As
filed with the Securities and Exchange Commission on March 13, 2023
Registration
No. 333-__________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HEARTCORE
ENTERPRISES, INC.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware |
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87-0913420 |
(State
or Other Jurisdiction
of
Incorporation or Organization) |
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(I.R.S.
Employer
Identification
Number) |
HeartCore
Enterprises, Inc.
1-2-33,
Higashigotanda, Shinagawa-ku
Tokyo,
Japan
+81-3-6409-6966
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Corporate
Creations Network Inc.
3411
Silverside Road Tatnall, Building #104
Wilmington,
Delaware 19810
(302)
351-3367
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copy
to:
Laura
Anthony, Esq.
Craig
D. Linder, Esq.
Anthony
L.G., PLLC
625
N. Flagler Drive, Suite 600
West
Palm Beach, FL 33401
(561)
514-0936
Approximate
date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
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, or a smaller reporting
company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
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Non-accelerated
filer |
☒
(Do not check if a smaller reporting company) |
Smaller
reporting company |
☒ |
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Emerging
growth company |
☒ |
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the 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 of 1933, as amended, or until this registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell securities and it is not soliciting
an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to Completion, Dated March 13, 2023
PROSPECTUS
![](https://content.edgar-online.com/edgar_conv_img/2023/03/13/0001493152-23-007443_forms-3_001.jpg)
$100,000,000
HEARTCORE
ENTERPRISES, INC.
Common
Stock, Preferred Stock, Warrants, Rights,
Debt
Securities and Units
We
may offer and sell, from time to time in one or more offerings the following securities:
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shares
of common stock, par value $0.0001 per share; |
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shares
of preferred stock, par value $0.0001 per share; |
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warrants
to purchase shares of our common stock, preferred stock and/or debt securities; |
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rights
to purchase shares of our common stock, preferred stock, warrants and/or debt securities; |
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debt
securities consisting of senior notes, subordinated notes or debentures; |
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units
consisting of a combination of the foregoing securities; or |
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any
combination of these securities. |
We
may offer and sell up to $100,000,000 in the aggregate of the securities identified above from time to time in one or more offerings.
This prospectus provides a general description of the securities that we may offer. However, this prospectus may not be used to offer
or sell our securities unless accompanied by a prospectus supplement relating to the offered securities. Each time that we offer securities
under this prospectus, we will provide the specific terms of the securities offered, including the public offering price, in a related
prospectus supplement. Such prospectus supplement may add to, update or change information contained in this prospectus. To the extent
there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any prospectus
supplement, on the other hand, you should rely on the information in the prospectus supplement. You should read this prospectus and any
applicable prospectus supplement together with additional information described under the headings “Where You Can Find More Information”
and “Information Incorporated By Reference” before making your investment decision.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters or through
a combination of these methods. See “Plan of Distribution” in this prospectus for additional information on methods of sale.
We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement. If any agents,
underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose
their names and the nature of our arrangements with them in that prospectus supplement. The net proceeds we expect to receive from any
such sale will also be included in the prospectus supplement.
Our
common stock is traded on the Nasdaq Capital Market under the ticker symbol “HTCR.” The closing price of our common stock
on March 9, 2023 was $1.0201 per share.
As
of March 13, 2023, the aggregate market value of our outstanding common equity held by non-affiliates, or public float, was $5,845,395
based on 19,671,340 shares of common stock outstanding, of which 4,235,794 shares
are held by non-affiliates, and a per share price of $1.38 based on the average of the bid and asked prices of our common stock on the
Nasdaq Capital Market on February 3, 2023 (within 60 days prior to the date of filing). Therefore, as of March 13, 2023, the aggregate
market value of our common equity held by non-affiliates was less than $75,000,000, as calculated in accordance with General Instruction
I.B.1 of Form S-3. As of the date of this prospectus, we have not offered and sold securities pursuant to General Instruction I.B.6 to
Form S-3 during the 12-calendar month period that ends on and includes the date hereof. Pursuant to General Instruction I.B.6 of Form
S-3, in no event will we sell securities in a public primary offering with a value exceeding more than one-third of our “public
float” (the market value of our common stock held by our non-affiliates) in any 12-month period so long as our public float remains
below $75,000,000.
An
investment in our securities involves a high degree of risk. See the sections entitled “Risk Factors” included in our most
recent Annual Report on Form 10-K and in any subsequent Quarterly Report on Form 10-Q, which are incorporated by reference into this
prospectus, as well as in any prospectus supplement related to a specific offering we make pursuant to this prospectus. You should carefully
read this entire prospectus together with any related prospectus supplement and the information incorporated by reference into both before
you make your investment decision.
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.
This
prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
The
date of this prospectus is _____________, 2023
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using
a “shelf” registration process. Under this shelf registration process, we may offer from time to time securities having a
maximum aggregate offering price of $100,000,000. Each time we offer securities, we will prepare and file with the SEC a prospectus supplement
that describes the specific amounts, prices and terms of the securities we offer. The prospectus supplement also may add, update or change
information contained in this prospectus or the documents incorporated herein by reference. You should read carefully both this prospectus
and any prospectus supplement together with additional information described below under “Where You Can Find More Information”
and “Information Incorporated By Reference.”
This
prospectus does not contain all the information provided in the registration statement we filed with the SEC. For further information
about us or our securities offered hereby, you should refer to that registration statement, which you can obtain from the SEC or directly
from us as described below under “Where You Can Find More Information.”
You
should rely only on the information contained or incorporated by reference in this prospectus or any prospectus supplement. We have not
authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information,
you should not rely on it. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities, in
any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus or any
prospectus supplement, as well as information we have previously filed with the SEC and incorporated by reference, is accurate as of
the date of those documents only. Our business, financial condition, results of operations and prospects may have changed since those
dates.
We
may sell securities through underwriters or dealers, through agents, directly to purchasers or through any combination of these methods.
We and our agents reserve the sole right to accept or reject in whole or in part any proposed purchase of securities. The prospectus
supplement, which we will prepare and file with the SEC each time we offer securities, will set forth the names of any underwriters,
agents or others involved in the sale of securities, and any applicable fee, commission or discount arrangements with them. See “Plan
of Distribution.” In this prospectus, unless otherwise indicated, “the company,” “our company,” “we,”
“us” or “our” refer to HeartCore Enterprises, Inc., a Delaware corporation, and its consolidated subsidiaries.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statements
in this prospectus and in the documents incorporated by reference in this prospectus 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. Any statements contained herein, other than statements of historical fact, including statements regarding
the progress and timing of our product development programs; our future opportunities; our business strategy, future operations, anticipated
financial position, future revenues and projected costs; our management’s prospects, plans and objectives; and any other statements
about our management’s future expectations, beliefs, goals, plans or prospects constitute forward-looking statements. Examples
of such statements are those that include words such as “may,” “assume(s),” “forecast(s),” “position(s),”
“predict(s),” “strategy,” “will,” “expect(s),” “estimate(s),” “anticipate(s),”
“believe(s),” “project(s),” “intend(s),” “plan(s),” “budget(s),” “potential,”
“continue” and variations thereof. However, the words cited as examples in the preceding sentence are not intended to be
exhaustive and any statements contained in this prospectus regarding matters that are not historical facts may also constitute forward-looking
statements.
Because
these statements implicate risks and uncertainties, as well as certain assumptions, actual results may differ materially from those expressed
or implied by such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited
to, those risks identified under “Risk Factors” in our most recent annual report on Form 10-K and our quarterly reports on
Form 10-Q and from time to time in our other filings with the SEC. The information in this prospectus or any prospectus supplement speaks
only as of the date of that document and the information incorporated herein by reference speaks only as of the date of the document
incorporated by reference. Except as required by law, we undertake no obligation to update any forward-looking statement, whether as
a result of new information, future events or otherwise. Forward-looking statements include our plans and objectives for future operations,
including plans and objectives relating to our products and services and our future economic performance. Assumptions relating to the
foregoing involve judgments with respect to, among other things, future economic, competitive and market conditions as well as future
business decisions, including any acquisitions, mergers, dispositions, joint ventures, investments and any other business development
transactions we may enter into in the future. The amounts of time and money required to successfully complete development and commercialization
of our products and services as well as any evolution of or shift in our business plans, or to execute any future strategic options are
difficult or impossible to predict accurately and may involve factors that are beyond our control. Although we believe that the assumptions
underlying the forward-looking statements contained herein are reasonable, any of those assumptions could prove inaccurate and, therefore,
we cannot assure you that the results contemplated in any of the forward-looking statements contained herein will be realized.
Based
on the significant uncertainties inherent in the forward-looking statements described herein, the inclusion of any such statement should
not be regarded as a representation by us or any other person that our objectives or plans will be achieved. Accordingly, you should
not place undue reliance on these forward-looking statements.
PROSPECTUS
SUMMARY
This
prospectus summary highlights certain information about our company and other information contained elsewhere in this prospectus or in
documents incorporated by reference. This summary does not contain all of the information that you should consider before making an investment
decision. You should carefully read the entire prospectus, any prospectus supplement, including the section entitled “Risk Factors”
and the documents incorporated by reference into this prospectus, before making an investment decision.
THE
OFFERING
This
prospectus is part of a registration statement that we filed with the SEC utilizing a shelf registration process. Under this shelf registration
process, we may sell any combination of:
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common
stock; |
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preferred
stock; |
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debt
securities, in one or more series; |
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warrants
to purchase any of the securities listed above; |
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rights
to purchase any of the securities listed above; and/or |
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units
consisting of one or more of the foregoing. |
in
one or more offerings up to a total dollar amount of $100,000,000. This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the
terms of that specific offering and include a discussion of any risk factors or other special considerations that apply to those securities.
The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with the additional information described under the heading “Where You Can Find More Information.”
THE
COMPANY
Business
Overview
We
are a leading software development company based in Tokyo, Japan. We provide software through two business units.
The
first business unit includes a customer experience management business that has been in existence for 13 years. Our customer experience
management platform (the “CXM Platform”) includes marketing, sales, service and content management systems, as well as other
tools and integrations, that enable companies to attract and engage customers throughout the customer experience. We also provide education,
services and support to help customers be successful with our CXM Platform.
The
second business unit is a digital transformation business which provides customers with robotics process automation, process mining and
task mining to accelerate the digital transformation of enterprises. We also have an ongoing technology innovation team to develop software
that supports the narrow needs of large enterprise customers.
As
of September 30, 2022, our combined business units (customer experience management business unit and digital transformation business
unit) had a total of 889 customers in Japan.
Recent
Developments
“Go
IPO” Consulting Services
Since
we concluded our initial public offering and listed on the Nasdaq Capital Market in February 2022, we have been offering “Go IPO”
consulting services to a number of private Japanese companies where we assist such private Japanese companies and/or their affiliates
(“issuers”) with their initial public offerings in the United States as well as their simultaneous listings onto the Nasdaq
Stock Market, the New York Stock Exchange or the NYSE American. More specifically, these consulting services (collectively, “Services”)
include the following:
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Assistance
with the selection and negotiation of terms for a law firm, underwriter and auditing firm; |
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Provision
of process mining and task mining licenses for internal audit and internal control; |
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Assisting
in the preparation of documentation for internal controls required for an initial public offering and simultaneous listing on the
Nasdaq Stock Market, the New York Stock Exchange or the NYSE American; |
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Providing
support services to remove problematic accounting accounts upon listing support; |
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Translation
of requested documents into English; |
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Attend
and, if requested by the other party, lead, meetings of management and employees; |
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Provide
support services related to the Nasdaq, the New York Stock Exchange or the NYSE American listing; |
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Conversion
of accounting data from Japanese standards to U.S. GAAP; |
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Assist
in the preparation of S-1 or F-1 filings; |
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Creation
of English web page; and |
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Preparing
an investor presentation/deck and executive summary of the operations. |
In
providing the Services, we do not perform accounting services, and do not act as an investment advisor or broker/dealer. Pursuant to
the terms of the consulting agreements with the issuers, the parties agree that we will not provide the following services, among others:
negotiation of the sale of the issuers’ securities; participation in discussions between the issuers and potential investors; assisting
in structuring any transactions involving the sale of the issuers’ securities; pre-screening of potential investors; due diligence
activities; and providing advice relating to valuation of or financial advisability of any investments in the issuers.
Pursuant
to the terms of the consulting agreements with the issuers, the issuers agree to compensate us as follows in return for the provision
of Services during the initial term of the consulting agreements:
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(a) |
A
cash fee payable in installment payments; and |
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Issuance
by issuers to us of a warrant or stock acquisition rights to acquire a number of shares of capital stock of the issuer, to initially
be equal to a designated percentage of the fully diluted share capital of the issuer, subject to adjustment as set forth in the warrant
or stock acquisition rights. |
Acquisition
of Majority Interest in Sigmaways
On
September 6, 2022, we entered into that certain Share Exchange and Purchase Agreement (the “Sigmaways Agreement”), dated
as of September 6, 2022, as thereafter amended, with Sigmaways, Inc. (“Sigmaways”), a consulting and information technology
service company specializing in software product engineering, technology innovation and staffing solutions, and Prakash Sadasivam.
On
December 23, 2022 and February 1, 2023, we entered into Amendment No. 1 and Amendment No. 2 (“Amendment No. 2”), respectively,
to the Sigmaways Agreement, with Sigmaways and Mr. Sadasivam. Pursuant to the terms of Amendment No. 2, among other things, we agreed,
in exchange for the 229,500 shares of Sigmaways stock acquired by us from Mr. Sadasivam (representing 51% of Sigmaways outstanding shares),
to (i) issue to Mr. Sadasivam 2,000,000 shares of our common stock, (ii) pay to Mr. Sadasivam $1,000,000 (the “Cash Purchase Price”);
and (iii) issue to Mr. Sadasivam a common stock purchase warrant to acquire 1,900,000 shares of our common stock (the “Warrant”).
In addition, we agreed that following closing, we would deposit $2,000,000 into a dedicated account, which amount will be used to expand
Sigmaways’ business.
The
Warrant issued pursuant to the Sigmaways Agreement was exercisable until February 12, 2025, at an exercise price of $1.17 per share,
subject to adjustment as set forth in the Warrant. The Warrant contained a 9.99% equity blocker.
On
February 1, 2023, the acquisition of 51% of Sigmaways’ outstanding shares by us (the “Acquisition”) closed.
On
February 6, 2023, subsequent to the closing of the Acquisition, the parties to the Sigmaways Agreement determined that there was an error
in the Sigmaways Agreement and in the warrant issued pursuant to the terms of the Sigmaways Agreement. As executed, among other things,
the Sigmaways Agreement incorrectly provided that we would issue to Mr. Sadasivam a warrant to acquire 1,900,000 shares of our common
stock. The parties had agreed, however, that we would issue to Mr. Sadasivam a warrant to acquire 737,500 shares of our common stock.
Accordingly,
in order to correct the error, on February 6, 2023, we issued to Mr. Sadasivam an amended and restated warrant (the “Amended and
Restated Warrant”) that reflected the correct number of shares (737,500) underlying the warrant, and Mr. Sadasivam agreed and accepted
the Amended and Restated Warrant. The Amended and Restated Warrant is exercisable until February 12, 2025, at an exercise price of $1.17
per share, subject to adjustment as set forth in the Amended and Restated Warrant. The Amended and Restated Warrant contains a 9.99%
equity blocker.
On
February 8, 2023, the parties to the Sigmaways Agreement entered into an addendum to the Sigmaways Agreement pursuant to which the parties
acknowledged and agreed that (i) the references in the Sigmaways Agreement to a warrant to acquire 1,900,000 shares of common stock was
in error, and (ii) the warrant was intended to be for 737,500 shares of common stock. Except as set forth in the Addendum, the terms
of the Sigmaways Agreement remain in full force and effect.
Appointment
of Sadasivam as Chief Strategy Officer and Director
On
February 1, 2023, Mr. Sadasivam was appointed to serve as our Chief Strategy Officer. In addition, on February 1, 2023, the Board expanded
the size of the Board from seven persons to eight persons, and named Mr. Sadasivam to serve as a member of the Board, to fill the vacancy
created by the increase in the size of the Board.
Mr.
Sadasivam, age 49, has served as the CEO of Sigmaways since 2006. Since 2020, Mr. Sadasivam has served as an official member of the Forbes
Technology Council. He holds degrees from Vallore Institute of Technology in Vellore, India, and from UCLA’s Anderson School of
Management.
On
February 1, 2023, we and Mr. Sadasivam entered into an Employment Agreement (the “Employment Agreement”). The Employment
Agreement provides that he will serve as our Chief Strategy Officer, and that he will be paid an annual salary of $96,000. In addition,
on each annual anniversary of the effective date of the Employment Agreement during the term, we will issue to Mr. Sadasivam a number
of shares of common stock equal to (i) 30% of the base salary as of such date, divided by (ii) the volume weighted average closing of
our common stock for the five trading days immediately preceding such date. Mr. Sadasivam is also eligible to receive discretionary bonuses
as determined by the Board.
The
Employment Agreement has an initial term of 1 year, provided that the term of each agreement will automatically be extended for one
or more additional terms of one year each unless either we or Mr. Sadasivam provides notice to the other of their desire to not so renew
the initial term or renewal term (as applicable) at least 30 days prior to the expiration of then-current initial term or renewal term
(as applicable). The Employment Agreement provides that the employment with us shall be “at will,” meaning that either we
or Mr. Sadasivam may terminate employment at any time and for any reason, subject to the other provisions of the Employment Agreement.
The
Employment Agreement may be terminated by us, either with or without “Cause” (as defined in the Employment Agreement), or
by Mr. Sadasivam, either with or without “Good Reason” (as defined in the Employment Agreement).
In
the event that we terminate the term of the Employment Agreement or employment with Cause, or if Mr. Sadasivam terminates his Employment
Agreement without Good Reason, then, subject to any other relevant agreements:
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We
will pay to Mr. Sadasivam any unpaid base salary and benefits then owed or accrued, and any unreimbursed expenses; |
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any
unvested portion of any equity granted to Mr. Sadasivam under the Employment Agreement or any other agreements with us will immediately
be forfeited; and |
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all
of the parties’ rights and obligations under the Employment Agreement will cease, other than those rights or obligations which
arose prior to the termination date or in connection with such termination, and subject to the survival provisions of the Employment
Agreement. |
In
the event that we terminate the term of the Employment Agreement or employment without Cause, or if Mr. Sadasivam terminates the Employment
Agreement with Good Reason, then, subject to any other relevant agreements:
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we
will pay to Mr. Sadasivam any base salary, bonuses, and benefits then owed or accrued, and any unreimbursed expenses; |
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we
will pay to Mr. Sadasivam, in one lump sum, an amount equal to the base salary that would have been paid to Mr. Sadasivam for the
remainder of the initial term of the Employment Agreement (if the termination occurs during the initial term of the Employment Agreement)
or renewal term of the Employment Agreement (if the termination occurs during a renewal term of the Employment Agreement); |
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any
unvested portion of any equity granted to Mr. Sadasivam under the Employment Agreement or any other agreements with us will, to the
extent not already vested, be deemed automatically vested; and |
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all
of the parties’ rights and obligations under the Employment Agreement will cease, other than those rights or obligations which
arose prior to the termination date or in connection with such termination, and subject to the survival provisions of the Employment
Agreement. |
In
the event of Mr. Sadasivam’s death or total disability during the term of the Employment Agreement, the term of the applicable
agreement and the applicable executive’s employment shall terminate on the date of death or total disability. In the event of such
termination, our sole obligations under the Employment Agreement to Mr. Sadasivam shall be for unpaid base salary, accrued but unpaid
bonus and benefits (then owed or accrued and owed in the future), a pro-rata bonus for the year of termination based on the target bonus
for such year and the portion of such year in which Mr. Sadasivam was employed, and reimbursement of expenses pursuant to the terms hereon
through the effective date of termination, and any unvested portion of any equity grant will immediately be forfeited as of the termination
date.
In
the event that the term of the Employment Agreement is not renewed by either party, any unvested portion of any equity granted will immediately
be forfeited as of the expiration of the term of the Employment Agreement without any further action of the parties.
The
Employment Agreement contains customary representations and warranties.
Impact
of the COVID-19 Pandemic
In
December 2019, a novel coronavirus disease (“COVID-19”) was reported to have surfaced in Wuhan, China, and on March 11, 2020,
the World Health Organization characterized COVID-19 as a pandemic. The pandemic, which has continued to spread, and the related adverse
public health developments, including orders to shelter-in-place, travel restrictions, and mandated business closures, have adversely
affected workforces, organizations, customers, economies, and financial markets globally, leading to an economic downturn and increased
market volatility. It has also disrupted the normal operations of many businesses, including ours.
For
example, many cities, counties, states, and even countries have imposed or may impose a wide range of restrictions on the physical movement
of our employees, partners and customers to limit the spread of the pandemic, including physical distancing, travel bans and restrictions,
closure of non-essential business, quarantines, work-from-home directives, shelter-in-place orders, and limitations on public gatherings.
These measures have caused, and are continuing to cause, business slowdowns or shutdowns in affected areas, both regionally and worldwide.
In March 2020, we temporarily closed our offices, including our corporate headquarters, suspended all company-related travel, and all
HeartCore Co. employees were required to work from home for several months during the height of the pandemic. We cancelled or shifted
our customer and industry events to virtual-only experiences. Although we have begun to slowly re-open our offices on a staggered, region-by-region
basis in accordance with local authority guidelines, we may deem it advisable to similarly alter, postpone or cancel entirely additional
customer, employee or industry events in the future. All of these changes may disrupt the way we operate our business. In addition, our
management team has, and will likely continue, to spend significant time, attention and resources monitoring the pandemic and seeking
to minimize the risk of the virus and manage its effects on our business and workforce.
Although our company has been in existence
for less than two years, our wholly owned operating subsidiary, HeartCore Co. operated throughout the pandemic and continues to operate
after the pandemic. HeartCore Co.’s business is affected by a variety of external factors related to the pandemic and post-pandemic
that are beyond our control. For existing customers, the pandemic had no impact on the use of our software; for new customers in the
travel, hotel, airline, rail, and food service industries in the CX division, the pandemic resulted in a decrease in new orders. However,
although the pandemic is coming to an end, it will take some time before the economy is fully normalized. This results in even lower
sales in 2022 than in 2021. Regarding the impact of the pandemic on the DX sector, demand for our DX software increased as large companies
were forced to change their work patterns, forcing employees to work remotely. In 2022, after the pandemic, a number of employees left
the company, forcing the company to downsize its operations and resulted in a decline in sales. During 2022, we started the GO IPO business,
which supports Japanese companies to list on Nasdaq and NYSE in the US. As of March 13, 2023, there were seven companies sign consulting
agreements with us regarding the GO IPO business, whereby we will receive from each company US$350,000 to US$900,000 consulting fees
and warrants or Japanese acquisition rights to purchase one to four percent of the fully-diluted share capital of such companies that
is exercisable on certain dates at an exercise price of $0.01 per share. The sales in the GO IPO business helped to offset the decline
in sales in the CX and DX divisions.
The
duration and extent of the impact from the pandemic depends on future developments that cannot be accurately predicted at this time,
such as the severity and transmission rate of the virus, the extent and effectiveness of containment actions and the disruption caused
by such actions, the effectiveness of vaccines and other treatments for COVID-19, and the impact of these and other factors on our employees,
customers, partners and vendors. If we are not able to respond to and manage the impact of such events effectively, our business will
be harmed.
To
the extent the pandemic adversely affects our business and financial results, it may also have the effect of heightening many of the
other risks described in the “Risk Factors” section, including, in particular, risks related to our dependence on customer
renewals, the addition of new customers and increased revenue from existing customer, risks that our operating results could be negatively
affected by changes in the sizes or types of businesses that purchase our platform and the risk that weakened global economic conditions
may harm our industry, business and results of operations.
Corporate
Information
We
were incorporated in the State of Delaware on May 18, 2021 and are currently in good standing in the State of Delaware. On February 10,
2022, our shares of Common Stock began trading on the Nasdaq Capital Market under the symbol, “HTCR.” Our principal executive
offices are located at 1-2-33, Higashigotanda, Shinagawa-ku, Tokyo, Japan, and our telephone number is +81-3-6409-6966. Our website address
is www.heartcore.co.jp. The information contained on our website is not incorporated by reference into this prospectus, and you
should not consider any information contained on, or that can be accessed through, our website as part of this prospectus or in deciding
whether to purchase our common shares.
RISK
FACTORS
Our
business is influenced by many factors that are difficult to predict and that involve uncertainties that may materially affect operating
results, cash flows, and financial condition. Before making an investment decision, you should carefully consider these risks, including
those set forth in the “Risk Factors” section of our most recent Annual Report on Form 10-K filed with the SEC, as revised
or supplemented by our Quarterly Reports on Form 10-Q filed with the SEC since the filing of our most recent Annual Report on Form 10-K,
all of which are incorporated by reference into this prospectus. You should also carefully consider any other information we include
or incorporate by reference in this prospectus or include in any applicable prospectus supplement. Each of the risks described in these
sections and documents could materially and adversely affect our business, financial condition, results of operations and prospects,
and could result in a partial or complete loss of your investment.
USE
OF PROCEEDS
Except
as otherwise stated in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities covered
by this prospectus for general corporate purposes, which may include, but are not limited to, working capital, acquisitions, and other
business opportunities. The precise amount, use and timing of the application of such proceeds will depend upon our funding requirements
and the availability and cost of other capital. Additional information on the use of net proceeds from an offering of securities covered
by this prospectus may be set forth in the prospectus supplement relating to the specific offering.
RATIO
OF EARNINGS TO FIXED CHARGES
Any
time debt securities are offered pursuant to this prospectus, we will provide a table setting forth our ratio of earnings to fixed charges
on a historical basis in the applicable prospectus supplement, if required.
DESCRIPTION
OF SECURITIES
The
descriptions of the securities contained in this prospectus, together with any applicable prospectus supplement, summarize all the material
terms and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus supplement relating
to a particular offering the specific terms of the securities offered by that prospectus supplement. We will indicate in the applicable
prospectus supplement if the terms of the securities differ from the terms we have summarized below. We will also include in the prospectus
supplement information, where applicable, material United States federal income tax considerations relating to the securities
We
may sell from time to time, in one or more offerings:
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shares
of our common stock; |
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shares
of our preferred stock; |
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debt
securities consisting of senior notes, subordinated notes or debentures; |
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warrants
to purchase shares of our common stock, shares of our preferred stock and/or debt securities; |
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rights
to purchase shares of our common stock, preferred stock, warrants and/or debt securities; |
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units
consisting of a combination of the foregoing securities. |
DESCRIPTION
OF CAPITAL STOCK
The
following descriptions of common and preferred stock, together with the additional information we include in any applicable prospectus
supplement, summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus
but is not intended to be complete. For the full terms of our common and preferred stock, please refer to our certificate of incorporation,
as amended from time to time, and our bylaws, as amended from time to time. The Delaware General Corporation Law (“DGCL”)
may also affect the terms of these securities. While the terms we have summarized below will apply generally to any future common or
preferred stock that we may offer, we will describe the specific terms of any series of these securities in more detail in the applicable
prospectus supplement. If we so indicate in a prospectus supplement, the terms of any common or preferred stock we offer under that prospectus
supplement may differ from the terms of our outstanding capital stock that we describe below.
As
of March 13, 2023, our authorized capital stock consists of 220,000,000 shares of capital stock with a par value of $0.0001 per
share, consisting of 200,000,000 shares of common stock, par value of $0.0001 per share, and 20,000,000 shares of preferred stock, par
value of $0.0001 per share, which may, at the sole discretion of the Board of Directors be issued in one or more series. As of March
13, 2023, there were 19,671,340 shares of common stock issued and outstanding,
held by 36 holders of record. No shares of preferred stock were issued or outstanding as of March 13, 2023. The authorized
and unissued shares of both common stock and preferred stock are available for issuance without further action by our stockholders, unless
such action is required by applicable law or the rules of any stock exchange on which our securities may be listed. Unless approval of
our stockholders is so required, our board of directors will not seek stockholder approval for the issuance and sale of either our common
stock or preferred stock.
The
Board may from time to time authorize by resolution the issuance of any or all shares of the Preferred Stock authorized in accordance
with the terms and conditions set forth in the certificate of incorporation for such purposes, in such amounts, to such persons, corporations,
or entities, for such consideration and in one or more series, all as the Board in its discretion may determine and without any vote
or other action by the stockholders, except as otherwise required by law.
Common
Stock
Holders
of our common stock are entitled to one vote for each share on all matters submitted to a stockholder vote. Holders of common stock do
not have cumulative voting rights. Therefore, holders of a majority of the shares of common stock voting for the election of directors
can elect all of the directors. Holders of our common stock representing a majority of the voting power of our capital stock issued,
outstanding and entitled to vote, represented in person or by proxy, are necessary to constitute a quorum at any meeting of stockholders.
Holders
of our common stock are entitled to share in all dividends that our Board of Directors, in its discretion, declares from legally available
funds. In the event of a liquidation, dissolution or winding up, each outstanding share entitles its holder to participate pro rata in
all assets that remain after payment of liabilities and after providing for each class of stock, if any, having preference over the common
stock. Our common stock has no pre-emptive rights, no conversion rights and there are no redemption provisions applicable to our common
stock.
Preferred
Stock
The
total number of authorized shares of Preferred Stock shall be twenty million (20,000,000) shares with par value of $0.0001 per share.
The powers, preferences, rights, qualifications, limitations and restrictions pertaining to the Preferred Stock, or any series thereof,
shall be such as may be fixed, from time to time, by the Board in its sole discretion, authority to do so being hereby expressly vested
in the Board. As of the date hereof there are no classes of Preferred Stock designated, authorized, issued or outstanding. The authority
of the Board with respect to each such series of Preferred Stock will include, without limiting the generality of the foregoing, the
determination of any or all of the following:
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The
number of shares of any series and the designation to distinguish the shares of such series from the shares of all other series; |
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the
voting powers, if any, of the shares of such series and whether such voting powers are full or limited; |
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the
redemption provisions, if any, applicable to such series, including the redemption price or prices to be paid; |
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whether
dividends, if any, will be cumulative or noncumulative, the dividend rate or rates of such series and the dates and preferences of
dividends on such series; |
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the
rights of such series upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Corporation; |
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the
provisions, if any, pursuant to which the shares of such series are convertible into, or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class or classes of stock, or any other security, of the Corporation or
any other corporation or other entity, and the rates or other determinants of conversion or exchange applicable thereto; |
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the
right, if any, to subscribe for or to purchase any securities of the Corporation or any other corporation or other entity; |
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the
provisions, if any, of a sinking fund applicable to such series; and |
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any
other relative, participating, optional or other powers, preferences or rights, and any qualifications, limitations or restrictions
thereof, of such series. |
Options
to Purchase Common Stock
On
August 6, 2021, the Board of Directors and stockholders of our company approved the 2021 Equity Incentive Plan (the “2021 Plan”),
under which 2,400,000 of common shares are authorized for issuance. As of March 13, 2023, there were 479,847 shares
available for award under the 2021 Plan.
Anti-Takeover
Effects of Certain Provisions of Our Certificate of Incorporation, as Amended, and Our Bylaws
Provisions
of our certificate of incorporation and our bylaws could make it more difficult to acquire us by means of a merger, tender offer, proxy
contest, open market purchases, removal of incumbent directors and otherwise. These provisions, which are summarized below, are expected
to discourage types of coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of
us to first negotiate with us. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent
of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging takeover or acquisition
proposals because negotiation of these proposals could result in an improvement of their terms.
Removal
of Directors. Our certificate of incorporation and bylaws provide that directors may be removed prior to the expiration of their
terms by the affirmative vote of the holders of not less than two-thirds (2/3) of the voting power of the issued and outstanding stock
entitled to vote.
Vacancies.
Our certificate of incorporation and bylaws provide the exclusive right of our board of directors to elect a director to fill a vacancy
created by the expansion of the Board of Directors or the resignation, death, or removal of a director, which prevents stockholders from
being able to fill vacancies on our board of directors.
Preferred
Stock. Our certificate of incorporation authorizes the issuance of up to 20,000,000 shares of preferred stock with such rights and
preferences as may be determined from time to time by our Board of Directors in their sole discretion. Our Board of Directors may, without
stockholder approval, issue series of preferred stock with dividends, liquidation, conversion, voting or other rights that could adversely
affect the voting power or other rights of the holders of our common stock.
Amendment
of Bylaws. The certificate of incorporation and bylaws provide that the bylaws may be altered, amended or repealed by the Board of
Directors by an affirmative vote of a majority of the Board of Directors at any regular meeting of the Board of Directors.
Limitation
of Liability. The certificate of incorporation provides for the limitation of liability of, and providing indemnification to, our
directors and officers.
Special
Stockholders Meeting. The certificate of incorporation provides that a special meeting of the stockholders may only be called by
a majority of the board of directors.
Nominations
of Directors. The bylaws provide for advance notice procedures that stockholders must comply with in order to nominate candidates
to our Board of Directors or to propose matters to be acted upon at a stockholders’ meeting, which may discourage or deter a potential
acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain
control of our company.
Transfer
Agent
The
transfer agent and registrar for our common stock is Transhare Corporation. The transfer agent and registrar’s address is Bayside
Center 1, 17755 US Highway 19 N, Suite 140, Clearwater, Florida 33764 and its telephone number is (303) 662-1112.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material
terms and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized below will generally
apply to any future debt securities we may offer under this prospectus, we will describe the particular terms of any debt securities
that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities we offer under a prospectus
supplement may differ from the terms we describe below. As of the date of this prospectus, we have no outstanding registered debt securities.
The
debt securities will be our direct unsecured general obligations. The debt securities will be either senior debt securities or subordinated
debt securities. If not required to be issued under an indenture pursuant to the Trust Indenture Act of 1939, as amended, the debt securities
may be issued without an indenture. Otherwise, if required to be issued under an indenture pursuant to the Trust Indenture Act of 1939,
as amended, the debt securities will be issued under one or more separate indentures the forms of which are filed as exhibits to the
registration statement of which this prospectus forms a part. More specifically, we will issue senior debt under a senior indenture,
which we will enter into with the trustee to be named in the senior indenture, and we will issue subordinated debt under a subordinated
indenture, which we will enter into with the trustee to be named in the subordinated indenture. We use the term “indentures”
to refer to both the senior indenture and the subordinated indenture.
The
indentures will be qualified under the Trust Indenture Act of 1939. References to the Trust Indenture Act of 1939 include all amendments
thereto. We use the term “debenture trustee” to refer to either the senior trustee or the subordinated trustee, as applicable.
The
following summaries of material provisions of the senior debt, the subordinated debt and the indentures are subject to, and qualified
in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities, and all
supplements thereto. We urge you to read the applicable prospectus supplement(s) related to the debt securities that we sell under this
prospectus, as well as the complete indentures that contain the terms of the debt securities. Except as we may otherwise indicate, the
terms of the senior and the subordinated indentures are identical.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be issued in
separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt
securities of any series.
In
addition, the particular terms of each series of debt securities will be described in a prospectus supplement relating to such series,
including any pricing supplement. The prospectus supplement will set forth, among other things:
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title; |
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the
principal amount being offered, and, if a series, the total amount authorized and the total amount outstanding; |
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any
limit on the amount that may be issued; |
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whether
or not we will issue the series of debt securities in global form and, if so, the terms and who the depositary will be; |
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the
maturity date; |
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a U.S. person
for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
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the
annual interest rate, which may be fixed or variable, or the method for determining the rate, the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
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the
terms of the subordination of any series of subordinated debt, if applicable; |
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the
place where payments will be payable; |
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restrictions
on transfer, sale or other assignment, if any; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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the
date, if any, after which, the conditions upon which, and the price at which we may, at our option, redeem the series of debt securities
pursuant to any optional or provisional redemption provisions, and any other applicable terms of those redemption provisions; |
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whether
the indenture will restrict our ability and/or the ability of our subsidiaries to, among other things; |
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incur
additional indebtedness; |
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issue
additional securities; |
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create
liens; |
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pay
dividends and make distributions in respect of our capital stock and the capital stock of our subsidiaries; |
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redeem
capital stock; |
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets; |
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make
investments or other restricted payments, sell or otherwise dispose of assets; |
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enter
into sale-leaseback transactions; |
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engage
in transactions with stockholders and affiliates, issue or sell stock of our subsidiaries; or |
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effect
a consolidation or merger; |
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios; |
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information
describing any book-entry features; |
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provisions
for a sinking fund purchase or other analogous fund, if any; |
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whether
the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code; |
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the
procedures for any auction and remarketing, if any; the denominations in which we will issue the series of debt securities, if other
than denominations of $1,000 and any integral multiple thereof; if other than dollars, the currency in which the series of debt securities
will be denominated; |
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and
any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any events of
default that are in addition to those described in this prospectus or any covenants provided with respect to the debt securities
that are in addition to those described above, and any terms that may be required by us or advisable under applicable laws or regulations
or advisable in connection with the marketing of the debt securities. |
Conversion
or Exchange Rights
We
will set forth in the prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for
common stock or other securities of ours or a third party, including the conversion or exchange rate, as applicable, or how it will be
calculated, and the applicable conversion or exchange period. We will include provisions as to whether conversion or exchange is mandatory,
at the option of the holder or at our option. We may include provisions pursuant to which the number of our securities or the securities
of a third party that the holders of the series of debt securities receive upon conversion or exchange would, under the circumstances
described in those provisions, be subject to adjustment, or pursuant to which those holders would, under those circumstances, receive
other property upon conversion or exchange, for example in the event of our merger or consolidation with another entity.
Consolidation,
Merger or Sale
The
indentures in the forms filed as exhibits to the registration statement of which this prospectus is a part do not contain any covenant
that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our
assets. However, any successor of ours or the acquirer of such assets must assume all of our obligations under the indentures and the
debt securities.
If
the debt securities are convertible for our other securities, the person with whom we consolidate or merge or to whom we sell all of
our property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would
have received if they had converted the debt securities before the consolidation, merger or sale.
Events
of Default under the Indenture
The
following are events of default under the indentures in the forms initially filed as exhibits to the registration statement with respect
to any series of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended
or deferred; |
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if
we fail to pay the principal, sinking fund payment or premium, if any, when due and payable and the time for payment has not been
extended or delayed; |
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if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the debenture trustee
or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization occur. |
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the debenture trustee or the holders of at least 25% in aggregate principal amount of the outstanding
debt securities of that series, by notice to us in writing, and to the debenture trustee if notice is given by such holders, may declare
the unpaid principal of, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified
in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt
securities then outstanding shall be due and payable without any notice or other action on the part of the debenture trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be
under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of
a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture
trustee, with respect to the debt securities of that series, provided that:
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direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act of 1939, the debenture trustee need not take any action that might involve it in personal
liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will only have the right to institute a proceeding under the indentures or to appoint a receiver
or trustee, or to seek other remedies if:
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holder has given written notice to the debenture trustee of a continuing event of default with respect to that series; |
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request,
and such holders have offered reasonable indemnity, to the debenture trustee to institute the proceeding as trustee; and |
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the
debenture trustee does not institute the proceeding and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the debenture trustee regarding our compliance with specified covenants in the indentures.
Modification
of Indenture; Waiver
We
and the debenture trustee may change an indenture without the consent of any holders with respect to specific matters, including:
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fix any ambiguity, defect or inconsistency in the indenture; |
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to
comply with the provisions described above under “-Consolidation, Merger or Sale”; |
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act of 1939; |
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to
evidence and provide for the acceptance of appointment by a successor trustee; |
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to
provide for uncertificated debt securities and to make all appropriate changes for such purpose; |
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to
add to, delete from, or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issuance,
authorization and delivery of debt securities or any series, as set forth in the indenture; |
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to
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided under
“-General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture
or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
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to
add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, to make the occurrence,
or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event
of default, or to surrender any of our rights or powers under the indenture; or |
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to
change anything that does not materially adversely affect the interests of any holder of debt securities of any series. |
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series
that is affected. However, we and the debenture trustee may only make the following changes with the consent of each holder of any outstanding
debt securities affected:
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extending
the fixed maturity of the series of debt securities; |
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption of any debt securities; or |
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
that the following obligations, among others, survive until the maturity date or the redemption date:
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register
the transfer or exchange of debt securities of the series; |
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replace
stolen, lost or mutilated debt securities of the series; |
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maintain
paying agencies; |
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hold
monies for payment in trust; and |
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appoint
any successor trustee. |
and
the following obligations survive the maturity date or the redemption date:
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recover
excess money held by the debenture trustee; and |
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compensate
and indemnify the debenture trustee. |
As
more fully set forth in the indentures, in order to exercise our rights to be discharged, we must either deliver for cancellation all
securities of a series to the debenture trustee or must deposit with the debenture trustee money or government obligations sufficient
to pay all the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, New York, New York, known as DTC, or another depositary named by us and identified in a prospectus supplement with respect
to that series. See “Legal Ownership of Securities” for a further description of the terms relating to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We
will name in a board resolution the security registrar, and any transfer agent in addition to the security registrar, that we initially
designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer
agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of any series being redeemed in part during a period beginning at the opening
of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption
and ending at the close of business on the day of the mailing; and |
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part. |
Information
Concerning the Debenture Trustee
The
debenture trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform
only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture
trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures at the request
of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that
it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will name in the applicable board resolution any other paying agents that we initially designate for the debt securities of a particular
series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to
us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to
the extent that the Trust Indenture Act of 1939 is applicable.
Subordination
of Subordinated Debt Securities
The
subordinated debt securities will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement. The indentures in the forms initially filed as exhibits to the Registration Statement of which
this prospectus is a part do not limit the amount of indebtedness that we may incur, including senior indebtedness or subordinated indebtedness,
and do not limit us from issuing any other debt, including secured debt or unsecured debt.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the
material terms and provisions of the warrants that we may offer under this prospectus and any related warrant agreement and warrant certificate.
While the terms summarized below will apply generally to any warrants that we may offer, we will describe the specific terms of any series
of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any warrants
offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements will contain additional
important terms and provisions.
As
of March 13, 2023, we had warrants outstanding to purchase 737,500 shares of our common stock at an exercise price of $1.17
per share. The warrants are exercisable
until February 12, 2025.
These
warrants have been incorporated by reference as Exhibit 4.1 to the registration statement that includes this prospectus.
General
We
may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants
independently or together with common stock and/or debt securities, and the warrants may be attached to or separate from these securities.
We
will evidence each series of warrants by warrant certificates that we may issue under a separate agreement. We may enter into a warrant
agreement with a warrant agent. Each warrant agent may be a bank that we select which has its principal office in the United States.
We may also choose to act as our own warrant agent. We will indicate the name and address of any such warrant agent in the applicable
prospectus supplement relating to a particular series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
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offering price and aggregate number of warrants offered; |
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
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in
the case of warrants to purchase common stock, the number or amount of shares of common stock, purchasable upon the exercise of one
warrant and the price at which and currency in which these shares may be purchased upon such exercise; |
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the
manner of exercise of the warrants, including any cashless exercise rights; |
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the
warrant agreement under which the warrants will be issued; |
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; anti-dilution
provisions of the warrants, if any; |
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the
terms of any rights to redeem or call the warrants; |
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the
dates on which the right to exercise the warrants will commence and expire or, if the warrants are not continuously exercisable during
that period, the specific date or dates on which the warrants will be exercisable; |
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the
manner in which the warrant agreement and warrants may be modified; |
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the
identities of the warrant agent and any calculation or other agent for the warrants; |
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federal
income tax consequences of holding or exercising the warrants; |
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the
terms of the securities issuable upon exercise of the warrants; |
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any
securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be
listed or quoted; and |
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
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in
the case of warrants to purchase common stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution
or winding up or to exercise voting rights, if any. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to 5:00 P.M. Eastern Time on the expiration date that we set forth in the applicable
prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with
specified information, and paying the required exercise price by the methods provided in the applicable prospectus supplement. We will
set forth on the reverse side of the warrant certificate, and in the applicable prospectus supplement, the information that the holder
of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants.
Enforceability
of Rights by Holders of Warrants
Any
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
the holder’s right to exercise, and receive the securities purchasable upon exercise of, its warrants in accordance with their
terms.
Warrant
Agreement Will Not Be Qualified Under Trust Indenture Act
No
warrant agreement will be qualified as an indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture
Act. Therefore, holders of warrants issued under a warrant agreement will not have the protection of the Trust Indenture Act with respect
to their warrants.
Governing
Law
Each
warrant agreement and any warrants issued under the warrant agreements will be governed by New York law.
Calculation
Agent
Any
calculations relating to warrants may be made by a calculation agent, an institution that we appoint as our agent for this purpose. The
prospectus supplement for a particular warrant will name the institution that we have appointed to act as the calculation agent for that
warrant as of the original issue date for that warrant, if any. We may appoint a different institution to serve as calculation agent
from time to time after the original issue date without the consent or notification of the holders. The calculation agent’s determination
of any amount of money payable or securities deliverable with respect to a warrant will be final and binding in the absence of manifest
error.
DESCRIPTION
OF RIGHTS
We
may issue rights to purchase debt securities, preferred stock, common stock or warrants. These rights may be issued independently or
together with any other security offered hereby and may or may not be transferable by the shareholder receiving the rights in such offering.
The applicable prospectus supplement may add, update or change the terms and conditions of the rights as described in this prospectus.
The
applicable prospectus supplement will describe the specific terms of any offering of rights for which this prospectus is being delivered,
including the following:
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price, if any, per right; |
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the
exercise price payable for debt securities, preferred stock, common stock, or warrants upon the exercise of the rights; |
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the
number of rights issued or to be issued to each shareholder; |
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the
number and terms of debt securities, preferred stock, common stock, or warrants which may be purchased per right; |
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the
extent to which the rights are transferable; |
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any
other terms of the rights, including the terms, procedures and limitations relating to the exchange and exercise of the rights; |
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the
date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall expire; |
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the
extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; and |
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if
applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering
of such rights. |
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the applicable securities purchased upon exercise of the rights. If less than all of the rights
issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than shareholders, to
or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements with
one or more underwriters or other purchasers, pursuant to which the underwriters or other purchasers may be required to purchase any
securities remaining unsubscribed for after such offering, as described in the applicable prospectus supplement.
The
description in the applicable prospectus supplement of any rights that we may offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable rights certificate, which will be filed with the SEC.
DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of one or more warrants, rights, debt securities, shares
of preferred stock, shares of common stock or any combination of such securities. The applicable supplement will describe:
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terms of the units and of the warrants, rights, debt securities, preferred stock and common stock comprising the units, including
whether and under what circumstances the securities comprising the units may be traded separately; |
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a
description of the terms of any unit agreement governing the units; and |
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description of the provisions for the payment, settlement, transfer or exchange of the units. |
FORMS
OF SECURITIES
Each
debt security, warrant, right and unit will be represented either by a certificate issued in definitive form to a particular investor
or by one or more global securities representing the entire issuance of securities. Certificated securities in definitive form and global
securities will be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and in order
to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must
physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary
or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains
a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained by
the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered
Global Securities
We
may issue the registered debt securities, warrants, rights and units in the form of one or more fully registered global securities that
will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that
depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless
and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred
except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of
the depositary or those nominees.
If
not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered
global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions
will apply to all depositary arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the
depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face
amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution
of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will
be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect
to interests of participants, and on the records of participants, with respect to interests of persons holding through participants.
The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes
under the applicable indenture, warrant agreement or unit agreement. Except as described below, owners of beneficial interests in a registered
global security will not be entitled to have the securities represented by the registered global security registered in their names,
will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners
or holders of the securities under the applicable indenture, warrant agreement, rights agreement or unit agreement. Accordingly, each
person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered
global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest,
to exercise any rights of a holder under the applicable indenture, warrant agreement, rights agreement or unit agreement. We understand
that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global
security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement,
rights agreement or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant
beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give
or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal,
premium, if any, and interest payments on debt securities, and any payments to holders with respect to warrants, rights or units, represented
by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee,
as the case may be, as the registered owner of the registered global security. None of the company, the trustees, the warrant agents,
the rights agents, the unit agents or any other agent of the company, agent of the trustees or agent of the warrant agents, rights agents
or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial
ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial
ownership interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal,
premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will
immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered
global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests
in a registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,”
and will be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the
registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered
global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent
or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received
by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been
held by the depositary.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered pursuant to this prospectus to or through underwriters, through dealers, through agents, or directly
to one or more purchasers or through a combination of these methods. The applicable prospectus supplement will describe the terms of
the offering of the securities, including:
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the
name or names of any underwriters, if, and if required, any dealers or agents; |
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the
purchase price of the securities and the proceeds we will receive from the sale; |
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any
underwriting discounts and other items constituting underwriters’ compensation; |
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any
discounts or concessions allowed or re-allowed or paid to dealers; and |
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any
securities exchange or market on which the securities may be listed or traded. |
We
may distribute the securities from time to time in one or more transactions at:
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fixed price or prices, which may be changed; |
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market
prices prevailing at the time of sale; |
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prices
related to such prevailing market prices; or |
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negotiated
prices. |
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each
underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters
and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented
by managing underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is
used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale,
the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will
be subject to conditions precedent, and the underwriters will be obligated to purchase all of the offered securities, if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price,
with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-
allotment option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the
securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by
the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the
securities for whom they act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase securities directly for the purpose of resale or distribution,
may be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of the common
stock by them may be deemed to be underwriting discounts and commissions under the Securities Act. No FINRA member firm may receive compensation
in excess of that allowable under FINRA rules, including Rule 5110, in connection with the offering of the securities.
We
may provide agents, underwriters and other purchasers with indemnification against particular civil liabilities, including liabilities
under the Securities Act, or contribution with respect to payments that the agents, underwriters or other purchasers may make with respect
to such liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
To
facilitate the public offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In addition, those
persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing
penalty bids, whereby selling concessions allowed to underwriters or dealers participating in any such offering may be reclaimed if securities
sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain
the market price of the securities at a level above that which might otherwise prevail in the open market. Such transactions, if commenced,
may be discontinued at any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions
described above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, any common stock sold pursuant to a prospectus supplement will be eligible
for trading on the Nasdaq Capital Market. Any underwriters to whom securities are sold by us for public offering and sale may make a
market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without
notice.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will be sold
in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless
they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement
is available and complied with.
LEGAL
OPINIONS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Anthony L.G., PLLC, West Palm Beach, Florida.
As appropriate, legal counsel representing the underwriters, dealers or agents will be names in the accompanying prospectus supplement
and may opine to certain legal matters.
EXPERTS
The
consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December
31, 2021, have been so incorporated in reliance on the report of MaloneBailey,
LLP, an independent registered public accounting firm, and have been given on the authority of
such firm as experts in accounting and auditing.
LIMITATION
ON LIABILITY AND DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our
certificate of incorporation and bylaws provide that we will indemnify our directors and officers, and may indemnify our employees and
other agents, to the fullest extent permitted by DGCL. Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised
that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore
unenforceable.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus and any subsequent prospectus supplements do not contain all of the information in the registration statement. We have omitted
from this prospectus some parts of the registration statement as permitted by the rules and regulations of the SEC. Statements in this
prospectus concerning any document we have filed as an exhibit to the registration statement or that we otherwise filed with the SEC
are not intended to be comprehensive and are qualified in their entirety by reference to these filings. In addition, we file annual,
quarterly and current reports, proxy statements and other information with the SEC. The SEC also maintains a website that contains reports,
proxy and information statements and other information that we file electronically with the SEC, including us. The SEC’s website
can be found at http://www.sec.gov. In addition, we make available on or through our website copies of these reports as soon as reasonably
practicable after we electronically file or furnished them to the SEC. Our website can be found at http://www.heartcore.co.jp. The content
contained in, or that can be accessed through, our website is not a part of this prospectus.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to “incorporate by reference” in this prospectus certain information we have filed and will file with the SEC,
which means that we may disclose important information in this prospectus by referring you to the document that contains the information.
The information incorporated by reference is considered to be an integral part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below:
|
● |
our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed with the SEC on March 31, 2022; |
|
|
|
|
● |
our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2022, June 30, 2022, and September 30, 2022, filed with the
SEC on May 16, 2022, August 12, 2022, and November 14, 2022, respectively; |
|
|
|
|
● |
our
Current Reports on Form 8-K filed with the SEC on February
14, 2022, February 14, 2022, March
2, 2022, April
6, 2022, May
11, 2022, May
25, 2022, June
8, 2022, August
18, 2022, September
8, 2022, October
26, 2022, November
4, 2022, November
23, 2022, January
17, 2023, January
17, 2023, and February
6, 2023, and our Current Report on Form 8-K/A filed with the SEC on February
10, 2023; |
|
|
|
|
● |
our
definitive Proxy Statement on Schedule 14A relating to our annual meeting of stockholders, filed with the SEC on July 20, 2022 (solely
with respect to those portions incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 31,
2021); |
|
|
|
|
● |
the
description of our common stock which is included in our Form 8-A12B filed with the SEC on February 8, 2022, including any amendment
or report filed for the purpose of updating that description; and |
|
|
|
|
● |
all
documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this
prospectus and before we stop offering the securities covered by this prospectus and any accompanying prospectus supplement. |
Notwithstanding
the foregoing, information and documents that we elect to furnish, but not file, or have furnished, but not filed, with the SEC in accordance
with SEC rules and regulations is not incorporated into this prospectus and does not constitute a part hereof.
You
may access these filings on our website at www.heartcore.co.jp. The information on our website is not incorporated by reference and is
not considered part of this prospectus. Also, upon written or oral request, at no cost we will provide to each person, including any
beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information that has been incorporated by reference
in the prospectus but not delivered with the prospectus. Inquiries should be directed to:
HeartCore
Enterprises, Inc.
1-2-33,
Higashigotanda, Shinagawa-ku
Tokyo,
Japan
+81-3-6409-6966
![](https://content.edgar-online.com/edgar_conv_img/2023/03/13/0001493152-23-007443_forms-3_001.jpg)
$100,000,000
HEARTCORE
ENTERPRISES, INC.
Common
Stock, Preferred Stock, Warrants, Rights
Debt
Securities and Units
PROSPECTUS
_____________,
2023
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
Set
forth below is an estimate (except in the case of the SEC registration fee) of the amount of fees and expenses to be incurred in connection
with the issuance and distribution of the offered securities registered hereby, other than underwriting discounts and commission, if
any, incurred in connection with the sale of the offered securities. All such amounts will be borne by HeartCore Enterprises, Inc., a
Delaware corporation.
| |
AMOUNT | |
SEC Registration Fee | |
$ | 11,020 | |
FINRA Filing Fees | |
| | (1) |
Legal Fees and Expenses | |
| | (1) |
Accounting Fees and Expenses | |
| | (1) |
Trustees’ Fees and Expenses | |
| | (1) |
Warrant Agent Fees and Expenses | |
| | (1) |
Printing Expenses | |
| | (1) |
Miscellaneous Expenses | |
| | (1) |
Total | |
| | (1) |
(1) |
These
fees will be calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. |
Item
15. Indemnification of Directors and Officers.
Section
145 of the General Corporation Law of the State of Delaware provides that a corporation may indemnify directors and officers as well
as other employees and individuals against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
in connection with specified actions, suits and proceedings whether civil, criminal, administrative, or investigative, other than a derivative
action by or in the right of the corporation, if they acted in good faith and in a manner they 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 their
conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to
expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such action and the statute requires
court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation.
The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s certificate of incorporation,
bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
Our
certificate of incorporation provides that our officers and directors will be indemnified by us to the fullest extent authorized by Delaware
law, as it now exists or may in the future be amended. In addition, our certificate of incorporation provides that our directors will
not be personally liable for monetary damages to us for breaches of their fiduciary duty as directors, except to the extent such exemption
from liability or limitation thereof is not permitted by the General Corporation Law of the State of Delaware.
We
intend to enter into separate indemnification agreements with our directors and officers. Each indemnification agreement will provide,
among other things, for indemnification to the fullest extent permitted by law and our amended and restated certificate of incorporation
and bylaws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification
agreements will provide for the advancement or payment of all expenses to the indemnitee and for reimbursement to us if it is found that
such indemnitee is not entitled to such indemnification under applicable law and our certificate of incorporation and bylaws.
Our
certificate of incorporation also permits us to maintain insurance on behalf of any officer, director or employee for any liability arising
out of his or her actions, regardless of whether Delaware law would permit such indemnification. We intend to purchase a policy of directors’
and officers’ liability insurance that insures our officers and directors against the cost of defense, settlement or payment of
a judgment in some circumstances and insures us against our obligations to indemnify our officers and directors.
These
provisions may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty. These provisions
also may have the effect of reducing the likelihood of derivative litigation against officers and directors, even though such an action,
if successful, might otherwise benefit us and our stockholders. Furthermore, a stockholder’s investment may be adversely affected
to the extent we pay the costs of settlement and damage awards against officers and directors pursuant to these indemnification provisions.
We
believe that these provisions and the insurance are necessary to attract and retain talented and experienced officers and directors.
Any
repeal or amendment of provisions of our certificate of incorporation affecting indemnification rights, whether by our board of directors,
stockholders or by changes in applicable law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise
required by law) be prospective only, except to the extent such amendment or change in law permits us to provide broader indemnification
rights on a retroactive basis, and will not in any way diminish or adversely affect any right or protection existing thereunder with
respect to any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment of expenses incurred or paid by a director, officer or controlling person in a successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the court of
appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
Item
16. Exhibits.
The
following is a list of all exhibits filed as a part of this registration statement on Form S-3, including those incorporated herein by
reference.
EXHIBIT
INDEX
Exhibit
No. |
|
Exhibit
Description |
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
3.1 |
|
Certificate of Incorporation of HeartCore Enterprises, Inc. (incorporated by reference to Exhibit 3.1 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
3.2 |
|
Bylaws of HeartCore Enterprises, Inc. (incorporated by reference to Exhibit 3.2 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
4.1 |
|
Form of Representative’s Warrant (incorporated by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
4.2 |
|
Form of Senior Indenture |
|
|
|
4.3* |
|
Form
of Senior Note |
|
|
|
4.4 |
|
Form of Subordinated Indenture |
|
|
|
4.5* |
|
Form
of Subordinated Note |
|
|
|
4.6* |
|
Form
of Warrant Agreement |
|
|
|
4.7* |
|
Form
of Rights Agreement |
|
|
|
4.8* |
|
Form
of Unit Agreement |
|
|
|
5.1 |
|
Opinion of Anthony L.G., PLLC |
|
|
|
10.1 |
|
Memorandum to Share Exchange Agreement dated July 15, 2021, among HeartCore Co., Sumitaka. Yamamoto, and Information Services International-Dentsu Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.2 |
|
Share Exchange Agreement dated July 16, 2021, among HeartCore Enterprises, Inc., all shareholders of HeartCore Co., Ltd., and Sumitaka Yamamoto as representative of the shareholders of HeartCore Co., Ltd. (incorporated by reference to Exhibit 10.2 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.3 |
|
Stock Purchase Agreement dated August 10, 2021, between HeartCore Enterprises, Inc. and Dentsu Digital Investment Limited (incorporated by reference to Exhibit 10.3 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.4† |
|
HeartCore Enterprises, Inc. 2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
10.5† |
|
Employment Agreement, dated February 9, 2022, between the registrant and Sumitaka Yamamoto (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.6† |
|
Employment
Agreement, dated February 9, 2022, between the registrant and Qizhi Gao (incorporated by reference to Exhibit 10.2 to the registrant’s
Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.7† |
|
Employment
Agreement, dated February 9, 2022, between the registrant and Kimio Hosaka (incorporated by reference to Exhibit 10.3 to the registrant’s
Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.8† |
|
Employment
Agreement, dated February 9, 2022, between the registrant and Hidekazu Miyata (incorporated by reference to Exhibit 10.4 to the registrant’s
Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.9† |
|
Employment
Agreement, dated February 9, 2022, between the registrant and Keisuke Kuno (incorporated by reference to Exhibit 10.5 to the registrant’s
Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.10 |
|
Form of Independent Director Agreement between the registrant and each independent director (incorporated by reference to Exhibit 10.10 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.11 |
|
Form of Indemnification Agreement between the registrant and each independent director (incorporated by reference to Exhibit 10.11 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.12 |
|
Consulting and Services Agreement, dated as of March 31, 2022, by and between the registrant and Moveaction Co., Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on April 6, 2022). |
|
|
|
10.13 |
|
Common Stock Purchase Warrant issued by Moveaction Co., Ltd. to the registrant (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on April 6, 2022). |
|
|
|
10.14 |
|
Consulting and Services Agreement, dated as of April 13, 2022, by and between the registrant and A.L.I. Technologies, Inc. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2022). |
|
|
|
10.15 |
|
Common Stock Purchase Warrant issued by A.L.I. Technologies, Inc. to the registrant (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2022). |
|
|
|
10.16 |
|
Consulting and Services Agreement, dated as of May 13, 2022, by and between the registrant and SYLA Holdings Co. Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on May 25, 2022). |
|
|
|
10.17 |
|
Amendment No. 1 to Consulting and Services Agreement, dated as of August 17, 2022, by and between the registrant and SYLA Holdings Co., Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on August 18, 2022). |
|
|
|
10.18 |
|
Amendment No. 2 to Consulting and Services Agreement, dated as of November 15, 2022, by and between the registrant and SYLA Holdings Co., Ltd. (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on November 23, 2022). |
|
|
|
10.19 |
|
9TH Stock Acquisition Rights Allotment Agreement, dated as of November 9, 2022, concerning the allotment of stock acquisition rights by SYLA Technologies Co., Ltd. to the registrant (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on November 23, 2022). |
10.20 |
|
Share Exchange and Purchase Agreement dated as of September 6, 2022, among the registrant, Sigmaways, Inc., and Prakash Sadasivam (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on September 8, 2022). |
|
|
|
10.21 |
|
Amendment No. 1 to Share Exchange and Purchase Agreement, dated as of December 23, 2022, among the registrant, Sigmaways, Inc., and Prakash Sadasivam |
|
|
|
10.22 |
|
Amendment No. 2 to Share Exchange and Purchase Agreement, dated as of February 1, 2023, among the registrant, Sigmaways, Inc., and Prakash Sadasivam (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on February 6, 2023). |
|
|
|
10.23 |
|
Addendum to Share Exchange and Purchase Agreement, dated as of February 8, 2023, among the registrant, Sigmaways, Inc., and Prakash Sadasivam (incorporated by reference to Exhibit 10.4 to the registrant’s Current Report on Form 8-K filed with the SEC on February 10, 2023). |
|
|
|
10.24 |
|
Amended and Restated Common Stock Purchase Warrant issued by the registrant to Prakash Sadasivam (incorporated by reference to Exhibit 10.5 to the registrant’s Current Report on Form 8-K filed with the SEC on February 10, 2023). |
|
|
|
10.25 |
|
Consulting and Services Agreement, dated as of October 20, 2022, by and between the registrant and Metros Development Co., Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on October 26, 2022). |
|
|
|
10.26 |
|
Amendment No. 1 to Consulting and Services Agreement, dated as of October 26, 2022, by and between the registrant and Metros Development Co., Ltd. (incorporated by reference to Exhibit 10.6 to the registrant’s Current Report on Form 8-K filed with the SEC on October 26, 2022). |
|
|
|
10.27 |
|
Common Stock Purchase Warrant issued by Metros Development Co., Ltd. to the registrant (incorporated by reference to Exhibit 10.7 to the registrant’s Current Report on Form 8-K filed with the SEC on October 26, 2022). |
|
|
|
10.28† |
|
Amendment No. 1 to Executive Employment Agreement, dated as of October 28, 2022, between the registrant and Sumitaka Yamamoto (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on November 4, 2022). |
|
|
|
10.29 |
|
Consulting and Services Agreement, dated as of November 18, 2022, by and between the registrant and SBC Medical Group, Inc. (incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K filed with the SEC on November 23, 2022). |
|
|
|
10.30 |
|
Common Stock Purchase Warrant issued by SBC Medical Group, Inc. to the registrant (incorporated by reference to Exhibit 10.4 to the registrant’s Current Report on Form 8-K filed with the SEC on November 23, 2022). |
|
|
|
10.31 |
|
Consulting and Services Agreement, dated as of January 11, 2023, by and between the registrant and kk.BloomZ (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on January 17, 2023). |
|
|
|
10.32 |
|
Common Stock Purchase Warrant issued by kk.BloomZ to the registrant (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on January 17, 2023). |
|
|
|
10.33† |
|
Employment Agreement, dated February 1, 2022, between the registrant and Prakash Sadasivam (incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K filed with the SEC on February 6, 2023). |
|
|
|
23.1 |
|
Consent of MaloneBailey, LLP, Independent Registered Public Accounting Firm. |
|
|
|
23.2 |
|
Consent of Anthony L.G., PLLC (incorporated in Exhibit 5.1). |
|
|
|
24.1 |
|
Power of Attorney (included on the signature page of this Registration Statement on Form S-3). |
|
|
|
25.1** |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Senior Indenture |
|
|
|
25.2** |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Subordinated Indenture |
|
|
|
107 |
|
Filing Fee Table |
† |
Management
contract, compensation plan or arrangement. |
* |
To
be filed by amendment to this registration statement or as an exhibit to a report filed pursuant to Section 13(a), 13(c) or 15(d)
of the Exchange Act. |
** |
To
be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations
thereunder. |
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 193, as amended (the “Securities Act”);
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (“Exchange Act”) that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration
statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(5)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(6)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communications that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h)
Insofar as indemnification for liabilities arising under the Securities Act 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 SEC
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(j)
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 (the “Act”) in accordance with the rules and regulations
prescribed by the SEC under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 Form S-3 to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Tokyo, Japan, on March 13, 2023.
|
HeartCore
Enterprises, Inc. |
|
|
|
By: |
/s/
Sumitaka Yamamoto |
|
|
Sumitaka
Yamamoto, |
|
|
Chief
Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sumitaka Yamamoto, his true and
lawful attorney-in-fact and agent, with full power of substitution and resubstitution, 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
and all additional registration statements relating to the Registration Statement and filed pursuant to Rule 462(b) of the Securities
Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent or his substitute or substitutes, full power and authority to
do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Form S-3 has been signed by the following persons in their respective
capacities on March 13, 2023.
Name |
|
Title |
|
|
|
/s/
Sumitaka Yamamoto |
|
Chief
Executive Officer, President and Director |
Sumitaka
Yamamoto |
|
(Principal
Executive Officer) |
|
|
|
/s/
Qizhi Gao |
|
Chief
Financial Officer |
Qizhi
Gao |
|
(Principal
Financial and Accounting Officer) |
|
|
|
/s/
Kimio Hosaka |
|
Chief
Operating Officer and Director |
Kimio
Hosaka |
|
|
|
|
|
/s/
Ferdinand Groenewald |
|
Director
|
Ferdinand
Groenewald |
|
|
|
|
|
/s/
Yoshitomo Yamano |
|
Director
|
Yoshitomo
Yamano |
|
|
|
|
|
/s/
Yuki Tan |
|
Director |
Yuki
Tan |
|
|
|
|
|
/s/
Takeshi Omoto |
|
Director |
Takeshi
Omoto |
|
|
|
|
|
/s/
Yuta Katai |
|
Director |
Yuta
Katai |
|
|
|
|
|
/s/
Prakash Sadasivam |
|
Director |
Prakash
Sadasivam |
|
|
EXHIBIT
INDEX
Exhibit
No. |
|
Exhibit
Description |
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
3.1 |
|
Certificate of Incorporation of HeartCore Enterprises, Inc. (incorporated by reference to Exhibit 3.1 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
3.2 |
|
Bylaws of HeartCore Enterprises, Inc. (incorporated by reference to Exhibit 3.2 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
4.1 |
|
Form of Representative’s Warrant (incorporated by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
4.2 |
|
Form of Senior Indenture |
|
|
|
4.3* |
|
Form
of Senior Note |
|
|
|
4.4 |
|
Form of Subordinated Indenture |
|
|
|
4.5* |
|
Form
of Subordinated Note |
|
|
|
4.6* |
|
Form
of Warrant Agreement |
|
|
|
4.7* |
|
Form
of Rights Agreement |
|
|
|
4.8* |
|
Form
of Unit Agreement |
|
|
|
5.1 |
|
Opinion of Anthony L.G., PLLC |
|
|
|
10.1 |
|
Memorandum to Share Exchange Agreement dated July 15, 2021, among HeartCore Co., Sumitaka. Yamamoto, and Information Services International-Dentsu Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.2 |
|
Share Exchange Agreement dated July 16, 2021, among HeartCore Enterprises, Inc., all shareholders of HeartCore Co., Ltd., and Sumitaka Yamamoto as representative of the shareholders of HeartCore Co., Ltd. (incorporated by reference to Exhibit 10.2 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.3 |
|
Stock Purchase Agreement dated August 10, 2021, between HeartCore Enterprises, Inc. and Dentsu Digital Investment Limited (incorporated by reference to Exhibit 10.3 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.4† |
|
HeartCore Enterprises, Inc. 2021 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
10.5† |
|
Employment Agreement, dated February 9, 2022, between the registrant and Sumitaka Yamamoto (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.6† |
|
Employment Agreement, dated February 9, 2022, between the registrant and Qizhi Gao (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.7† |
|
Employment Agreement, dated February 9, 2022, between the registrant and Kimio Hosaka (incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.8† |
|
Employment Agreement, dated February 9, 2022, between the registrant and Hidekazu Miyata (incorporated by reference to Exhibit 10.4 to the registrant’s Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.9† |
|
Employment Agreement, dated February 9, 2022, between the registrant and Keisuke Kuno (incorporated by reference to Exhibit 10.5 to the registrant’s Current Report on Form 8-K filed with the SEC on February 14, 2022). |
|
|
|
10.10 |
|
Form of Independent Director Agreement between the registrant and each independent director (incorporated by reference to Exhibit 10.10 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.11 |
|
Form of Indemnification Agreement between the registrant and each independent director (incorporated by reference to Exhibit 10.11 to the registrant’s Registration Statement on Form S-1 (File No. 333-261984) filed with the SEC on January 3, 2022). |
|
|
|
10.12 |
|
Consulting and Services Agreement, dated as of March 31, 2022, by and between the registrant and Moveaction Co., Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on April 6, 2022). |
|
|
|
10.13 |
|
Common Stock Purchase Warrant issued by Moveaction Co., Ltd. to the registrant (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on April 6, 2022). |
|
|
|
10.14 |
|
Consulting and Services Agreement, dated as of April 13, 2022, by and between the registrant and A.L.I. Technologies, Inc. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2022). |
|
|
|
10.15 |
|
Common Stock Purchase Warrant issued by A.L.I. Technologies, Inc. to the registrant (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2022). |
|
|
|
10.16 |
|
Consulting and Services Agreement, dated as of May 13, 2022, by and between the registrant and SYLA Holdings Co. Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on May 25, 2022). |
|
|
|
10.17 |
|
Amendment No. 1 to Consulting and Services Agreement, dated as of August 17, 2022, by and between the registrant and SYLA Holdings Co., Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on August 18, 2022). |
|
|
|
10.18 |
|
Amendment No. 2 to Consulting and Services Agreement, dated as of November 15, 2022, by and between the registrant and SYLA Holdings Co., Ltd. (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on November 23, 2022). |
|
|
|
10.19 |
|
9TH Stock Acquisition Rights Allotment Agreement, dated as of November 9, 2022, concerning the allotment of stock acquisition rights by SYLA Technologies Co., Ltd. to the registrant (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on November 23, 2022). |
10.20 |
|
Share Exchange and Purchase Agreement dated as of September 6, 2022, among the registrant, Sigmaways, Inc., and Prakash Sadasivam (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on September 8, 2022). |
|
|
|
10.21 |
|
Amendment No. 1 to Share Exchange and Purchase Agreement, dated as of December 23, 2022, among the registrant, Sigmaways, Inc., and Prakash Sadasivam |
|
|
|
10.22 |
|
Amendment No. 2 to Share Exchange and Purchase Agreement, dated as of February 1, 2023, among the registrant, Sigmaways, Inc., and Prakash Sadasivam (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on February 6, 2023). |
|
|
|
10.23 |
|
Addendum to Share Exchange and Purchase Agreement, dated as of February 8, 2023, among the registrant, Sigmaways, Inc., and Prakash Sadasivam (incorporated by reference to Exhibit 10.4 to the registrant’s Current Report on Form 8-K filed with the SEC on February 10, 2023). |
|
|
|
10.24 |
|
Amended and Restated Common Stock Purchase Warrant issued by the registrant to Prakash Sadasivam (incorporated by reference to Exhibit 10.5 to the registrant’s Current Report on Form 8-K filed with the SEC on February 10, 2023). |
|
|
|
10.25 |
|
Consulting and Services Agreement, dated as of October 20, 2022, by and between the registrant and Metros Development Co., Ltd. (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on October 26, 2022). |
|
|
|
10.26 |
|
Amendment No. 1 to Consulting and Services Agreement, dated as of October 26, 2022, by and between the registrant and Metros Development Co., Ltd. (incorporated by reference to Exhibit 10.6 to the registrant’s Current Report on Form 8-K filed with the SEC on October 26, 2022). |
|
|
|
10.27 |
|
Common Stock Purchase Warrant issued by Metros Development Co., Ltd. to the registrant (incorporated by reference to Exhibit 10.7 to the registrant’s Current Report on Form 8-K filed with the SEC on October 26, 2022). |
|
|
|
10.28† |
|
Amendment No. 1 to Executive Employment Agreement, dated as of October 28, 2022, between the registrant and Sumitaka Yamamoto (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on November 4, 2022). |
|
|
|
10.29 |
|
Consulting and Services Agreement, dated as of November 18, 2022, by and between the registrant and SBC Medical Group, Inc. (incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K filed with the SEC on November 23, 2022). |
|
|
|
10.30 |
|
Common Stock Purchase Warrant issued by SBC Medical Group, Inc. to the registrant (incorporated by reference to Exhibit 10.4 to the registrant’s Current Report on Form 8-K filed with the SEC on November 23, 2022). |
|
|
|
10.31 |
|
Consulting and Services Agreement, dated as of January 11, 2023, by and between the registrant and kk.BloomZ (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the SEC on January 17, 2023). |
|
|
|
10.32 |
|
Common Stock Purchase Warrant issued by kk.BloomZ to the registrant (incorporated by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the SEC on January 17, 2023). |
|
|
|
10.33† |
|
Employment Agreement, dated February 1, 2022, between the registrant and Prakash Sadasivam (incorporated by reference to Exhibit 10.3 to the registrant’s Current Report on Form 8-K filed with the SEC on February 6, 2023). |
|
|
|
23.1 |
|
Consent of MaloneBailey, LLP, Independent Registered Public Accounting Firm. |
|
|
|
23.2 |
|
Consent of Anthony L.G., PLLC (incorporated in Exhibit 5.1). |
|
|
|
24.1 |
|
Power of Attorney (included on the signature page of this Registration Statement on Form S-3). |
|
|
|
25.1** |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Senior Indenture |
|
|
|
25.2** |
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Subordinated Indenture |
|
|
|
107 |
|
Filing Fee Table |
† |
Management
contract, compensation plan or arrangement. |
* |
To
be filed by amendment to this registration statement or as an exhibit to a report filed pursuant to Section 13(a), 13(c) or 15(d)
of the Exchange Act. |
** |
To
be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations
thereunder. |
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