As
filed with the Securities and Exchange Commission on May 26, 2022
Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER SECURITIES ACT OF 1933
HARROW
HEALTH, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
45-0567010 |
(State
or other jurisdiction of |
|
(I.R.S.
Employer |
incorporation
or organization) |
|
Identification
No.) |
102
Woodmont Blvd., Suite 610
Nashville,
Tennessee 37205
(615)
733-4730
(Address,
including zip code, and telephone number, including
area
code, of Registrant’s principal executive offices)
Mark
L. Baum
Chief
Executive Officer and Chairman of the Board
Harrow
Health, Inc.
102
Woodmont Blvd., Suite 610
Nashville,
Tennessee 37205
(615)
733-4730
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copy
To:
James
H. Nixon III, Esq.
Waller Lansden Dortch & Davis, LLP
511 Union Street, Suite 2700
Nashville, Tennessee 37219
(615) 244-6380
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to general Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the commission pursuant to Rule 462(e) under the Securities Act, check the following box, ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”,
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated
filer ☐ |
|
Accelerated
filer
☐ |
|
Non-accelerated
filer ☒ |
|
Smaller
Reporting Company ☒ |
|
Emerging Growth Company
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell the securities until the Registration Statement filed
with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting
an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 26, 2022
PROSPECTUS
$300,000,000
HARROW
HEALTH, INC.
By
this prospectus, we may offer, from time to time:
|
●
Common stock |
|
|
●
Preferred stock |
|
|
●
Depositary shares |
|
|
●
Warrants |
|
|
●
Units |
|
|
●
Debt securities |
|
All
of the securities listed above may be sold separately or as units with other securities.
This
prospectus may not be used to sell securities unless accompanied by a prospectus supplement, which will describe the method and the terms
of the offering. We will provide you with specific amount, price and terms of the applicable offered securities in one or more supplements
to this prospectus. You should read this prospectus and any supplement carefully before you purchase any of our securities.
Our
common stock is listed on the Nasdaq Global Market under the symbol “HROW.” On May 25, 2022, the closing price of our common
stock on the Nasdaq Global Market was $6.50 per share.
Investing
in our securities involves risk. Please carefully read the information under “Risk Factors” beginning on page 4 of this prospectus,
as well as the “Risk Factors” incorporated by reference herein from our most recent Annual Report on Form 10-K, our Quarterly
Report on Form 10-Q and other reports and information that we file with the Securities and Exchange Commission, for information you should
consider before investing 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 is truthful or complete. Any representation to the contrary is a criminal offense.
We
may offer the securities in amounts, at prices and on terms determined at the time of offering. We may sell the securities directly to
you, through agents we select, or through underwriters and dealers we select. If we use agents, underwriters or dealers to sell the securities,
we will name them and describe their compensation in a prospectus supplement. In addition, the underwriters may overallot a portion of
the securities. For additional information regarding the methods of sale of our securities, you should refer to the section entitled
“Plan of Distribution” in this prospectus.
This
prospectus is dated ______, 2022
Table
of Contents
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using
a “shelf” registration process. Under this shelf process, we may, from time to time, offer or sell any combination of the
securities described in this prospectus in one or more offerings up to a total dollar amount of $300,000,000.
This
prospectus provides you with a general description of the securities offered by us. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add to, update
or change information contained in the prospectus and, accordingly, to the extent inconsistent, information in this prospectus is superseded
by the information in the prospectus supplement.
The
prospectus supplement to be attached to the front of this prospectus may describe, as applicable: the terms of the securities offered;
the initial public offering price; the price paid for the securities; net proceeds; and the other specific terms related to the offering
of the securities.
You
should only rely on the information contained or incorporated by reference in this prospectus and any prospectus supplement or issuer
free writing prospectus relating to a particular offering. No person has been authorized to give any information or make any representations
about us or itself that is different from, or in addition to, that contained or incorporated by reference in this prospectus, any accompanying
prospectus supplement and any related issuer free writing prospectus in connection with the offering described herein and therein, and,
if given or made, such information or representations must not be relied upon as having been authorized by us. Neither this prospectus
nor any prospectus supplement nor any related issuer free writing prospectus shall constitute an offer to sell or a solicitation of an
offer to buy offered securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation.
This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of
the offering of the securities, you should refer to the registration statement, including its exhibits. You should read the entire prospectus
and any prospectus supplement and any related issuer free writing prospectus, as well as the documents incorporated by reference into
this prospectus or any prospectus supplement or any related issuer free writing prospectus, before making an investment decision. Neither
the delivery of this prospectus or any prospectus supplement or any issuer free writing prospectus nor any sale made hereunder shall
under any circumstances imply that the information contained or incorporated by reference herein or in any prospectus supplement or issuer
free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus supplement or issuer free writing
prospectus, as applicable.
PROSPECTUS SUMMARY
The
following summary highlights information contained in this prospectus or incorporated by reference. While we have included what we believe
to be the most important information about the company, the following summary may not contain all the information that may be important
to you. You should read this entire prospectus carefully, including the risks of investing discussed under “Risk Factors”
beginning on page 4, the information to which we refer you and the information incorporated into this prospectus by reference, for a
complete understanding of our business and the terms of any offering. References in this prospectus to “our company,” “we,”
“our,” “Harrow” and “us” refer to Harrow Health, Inc.
Harrow
Health, Inc.
Overview
We
are an ophthalmic-focused healthcare company. Our business specializes in the development, production, sale, and distribution of innovative
prescription medications that offer unique competitive advantages and serve unmet needs in the marketplace through our subsidiaries and
deconsolidated companies. We own and operate ImprimisRx, one of the nation’s leading ophthalmology-focused pharmaceutical businesses,
and Visionology, Inc., or Visionology, a direct-to-consumer digital eyecare subsidiary. In addition to wholly owning ImprimisRx and Visionology,
we also have non-controlling equity positions in Surface Ophthalmics, Inc., or Surface, and Melt Pharmaceuticals, Inc., or Melt.
ImprimisRx
is our ophthalmology-focused prescription pharmaceutical business. We offer to over 10,000
physician customers and their patients medically necessary prescription drugs to meet their needs that are otherwise unmet by commercially
available drugs. We make our formulations available at prices that are, in most cases, lower than non-customized commercial drugs. Our
current ophthalmic formulary includes over twenty compounded formulations, many of which are patented or patent-pending, and are customizable
for the specific needs of a patient. Some of our compounded medications are various combinations of drugs formulated into one bottle
and numerous preservative free formulations. Depending on the formulation, the regulations of a specific state and ultimately the needs
of the patient, ImprimisRx products may be dispensed as patient-specific medications from our 503A pharmacy, or for in-office use, made
according to federal current good manufacturing practices, or cGMPs, or other U.S. Food and Drug Administration, or FDA, guidance documents,
in our FDA-registered outsourcing facility located in New Jersey.
Over
the past two years, in order to more fully serve the needs of our growing customer base, we have invested in broadening ImprimisRx’s
product portfolio to include FDA-approved products. Our investments in this regard have led to commercial partnerships to sell DEXYCU®
and Avenova, the acquisition of two later stage drug candidates, and the recent acquisition of U.S. rights to four FDA-approved ophthalmic
products. These transactions, and those we are continuing to pursue, are focused in eyecare pharmaceuticals. We believe that our continued
investments in these and other products will result in our ability to provide more physician prescribers and their patients with access
to a complete portfolio of affordable eyecare pharmaceuticals to address their clinical needs.
We
operate two compounding facilities located in Ledgewood, New Jersey. Our New Jersey operations are comprised of two separate entities
and facilities, one of which is registered with the FDA as an outsourcing facility under Section 503B of the Federal Food, Drug &
Cosmetic Act, or the FDCA. The other New Jersey facility, is a licensed pharmacy operating under Section 503A of the FDCA. All products
that we sell, produce and dispense are made in the United States.
We
have minority ownership interests in Surface, Melt and Eton Pharmaceuticals, Inc., all companies that began as our subsidiaries, and
hold royalty interests in some of Surface’s and Melt’s drug candidates. These companies are pursuing market approval for
their drug candidates under the FDCA, including in some instances under the abbreviated pathway described in Section 505(b)(2), which
permits the submission of a new drug application, or NDA, where at least some of the information required for approval comes from studies
not conducted by or for the applicant and for which the applicant has not obtained a right of reference. We expect any new subsidiaries
to be focused on eye care.
We
have incurred significant operating losses and negative cash flows from operations over the course of our business. As of March 31, 2022,
we had an accumulated deficit of approximately $97.8 million. Our current projections indicate that we will have operating income and/or
net income during 2022; however, these projections may not be correct and our plans could change. Also, we could incur increasing operating
losses in the foreseeable future for our commercialization activities, research and development, and our pharmaceutical business, which
would impact net income. Recent changes to the accounting for equity investments require those investments to be measured at fair market
value, which may cause our earnings (losses) to become volatile as the stock prices of those equity investments fluctuate. Although we
have been generating revenue from our pharmaceutical operations, our ability to generate the revenues necessary to achieve profitability
will depend on many factors. Our business plan and strategies involve costly activities that are susceptible to failure, and, therefore,
we may not be able to generate sufficient revenue to support and sustain our business or reach the level of sales and revenues necessary
to achieve and sustain profitability.
Corporate
Information
We
were incorporated in Delaware in January 2006 as Bywater Resources, Inc. In September 2007, we closed a merger transaction with Transdel
Pharmaceuticals Holdings, Inc. and changed our name to Transdel Pharmaceuticals, Inc. We changed our name to Imprimis Pharmaceuticals,
Inc. in February 2012. We changed the name of our company to Harrow Health, Inc. in December 2018.
On
June 26, 2011, we suspended our operations and filed a voluntary petition for reorganization relief under Chapter 11 of the United States
Bankruptcy Code in the United States Bankruptcy Court for the Southern District of California, Case No. 11-10497-11. On December 8, 2011,
in connection with our entry into a line of credit agreement and securities purchase agreement with a third party, our voluntary petition
for reorganization relief was dismissed.
During
the summer of 2019, we relocated our executive office previously based in San Diego, California to its current location at 102 Woodmont
Blvd., Suite 610, Nashville, Tennessee and our telephone number at such office is (615) 733-4730. Our website address is harrowinc.com.
Information contained on our website is not deemed part of this prospectus and is not incorporated in this prospectus or any other document
that we file with the SEC by reference.
The
Securities We May Offer
We
may offer up to $300.0 million of common stock, preferred stock, depositary shares, warrants, units and debt securities in one or more
offerings and in any combination. This prospectus provides you with a general description of the securities we may offer. A prospectus
supplement, which we will provide each time we offer securities, will describe the specific amounts, prices and terms of these securities.
We
may sell the securities to or through underwriters, dealers or agents or directly to purchasers or as otherwise set forth below under
“Plan of Distribution.” We, as well as any agents acting on our behalf, reserve the sole right to accept and to reject in
whole or in part any proposed purchase of securities. Each prospectus supplement will set forth the names of any underwriters, dealers,
agents or other entities involved in the sale of securities described in that prospectus supplement and any applicable fee, commission
or discount arrangements with them.
Common
Stock
We
may offer shares of our common stock, par value $0.001 per share, either alone or underlying other registered securities convertible
into our common stock. Holders of our common stock are entitled to receive dividends declared by our board of directors out of funds
legally available for the payment of dividends, subject to rights, if any, of preferred stockholders. Currently, we do not pay a dividend.
Each holder of common stock is entitled to one vote per share. The holders of common stock have no preemptive rights.
Preferred
Stock and Depositary Shares
We
may issue preferred stock in one or more series. Our board of directors or a committee designated by the board will determine the dividend,
voting and conversion rights and other provisions at the time of sale. Each series of preferred stock will be more fully described in
the particular prospectus supplement that will accompany this prospectus, including redemption provisions, rights in the event of liquidation,
dissolution or the winding up of Harrow Health, Inc., voting rights and rights to convert into common stock. We may also issue fractional
shares of preferred stock that will be represented by depositary shares and depositary receipts. Each particular series of depositary
shares will be more fully described in the prospectus supplement that will accompany this prospectus.
Warrants
We
may issue warrants for the purchase of common stock, preferred stock or debt securities. We may issue warrants independently or together
with other securities.
Units
We
may offer units composed of one or more of the other securities that may be offered under this prospectus.
Debt
Securities
We
may offer secured or unsecured obligations in the form of one or more series of senior or subordinated debt. The senior debt securities
and the subordinated debt securities are together referred to in this prospectus as the “debt securities.” The senior debt
securities will have the same rank as all of our other unsubordinated debt but we may be subject to the terms of other debt to which
the senior debt is otherwise subordinate. The subordinated debt securities generally will be entitled to payment only after payment of
our senior debt. Senior debt generally includes all debt for money borrowed by us, except debt that is stated in the instrument governing
the terms of that debt to be not senior to, or to have the same rank in right of payment as, or to be expressly junior to, the subordinated
debt securities. We may issue debt securities that are convertible into shares of our common stock.
The
debt securities will be issued under separate indentures between us and a trustee. We have summarized the general features of the debt
securities to be governed by the indentures. These indentures have been filed as exhibits to the registration statement of which this
prospectus forms a part. We encourage you to read these indentures. Instructions on how you can get copies of these documents are provided
under the heading “Where You Can Find More Information.”
RISK
FACTORS
An
investment in our securities involves a high degree of risk. Before purchasing any of our securities, you should carefully consider the
risk factors incorporated by reference into this prospectus from our most recent Annual Report on Form 10-K, our subsequent Quarterly
Report on Form 10-Q and the other reports and information that we file with the SEC, including any risk factors and other information
contained in any applicable prospectus supplement. In particular, please see the risk factors described in our Annual Report on Form
10-K for the year ended December 31, 2021, which is incorporated by reference into this prospectus. The risks and uncertainties that
we have described are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently
deem immaterial may also affect us. The occurrence of any of these risks could materially and adversely impact our business, cash flows,
condition (financial or otherwise), liquidity, prospects and/or results of operations. Please also refer to the section below entitled
“Forward-Looking Statements.”
FORWARD-LOOKING
STATEMENTS
This
prospectus and the registration statement of which it forms a part, any prospectus supplement, any related issuer free writing prospectus
and the documents incorporated by reference into these documents contain forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended,
or the Exchange Act. Forward-looking statements deal with our current plans, intentions, beliefs and expectations and statements of future
economic performance. Statements containing terms such as “will”, “may”, “should”, “expects”,
“plans”, “anticipates”, “believes”, “estimates”, “predicts”, “forecasts”,
“potential” or “continue” or the negative of these terms or other comparable terminology are considered to contain
uncertainty and are forward-looking statements. In addition, from time to time we or our representatives have made or will make forward-looking
statements orally or in writing. Furthermore, such forward-looking statements may be included in various filings that we make with the
SEC, or press releases or oral statements made by or with the approval of one of our authorized executive officers. These forward-looking
statements are subject to certain known and unknown risks and uncertainties, as well as assumptions that could cause actual results to
differ materially from those reflected in these forward-looking statements. Factors that might cause actual results to differ include,
but are not limited to, those set forth in the “Risk Factors” and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” sections of our most recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q and
in our future filings made with the SEC. Readers are cautioned not to place undue reliance on any forward-looking statements contained
in this prospectus, any prospectus supplement or any related issuer free writing prospectus, which reflect management’s opinions
only as of their respective dates. Except as required by law, we undertake no obligation to revise or publicly release the results of
any revisions to any forward-looking statements. You are advised, however, to consult any additional disclosures we have made or will
make in our reports to the SEC on Forms 10-K, 10-Q and 8-K. All subsequent written and oral forward-looking statements attributable to
us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained in this prospectus,
any prospectus supplement or any related issuer free writing prospectus.
DILUTION
We
will set forth in a prospectus supplement the following information regarding any material dilution to the purchasers of equity interests
which they purchase in an offering under this prospectus:
|
● |
the
net tangible book value per share before and after the offering; |
|
|
|
|
● |
the
amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering;
and |
|
|
|
|
● |
the
amount of the immediate dilution from the public offering price which will be absorbed by the purchasers. |
USE
OF PROCEEDS
Unless
otherwise indicated in the prospectus supplement, the net proceeds from the sale of securities offered by this prospectus will be used
for general corporate purposes and working capital requirements, which may include, among other things, the repayment or repurchase of
debt obligations and other capital expenditures. We may also use a portion of the net proceeds for licensing or acquiring intellectual
property or technologies to incorporate into our products and product candidates or our research and development programs, capital expenditures,
to fund possible investments in and acquisitions of complementary products, businesses or partnerships. We have not determined the amounts
we plan to spend on the areas listed above or the timing of these expenditures. As a result, unless otherwise indicated in the prospectus
supplement, our management will have broad discretion to allocate the net proceeds of the offerings. Pending their ultimate use, we intend
to invest the net proceeds in a variety of securities, including commercial paper, government and non-government debt securities and/or
money market funds that invest in such securities.
DIVIDEND
POLICY
We
have never paid cash dividends on our equity securities. Moreover, we do not anticipate paying cash dividends for the foreseeable future.
We intend to use all available cash and liquid assets in the operation and growth of our business. Any future determination about the
payment of dividends will be made at the discretion of our board of directors and will depend upon our earnings, if any, capital requirements,
operating and financial conditions and on such other factors as our board of directors deems relevant.
DESCRIPTION
OF CAPITAL STOCK
The
following is a summary of the rights of our common and preferred stock and of certain provisions of our Amended and Restated Certificate
of Incorporation, as amended, or the Certificate of Incorporation, and Amended and Restated Bylaws, or the Bylaws. For more detailed
information, please see our Certificate of Incorporation and Bylaws, which are filed as exhibits to the registration statement of which
this prospectus forms a part.
Authorized
Capital Stock
Our
authorized capital stock consists of 55,000,000 shares, 50,000,000 of which are designated as common stock, par value $0.001 per share,
and 5,000,000 of which are designated as preferred stock, par value $0.001 per share.
Capital
Stock Issued and Outstanding
As
of May 4, 2022, there were approximately 82 stockholders of record (excluding an indeterminable number of stockholders whose shares
are held in street or “nominee” name) of our common stock. In addition, as of March 31, 2022, there were outstanding (i)
options to acquire 3,083,796 shares of our common stock with a weighted average exercise price of $5.76 per share, (ii) warrants to purchase
373,847 shares of common stock with a weighted average exercise price of $2.08 per share, (iii) 2,088,558 unvested restricted stock units,
and (iv) 277,405 vested restricted stock units for which delivery of the shares had been deferred.
Description
of Common Stock
We
are authorized to issue 50,000,000 shares of common stock, par value $0.001 per share. The holders of our common stock are entitled to
one vote per share on all matters submitted to a vote of the stockholders, including the election of directors. Our Certificate of Incorporation
does not provide for cumulative voting in the election of directors. Subject to any preferential rights of any outstanding series of
preferred stock created by our board of directors from time to time the holders of our common stock will be entitled to cash dividends
as may be declared, if any, by our board of directors from funds available. Subject to any preferential rights of any outstanding series
of preferred stock that we may issue, upon liquidation, dissolution or winding up of our company, the holders of our common stock will
be entitled to receive pro rata all assets available for distribution to the holders.
Description
of Preferred Stock
Our
board of directors has the authority, without further action by our stockholders, to issue up to 5,000,000 shares of preferred stock,
par value $0.001 per share, in one or more series. Our board of directors may designate the rights, preferences, privileges and restrictions
of the preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference, sinking
fund terms, and number of shares constituting any series and the designation of any series. The issuance of preferred stock could have
the effect of restricting dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights
of our common stock, or delaying or preventing a change in control. The ability to issue preferred stock could delay or impede a change
in control. As of the date of this prospectus, no shares of preferred stock are outstanding and we currently have no plan to issue any
shares of preferred stock.
Anti-Takeover
Provisions
We
are subject to the provisions of Section 203 of the Delaware General Corporation Law, or DGCL, an anti-takeover law. In general, Section
203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder”
for a period of three years after the date of the transaction in which such stockholder became an interested stockholder, unless the
business combination is approved in a prescribed manner. For purposes of Section 203, a “business combination” includes a
merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and an “interested stockholder”
is a stockholder who, together with affiliates and associates, owns, or within three years prior, did own, 15% or more of the voting
stock.
Liability
and Indemnification of Directors and Officers
Section
145 of the DGCL provides, in general, that a corporation incorporated under the laws of the State of Delaware, such as us, may indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding
(other than a derivative action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent
of another enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. In the case of a derivative action, a Delaware
corporation may indemnify any such person against expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification will be made in
respect of any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation unless and only
to the extent that the Court of Chancery of the State of Delaware or any other court in which such action was brought determines such
person is fairly and reasonably entitled to indemnity for such expenses.
Our
Certificate of Incorporation and Bylaws provide that we will indemnify our directors, officers, employees and agents to the extent and
in the manner permitted by the provisions of the DGCL, as amended from time to time, subject to any permissible expansion or limitation
of such indemnification, as may be set forth in any stockholders’ or directors’ resolution or by contract.
We
also have director and officer indemnification agreements with each of our executive officers and directors that provide, among other
things, for the indemnification to the fullest extent permitted or required by Delaware law, provided that such indemnitee shall not
be entitled to indemnification in connection with any proceedings or claims initiated or brought voluntarily by the indemnitee and not
by way of defense, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by our
board of directors, (iii) indemnification is provided by us, in our sole discretion, pursuant to powers vested in us under the DGCL,
or (iv) the proceeding is brought to establish or enforce a right to indemnification under the indemnification agreement or any other
statute or law or otherwise as required under Section 145 of the DGCL. We are not required to indemnify the indemnitee for any amounts
paid in settlement of a proceeding unless we consent to such settlement.
Any
repeal or modification of these provisions approved by our stockholders shall be prospective only, and shall not adversely affect any
limitation on the liability of a director or officer existing as of the time of such repeal or modification.
We
have purchased and intend to maintain insurance on our behalf and on behalf of any person who is or was a director or officer against
any loss arising from any claim asserted against him or her and incurred by him or her in that capacity, subject to certain exclusions
and limits of the amount of coverage.
Listing;
Transfer Agent
Our
common stock is listed on the Nasdaq Global Market under the symbol “HROW”. The transfer agent and registrar for our common
stock is Action Stock Transfer Corporation, 2469 E. Fort Union Blvd., Suite 214, Salt Lake City, UT 84121.
DESCRIPTION
OF THE DEPOSITARY SHARES
General
At
our option, we may elect to offer fractional shares of preferred stock, rather than full shares of preferred stock. If we do elect to
offer fractional shares of preferred stock, we will issue receipts for depositary shares and each of these will represent a fraction
of a share of a particular series of preferred stock, as specified in the applicable prospectus supplement. Each owner of a depositary
share will be entitled, in proportion to the applicable fractional interest in shares of preferred stock underlying that depositary share,
to all rights and preferences of the preferred stock underlying that depositary share. These rights may include dividend, voting, redemption
and liquidation rights.
The
shares of preferred stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary,
under a deposit agreement by and among us, the depositary and the holders of the depositary receipts. The depositary will be the transfer
agent, registrar and dividend disbursing agent for the depositary shares.
The
depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Holders of depositary receipts
agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying
certain charges.
The
summary of terms of the depositary shares contained in this prospectus is not complete, and is subject to modification in any prospectus
supplement for any issuance of depositary shares. You should refer to the forms of the deposit agreement, our Certificate of Incorporation
and the certificate of designation that are, or will be, filed with the SEC for the applicable series of preferred stock.
Dividends
The
depositary will distribute cash dividends or other cash distributions, if any, received in respect of the series of preferred stock underlying
the depositary shares to the record holders of depositary receipts in proportion to the number of depositary shares owned by those holders
on the relevant record date. The relevant record date for depositary shares will be the same date as the record date for the preferred
stock.
In
the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary
receipts that are entitled to receive the distribution, unless the depositary determines that it is not feasible to make the distribution.
If this occurs, the depositary, with our approval, may adopt another method for the distribution, including selling the property and
distributing the net proceeds to the holders.
The
amount distributed to holders of depositary shares will be reduced by any amounts required to be withheld by us or the depositary on
account of taxes or other governmental charges.
Liquidation
preference
If
a series of preferred stock underlying the depositary shares has a liquidation preference, in the event of our voluntary or involuntary
liquidation, dissolution or winding up, holders of depositary shares will be entitled to receive the fraction of the liquidation preference
accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.
Redemption
If
a series of preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the
proceeds received by the depositary resulting from the redemption, in whole or in part, of the preferred stock held by the depositary.
Whenever we redeem any preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number
of depositary shares representing the preferred stock so redeemed. The depositary will mail the notice of redemption to the record holders
of the depositary receipts promptly upon receiving the notice from us and not fewer than 20 or more than 60 days, unless otherwise provided
in the applicable prospectus supplement, prior to the date fixed for redemption of the preferred stock.
Voting
Upon
receipt of notice of any meeting at which the holders of preferred stock are entitled to vote, the depositary will mail the information
contained in the notice of meeting to the record holders of the depositary receipts underlying the preferred stock. Each record holder
of those depositary receipts on the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining
to the amount of preferred stock underlying that holder’s depositary shares. The record date for the depositary will be the same
date as the record date for the preferred stock. The depositary will, to the extent practicable, vote the preferred stock underlying
the depositary shares in accordance with these instructions. We will agree to take all action that may be deemed necessary by the depositary
in order to enable the depositary to vote the preferred stock in accordance with these instructions. The depositary will not vote the
preferred stock to the extent that it does not receive specific instructions from the holders of depositary receipts.
Withdrawal
of preferred stock
Owners
of depositary shares will be entitled to receive upon surrender of depositary receipts at the principal office of the depositary and
payment of any unpaid amount due to the depositary, the number of whole shares of preferred stock underlying their depositary shares.
Partial
shares of preferred stock will not be issued. Holders of preferred stock will not be entitled to deposit the shares under the deposit
agreement or to receive depositary receipts evidencing depositary shares for the preferred stock.
Amendment
and termination of the deposit agreement
The
form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be amended by agreement between
the depositary and us. However, any amendment which materially and adversely alters the rights of the holders of depositary shares, other
than fee changes, will not be effective unless the amendment has been approved by at least a majority of the outstanding depositary shares.
The deposit agreement may be terminated by the depositary or us only if:
|
● |
all
outstanding depositary shares have been redeemed; or |
|
|
|
|
● |
there
has been a final distribution of the preferred stock in connection with our dissolution and such distribution has been made to all
the holders of depositary shares. |
Charges
of depositary
We
will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangement. We will
also pay charges of the depositary in connection with:
|
● |
the
initial deposit of the preferred stock; |
|
|
|
|
● |
the
initial issuance of the depositary shares; |
|
|
|
|
● |
any
redemption of the preferred stock; and |
|
|
|
|
● |
all
withdrawals of preferred stock by owners of depositary shares. |
Holders
of depositary receipts will pay transfer, income and other taxes and governmental charges and other specified charges as provided in
the deposit agreement for their accounts. If these charges have not been paid, the depositary may:
|
● |
refuse
to transfer depositary shares; |
|
|
|
|
● |
withhold
dividends and distributions; and |
|
|
|
|
● |
sell
the depositary shares evidenced by the depositary receipt. |
Miscellaneous
The
depositary will forward to the holders of depositary receipts all reports and communications we deliver to the depositary that we are
required to furnish to the holders of the preferred stock. In addition, the depositary will make available for inspection by holders
of depositary receipts at the principal office of the depositary, and at such other places as it may from time to time deem advisable,
any reports and communications we deliver to the depositary as the holder of preferred stock.
Neither
the depositary nor we will be liable if either the depositary or we are prevented or delayed by law or any circumstance beyond the control
of either the depositary or us in performing our respective obligations under the deposit agreement. Our obligations and the depositary’s
obligations will be limited to the performance in good faith of our or the depositary’s respective duties under the deposit agreement.
Neither the depositary nor we will be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred
stock unless satisfactory indemnity is furnished. The depositary and we may rely on:
|
● |
written
advice of counsel or accountants; |
|
|
|
|
● |
information
provided by holders of depositary receipts or other persons believed in good faith to be competent to give such information; and |
|
|
|
|
● |
documents
believed to be genuine and to have been signed or presented by the proper party or parties. |
Resignation
and removal of depositary
The
depositary may resign at any time by delivering a notice to us. We may remove the depositary at any time. Any such resignation or removal
will take effect upon the appointment of a successor depositary and its acceptance of such appointment. The successor depositary must
be appointed within 60 days after delivery of the notice for resignation or removal. The successor depositary must be a bank and trust
company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000.
DESCRIPTION
OF THE WARRANTS
General
We
may issue warrants for the purchase of our debt securities, preferred stock or common stock, or any combination thereof. Warrants may
be issued independently or together with our debt securities, preferred stock or common stock and may be attached to or separate from
any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a
bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants. The warrant
agent will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. This
summary of certain provisions of the warrants is not complete. For the terms of a particular series of warrants, you should refer to
the prospectus supplement for that series of warrants and the warrant agreement for that particular series.
Debt
warrants
The
prospectus supplement relating to a particular issue of warrants to purchase debt securities will describe the terms of the debt warrants,
including the following:
|
● |
the
title of the debt warrants; |
|
● |
the
offering price for the debt warrants, if any; |
|
|
|
|
● |
the
aggregate number of the debt warrants; |
|
|
|
|
● |
the
designation and terms of the debt securities, including any conversion rights, purchasable upon exercise of the debt warrants; |
|
|
|
|
● |
if
applicable, the date from and after which the debt warrants and any debt securities issued with them will be separately transferable; |
|
|
|
|
● |
the
principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants,
which may be payable in cash, securities or other property; |
|
|
|
|
● |
the
dates on which the right to exercise the debt warrants will commence and expire; |
|
|
|
|
● |
if
applicable, the minimum or maximum amount of the debt warrants that may be exercised at any one time; |
|
|
|
|
● |
whether
the debt warrants represented by the debt warrant certificates or debt securities that may be issued upon exercise of the debt warrants
will be issued in registered or bearer form; |
|
|
|
|
● |
information
with respect to book-entry procedures, if any; the currency or currency units in which the offering price, if any, and the exercise
price are payable; |
|
|
|
|
● |
if
applicable, a discussion of material U.S. federal income tax considerations; |
|
|
|
|
● |
the
antidilution provisions of the debt warrants, if any; |
|
|
|
|
● |
the
redemption or call provisions, if any, applicable to the debt warrants; |
|
|
|
|
● |
any
provisions with respect to the holder’s right to require us to repurchase the warrants upon a change in control or similar
event; and |
|
|
|
|
● |
any
additional terms of the debt warrants, including procedures, and limitations relating to the exchange, exercise and settlement of
the debt warrants. |
Debt
warrant certificates will be exchangeable for new debt warrant certificates of different denominations. Debt warrants may be exercised
at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement. Prior to the exercise
of their debt warrants, holders of debt warrants will not have any of the rights of holders of the debt securities purchasable upon exercise
and will not be entitled to payment of principal or any premium, if any, or interest on the debt securities purchasable upon exercise.
Equity
warrants
The
prospectus supplement relating to a particular series of warrants to purchase our common stock or preferred stock will describe the terms
of the warrants, including the following:
|
● |
the
title of the warrants; |
|
|
|
|
● |
the
offering price for the warrants, if any; |
|
|
|
|
● |
the
aggregate number of warrants; |
|
|
|
|
● |
the
designation and terms of the common stock or preferred stock that may be purchased upon exercise of the warrants; |
|
● |
if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each security; |
|
|
|
|
● |
if
applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
|
|
|
|
● |
the
number of shares of common stock or preferred stock that may be purchased upon exercise of a warrant and the exercise price for the
warrants; |
|
|
|
|
● |
the
dates on which the right to exercise the warrants shall commence and expire; |
|
|
|
|
● |
if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
|
|
|
|
● |
the
currency or currency units in which the offering price, if any, and the exercise price are payable; |
|
|
|
|
● |
if
applicable, a discussion of material U.S. federal income tax considerations; |
|
|
|
|
● |
the
antidilution provisions of the warrants, if any; |
|
|
|
|
● |
the
redemption or call provisions, if any, applicable to the warrants; |
|
|
|
|
● |
any
provisions with respect to the holder’s right to require us to repurchase the warrants upon a change in control or similar
event; and |
|
|
|
|
● |
any
additional terms of the warrants, including procedures, and limitations relating to the exchange, exercise and settlement of the
warrants. |
Holders
of equity warrants will not be entitled:
|
● |
to
vote, consent or receive dividends; |
|
|
|
|
● |
receive
notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or |
|
|
|
|
● |
exercise
any rights as stockholders of us. |
DESCRIPTION
OF THE UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the
material terms and provisions of the units that we may offer under this prospectus and the related unit agreements. While the terms summarized
below will apply generally to any units we may offer, we will describe the particular terms of any series of units in more detail in
the applicable prospectus supplement.
We
may, from time to time, issue units comprised of one or more of the other securities that may be offered under this prospectus, in any
combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus,
the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit
is issued may provide that the securities included in the unit may not be held or transferred separately at any time or at any time before
a specified date.
The
applicable prospectus supplement will describe the following terms of the units in respect of which this prospectus is being delivered:
|
● |
the
material terms of the units and of the securities comprising the units, including whether and under what circumstances those securities
may be held or transferred separately; |
|
● |
any
material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or the securities comprising
the units; |
|
|
|
|
● |
whether
the units will be issued fully registered or in global form; and |
|
|
|
|
● |
any
material provisions of the governing unit agreement that differ from those described above. |
The
description in the applicable prospectus supplement and other offering material of any units we offer will not necessarily be complete
and will be qualified in its entirety by reference to the applicable unit agreement, which will be filed with the SEC if we offer units.
DESCRIPTION
OF THE DEBT SECURITIES
The
debt securities may be either secured or unsecured and may be characterized as senior debt securities or subordinated debt securities.
The debt securities will be issued under one or more separate indentures between us and a trustee to be specified in an accompanying
prospectus supplement. Senior debt securities will be issued under a senior indenture and subordinated debt securities will be issued
under a subordinated indenture. Together, the senior indenture and the subordinated indenture are called indentures in this description.
This prospectus, together with the applicable prospectus supplement, will describe the terms of a particular series of debt securities.
Senior
Notes
In
April, May and June, 2021, we completed the sale of an aggregate principal amount of $75,000,000 unsecured senior notes in public offerings,
which are all treated as a single series (collectively, the “Senior Notes”). The Senior Notes were issued pursuant to that
certain Indenture (the “Base Indenture”) and that certain First Supplemental Indenture (the “First Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”) each dated April 20, 2021, between the Company and U.S. Bank National
Association, as trustee (the “Trustee”). The Senior Notes bear interest at the rate of 8.625% per annum and mature on April
30, 2026. Interest on the Senior Notes is payable quarterly in arrears on January 31, April 30, July 31 and October 31 of each year.
The Senior Notes are listed on the Nasdaq Global Market under the symbol “HROWL.”
The
Senior Notes are senior unsecured obligations of the Company and rank equally in right of payment with all of the Company’s other
existing and future senior unsecured and unsubordinated indebtedness. The Senior Notes are effectively subordinated in right of payment
to all of the Company’s existing and future secured indebtedness and structurally subordinated to all existing and future indebtedness
of the Company’s subsidiaries, including trade payables.
Prior
to February 1, 2026, the Company may, at its option, redeem the Senior Notes, in whole at any time or in part from time to time, at a
redemption price equal to 100% of the principal amount of the Senior Notes to be redeemed, plus a make-whole amount that is further described
in the First Supplemental Indenture, if any, plus accrued and unpaid interest to, but excluding, the date of redemption. The Company
may redeem the Senior Notes for cash in whole or in part at any time at our option on or after February 1, 2026 and prior to maturity,
at a price equal to 100% of their principal amount, plus accrued and unpaid interest to, but excluding, the date of redemption. On and
after any redemption date, interest will cease to accrue on the redeemed Senior Notes.
The
Indenture contains customary events of default and cure provisions. If an uncured default occurs and is continuing, the Trustee or the
holders of at least 25% of the principal amount of the Senior Notes may declare the entire amount of the Senior Notes, together with
accrued and unpaid interest, if any, to be immediately due and payable. In the case of an event of default involving the Company’s
bankruptcy, insolvency or reorganization, the principal of, and accrued and unpaid interest on, the principal amount of the Senior Notes,
together with accrued and unpaid interest, if any, will automatically, and without any declaration or other action on the part of the
Trustee or the holders of the Senior Notes, become due and payable.
The
Indenture is incorporated by reference into the registration statement of which this prospectus is a part.
Summary
The
following is a summary of selected provisions and definitions of the indentures and debt securities to which any prospectus supplement
may relate. The summary of selected provisions of the indentures and the debt securities appearing below is not complete and is subject
to, and qualified entirely by reference to, all of the provisions of the applicable indenture and certificates evidencing the applicable
debt securities. For additional information, you should look at the applicable indenture and the certificate evidencing the applicable
debt security that is filed as an exhibit to the registration statement that includes the prospectus. In this description of the debt
securities, the words “Harrow,” “we,” “us,” or “our” refer only to Harrow Health, Inc.
and not to any of our subsidiaries, unless we expressly state or the context otherwise requires.
The
following description sets forth selected general terms and provisions of the applicable indenture and debt securities to which any prospectus
supplement may relate. Other specific terms of the applicable indenture and debt securities will be described in the applicable prospectus
supplement. If any particular terms of the indenture or debt securities described in a prospectus supplement differ from any of the terms
described below, then the terms described below will be deemed to have been superseded by that prospectus supplement.
General
Debt
securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal
amount for the debt securities of any series.
We
are not limited as to the amount of debt securities we may issue under the indentures. Unless otherwise provided in a prospectus supplement,
a series of debt securities may be reopened to issue additional debt securities of such series.
The
prospectus supplement relating to a particular series of debt securities will set forth:
|
● |
whether
the debt securities are senior or subordinated; |
|
|
|
|
● |
the
offering price; |
|
|
|
|
● |
the
title; |
|
|
|
|
● |
any
limit on the aggregate principal amount; |
|
|
|
|
● |
the
person who shall be entitled to receive interest, if other than the record holder on the record date; |
|
|
|
|
● |
the
date or dates the principal will be payable; |
|
|
|
|
● |
the
interest rate or rates, which may be fixed or variable, if any, the date from which interest will accrue, the interest payment dates
and the regular record dates, or the method for calculating the dates and rates; |
|
|
|
|
● |
the
place where payments may be made; |
|
|
|
|
● |
any
mandatory or optional redemption provisions or sinking fund provisions and any applicable redemption or purchase prices associated
with these provisions; |
|
● |
if
issued other than in denominations of U.S. $1,000 or any multiple of U.S. $1,000, the denominations in which the debt securities
shall be issuable; |
|
|
|
|
● |
if
applicable, the method for determining how the principal, premium, if any, or interest will be calculated by reference to an index
or formula; |
|
● |
if
other than U.S. currency, the currency or currency units in which principal, premium, if any, or interest will be payable and whether
we or a holder may elect payment to be made in a different currency; |
|
|
|
|
● |
the
portion of the principal amount that will be payable upon acceleration of maturity, if other than the entire principal amount; |
|
|
|
|
● |
if
the principal amount payable at stated maturity will not be determinable as of any date prior to stated maturity, the amount or method
for determining the amount which will be deemed to be the principal amount; |
|
|
|
|
● |
if
applicable, whether the debt securities shall be subject to the defeasance provisions described below under “Satisfaction and
discharge; defeasance” or such other defeasance provisions specified in the applicable prospectus supplement for the debt securities; |
|
|
|
|
● |
any
conversion or exchange provisions; |
|
|
|
|
● |
whether
the debt securities will be issuable in the form of a global certificate; |
|
|
|
|
● |
any
subordination provisions applicable to the subordinated debt securities if different from those described below under “Subordinated
debt securities;” |
|
|
|
|
● |
any
paying agents, authenticating agents, security registrars or other agents for the debt securities, if other than the trustee; |
|
|
|
|
● |
any
provisions relating to any security provided for the debt securities, including any provisions regarding the circumstances under
which collateral may be released or substituted; |
|
|
|
|
● |
any
deletions of, or changes or additions to, the events of default, acceleration provisions or covenants; |
|
|
|
|
● |
any
provisions relating to guaranties for the securities and any circumstances under which there may be additional obligors; and |
|
|
|
|
● |
any
other specific terms of such debt securities. |
Unless
otherwise specified in the prospectus supplement, the debt securities will be registered debt securities. Debt securities may be sold
at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at time of issuance is
below market rates. The U.S. federal income tax considerations applicable to debt securities sold at a discount will be described in
the applicable prospectus supplement.
Exchange
and transfer
Debt
securities may be transferred or exchanged at the office of the security registrar or at the office of any transfer agent designated
by us.
We
will not impose a service charge for any transfer or exchange, but we may require holders to pay any tax or other governmental charges
associated with any transfer or exchange.
In
the event of any partial redemption of debt securities of any series, we will not be required to:
|
● |
issue,
register the transfer of, or exchange, any debt security of that series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption and ending at the close of business on the day of the mailing; or |
|
● |
register
the transfer of or exchange any debt security of that series selected for redemption, in whole or in part, except the unredeemed
portion being redeemed in part. |
We
will appoint the trustee as the initial security registrar. Any trustee, in addition to the security registrar initially designated by
us, will be named in the prospectus supplement. We may designate additional trustees or change trustees or change the office of the trustee.
However, we will be required to maintain a trustee in each place of payment for the debt securities of each series.
Global
certificates
The
debt securities of any series may be represented, in whole or in part, by one or more global certificates. Each global certificate will:
|
● |
be
registered in the name of a depositary, or its nominee, that we will identify in a prospectus supplement; |
|
|
|
|
● |
be
deposited with the depositary or nominee or custodian; and |
|
|
|
|
● |
bear
any required legends. |
No
global certificate may be exchanged in whole or in part for debt securities registered in the name of any person other than the depositary
or any nominee unless:
|
● |
the
depositary has notified us that it is unwilling or unable to continue as depositary or has ceased to be qualified to act as depositary; |
|
|
|
|
● |
an
event of default is continuing with respect to the debt securities of the applicable series; or |
|
|
|
|
● |
any
other circumstance described in a prospectus supplement has occurred permitting or requiring the issuance of any such security. |
As
long as the depositary, or its nominee, is the registered owner of a global certificate, the depositary or nominee will be considered
the sole owner and holder of the debt securities represented by the global certificate for all purposes under the indentures. Except
in the above limited circumstances, owners of beneficial interests in a global certificate will not be:
|
● |
entitled
to have the debt securities registered in their names; |
|
|
|
|
● |
entitled
to physical delivery of certificated debt securities; or |
|
|
|
|
● |
considered
to be holders of those debt securities under the indenture. |
Payments
on a global certificate will be made to the depositary or its nominee as the holder of the global certificate. Some jurisdictions have
laws that require that certain purchasers of securities take physical delivery of such securities in definitive form. These laws may
impair the ability to transfer beneficial interests in a global certificate.
Institutions
that have accounts with the depositary or its nominee are referred to as “participants.” Ownership of beneficial interests
in a global certificate will be limited to participants and to persons that may hold beneficial interests through participants. The depositary
will credit, on its book-entry registration and transfer system, the respective principal amounts of debt securities represented by the
global certificate to the accounts of its participants.
Ownership
of beneficial interests in a global certificate will be shown on and effected through records maintained by the depositary, with respect
to participants’ interests, or any participant, with respect to interests of persons held by participants on their behalf.
Payments,
transfers and exchanges relating to beneficial interests in a global certificate will be subject to policies and procedures of the depositary.
The depositary policies and procedures may change from time to time. Neither any trustee nor we will have any responsibility or liability
for the depositary’s or any participant’s records with respect to beneficial interests in a global certificate.
Payment
and paying agents
Unless
otherwise indicated in a prospectus supplement, the provisions described in this paragraph will apply to the debt securities. Payment
of interest on a debt security on any interest payment date will be made to the person in whose name the debt security is registered
at the close of business on the regular record date. Payment on debt securities of a particular series will be payable at the office
of a paying agent or paying agents designated by us. However, at our option, we may pay interest by mailing a check to the record holder.
The trustee will be designated as our initial paying agent.
We
may also name any other paying agents in a prospectus supplement. We may designate additional paying agents, change paying agents or
change the office of any paying agent. However, we will be required to maintain a paying agent in each place of payment for the debt
securities of a particular series.
All
moneys paid by us to a paying agent for payment on any debt security that remain unclaimed for a period ending the earlier of:
|
● |
10
business days prior to the date the money would be turned over to the applicable state; or |
|
|
|
|
● |
at
the end of two years after such payment was due, |
will
be repaid to us thereafter. The holder may look only to us for such payment.
No
protection in the event of a change of control
Unless
otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, the debt securities will not contain
any provisions that 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.
Covenants
Unless
otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, the debt securities will not contain
any financial or restrictive covenants.
Consolidation,
merger and sale of assets
Unless
we indicate otherwise in a prospectus supplement with respect to a particular series of debt securities, we may not consolidate with
or merge into any other person (other than a wholly owned subsidiary of us) or sell, transfer, lease, convey or otherwise dispose of
all or substantially all of our property to, any person (other than a subsidiary of us), unless:
|
● |
the
Company shall be the surviving person, or the successor entity, if any, is a U.S. corporation, limited liability company, partnership,
trust or other business entity; |
|
|
|
|
● |
the
successor entity (if other than the Company) expressly assumes our obligations on the debt securities and under the indentures; |
|
|
|
|
● |
immediately
before and immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing;
and |
|
|
|
|
● |
certain
other conditions specified in the indenture are met. |
Events
of default
Unless
we indicate otherwise in a prospectus supplement, the following will be events of default for any series of debt securities under the
indentures:
|
(1) |
we
fail to pay principal of or any premium on any debt security of that series when due; |
|
|
|
|
(2) |
we
fail to pay any interest on any debt security of that series for 60 days after it becomes due; |
|
|
|
|
(3) |
we
fail to deposit any sinking fund payment when due; |
|
|
|
|
(4) |
we
fail to perform any other covenant in the indenture and such failure continues for 90 days after we are given the notice required
in the indentures; and |
|
|
|
|
(5) |
certain
events involving our bankruptcy, insolvency or reorganization. |
Additional
or different events of default applicable to a series of debt securities may be described in a prospectus supplement. An event of default
of one series of debt securities is not necessarily an event of default for any other series of debt securities.
The
trustee may withhold notice to the holders of any default, except defaults in the payment of principal, premium, if any, interest, any
sinking fund installment on, or with respect to any conversion right of, the debt securities of such series. However, the trustee must
consider it to be in the interest of the holders of the debt securities of such series to withhold this notice.
Unless
we indicate otherwise in a prospectus supplement, if an event of default, other than an event of default described in clause (5) above,
shall occur and be continuing with respect to any series of debt securities, either the trustee or the holders of at least a 25 percent
in aggregate principal amount of the outstanding securities of that series may declare the principal amount and premium, if any, of the
debt securities of that series, or if any debt securities of that series are original issue discount securities, such other amount as
may be specified in the applicable prospectus supplement, in each case together with accrued and unpaid interest, if any, thereon, to
be due and payable immediately.
Unless
we indicate otherwise in a prospectus supplement, if an event of default described in clause (5) above shall occur, the principal amount
and premium, if any, of all the debt securities of that series, or if any debt securities of that series are original issue discount
securities, such other amount as may be specified in the applicable prospectus supplement, in each case together with accrued and unpaid
interest, if any, thereon, will automatically become immediately due and payable. Any payment by us on the subordinated debt securities
following any such acceleration will be subject to the subordination provisions described below under “Subordinated debt securities.”
Notwithstanding
the foregoing, each indenture will provide that we may, at our option, elect that the sole remedy for an event of default relating to
our failure to comply with our obligations described under the section entitled “Reports” below or our failure to comply
with the requirements of Section 314(a)(1) of the Trust Indenture Act will for the first 180 days after the occurrence of such an event
of default consist exclusively of the right to receive additional interest on the relevant series of debt securities at an annual rate
equal to (i) 0.25% of the principal amount of such series of debt securities for the first 90 days after the occurrence of such event
of default and (ii) 0.50% of the principal amount of such series of debt securities from the 91st day to, and including, the 180th day
after the occurrence of such event of default, which we call “additional interest.” If we so elect, the additional interest
will accrue on all outstanding debt securities from and including the date on which such event of default first occurs until such violation
is cured or waived and shall be payable on each relevant interest payment date to holders of record on the regular record date immediately
preceding the interest payment date. On the 181st day after such event of default (if such violation is not cured or waived prior to
such 181st day), the debt securities will be subject to acceleration as provided above. In the event we do not elect to pay additional
interest upon any such event of default in accordance with this paragraph, the debt securities will be subject to acceleration as provided
above.
In
order to elect to pay the additional interest as the sole remedy during the first 180 days after the occurrence of any event of default
relating to the failure to comply with the reporting obligations in accordance with the preceding paragraph, we must notify all holders
of debt securities and the trustee and paying agent of such election prior to the close of business on the first business day following
the date on which such event of default occurs. Upon our failure to timely give such notice or pay the additional interest, the debt
securities will be immediately subject to acceleration as provided above.
After
acceleration, the holders of a majority in aggregate principal amount of the outstanding securities of that series may, under certain
circumstances, rescind and annul such acceleration if all events of default, other than the non-payment of accelerated principal, or
other specified amounts or interest, have been cured or waived.
Other
than the duty to act with the required care during an event of default, the trustee will not be obligated to exercise any of its rights
or powers at the request of the holders unless the holders shall have offered to the trustee reasonable indemnity. Generally, the holders
of a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the
trustee.
A
holder of debt securities of any series will not have any right to institute any proceeding under the indentures, or for the appointment
of a receiver or a trustee, or for any other remedy under the indentures, unless:
|
(1) |
the
holder has previously given to the trustee written notice of a continuing event of default with respect to the debt securities of
that series; |
|
|
|
|
(2) |
the
holders of at least 25 percent in aggregate principal amount of the outstanding debt securities of that series have made a written
request and have offered reasonable indemnity to the trustee to institute the proceeding; and |
|
|
|
|
(3) |
the
trustee has failed to institute the proceeding and has not received direction inconsistent with the original request from the holders
of a majority in aggregate principal amount of the outstanding debt securities of that series within 60 days after the original request. |
Holders
may, however, sue to enforce the payment of principal, premium or interest on any debt security on or after the due date or to enforce
the right, if any, to convert any debt security (if the debt security is convertible) without following the procedures listed in (1)
through (3) above.
We
will furnish the trustee an annual statement from our officers as to whether or not we are in default in the performance of the conditions
and covenants under the indenture and, if so, specifying all known defaults.
Modification
and waiver
Unless
we indicate otherwise in a prospectus supplement, the applicable trustee and we may make modifications and amendments to an indenture
with the consent of the holders of a majority in aggregate principal amount of the outstanding securities of each series affected by
the modification or amendment.
We
may also make modifications and amendments to the indentures for the benefit of holders without their consent, for certain purposes including,
but not limited to:
|
● |
providing
for our successor to assume the covenants under the indenture; |
|
|
|
|
● |
adding
covenants or events of default; |
|
|
|
|
● |
making
certain changes to facilitate the issuance of the securities; |
|
|
|
|
● |
securing
the securities; |
|
● |
providing
for a successor trustee or additional trustees; |
|
|
|
|
● |
curing
any ambiguities or inconsistencies; |
|
|
|
|
● |
providing
for guaranties of, or additional obligors on, the securities; |
|
|
|
|
● |
permitting
or facilitating the defeasance and discharge of the securities; and |
|
|
|
|
● |
other
changes specified in the indenture. |
However,
neither the trustee nor we may make any modification or amendment without the consent of the holder of each outstanding security of that
series affected by the modification or amendment if such modification or amendment would:
|
● |
change
the stated maturity of any debt security; |
|
|
|
|
● |
reduce
the principal, premium, if any, or interest on any debt security or any amount payable upon redemption or repurchase, whether at
our option or the option of any holder, or reduce the amount of any sinking fund payments; |
|
|
|
|
● |
reduce
the principal of an original issue discount security or any other debt security payable on acceleration of maturity; |
|
|
|
|
● |
change
the place of payment or the currency in which any debt security is payable; |
|
|
|
|
● |
impair
the right to enforce any payment after the stated maturity or redemption date; |
|
|
|
|
● |
if
subordinated debt securities, modify the subordination provisions in a materially adverse manner to the holders; |
|
|
|
|
● |
adversely
affect the right to convert any debt security if the debt security is a convertible debt security; or |
|
|
|
|
● |
change
the provisions in the indenture that relate to modifying or amending the indenture. |
Satisfaction
and discharge; defeasance
We
may be discharged from our obligations on the debt securities, subject to limited exceptions, of any series that have matured or will
mature or be redeemed within one year if we deposit enough money with the trustee to pay all the principal, interest and any premium
due to the stated maturity date or redemption date of the debt securities.
Each
indenture contains a provision that permits us to elect either or both of the following:
|
● |
we
may elect to be discharged from all of our obligations, subject to limited exceptions, with respect to any series of debt securities
then outstanding. If we make this election, the holders of the debt securities of the series will not be entitled to the benefits
of the indenture, except for the rights of holders to receive payments on debt securities or the registration of transfer and exchange
of debt securities and replacement of lost, stolen or mutilated debt securities. |
|
|
|
|
● |
we
may elect to be released from our obligations under some or all of any financial or restrictive covenants applicable to the series
of debt securities to which the election relates and from the consequences of an event of default resulting from a breach of those
covenants. |
To
make either of the above elections, we must irrevocably deposit in trust with the trustee enough money to pay in full the principal,
interest and premium on the debt securities. This amount may be made in cash and/or U.S. government obligations or, in the case of debt
securities denominated in a currency other than U.S. dollars, cash in the currency in which such series of securities is denominated
and/or foreign government obligations. As a condition to either of the above elections, for debt securities denominated in U.S. dollars
we must deliver to the trustee an opinion of counsel that the holders of the debt securities will not be subject to U.S. federal income
tax differently than if we did not make the election and instead paid the amounts due on the debt securities as and when due.
With
respect to debt securities of any series that are denominated in a currency other than United States dollars, “foreign government
obligations” means:
|
● |
direct
obligations of the government that issued or caused to be issued the currency in which such securities are denominated and for the
payment of which obligations its full faith and credit is pledged, or, with respect to debt securities of any series which are denominated
in Euros, direct obligations of certain members of the European Union for the payment of which obligations the full faith and credit
of such members is pledged, which in each case are not callable or redeemable at the option of the issuer thereof; or |
|
|
|
|
● |
obligations
of a person controlled or supervised by or acting as an agency or instrumentality of a government described in the bullet above the
timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which are not callable
or redeemable at the option of the issuer thereof. |
Reports
The
indentures provide that any reports or documents that we file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act will be
filed with the trustee within 15 days after the same is filed with the SEC. Documents filed by us with the SEC via the EDGAR system will
be deemed filed with the trustee as of the time such documents are filed with the SEC.
Notices
Notices
to holders will be given by mail to the addresses of the holders in the security register.
Governing
law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York.
No
personal liability of directors, officers, employees and stockholders
No
incorporator, stockholder, employee, agent, officer, director or subsidiary of ours will have any liability for any obligations of ours,
or because of the creation of any indebtedness under the debt securities, the indentures or supplemental indentures. The indentures provide
that all such liability is expressly waived and released as a condition of, and as a consideration for, the execution of such indentures
and the issuance of the debt securities.
Regarding
the trustee
The
indentures limit the right of the trustee, should it become our creditor, to obtain payment of claims or secure its claims.
The
trustee will be permitted to engage in certain other transactions with us. However, if the trustee acquires any conflicting interest,
and there is a default under the debt securities of any series for which it is trustee, the trustee must eliminate the conflict or resign.
Subordinated
debt securities
The
following provisions will be applicable with respect to each series of subordinated debt securities, unless otherwise stated in the prospectus
supplement relating to that series of subordinated debt securities.
The
indebtedness evidenced by the subordinated debt securities of any series is subordinated, to the extent provided in the subordinated
indenture and the applicable prospectus supplement, to the prior payment in full, in cash or other payment satisfactory to the holders
of senior debt, of all senior debt, including any senior debt securities.
Upon
any distribution of our assets upon any dissolution, winding up, liquidation or reorganization, whether voluntary or involuntary, marshalling
of assets, assignment for the benefit of creditors, or in bankruptcy, insolvency, receivership or other similar proceedings, payments
on the subordinated debt securities will be subordinated in right of payment to the prior payment in full in cash or other payment satisfactory
to holders of senior debt of all senior debt.
In
the event of any acceleration of the subordinated debt securities of any series because of an event of default with respect to the subordinated
debt securities of that series, holders of any senior debt would be entitled to payment in full in cash or other payment satisfactory
to holders of senior debt of all senior debt before the holders of subordinated debt securities are entitled to receive any payment or
distribution.
In
addition, the subordinated debt securities will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries,
including trade payables and lease obligations. This occurs because our right to receive any assets of our subsidiaries upon their liquidation
or reorganization, and your right to participate in those assets, will be effectively subordinated to the claims of that subsidiary’s
creditors, including trade creditors, except to the extent that we are recognized as a creditor of such subsidiary. If we are recognized
as a creditor of that subsidiary, our claims would still be subordinate to any security interest in the assets of the subsidiary and
any indebtedness of the subsidiary senior to us.
We
are required to promptly notify holders of senior debt or their representatives under the subordinated indenture if payment of the subordinated
debt securities is accelerated because of an event of default.
Under
the subordinated indenture, we may also not make payment on the subordinated debt securities if:
|
● |
a
default in our obligations to pay principal, premium, if any, interest or other amounts on our senior debt occurs and the default
continues beyond any applicable grace period, which we refer to as a payment default; or |
|
|
|
|
● |
any
other default occurs and is continuing with respect to designated senior debt that permits holders of designated senior debt to accelerate
its maturity, which we refer to as a non-payment default, and the trustee receives a payment blockage notice from us or some other
person permitted to give the notice under the subordinated indenture. |
We
will resume payments on the subordinated debt securities:
|
● |
in
case of a payment default, when the default is cured or waived or ceases to exist, and |
|
|
|
|
● |
in
case of a nonpayment default, the earlier of when the default is cured or waived or ceases to exist or 179 days after the receipt
of the payment blockage notice. |
No
new payment blockage period may commence on the basis of a nonpayment default unless 365 days have elapsed from the effectiveness of
the immediately prior payment blockage notice. No nonpayment default that existed or was continuing on the date of delivery of any payment
blockage notice to the trustee shall be the basis for a subsequent payment blockage notice.
As
a result of these subordination provisions, in the event of our bankruptcy, dissolution or reorganization, holders of senior debt may
receive more, ratably, and holders of the subordinated debt securities may receive less, ratably, than our other creditors. The subordination
provisions will not prevent the occurrence of any event of default under the subordinated indenture.
The
subordination provisions will not apply to payments from money or government obligations held in trust by the trustee for the payment
of principal, interest and premium, if any, on subordinated debt securities pursuant to the provisions described under the section entitled
“Satisfaction and discharge; defeasance,” if the subordination provisions were not violated at the time the money or government
obligations were deposited into trust.
If
the trustee or any holder receives any payment that should not have been made to them in contravention of subordination provisions before
all senior debt is paid in full in cash or other payment satisfactory to holders of senior debt, then such payment will be held in trust
for the holders of senior debt.
Senior
debt securities will constitute senior debt under the subordinated indenture.
Additional
or different subordination provisions may be described in a prospectus supplement relating to a particular series of debt securities.
Definitions
“Designated
senior debt” means our obligations under any particular senior debt in which the instrument creating or evidencing the same or
the assumption or guarantee thereof, or related agreements or documents to which we are a party, expressly provides that such indebtedness
shall be designated senior debt for purposes of the subordinated indenture. The instrument, agreement or other document evidencing any
designated senior debt may place limitations and conditions on the right of such senior debt to exercise the rights of designated senior
debt.
“Indebtedness”
means the following, whether absolute or contingent, secured or unsecured, due or to become due, outstanding on the date of the indenture
for such series of securities or thereafter created, incurred or assumed:
|
● |
our
indebtedness evidenced by a credit or loan agreement, note, bond, debenture or other written obligation; |
|
|
|
|
● |
all
of our obligations for money borrowed; |
|
|
|
|
● |
all
of our obligations evidenced by a note or similar instrument given in connection with the acquisition of any businesses, properties
or assets of any kind, |
|
○ |
as
lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles,
or |
|
|
|
|
○ |
as
lessee under leases for facilities, capital equipment or related assets, whether or not capitalized, entered into or leased for financing
purposes; |
|
● |
all
of our obligations under interest rate and currency swaps, caps, floors, collars, hedge agreements, forward contracts or similar
agreements or arrangements; |
|
|
|
|
● |
all
of our obligations with respect to letters of credit, bankers’ acceptances and similar facilities, including reimbursement
obligations with respect to the foregoing; |
|
|
|
|
● |
all
of our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts payable
and accrued liabilities arising in the ordinary course of business; |
|
● |
all
obligations of the type referred to in the above clauses of another person, the payment of which, in either case, we have assumed
or guaranteed, for which we are responsible or liable, directly or indirectly, jointly or severally, as obligor, guarantor or otherwise,
or which are secured by a lien on our property; and |
|
|
|
|
● |
renewals,
extensions, modifications, replacements, restatements and refundings of, or any indebtedness or obligation issued in exchange for,
any such indebtedness or obligation described in the above clauses of this definition. |
“Senior
debt” means the principal of, premium, if any, and interest, including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding,
and rent payable on or in connection with, and all fees and other amounts payable in connection with, our indebtedness. However, senior
debt shall not include:
|
● |
any
debt or obligation if its terms or the terms of the instrument under which or pursuant to which it is issued expressly provide that
it shall not be senior in right of payment to the subordinated debt securities or expressly provide that such indebtedness is on
the same basis or “junior” to the subordinated debt securities; or |
|
|
|
|
● |
debt
to any of our subsidiaries, a majority of the voting stock of which is owned, directly or indirectly, by us. |
“Subsidiary”
means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by us or by one or more
or our other subsidiaries or by a combination of us and our other subsidiaries. For purposes of this definition, “voting stock”
means stock or other similar interests which ordinarily has or have voting power for the election of directors, or persons performing
similar functions, whether at all times or only so long as no senior class of stock or other interests has or have such voting power
by reason of any contingency.
PLAN
OF DISTRIBUTION
We
may sell the securities offered through this prospectus (1) to or through underwriters or dealers, (2) directly to purchasers, including
our affiliates, (3) through agents, or (4) through a combination of any these methods. The securities may be distributed at a fixed price
or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing market prices, or negotiated
prices. The prospectus supplement will include the following information:
|
● |
the
terms of the offering; |
|
|
|
|
● |
the
names of any underwriters or agents; |
|
|
|
|
● |
the
name or names of any managing underwriter or underwriters; |
|
|
|
|
● |
the
purchase price of the securities; |
|
|
|
|
● |
the
net proceeds from the sale of the securities; |
|
|
|
|
● |
any
delayed delivery arrangements; |
|
|
|
|
● |
any
underwriting discounts, commissions and other items constituting underwriters’ compensation; |
|
|
|
|
● |
any
initial public offering price; |
|
|
|
|
● |
any
discounts or concessions allowed or reallowed or paid to dealers; and |
|
|
|
|
● |
any
commissions paid to agents. |
Sale
through underwriters or dealers
If
underwriters are used in the sale, the underwriters will acquire the securities for their own account, including through underwriting,
purchase, security lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one or more
transactions, including negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our
other securities (described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters
may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly
by one or more firms acting as underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters
to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered
securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers.
If
dealers are used in the sale of securities offered through this prospectus, we will sell the securities to them as principals. They may
then resell those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement
will include the names of the dealers and the terms of the transaction.
Direct
sales and sales through agents
We
may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities
may also be sold through agents designated from time to time. The prospectus supplement will name any agent involved in the offer or
sale of the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated in the prospectus supplement,
any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. The terms of any such sales will be described in the prospectus supplement.
Underwriter,
dealer or agent discounts and commissions
Underwriters,
dealers or agents may receive compensation in the form of discounts, concessions or commissions from us or our purchasers as their agents
in connection with the sale of securities. These underwriters, dealers or agents may be considered to be underwriters under the Securities
Act. As a result, discounts, commissions, or profits on resale received by the underwriters, dealers or agents may be treated as underwriting
discounts and commissions. Each prospectus supplement will identify any such underwriter, dealer or agent, and describe any compensation
received by them from us. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Delayed
delivery contracts
If
the prospectus supplement indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions
to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery
on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The
applicable prospectus supplement will describe the commission payable for solicitation of those contracts.
Market
making, stabilization and other transactions
Unless
the applicable prospectus supplement states otherwise, each series of offered securities will be a new issue and will have no established
trading market. We may elect to list any series of offered securities on an exchange. Any underwriters that we use in the sale of offered
securities may make a market in such securities, but may discontinue such market making at any time without notice. Therefore, we cannot
assure you that the securities will have a liquid trading market.
Any
underwriter may also engage in stabilizing transactions, syndicate covering transactions and penalty bids in accordance with Rule 104
under the Securities Exchange Act. Stabilizing transactions involve bids to purchase the underlying security in the open market for the
purpose of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases of the securities
in the open market after the distribution has been completed in order to cover syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate
member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering
transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions.
The underwriters may, if they commence these transactions, discontinue them at any time.
Derivative
transactions and hedging
We,
the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short
sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold
or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked
to or related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security
lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through
sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions
by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out
any related open borrowings of the securities.
Electronic
auctions
We
may also make sales through the Internet or through other electronic means. Since we may from time to time elect to offer securities
directly to the public, with or without the involvement of agents, underwriters or dealers, utilizing the Internet or other forms of
electronic bidding or ordering systems for the pricing and allocation of such securities, you should pay particular attention to the
description of that system we will provide in a prospectus supplement.
Such
electronic system may allow bidders to directly participate, through electronic access to an auction site, by submitting conditional
offers to buy that are subject to acceptance by us, and which may directly affect the price or other terms and conditions at which such
securities are sold. These bidding or ordering systems may present to each bidder, on a so-called “real-time” basis, relevant
information to assist in making a bid, such as the clearing spread at which the offering would be sold, based on the bids submitted,
and whether a bidder’s individual bids would be accepted, prorated or rejected. For example, in the case of a debt security, the
clearing spread could be indicated as a number of “basis points” above an index treasury note. Of course, many pricing methods
can and may also be used.
Upon
completion of such an electronic auction process, securities will be allocated based on prices bid, terms of bid or other factors. The
final offering price at which securities would be sold and the allocation of securities among bidders would be based in whole or in part
on the results of the Internet or other electronic bidding process or auction.
General
information
Agents,
underwriters, and dealers may be entitled, under agreements entered into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act.
LEGAL
MATTERS
The
validity of the securities being offered hereby has been passed upon by Waller Lansden Dortch & Davis, LLP.
EXPERTS
KMJ
Corbin & Company LLP, an independent registered public accounting firm, has audited our consolidated financial statements included
in our Annual Report on Form 10-K for the year ended December 31, 2021, as set forth in its report, which is incorporated by reference
in this prospectus and elsewhere in the registration statement. Our consolidated financial statements are incorporated by reference in
reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” the information we file with them. This means that we can disclose important
information to you in this prospectus by referring you to those documents. These incorporated documents contain important business and
financial information about us that is not included in or delivered with this prospectus. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the SEC will update and supersede this information.
We
incorporate by reference the documents listed below as well as any future filings made with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act from the date of the initial registration statement and prior to the effectiveness of this registration statement,
and any filings made after the date of this prospectus until we sell all of the securities under this prospectus, except that we do not
incorporate any document or portion of a document that is “furnished” to the SEC, but not deemed “filed.” The
following documents filed with the SEC are incorporated by reference in this prospectus:
|
● |
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed with the SEC on March 10, 2022; |
|
|
|
|
● |
our
Definitive Proxy Statement on Schedule 14A, as amended, filed with the SEC on April 26, 2022; |
|
|
|
|
● |
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the SEC on May 5, 2022; |
|
|
|
|
● |
our
Current Reports on Form 8-K filed with the SEC on March 31, 2022 and April 13, 2022; |
|
|
|
|
● |
the
description of our common stock contained in our Registration Statement on Form 8-A, filed with the SEC on February 7, 2013, and
any amendments or reports filed for the purpose of updating such description; and |
|
|
|
|
● |
the
description of our 8.625% Senior Notes due 2026 contained in our Registration Statement on Form 8-A filed with the SEC on April 20,
2021 (File No. 001-35814), pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose
of updating such description. |
We
will provide without charge to each person, including any beneficial owner, to whom a prospectus is delivered, on written or oral request
of that person, a copy of any or all of the documents we are incorporating by reference into this prospectus, other than exhibits to
those documents unless such exhibits are specifically incorporated by reference into those documents. Such written requests should be
addressed to:
Harrow
Health, Inc.
102
Woodmont Blvd., Suite 610
Nashville,
TN 37205
Attention:
Investor Relations
You
may also make such requests by contacting us at (615) 733-4730.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports and proxy statements and other information with the SEC. You may read and copy any document
that we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the Public Reference Room. Our SEC filings are also available on the SEC’s web site at http://www.sec.gov.
Copies of certain information filed by us with the SEC are also available on our web site at http://www.harrowinc.com. We have not incorporated
by reference into this prospectus the information on our website, and you should not consider it to be a part of this document.
Part
II
Information
Not Required in the Prospectus
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the aggregate estimated (other than the registration fee) costs and expenses payable by Harrow in connection
with a distribution of securities registered hereby:
Securities and Exchange Commission registration fee | |
$ | 27,810 | |
FINRA filing fee | |
| * | |
Accounting fees and expenses | |
| * | |
Legal fees and expenses | |
| * | |
Printing expenses | |
| * | |
Transfer Agent Fees and Expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
(*)
The applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable with respect to any offering of
securities.
Item
15. Indemnification of Directors and Officers
Our
Certificate of Incorporation contains provisions that eliminate, to the maximum extent permitted by the General Corporation Law of the
State of Delaware, the personal liability of directors and executive officers for monetary damages for breach of their fiduciary duties
as a director or officer. Our Certificate of Incorporation and Bylaws provide that we shall indemnify our directors and executive officers
and may indemnify our employees and other agents to the fullest extent permitted by the General Corporation Law of the State of Delaware.
Sections
145 and 102(b)(7) of the General Corporation Law of the State of Delaware provide that a corporation may indemnify any person made a
party to an action by reason of the fact that he or she was a director, executive officer, employee or agent of the corporation or is
or was serving at the request of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of an action by or
in right of the corporation, no indemnification may generally be made in respect of any claim as to which such person is adjudged to
be liable to the corporation.
In
addition to the indemnification provisions contained in Harrow’s charter documents, Harrow generally enters into separate indemnification
agreements with Harrow’s directors and officers. These agreements require Harrow, among other things, to indemnify the director
or officer against specified expenses and liabilities, such as attorneys’ fees, judgments, fines and settlements, paid by the individual
in connection with any action, suit or proceeding arising out of the individual’s status or service as Harrow’s director
or officer, other than liabilities arising from willful misconduct or conduct that is knowingly fraudulent or deliberately dishonest,
and to advance expenses incurred by the individual in connection with any proceeding against the individual with respect to which the
individual may be entitled to indemnification by Harrow.
We
have purchased and intend to maintain insurance on behalf of any person who is or was a director or officer of our company against any
loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
See
also the undertakings set out in Item 17 herein.
Item
16. Exhibits
The
following exhibits are filed herewith or incorporated by reference herein:
Exhibit
Number |
|
Exhibit
Title |
|
|
|
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
3.1 |
|
Amended and Restated Certificate of Incorporation, effective September 10, 2014 (incorporated herein by reference to Exhibit 3.1 to the Annual Report on Form 10-K of the Company for the year ended December 31, 2014 filed with the SEC on March 12, 2015). |
|
|
|
3.2** |
|
Amendment to Amended and Restated Certificate of Incorporation, filed July 10, 2018. |
|
|
|
3.3 |
|
Amendment to Amended and Restated Certificate of Incorporation, filed as of December 27, 2018 (incorporated herein by reference to Exhibit 3.1 to the Current Report on Form 8-K of the Company filed with the SEC on December 31, 2018). |
|
|
|
3.4 |
|
Certificate of Designation of Series A Convertible Preferred Stock (incorporated herein by reference to Exhibit 3.1 to the Current Report on Form 8-K of the Company filed with the SEC on December 20, 2011). |
|
|
|
3.5 |
|
Certificate of Designation of Series B Cumulative Preferred Stock (incorporated herein by reference to Exhibit 3.1 to the Current Report on Form 8-K of the Company filed with the SEC on May 5, 2021). |
|
|
|
3.6 |
|
Amended and Restated Bylaws of Imprimis Pharmaceuticals, Inc. (incorporated herein by reference to Exhibit 3.2 to the Annual Report on Form 10-K of Imprimis Pharmaceuticals, Inc. for the year ended December 31, 2013 filed with the SEC on March 28, 2014). |
|
|
|
4.1 |
|
Form of Senior Indenture (incorporated herein by reference to Exhibit 4.1 to the Registration Statement on Form S-3 of the Company filed with the SEC on July 2, 2020, Registration No. 333-239669). |
|
|
|
4.2 |
|
Form of Subordinated Indenture (incorporated herein by reference to Exhibit 4.2 to the Registration Statement on Form S-3 of the Company filed with the SEC on July 2, 2020, Registration No. 333-239669). |
|
|
|
4.3 |
|
Form of Senior Debt Security (included in Exhibit 4.1) |
|
|
|
4.4 |
|
Form of Subordinated Debt Security (included in Exhibit 4.2) |
|
|
|
4.5 |
|
Indenture, dated as of April 20, 2021, by and between the Company and U.S. Bank National Association, as Trustee (incorporated herein by reference to Exhibit 4.1 to the Current Report on Form 8-K of the Company filed with the SEC on April 20, 2021). |
|
|
|
4.6 |
|
First Supplemental Indenture, dated as of April 20, 2021, by and between the Company and U.S. Bank National Association, as Trustee (incorporated herein by reference to Exhibit 4.2 to the Current Report on Form 8-K of the Company filed with the SEC on April 20, 2021). |
|
|
|
4.7 |
|
Form of 8.625% Senior Note due 2026 (included in Exhibit 4.6) |
|
|
|
4.8* |
|
Form
of Certificate of Designation |
|
|
|
4.9* |
|
Form
of Preferred Stock Certificate |
|
|
|
4.10* |
|
Form
of Deposit Agreement |
* |
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference. |
** |
Filed
herewith. |
Item
17. Undertakings
(a) |
The
undersigned registrant hereby undertakes: |
|
|
|
|
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to: |
|
|
|
|
|
(i) |
include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
|
|
|
|
|
|
(ii) |
reflect
in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§230.424(b) of
this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
|
|
|
|
|
|
(iii) |
include
any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement. |
|
|
|
|
Provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
|
|
|
|
(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
|
|
|
|
(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
|
|
|
|
(4) |
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
|
(i) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
|
(ii) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to the effective date. |
|
(5) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer and sell such securities to such purchaser: |
|
(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
|
|
|
|
(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
|
|
|
|
(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
|
|
|
|
(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) |
The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. |
|
|
(c) |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding), is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
|
|
(d) |
The
undersigned registrant hereby undertakes that: |
|
(1) |
For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective. |
|
|
|
|
(2) |
For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
(e) |
The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the
SEC under Section 305(b)(2) of the Trust Indenture Act. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Nashville, State of Tennessee, on May 26, 2022.
|
HARROW
HEALTH, INC. |
|
|
|
|
By: |
/s/
Mark L. Baum |
|
|
Mark
L. Baum |
|
|
Chief
Executive Officer and Chairman of the Board |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Mark L. Baum and Andrew R.
Boll, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement,
and to sign any registration statement for the same offering covered by the Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with all
exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done
or by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and on the dates stated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Mark L. Baum |
|
Chief
Executive Officer and |
|
May
26, 2022 |
Mark
L. Baum |
|
Chairman
of the Board of Directors |
|
|
|
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Andrew R. Boll |
|
Chief
Financial Officer |
|
May
26, 2022 |
Andrew
R. Boll |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Richard L. Lindstrom |
|
Director |
|
May
26, 2022 |
Richard
L. Lindstrom |
|
|
|
|
|
|
|
|
|
/s/
Martin A. Makary |
|
Director |
|
May
26, 2022 |
Martin
A. Makary |
|
|
|
|
|
|
|
|
|
/s/
Teresa F. Sparks |
|
Director |
|
May
26, 2022 |
Teresa
F. Sparks |
|
|
|
|
|
|
|
|
|
/s/
Perry J. Sternberg |
|
Director |
|
May
26, 2022 |
Perry
J. Sternberg
|
|
|
|
|
/s/
R. Lawrence Van Horn |
|
Director |
|
May
26, 2022 |
R.
Lawrence Van Horn |
|
|
|
|
Harrow (NASDAQ:HROW)
Historical Stock Chart
From Feb 2024 to Mar 2024
Harrow (NASDAQ:HROW)
Historical Stock Chart
From Mar 2023 to Mar 2024