out in section 708 of the Australian Corporations Act, (ii) this prospectus is made available in Australia only to those persons
as set forth in clause (i) above, and (iii) the offeree must be sent a notice stating in substance that by accepting this offer, the
offeree represents that the offeree is such a person as set forth in clause (i) above, and, unless permitted under the Australian Corporations
Act, agrees not to sell or offer for sale within Australia any of the securities sold to the offeree within 12 months after its transfer
to the offeree under this prospectus.
China
The
information in this document does not constitute a public offer of the securities, whether by way of sale or subscription, in the People’s
Republic of China (excluding, for purposes of this paragraph, Hong Kong Special Administrative Region, Macau Special Administrative Region
and Taiwan). The securities may not be offered or sold directly or indirectly in the PRC to legal or natural persons other than directly
to “qualified domestic institutional investors.”
European
Economic Area—Belgium, Germany, Luxembourg and Netherlands
The
information in this document has been prepared on the basis that all offers of securities will be made pursuant to an exemption under
the Directive 2003/71/EC (“Prospectus Directive”), as implemented in Member States of the European Economic Area (each, a
“Relevant Member State”), from the requirement to produce a prospectus for offers of securities.
An
offer to the public of securities has not been made, and may not be made, in a Relevant Member State except pursuant to one of the following
exemptions under the Prospectus Directive as implemented in that Relevant Member State:
| |
● |
to
legal entities that are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities; |
| |
● |
to
any legal entity that has two or more of (i) an average of at least 250 employees during its last fiscal year; (ii) a total balance
sheet of more than €43,000,000 (as shown on its last annual unconsolidated or consolidated financial statements) and (iii) an
annual net turnover of more than €50,000,000 (as shown on its last annual unconsolidated or consolidated financial statements); |
| |
● |
to
fewer than 100 natural or legal persons (other than qualified investors within the meaning of Article 2(1)(e) of the Prospectus Directive)
subject to obtaining the prior consent of the Company or any underwriter for any such offer; or |
| |
● |
in
any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of securities shall
result in a requirement for the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. |
France
This
document is not being distributed in the context of a public offering of financial securities (offre au public de titres financiers)
in France within the meaning of Article L.411-1 of the French Monetary and Financial Code (Code Monétaire et Financier) and Articles
211-1 et seq. of the General Regulation of the French Autorité des marchés financiers (“AMF”). The securities
have not been offered or sold and will not be offered or sold, directly or indirectly, to the public in France.
This
document and any other offering material relating to the securities have not been, and will not be, submitted to the AMF for approval
in France and, accordingly, may not be distributed or caused to distributed, directly or indirectly, to the public in France.
Such
offers, sales and distributions have been and shall only be made in France to (i) qualified investors (investisseurs qualifiés)
acting for their own account, as defined in and in accordance with Articles L.411-2-II-2° and D.411-1 to D.411-3, D.744-1, D.754-1
;and D.764-1 of the French Monetary and Financial Code and any implementing regulation and/or (ii) a restricted number of non-qualified
investors (cercle restreint d’investisseurs) acting for their own account, as defined in and in accordance with Articles L.411-2-II-2°
and D.411-4, D.744-1, D.754-1; and D.764-1 of the French Monetary and Financial Code and any implementing regulation.
Pursuant
to Article 211-3 of the General Regulation of the AMF, investors in France are informed that the securities cannot be distributed (directly
or indirectly) to the public by the investors otherwise than in accordance with Articles L.411-1, L.411-2, L.412-1 and L.621-8 to L.621-8-3
of the French Monetary and Financial Code.
Ireland
The
information in this document does not constitute a prospectus under any Irish laws or regulations and this document has not been filed
with or approved by any Irish regulatory authority as the information has not been prepared in the context of a public offering of securities
in Ireland within the meaning of the Irish Prospectus (Directive 2003/71/EC) Regulations 2005 (the “Prospectus Regulations”).
The securities have not been offered or sold, and will not be offered, sold or delivered directly or indirectly in Ireland by way of
a public offering, except to (i) qualified investors as defined in Regulation 2(l) of the Prospectus Regulations and (ii) fewer than
100 natural or legal persons who are not qualified investors.
Israel
The
securities offered by this prospectus have not been approved or disapproved by the Israeli Securities Authority (the ISA), or ISA, nor
have such securities been registered for sale in Israel. The shares may not be offered or sold, directly or indirectly, to the public
in Israel, absent the publication of a prospectus. The ISA has not issued permits, approvals or licenses in connection with the offering
or publishing the prospectus; nor has it authenticated the details included herein, confirmed their reliability or completeness, or rendered
an opinion as to the quality of the securities being offered. Any resale in Israel, directly or indirectly, to the public of the securities
offered by this prospectus is subject to restrictions on transferability and must be effected only in compliance with the Israeli securities
laws and regulations.
Italy
The
offering of the securities in the Republic of Italy has not been authorized by the Italian Securities and Exchange Commission (Commissione
Nazionale per le Societ—$$—Aga e la Borsa, “CONSOB” pursuant to the Italian securities legislation and, accordingly,
no offering material relating to the securities may be distributed in Italy and such securities may not be offered or sold in Italy in
a public offer within the meaning of Article 1.1(t) of Legislative Decree No. 58 of 24 February 1998 (“Decree No. 58”), other
than:
| |
● |
to
Italian qualified investors, as defined in Article 100 of Decree no.58 by reference to Article 34-ter of CONSOB Regulation no. 11971
of 14 May 1999 (“Regulation no. 1197l”) as amended (“Qualified Investors”); and |
| |
● |
in
other circumstances that are exempt from the rules on public offer pursuant to Article 100 of Decree No. 58 and Article 34-ter of
Regulation No. 11971 as amended. |
Any
offer, sale or delivery of the securities or distribution of any offer document relating to the securities in Italy (excluding placements
where a Qualified Investor solicits an offer from the issuer) under the paragraphs above must be:
| |
● |
made
by investment firms, banks or financial intermediaries permitted to conduct such activities in Italy in accordance with Legislative
Decree No. 385 of 1 September 1993 (as amended), Decree No. 58, CONSOB Regulation No. 16190 of 29 October 2007 and any other applicable
laws; and |
| |
● |
in
compliance with all relevant Italian securities, tax and exchange controls and any other applicable laws. |
Any
subsequent distribution of the securities in Italy must be made in compliance with the public offer and prospectus requirement rules
provided under Decree No. 58 and the Regulation No. 11971 as amended, unless an exception from those rules applies. Failure to comply
with such rules may result in the sale of such securities being declared null and void and in the liability of the entity transferring
the securities for any damages suffered by the investors.
Japan
The
securities have not been and will not be registered under Article 4, paragraph 1 of the Financial Instruments and Exchange Law of Japan
(Law No. 25 of 1948), as amended (the “FIEL”) pursuant to an exemption from the registration requirements applicable to a
private placement of securities to Qualified Institutional Investors (as defined in and in accordance with Article 2, paragraph 3 of
the FIEL and the regulations promulgated thereunder). Accordingly, the securities may not be offered or sold, directly or indirectly,
in Japan or to, or for the benefit of, any resident of Japan other than Qualified Institutional Investors. Any Qualified Institutional
Investor who acquires securities may not resell them to any person in Japan that is not a Qualified Institutional Investor, and acquisition
by any such person of securities is conditional upon the execution of an agreement to that effect.
Portugal
This
document is not being distributed in the context of a public offer of financial securities (oferta pública de valores mobiliários)
in Portugal, within the meaning of Article 109 of the Portuguese Securities Code (Código dos Valores Mobiliários). The
securities have not been offered or sold and will not be offered or sold, directly or indirectly, to the public in Portugal. This document
and any other offering material relating to the securities have not been, and will not be, submitted to the Portuguese Securities Market
Commission (Comissăo do Mercado de Valores Mobiliários) for approval in Portugal and, accordingly, may not be distributed
or caused to distributed, directly or indirectly, to the public in Portugal, other than under circumstances that are deemed not to qualify
as a public offer under the Portuguese Securities Code. Such offers, sales and distributions of securities in Portugal are limited to
persons who are “qualified investors” (as defined in the Portuguese Securities Code). Only such investors may receive this
document and they may not distribute it or the information contained in it to any other person.
Sweden
This
document has not been, and will not be, registered with or approved by Finansinspektionen (the Swedish Financial Supervisory Authority).
Accordingly, this document may not be made available, nor may the securities be offered for sale in Sweden, other than under circumstances
that are deemed not to require a prospectus under the Swedish Financial Instruments Trading Act (1991:980) (Sw. lag (1991:980) om handel
med finansiella instrument). Any offering of securities in Sweden is limited to persons who are “qualified investors” (as
defined in the Financial Instruments Trading Act). Only such investors may receive this document and they may not distribute it or the
information contained in it to any other person.
Switzerland
The
securities may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (“SIX”) or on any
other stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards
for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses
under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland.
Neither this document nor any other offering material relating to the securities may be publicly distributed or otherwise made publicly
available in Switzerland.
Neither
this document nor any other offering material relating to the securities have been or will be filed with or approved by any Swiss regulatory
authority. In particular, this document will not be filed with, and the offer of securities will not be supervised by, the Swiss Financial
Market Supervisory Authority (FINMA).
This
document is personal to the recipient only and not for general circulation in Switzerland.
United
Arab Emirates
Neither
this document nor the securities have been approved, disapproved or passed on in any way by the Central Bank of the United Arab Emirates
or any other governmental authority in the United Arab Emirates, nor has the Company received authorization or licensing from the Central
Bank of the United Arab Emirates or any other governmental authority in the United Arab Emirates to market or sell the securities within
the United Arab Emirates. This document does not constitute and may not be used for the purpose of an offer or invitation. No services
relating to the securities, including the receipt of applications and/or the allotment or redemption of such shares, may be rendered
within the United Arab Emirates by the Company.
No
offer or invitation to subscribe for securities is valid or permitted in the Dubai International Financial Centre.
United
Kingdom
Neither
the information in this document nor any other document relating to the offer has been delivered for approval to the Financial Services
Authority in the United Kingdom and no prospectus (within the meaning of section 85 of the Financial Services and Markets Act 2000, as
amended (“FSMA”) has been published or is intended to be published in respect of the securities. This document is issued
on a confidential basis to “qualified investors” (within the meaning of section 86(7) of FSMA) in the United Kingdom, and
the securities may not be offered or sold in the United Kingdom by means of this document, any accompanying letter or any other document,
except in circumstances which do not require the publication of a prospectus pursuant to section 86(1) FSMA. This document should not
be distributed, published or reproduced, in whole or in part, nor may its contents be disclosed by recipients to any other person in
the United Kingdom.
Any
invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) received in connection with the
issue or sale of the securities has only been communicated or caused to be communicated and will only be communicated or caused to be
communicated in the United Kingdom in circumstances in which section 21(1) of FSMA does not apply to the Company.
In
the United Kingdom, this document is being distributed only to, and is directed at, persons (i) who have professional experience in matters
relating to investments falling within Article 19(5) (investment professionals) of the Financial Services and Markets Act 2000 (Financial
Promotions) Order 2005 (“FPO”), (ii) who fall within the categories of persons referred to in Article 49(2)(a) to (d) (high
net worth companies, unincorporated associations, etc.) of the FPO or (iii) to whom it may otherwise be lawfully communicated (together
“relevant persons”). The investments to which this document relates are available only to, and any invitation, offer or agreement
to purchase will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document
or any of its contents.
Canada
The
securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors,
as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted
clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale
of the securities must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements
of applicable securities laws. Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies
for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies
for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s
province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s
province or territory for particulars of these rights or consult with a legal advisor. Pursuant to section 3A.3 of National Instrument
33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI33-105 regarding
underwriter conflicts of interest in connection with this offering.
LEGAL
MATTERS
The
validity of the securities being offered by this prospectus will be passed upon by our counsel, Loeb & Loeb LLP, New York, New York.
Certain legal matters will be passed upon for the underwriters by Blank Rome LLP, New York, New York.
EXPERTS
The
financial statements of Polar Power, Inc. as of and for the years ended December 31, 2022 and 2021 appearing in Polar Power’s Annual
Report on Form 10-K, have been audited by Weinberg & Company, P.A., an independent registered public accounting firm, as stated in
their report thereon, included therein, and are incorporated by reference in reliance upon such report and upon the authority of such
firm as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act, and the rules and regulations promulgated under
the Securities Act, with respect to the securities offered under this prospectus supplement. This prospectus supplement, which constitutes
a part of the registration statement, does not contain all of the information contained in the registration statement and the exhibits
and schedules to the registration statement. Many of the contracts and documents described in this prospectus supplement are filed as
exhibits to the registration statements and you may review the full text of these contracts and documents by referring to these exhibits.
For
further information with respect to us and the securities offered under this prospectus supplement, reference is made to the registration
statement and its exhibits and schedules. We file reports, including annual reports on Form 10-K, quarterly reports on Form 10-Q and
current reports on Form 8-K with the SEC.
The
SEC maintains an Internet web site that contains reports, proxy and information statements and other information regarding issuers, including
Polar Power, that file electronically with the SEC. The SEC’s Internet website address is http://www.sec.gov. Our Internet
website address is http://www.polarpower.com.
We
do not anticipate that we will send an annual report to our stockholders until and unless we are required to do so by the rules of the
SEC.
All
trademarks or trade names referred to in this prospectus supplement are the property of their respective owners.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” the information we file with the SEC. This means that we can disclose important
information to you by referring you to another filed document. Any information referred to in this way is considered part of this prospectus
supplement from the date we file that document. Any reports filed by us with the SEC after the date of this prospectus supplement and
before the date that the offering of the securities by means of this prospectus supplement is terminated will automatically update and,
where applicable, supersede any information contained in this prospectus supplement or incorporated by reference in this prospectus supplement.
Accordingly, we incorporate by reference the following documents or information filed with the SEC:
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Our
Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 31, 2023; |
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Our
Quarterly Reports on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 15, 2023, for the quarter ended June 30, 2023, filed with the SEC on August 14, 2023, and for the quarter ended September 30, 2023, filed with the SEC on November 14,
2023; |
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|
|
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Our
Definitive Proxy Statement filed with the SEC on October 31, 2023; |
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|
|
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Our
Current Reports on Form 8-K and 8-K/A filed with the SEC on
January 11, 2023, May
15, 2023,
May 26, 2023,
August 14, 2023, September
11, 2023, November
6, 2023, November
14, 2023 and November 27, 2023 (in each case other than any portions thereof deemed furnished and not filed); |
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|
|
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The
description of our common stock contained in our Form 10-K filed with the SEC on March 31, 2023, including any amendment or report
filed for the purpose of updating such description. |
We
also incorporate by reference any future filings (other than any filings or portions of such reports that are not deemed “filed”
under the Exchange Act in accordance with the Exchange Act and applicable SEC rules, including current reports furnished under Item 2.02
or Item 7.01 of Form 8-K and exhibits furnished on such form that are related to such items unless such Form 8-K expressly provides to
the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until the termination of the offering
of the securities under this prospectus supplement. Any statements in any such future filings will automatically be deemed to modify
and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein
by reference to the extent that statements in the later filed document modify or replace such earlier statements.
We
will furnish without charge to you, upon written or oral request, a copy of any or all of the documents incorporated by reference, including
exhibits to these documents by writing or telephoning us at the following address or phone number below. You may also access this information
on our website at www.polarpower.com by viewing the “SEC Filings” subsection of the “Investors” menu. No additional
information is deemed to be part of or incorporated by reference into this prospectus supplement.
Polar
Power, Inc.
249
E. Gardena Blvd.
Gardena,
California 90248
(310)
830-9153
PROSPECTUS
$100,000,000
Polar
Power, Inc.
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Subscription
Rights
Units
We
may offer and sell up to $100,000,000 in the aggregate of the securities identified above from time to time in one or more offerings.
This prospectus provides you with a general description of the securities.
Each
time we offer and sell securities, we will provide a supplement to this prospectus that contains specific information about the offering
and the amounts, prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus
with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in
any of our securities.
We
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are
involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement
between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement.
See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information.
No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms
of the offering of such securities.
INVESTING
IN OUR SECURITIES INVOLVES RISKS. SEE THE “RISK FACTORS” ON PAGE 5 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN
THE APPLICABLE PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “POLA.” On January 15, 2021, the last reported sale
price of our common stock on The Nasdaq Capital Market was $11.52 per share.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is January 28, 2021.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a “shelf”
registration process. By using a shelf registration statement, we may sell securities from time to time and in one or more offerings
up to a total dollar amount of $100,000,000 as described in this prospectus.
This
prospectus provides you only with a general description of the securities that we may offer. Each time that we offer and sell securities,
we will provide a prospectus supplement to this prospectus that contains specific information about the securities being offered and
sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that
may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update
or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information
in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement
or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read both this prospectus and the applicable
prospectus supplement (and any applicable free writing prospectuses), together with the additional information described under the heading
“Where You Can Find More Information.”
We
have not authorized anyone to provide you with any information or to make any representations other than those contained in, or incorporated
by reference in, this prospectus, any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us
or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information
that others may give you. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate
only as of the date on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only
as of the date of that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of
the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects
may have changed since those dates.
When
we refer to “Polar,” “we,” “our,” “us” and the “Company” in this prospectus,
we mean Polar Power, Inc., and its consolidated subsidiaries unless otherwise specified. When we refer to “you,” we mean
the potential holders of the applicable series of securities.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of the registration statement on Form S-3 filed with the SEC under the Securities Act and does not contain all the
information set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements
or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement
or the exhibits to the reports or other documents incorporated herein by reference for a copy of such contract, agreement or other document.
We
are currently subject to the reporting requirements of the Exchange Act, and in accordance therewith files periodic reports, proxy statements
and other information with the SEC. Our SEC filings are available to you on the SEC’s website at http://www.sec.gov and in the
“Investors” section of our website at www.polarpower.com. Our website and the information contained on that site, or connected
to that site, are not incorporated into and are not a part of this prospectus.
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:
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Our
Annual Report on Form 10-K for the year ended December 31, 2019 filed with the SEC on May 14, 2020; |
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|
|
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Our
Amendment No. 1 to our Annual Report on Form 10-K/A for the year ended December 31, 2019 filed with the SEC on May 26, 2020; |
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|
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Our
Quarterly Reports on Form 10-Q for the quarter ended March 31, 2020, filed with the SEC on May 8, 2020, for the quarter ended June 30, 2020, filed with the SEC on August 14, 2020, and for the quarter ended September 30, 2020, filed with the SEC on November 16,
2020; |
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|
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Our
Definitive Proxy Statement on Form 14, filed on November 18, 2020; |
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|
|
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Our
Current Reports on Form 8-K and 8-K/A filed with the SEC on
January 2, 2020,
March 27, 2020,
May 8, 2020, May 15, 2020, July 8, 2020, July 17, 2020, October 9, 2020 and December 31, 2020 (in each case other than any
portions thereof deemed furnished and not filed); and |
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|
|
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The
description of our common stock contained in our Form 10-K filed with the SEC on May 14, 2020, including any amendment or report
filed for the purpose of updating such description. |
We
also incorporate by reference any future filings (other than any filings or portions of such reports that are not deemed “filed”
under the Exchange Act in accordance with the Exchange Act and applicable SEC rules, including current reports furnished under Item 2.02
or Item 7.01 of Form 8-K and exhibits furnished on such form that are related to such items unless such Form 8-K expressly provides to
the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date
of the initial filing of the registration statement of which this prospectus is a part and prior to the effectiveness of the registration
statement, until we file a post-effective amendment that indicates the termination of the offering of the securities made by this prospectus
and will become a part of this prospectus from the date that such documents are filed with the SEC. Information in such future filings
updates and supplements the information provided in this prospectus. Any statements in any such future filings will automatically be
deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be
incorporated herein by reference to the extent that statements in the later filed document modify or replace such earlier statements.
We
will furnish without charge to you, upon written or oral request, a copy of any or all of the documents incorporated by reference, including
exhibits to these documents by writing or telephoning us at the following address or phone number below. You may also access this information
on our website at www.polarpower.com by viewing the “SEC Filings” subsection of the “Investors” menu. No additional
information is deemed to be part of or incorporated by reference into this prospectus.
Polar
Power, Inc.
249
E. Gardena Blvd.
Gardena,
California 90248
(310)
830-9153
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, any prospectus supplement, and the documents incorporated by reference into this prospectus contain certain “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E
of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the Private Securities Litigation Reform Act of 1995 with
respect to our business, financial condition, liquidity, and results of operations. These forward-looking statements are not historical
facts but rather are plans and predictions based on current expectations, estimates, and projections about our industry, our beliefs,
and assumptions. We use words such as “may,” “will,” “could,” “should,” “anticipate,”
“expect,” “intend,” “project,” “plan,” “believe,” “seek,” “estimate,”
“assume,” and variations of these words and similar expressions to identify forward-looking statements. Statements in this
prospectus and the other documents incorporated by reference that are not historical facts are hereby identified as “forward-looking
statements” for the purpose of the safe harbor provided by Section 21E of the Exchange Act and Section 27A of the Securities Act.
These statements are not guarantees of future performance and are subject to certain risks, uncertainties, and other factors, some of
which are beyond our control, are difficult to predict and could cause actual results to differ materially from those expressed or forecasted
in the forward-looking statements. These risks and uncertainties include those described in the section above entitled “Risk Factors,”
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, our subsequent Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 2020, June 30, 2020, and September 30, 2020, and the risks detailed from time to time on our future
reports filed with the SEC.
You
should read this prospectus and the documents incorporated by reference completely and with the understanding that our actual future
results may be materially different from what we currently expect. Our business and operations are and will be subject to a variety of
risks, uncertainties and other factors. Consequently, actual results and experience may materially differ from those contained in any
forward-looking statements. Such risks, uncertainties and other factors that could cause actual results and experience to differ from
those projected include, but are not limited to, the risk factors discussed under the heading “Risk Factors” contained in
this prospectus, any applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other
documents that are incorporated by reference into this prospectus.
You
should assume that the information appearing in this prospectus, any accompanying prospectus supplement or related free writing prospectus
and any document incorporated herein by reference is accurate as of its date only. Because the risk factors referred to above could cause
actual results or outcomes to differ materially from those expressed in any forward-looking statements made by us or on our behalf, you
should not place undue reliance on any forward-looking statements. Further, any forward-looking statement speaks only as of the date
on which it is made. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition,
we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual
results to differ materially from those contained in any forward-looking statements. Unless legally required, we do not undertake any
obligation to release publicly any revisions to such forward-looking statements to reflect events or circumstances after the date of
this prospectus or to reflect the occurrence of unanticipated events.
ABOUT
POLAR POWER
Overview
We
design, manufacture and sell DC power generators, renewable energy and cooling systems for applications primarily in the telecommunications
market and, to a lesser extent, in other markets, including military, electric vehicle charging, marine and industrial.
Within
the telecommunications market, our DC power systems provide reliable and low-cost DC power to service applications that do not have access
to the utility grid (i.e., prime power applications) or have critical power needs and cannot be without power in the event of utility
grid failure (i.e., back-up power applications). Within this market, we offer the following three configurations of our DC power systems,
with output power ranging from 5 kW to 32 kW:
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DC
base power systems. These systems integrate a DC generator and automated controls with remote monitoring, which are typically
contained within an environmentally regulated enclosure. |
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|
|
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DC
hybrid power systems. These systems incorporate lithium-ion batteries (or other advanced battery chemistries) with our proprietary
BMS into our standard DC power systems. |
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|
|
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DC
solar hybrid power systems. These systems incorporate photovoltaic and other sources of renewable energy into our DC hybrid
power system. |
Our
DC power systems are available in diesel, natural gas, LPG / propane and renewable formats, with diesel, natural gas and propane gas
being the predominate formats.
Corporate
Information
We
were incorporated in 1979 in the State of Washington as Polar Products, Inc., and in 1991 we reincorporated in the State of California
as Polar Power, Inc. In December 2016, we reincorporated in the State of Delaware. Our principal executive offices are located at 249
E. Gardena Blvd., Gardena, California 90248. Our telephone number is (310) 830-9153 and our Internet website is www.polarpower.com. The
content of our Internet website does not constitute a part of this prospectus.
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 included in our most recent Annual Report on Form 10-K, our most recent Quarterly Report on Form 10-Q 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 set forth in any accompanying prospectus supplement, we intend to use the net proceeds from the sale of any securities offered under
this prospectus for general corporate purposes unless the applicable prospectus supplement provides otherwise. General corporate purposes
may include, and are not limited to, research and development costs, manufacturing costs, the acquisition or licensing of other businesses,
products or product candidates, working capital and capital expenditures.
We
may temporarily invest the net proceeds in a variety of capital preservation instruments, including investment grade instruments, certificates
of deposit or direct or guaranteed obligations of the U.S. government, or may hold such proceeds as cash, until they are used for their
stated purpose. We have not determined the amount of net proceeds to be used specifically for such purposes. As a result, management
will retain broad discretion over the allocation of net proceeds.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock is not complete and may not contain all the information you should consider before investing
in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our certificate of incorporation,
which has been publicly filed with the SEC. See “Where You Can Find More Information.” For a complete description, you should
refer to our amended and restated certificate of incorporation and amended and restated bylaws, copies of which are incorporated by reference
as exhibits to the registration statement of which this prospectus is a part.
Authorized
and Outstanding Capital Stock
Our
authorized capital stock consists of 50,000,000 shares of common stock, $0.0001 par value per share, and 5,000,000 shares of preferred
stock, $0.0001 par value per share. As of January 15, 2021, there were 11,775,681 shares of common stock and no shares of preferred stock
issued and outstanding and 17,477 shares of common stock held in treasury. The following description of our capital stock does not purport
to be complete and should be reviewed in conjunction with our certificate of incorporation and our bylaws. See “Where You Can Find
More Information.”
Common
Stock
All
outstanding shares of our common stock are fully paid and nonassessable. The following summarizes the rights of holders of our common
stock:
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a
holder of common stock is entitled to one vote per share on all matters to be voted upon generally by the stockholders; |
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subject
to preferences that may apply to shares of preferred stock outstanding, the holders of common stock are entitled to receive lawful
dividends as may be declared by our board of directors; |
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● |
upon
our liquidation, dissolution or winding up, the holders of shares of common stock are entitled to receive a pro rata portion of all
our assets remaining for distribution after satisfaction of all our liabilities and the payment of any liquidation preference of
any outstanding preferred stock; |
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there
are no redemption or sinking fund provisions applicable to our common stock; and |
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● |
there
are no preemptive or conversion rights applicable to our common stock. |
Preferred
Stock
Our
board of directors is authorized to issue from time to time, in one or more designated series, any or all of our authorized but unissued
shares of preferred stock with dividend, redemption, conversion, exchange, voting and other provisions as may be provided in that particular
series. The issuance need not be approved by our common stockholders.
Anti-Takeover
Effects of Delaware Law and Our Certificate of Incorporation and Bylaws
A
number of provisions of Delaware law, our certificate of incorporation and our bylaws contain provisions that could have the effect of
delaying, deferring and discouraging another party from acquiring control of Polar Power. These provisions, which are summarized below,
are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of Polar Power to first negotiate with our board of directors. We believe that the benefits of increased
protection of our potential ability to negotiate with an unfriendly or unsolicited acquiror outweigh the disadvantages of discouraging
a proposal to acquire Polar Power because negotiation of these proposals could result in an improvement of their terms. However, the
existence of these provisions also could limit the price that investors might be willing to pay for our securities.
Undesignated
Preferred Stock
The
ability to authorize undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or
other rights or preferences that could impede the success of any attempt to acquire us. These and other provisions may have the effect
of deferring hostile takeovers or delaying changes in control or management of Polar Power.
Advance
Notice Requirements for Stockholder Proposals and Director Nominations
Our
bylaws provide that, for nominations to our 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 Chief Executive Officer.
For an annual meeting, a stockholder’s notice generally must be delivered not less than 90 days nor more than 120 days prior to
the anniversary of the mailing date of the proxy statement for the previous year’s annual meeting. For a special meeting, the notice
must generally be delivered not earlier than the 90th day prior to the meeting and not later than the later of (i) the 60th day prior
to the meeting or (ii) the 10th day following the day on which public announcement of the meeting is first made. Detailed requirements
as to the form of the notice and information required in the notice are specified in the bylaws. If it is determined that business was
not properly brought before a meeting in accordance with our bylaw provisions, such business will not be conducted at the meeting. These
provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for
directors at our annual meeting of stockholders if the proper procedures are not followed. We expect that these provisions may also discourage
or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise
attempting to obtain control of our company.
Delaware
Anti-Takeover Statute
We
are subject to the provisions of Section 203 of the Delaware General Corporation Law (sometimes referred to as Section 203) regulating
corporate takeovers. In general, Section 203 prohibits a publicly-held Delaware corporation from engaging, under specified circumstances,
in a business combination with an interested stockholder for a period of three years following the date the person became an interested
stockholder unless:
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prior
to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction
which 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 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 outstanding voting stock owned by the stockholder)(1) shares owned
by persons who are directors and also officers and (2) shares owned by employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer;
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on
or subsequent to the date of the transaction, the business combination is approved by the board of directors and authorized at an
annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding
voting stock that is not owned by the interested stockholder. |
Generally,
a business combination includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested
stockholder. An interested stockholder is a person who, together with affiliates and associates, owns or, within three years prior to
the determination of interested stockholder status, did own 15% or more of a corporation’s outstanding voting securities. We expect
the existence of this provision to have an anti-takeover effect with respect to transactions our board of directors do not approve in
advance. We also anticipate that Section 203 may also discourage attempts that might result in a premium over the market price for the
shares of our common stock held by stockholders.
The
provisions of Delaware law, our certificate of incorporation and our bylaws could have the effect of discouraging others from attempting
hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common stock that often
result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing changes in our management.
It is possible that these provisions could make it more difficult to accomplish transactions that stockholders may otherwise deem to
be in their best interests.
Choice
of Forum
Our
certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery
(or, if such court lacks jurisdiction, any other state or federal court located within the State of Delaware) shall be the sole and exclusive
forum for (i) any derivative action or proceeding brought on behalf of us, (ii) any action or proceeding asserting a claim of breach
of a fiduciary duty owed by any director, officer or other employee of us to us or our stockholders, (iii) any action or proceeding asserting
a claim arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or bylaws, or (iv)
any action or proceeding asserting a claim governed by the internal affairs doctrine; in all cases subject to the court’s having
personal jurisdiction over the indispensable parties named as defendants. For the avoidance of doubt, the exclusive forum provision described
above does not apply to any claims arising under the Securities Act or Exchange Act. Section 27 of the Exchange Act creates exclusive
federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations
thereunder, and Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought
to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder.
The
choice of forum provision in our certificate of incorporation may limit our stockholders’ ability to bring a claim in a judicial
forum that they find favorable for disputes with us or our directors, officers, employees or agents, which may discourage such lawsuits
against us and our directors, officers, employees and agents even though an action, if successful, might benefit our stockholders. The
applicable courts may also reach different judgments or results than would other courts, including courts where a stockholder considering
an action may be located or would otherwise choose to bring the action, and such judgments or results may be more favorable to us than
to our stockholders. With respect to the provision making the Court of Chancery the sole and exclusive forum for certain types of actions,
stockholders who do bring a claim in the Court of Chancery could face additional litigation costs in pursuing any such claim, particularly
if they do not reside in or near Delaware. Finally, if a court were to find this provision of our certificate of incorporation inapplicable
to, or unenforceable in respect of, one or more of the specified types of actions or proceedings, we may incur additional costs associated
with resolving such matters in other jurisdictions, which could have a material adverse effect on us.
Warrants
As
of January 15, 2021, we had 340,000 shares of common stock issuable upon the exercise of outstanding warrants (other than the Warrants),
having an exercise price of $5.03 per share.
Options
As
of January 15, 2021, we had 140,000 shares of common stock issuable upon the exercise of outstanding options, having a weighted average
exercise price of $5.22 per share.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is VStock Transfer, LLC. Its telephone number is (212) 828-8436
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus,
summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell
a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will
also indicate in the supplement to what extent the general terms and provisions described in this prospectus apply to a particular series
of debt securities.
We
may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities
described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise
specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one
or more series.
The
debt securities will be issued under an indenture between us and a third party to be identified therein as trustee. We have summarized
select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration
statement and you should read the indenture for provisions that may be important to you. In the summary below, we have included references
to the section numbers of the indenture so that you can easily locate these provisions. Capitalized terms used in the summary and not
defined herein have the meanings specified in the indenture.
We
may offer under this prospectus up to an aggregate principal amount of $100,000,000 in debt securities, or if debt securities are issued
at a discount, or in a foreign currency, foreign currency units or composite currency, the principal amount as may be sold for an aggregate
initial public offering price of up to $100,000,000. Unless otherwise specified in the applicable prospectus supplement, the debt securities
will represent direct, unsecured obligations of the Company and will rank equally with all of our other unsecured indebtedness.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture.
(Section 2.2) We can issue an unlimited amount of debt securities under the indenture that may be issued in one or more series. Unless
otherwise set forth in a resolution of our board of directors, a supplemental indenture or an officer’s certificate detailing the
adopt of a series of debt securities, all securities in a series shall be identical. Debt securities may differ between series with respect
to any term, provided, that all series of debt securities shall be equally and ratably entitled to the benefits of the indenture. (Section
2.1)
The
following statements relating to the debt securities and the indenture are summaries, qualified in their entirety by reference to the
detailed provisions of the indenture and the final form indenture as may be filed with a future prospectus supplement.
The
prospectus supplement will set forth, to the extent required, the following terms of the debt securities in respect of which the prospectus
supplement is delivered:
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the
title of the series; |
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the
aggregate principal amount; |
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the
issue price or prices, expressed as a percentage of the aggregate principal amount of the debt securities; |
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any
limit on the aggregate principal amount; |
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the
date or dates on which principal is payable; |
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the
interest rate or rates (which may be fixed or variable) or, if applicable, the method used to determine such rate or rates; |
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the
date or dates from which interest, if any, will be payable and any regular record date for the interest payable; |
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the
place or places where principal and, if applicable, premium and interest, is payable; |
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the
terms and conditions upon which we may, or the holders may require us to, redeem or repurchase the debt securities; |
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the
obligation, if any, of the Company to redeem or repurchase the debt securities of a series pursuant to any sinking fund or analogous
provision or at the option of a holder of the debt securities, and the period or periods within which, the price or prices at which
and the terms and conditions upon which debt securities of a series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation; |
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the
denominations in which such debt securities may be issuable, if other than denominations of $1,000 or any integral multiple of that
number; |
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whether
the debt securities are to be issuable in the form of certificated securities (as described below) or global securities (as described
below); |
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the
portion of principal amount that will be payable upon declaration of acceleration of the maturity date if other than the principal
amount of the debt securities; |
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the
currency of denomination; |
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the
designation of the currency, currencies or currency units in which payment of principal and, if applicable, premium and interest,
will be made; |
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if
payments of principal and, if applicable, premium or interest, on the debt securities are to be made in one or more currencies or
currency units other than the currency of denomination, the manner in which the exchange rate with respect to such payments will
be determined; |
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if
amounts of principal and, if applicable, premium and interest may be determined by reference to an index based on a currency or currencies
or by reference to a commodity, commodity index, stock exchange index or financial index, then the manner in which such amounts will
be determined; |
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the
provisions, if any, relating to any collateral provided for such debt securities; |
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any
addition to or change in the covenants and/or the acceleration provisions described in this prospectus or in the indenture; |
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any
events of default, if not otherwise described below under “Defaults and Notice”; |
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the
terms and conditions, if any, for conversion into or exchange for shares of our common stock or preferred stock; |
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any
depositaries, interest rate calculation agents, exchange rate calculation agents or other agents; |
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the
terms and conditions, if any, upon which the debt securities shall be subordinated in right of payment to other indebtedness of the
Company; and |
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if
the debt securities of a series, in whole or any specified part, shall be defeasible. (Section 2.2) |
We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of
acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax
considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If
we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units,
or if the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or
a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific
terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency
unit or units in the applicable prospectus supplement.
Exchange
and/or Conversion Rights
We
may issue debt securities which can be exchanged for or converted into shares of our common stock or preferred stock. If we do, we will
describe the terms of exchange or conversion in the prospectus supplement relating to these debt securities. (Section 2.2)
Transfer
and Exchange
Each
debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or
the Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a book-entry
debt security), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated
security as a certificated debt security) as set forth in the applicable prospectus supplement. Except as set forth under the heading
“Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated
Debt Securities
You
may transfer or exchange certificated debt securities in accordance with the terms of the indenture. (Section 2.4) You will not be charged
a service charge for any transfer or exchange of certificated debt securities but may be required to pay an amount sufficient to cover
any tax or other governmental charge payable in connection with such transfer or exchange. (Section 2.7)
You
may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated
debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the
trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder. (Section 2.7)
Global
Securities
Each
global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered
in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
No
Protection in the Event of a Change of Control
Unless
we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders
of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change in control) which could adversely affect holders of debt securities.
Covenants
Unless
otherwise indicated in this prospectus or the applicable prospectus supplement, our debt securities may not have the benefit of any covenant
that limits or restricts our business or operations, the pledging of our assets or the incurrence by us of indebtedness. We will describe
in the applicable prospectus supplement any material covenants in respect of a series of debt securities. (Article 4)
Consolidation,
Merger and Sale of Assets
We
may not consolidate with or merge with or into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially
all of our properties and assets to any person, or a successor person, unless:
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the
indenture shall remain in full force and effect and either we are the surviving corporation or the successor person (if other than
us) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction or a corporation or comparable
legal entity organized under the laws of a foreign jurisdiction and expressly assumes by a supplemental indenture executed and delivered
to the trustee, all of our obligations on the debt securities and under the indenture; and |
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immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing. (Section 5.1) |
Defaults
and Notice
Unless
otherwise specified in the resolution of our board of directors, supplemental indenture or officer’s certificate establishing a
series of debt securities, “Event of Default” means with respect to any series of debt securities, any of the following:
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failure
to pay the principal of, or premium, if any, on any debt security when the same becomes due and payable at Maturity, upon acceleration,
redemption or otherwise; |
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failure
to make a payment of any interest on any debt security of such series when due and payable, and the default continues for a period
of 30 days; |
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failure
to perform or observe any other covenants or agreements in the indenture with respect to the debt securities of the series or in
the Indenture for 60 days after written notice from the trustee or the holders of not less than 25% of the aggregate principal amount
of the debt securities of the series then outstanding, with such notice specifying the default, demanding that it be remedied and
stating that the notice is a “Notice of Default”; |
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certain
events relating to our bankruptcy, insolvency or reorganization or the bankruptcy, insolvency or reorganization of a Significant
Subsidiary; |
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certain
cross defaults, if and as applicable; and |
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any
other Event of Default specified in the resolution of our board of directors, supplemental indenture or officer’s certificate
establishing such series of debt securities. (Section 6.1) |
No
Event of Default with respect to a particular series of debt securities necessarily constitutes an Event of Default with respect to any
other series of debt securities. (Section 6.2) The occurrence of certain Events of Default or an acceleration under the indenture may
constitute an event of default under certain indebtedness of ours or our subsidiary outstanding from time to time.
If
an Event of Default with respect to debt securities of any series at the time outstanding (except as to certain events of bankruptcy,
insolvency or reorganization) occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the
outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to
be due and payable immediately the principal of, and accrued and unpaid interest, if any, on, all debt securities of that series. In
the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified
amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable
without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration
of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment of the money
due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series
may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if
any, with respect to debt securities of that series, have been cured or waived as provided in the indenture and such rescission would
not conflict with any judgment or decree. (Section 6.2) We refer you to the prospectus supplement relating to any series of debt securities
that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount
securities upon the occurrence of an Event of Default.
The
trustee is entitled to be indemnified by holders of debt securities before proceeding to exercise any trust or power under the indenture
at the request of such holders. (Section 6.6) The holders of at least a majority in aggregate principal amount of the then outstanding
debt securities of any series may direct the time, method and place of conducting any proceedings for any remedy available to the trustee
for such series, or of exercising any trust or power conferred upon the trustee with respect to the debt securities of such series. (Section
6.5) However, the trustee may decline to follow any such direction that conflicts with law or the indenture, or that the trustee determines
may be unduly prejudicial to the holders of the debt securities of such series not joining in such direction. (Section 6.5)
No
holder of any debt security of any series will have any right to institute any proceeding or pursue any remedy, with respect to the indenture
or a series of debt securities, unless:
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That
holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that
series; and |
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The
holders of note less than 25% in principal amount of the outstanding debt securities of that series have made written request, and
offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee
has failed to institute the proceeding within 60 days and has not received from the holder of not less than a majority in principal
amount of the outstanding debt securities of that series a direction inconsistent with that request within such 60 day periods (Section
6.6). |
No
holder of debt securities under the indenture may use the indenture to prejudice the rights of another holder or to obtain a preference
or priority over another holder of debt securities. (Section 6.6)
Notwithstanding
any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment
of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to
institute suit for the enforcement of payment. (Section 6.7)
The
indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with
the indenture. (Section 4.4) If a Default or Event of Default occurs and is continuing with respect to the securities of any series and
if it is known to a responsible officer of the trustee, the trustee shall mail to each holder of the securities of that series notice
of a Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge
of such Default or Event of Default (except if such Default or Event of Default has been validly cured or waived before the trustee gives
such notice). The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default
or Event of Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee
determines in good faith that withholding notice is in the interest of the holders of those debt securities. (Section 7.5)
Modification
of the Indenture
We
and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder
of any debt security:
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to
comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”; |
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to
provide for uncertificated securities in addition to or in place of certificated securities; |
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to
provide for certificated debt securities in addition to uncertificated debt securities; |
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to
comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act; |
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to
cure any ambiguity, defect or inconsistency or make any other change to the indenture or the debt securities that does not materially
and adversely affect the rights of any holder of our debt securities under the indenture; |
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to
provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the
indenture; or |
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to
effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the
provisions of the indenture to provide for or facilitate administration by more than one trustee. (Section 8.1) |
We
may also modify or supplement the indenture with the written consent of the holders of at least a majority in principal amount of the
outstanding debt securities of each series affected by the modifications or supplement. The holders of at least a majority in principal
amount of the outstanding debt securities of each such series affected by the modifications or supplement may waive compliance by us
in a particular instance with any provision of the indenture or the debt securities of such affected series of debt securities without
notice to any holder of our debt securities. We may not make any modification or amendment without the consent of the holders of each
affected debt security then outstanding if that amendment will:
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reduce
the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
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reduce
the rate of or change the time for payment of interest (including default interest) on any debt security; |
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reduce
the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
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make
the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; |
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change
the amount or time of any payment required by any debt security, or reduce the premium payable upon any redemption of any debt securities,
or change the time before which no such redemption may be made; |
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waive
a default in the payment of the principal of, or interest or premium, if any, on, any debt security (except a rescission of acceleration
of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding
debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
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waive
a redemption payment with respect to any debt security, or change any of the provisions with respect to the redemption of any debt
securities; |
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reduce
the principal amount of discount securities payable upon acceleration of maturity; or |
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make
any change to certain provisions of the indenture relating to the rights of holders to institute suit with respect to the indenture
or the debt securities of a series and the modification or supplement of the indenture or the debt securities of any series requiring
the consent of holders of our debt securities. (Section 8.2) |
The
holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt
securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default
in the payment of the principal of, premium or any interest on any debt security of that series (Section 6.4); provided, however, that
the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from the acceleration. (Section 6.2)
Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
Legal
Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may
be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be
so discharged upon the irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of
debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused
to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money or
U.S. government obligations in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants
or investment bank to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments
in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture
and those debt securities.
This
discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received
from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United
States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal
income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and
discharge had not occurred. (Section 8.3)
Defeasance
of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities,
upon compliance with certain conditions:
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we
may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain
other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus
supplement; and |
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any
omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities
of that series (“covenant defeasance”). |
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is referred to as covenant defeasance. The conditions include: |
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depositing
with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other
than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment
of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium
and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of
those payments in accordance with the terms of the indenture and those debt securities; and |
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delivering
to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income,
gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be
subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the
case if the deposit and related covenant defeasance had not occurred. (Section 9.3)No Personal Liability of Directors, Officers,
Employees or Securityholders |
No
Personal Liability of Directors, Officers, Employees or Shareholders
None
of our past, present or future directors, officers, employees or shareholders, as such, will have any liability for any of our obligations
under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation.
By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration
for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities
laws, and it is the view of the SEC that such a waiver is against public policy. (Section 10.9)
Governing
Law
The
indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the securities,
will be governed by the laws of the State of New York. (Section 10.8)
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with
other securities or separately, as described in each applicable prospectus supplement. Below is a description of certain general terms
and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the applicable warrant agreements
and the applicable prospectus supplement for the warrants.
The
applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the
number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and the price
at which such number of shares may be purchased upon such exercise; |
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the
designation, stated value and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series
of |
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preferred
stock purchasable upon exercise of warrants to purchase preferred stock; |
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the
principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, |
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which
may be payable in cash, securities or other property; |
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the
date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately
transferable; |
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the
terms of any rights to redeem or call the warrants; |
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the
date on which the right to exercise the warrants will commence and the date on which the right will expire; |
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United
States Federal income tax consequences applicable to the warrants; and |
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any
additional terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement
of the warrants. |
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Holders
of equity warrants will not be entitled: |
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to
vote, consent or receive dividends; |
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receive
notice as shareholders with respect to any meeting of shareholders for the election of our directors or any other matter; or |
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exercise
any rights as shareholders of Polar Power. |
Each
warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock or common
stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify
in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the
expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants will become void.
A
holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration
of transfer and exercise them at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus
supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will not have any rights of holders
of the debt securities that can be purchased upon exercise, including any rights to receive payments of principal, premium or interest
on the underlying debt securities or to enforce covenants in the applicable indenture. Until any warrants to purchase common stock or
preferred stock are exercised, the holders of the warrants will not have any rights of holders of the underlying common stock or preferred
stock, including any rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock or preferred
stock, if any.
Prospective
purchasers of warrants should be aware that special United States federal income tax, accounting and other considerations may be applicable
to instruments such as warrants. The applicable prospectus supplement will describe such considerations, to the extent they are material,
as they apply generally to purchasers of such warrants.
DESCRIPTION
OF UNITS
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We
may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements
with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit
agent in the applicable prospectus supplement relating to a particular series of units.
The
following description, together with the additional information included in any applicable prospectus supplement, summarizes the general
features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus
that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that
contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an
exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we
file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without
limitation, the following, as applicable:
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the
title of the series of units; |
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identification
and description of the separate constituent securities comprising the units; |
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the
price or prices at which the units will be issued; |
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the
date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
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a
discussion of certain United States federal income tax considerations applicable to the unites; and |
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any
other terms of the units and of the securities comprising the units. |
The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to the securities included in each unit, to the extent
relevant and as may be updated in any prospectus supplements.
DESCRIPTION
OF OUR SUBSCRIPTION RIGHTS
We
may issue subscription rights to purchase our common stock, preferred stock or debt securities. These subscription rights may be offered
independently or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the
subscription rights in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement
with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase
any securities remaining unsubscribed for after such offering.
The
prospectus supplement relating to any subscription rights we offer, if any, will, to the extent applicable, include specific terms relating
to the offering, including some or all of the following:
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● |
the
price, if any, for the subscription rights; |
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● |
the
exercise price payable for our common stock, preferred stock or debt securities upon the exercise of the subscription rights; |
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the
number of subscription rights to be issued to each stockholder; |
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● |
the
number and terms of our common stock, preferred stock or debt securities which may be purchased per each subscription right; |
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● |
the
extent to which the subscription rights are transferable; |
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● |
any
other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of
the subscription rights; |
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● |
the
date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
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● |
the
extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities or an
over-allotment privilege to the extent the securities are fully subscribed; and |
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● |
if
applicable, the material terms of any standby underwriting or purchase arrangement which may be entered into by us in connection
with the offering of subscription rights. |
The
descriptions of the subscription rights in this prospectus and in any prospectus supplement are summaries of the material provisions
of the applicable subscription right agreements. These descriptions do not restate those subscription right agreements in their entirety
and may not contain all the information that you may find useful. We urge you to read the applicable subscription right agreements because
they, and not the summaries, define your rights as holders of the subscription rights. For more information, please review the forms
of the relevant subscription right agreements, which will be filed with the SEC promptly after the offering of subscription rights and
will be available as described in the section of this prospectus captioned “Where You Can Find More Information.”
GLOBAL
SECURITIES
Book-Entry,
Delivery and Form
Unless
we indicate differently in any applicable prospectus supplement, the securities initially will be issued in book-entry form and represented
by one or more global notes or global securities, or, collectively, global securities. The global securities will be deposited with,
or on behalf of, The Depository Trust Company, New York, New York, as depositary, or DTC, and registered in the name of Cede & Co.,
the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities under the limited circumstances
described below, a global security may not be transferred except as a whole by the depositary to its nominee or by the nominee to the
depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC
has advised us that it is:
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a
limited-purpose trust company organized under the New York Banking Law; |
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a
“banking organization” within the meaning of the New York Banking Law; |
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a
member of the Federal Reserve System; |
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a
“clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
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a
“clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. |
DTC
holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts,
thereby eliminating the need for physical movement of securities certificates. “Direct participants” in DTC include securities
brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned
subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing
Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear
through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and
its participants are on file with the SEC.
Purchases
of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on
DTC’s records. The ownership interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner,
is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written
confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details
of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they
purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants
acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the
global securities, except under the limited circumstances described below.
To
facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s
partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities
with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities.
DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants
to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping
account of their holdings on behalf of their customers.
So
long as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the
depositary and its direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus
supplement for the applicable securities, where notices and demands in respect of the securities and the indenture may be delivered to
us and where certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance
of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants
and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect
from time to time.
Redemption
notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice is to
determine by lot the amount of the interest of each direct participant in the securities of such series to be redeemed.
Neither
DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under Its usual procedures, DTC
will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights
of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record date, identified
in a listing attached to the omnibus proxy.
So
long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered
owner of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated form under
the limited circumstances described below and unless if otherwise provided in the description of the applicable securities herein or
in the applicable prospectus supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled
to payment or by wire transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated
party at least 15 days before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory
to the applicable trustee or other designated party.
Redemption
proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt
of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records.
Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility
of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption
proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative
of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments
to the beneficial owners is the responsibility of direct and indirect participants.
Except
under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their
names and will not receive physical delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and
its participants to exercise any rights under the securities and the indenture.
The
laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those
laws may impair the ability to transfer or pledge beneficial interests in securities.
DTC
may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice
to us. Under such circumstances, in the event that a successor depositary is not obtained, securities certificates are required to be
printed and delivered.
As
noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership
interests in those securities. However, if:
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● |
DTC
notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series
of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered
and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing
to be so registered, as the case may be; |
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we
determine, in our sole discretion, not to have such securities represented by one or more global securities; or |
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an
Event of Default has occurred and is continuing with respect to such series of securities, we will prepare and deliver certificates
for such securities in exchange for beneficial interests in the global securities |
we
will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial
interest in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for
securities in definitive certificated form registered in the names that the depositary directs. It is expected that these directions
will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the
global securities.
Euroclear
and Clearstream
If
so provided in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A., which
we refer to as “Clearstream,” or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as “Euroclear,”
either directly if you are a participant in Clearstream or Euroclear or indirectly through organizations which are participants in Clearstream
or Euroclear. Clearstream and Euroclear will hold interests on behalf of their respective participants through customers’ securities
accounts in the names of Clearstream and Euroclear, respectively, on the books of their respective U.S. depositaries, which in turn will
hold such interests in customers’ securities accounts in such depositaries’ names on DTC’s books.
Clearstream
and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating
organizations and facilitate the clearance and settlement of securities transactions between those participants through electronic book-entry
changes in their accounts, thereby eliminating the need for physical movement of certificates.
Payments,
deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear
or Clearstream must comply with the rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream,
on one hand, and other participants in DTC, on the other hand, are also subject to DTC’s rules and procedures.
Investors
will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any
beneficial interests in global securities held through those systems only on days when those systems are open for business. Those systems
may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
Cross-market
transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected
through DTC in accordance with the DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S.
depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case
may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European
time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver
instructions to its U.S. depositary to take DTC, and making or receiving payment in accordance with normal procedures for same-day fund
settlement. Participants in Euroclear or Clearstream may not deliver instructions directly to their respective U.S. depositaries.
Due
to time zone differences, the securities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security
from a direct participant in DTC will be credited, and any such crediting will be reported to the relevant participant in Euroclear or
Clearstream, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately
following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security
by or through a participant in Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement
date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or
Clearstream following DTC’s settlement date.
Other
The
information in this section of this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been
obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been
provided solely as a matter of convenience. The rules and procedures of DTC, Clearstream and Euroclear are solely within the control
of those organizations and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has any control
over those entities and none of us takes any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear
or their respective participants directly to discuss those matters. In addition, although we expect that DTC, Clearstream and Euroclear
will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures and such
procedures may be discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance or nonperformance
by DTC, Clearstream and Euroclear or their respective participants of these or any other rules or procedures governing their respective
operations.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered by this prospectus separately or together:
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directly
to purchasers; |
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through
agents; |
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to
or through underwriters; |
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through
dealers; |
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in
“at-the-market” offerings (as defined in Rule 415 under the Securities Act); |
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through
a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as agent, but may
position and resell a portion of the block as principal to facilitate the transaction; |
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● |
through
a combination of any of these methods of sale; or |
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through
any other method permitted by applicable law and described in a prospectus supplement. |
In
addition, we may issue the securities being offered by this prospectus as a dividend or distribution. We may effect the distribution
of the securities from time to time in one or more transactions:
| |
● |
at
a fixed price or prices, which may be changed from time to time; |
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at
market prices prevailing at the times of sale; |
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at
prices related to prevailing market prices; or |
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at
negotiated prices. |
For
example, we may engage in at-the-market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities
Act. We may also sell securities through a rights offering, forward contracts or similar arrangements. 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.
The
securities issued and sold under this prospectus will have no established trading market, other than our common stock, which is listed
on Nasdaq. Any shares of our common stock sold pursuant to this prospectus will be eligible for listing and trading on Nasdaq, subject
to official notice of issuance. Any underwriters to whom securities are sold by us for public offering and sale may make a market in
the securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
The securities, other than our common stock, may or may not be listed on a national securities exchange or other trading market.
We
will set forth in a prospectus supplement:
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● |
the
terms of any underwriting or other agreement that we reach relating to sales under this prospectus; |
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the
method of distribution of the securities; |
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the
names of any agents, underwriters or dealers, including any managing underwriters, used in the offering of securities; |
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the
terms of any direct sales, including the terms of any bidding or auction process, or the terms of any other transactions; |
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● |
any
delayed delivery obligations to take the securities; |
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● |
the
compensation payable to agents, underwriters and dealers, which may be in the form of discounts, concessions or commissions; |
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● |
any
activities that may be undertaken by agents, underwriters and dealers to stabilize, maintain or otherwise affect the price of the
securities; and |
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● |
any
indemnification and contribution obligations owing to agents, underwriters and dealers. |
If
we sell directly to institutional investors or others, they may be deemed to be underwriters within the meaning of the Securities Act
with respect to any resale of the securities. Unless otherwise indicated in a prospectus supplement, if we sell through an agent, such
agent will be acting on a best efforts basis for the period of its appointment. Any agent may be deemed to be an “underwriter”
of the securities as that term is defined in the Securities Act. If a dealer is used in the sale of the securities, we or an underwriter
will sell securities to the dealer, as principal. The dealer may resell the securities to the public at varying prices to be determined
by the dealer at the time of resale.
To
the extent permitted by and in accordance with Regulation M under the Exchange Act, in connection with an offering an underwriter may
engage in over-allotments, stabilizing transactions, short covering transactions and penalty bids. Over-allotments involve sales in excess
of the offering size, which creates a short position. Stabilizing transactions permit bids to purchase the underlying security so long
as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open
market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those
activities may cause the price of the securities to be higher than it would be otherwise. If commenced, the underwriters may discontinue
any of the activities at any time.
To
the extent permitted by and in accordance with Regulation M under the Exchange Act, any underwriters who are qualified market makers
on Nasdaq may engage in passive market making transactions in the securities on Nasdaq during the business day prior to the pricing of
an offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and
price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price
not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s
bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for
which they receive compensation.
No
securities may be sold under this prospectus without delivery, in paper format or in electronic format, or both, of the applicable prospectus
supplement describing the method and terms of the offering.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Troutman Pepper Hamilton Sanders LLP. Additional
legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus
supplement. As appropriate, legal counsel representing the underwriters, dealers or agents will be named in the accompanying prospectus
supplement and may opine to certain legal matters.
EXPERTS
The
financial statements of Polar Power, Inc. as of and for the years ended December 31, 2019 and 2018 appearing in Polar Power’s Annual
Report on Form 10-K, as amended by Amendment No. 1 to Annual Report on Form 10-K/A, have been audited by Weinberg & Company, P.A.,
an independent registered public accounting firm, as stated in their report thereon, included therein, and are incorporated by reference
in reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
Shares
of Common Stock
Pre-funded
Warrants
Polar
Power, Inc.
PROSPECTUS
SUPPLEMENT
ThinkEquity
The
date of this prospectus supplement is , 2023.
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