As
filed with the Securities and Exchange Commission on April 8, 2022
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
GBS
Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
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82-1512711 |
(State
or other jurisdiction of incorporation or organization) |
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(I.R.S.
Employer Identification Number) |
420
Lexington Ave, Suite 300, New York, NY 10170
Telephone:
(646) 828-8258
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Steven
Boyages
Interim
Chief Executive Officer
420
Lexington Ave, Suite 300, New York, NY 10170
Telephone:
(646) 828-8258
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Ralph
V. De Martino, Esq.
Johnathan
C. Duncan, Esq.
ArentFox
Schiff LLP
901
K Street, NW, Suite 700
Telephone:
(202) 724-6848
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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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 Securities Act.
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject
to Completion, dated April 8, 2022
PROSPECTUS
$100,000,000
GBS
Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may from time to time issue up to $100,000,000 aggregate dollar amount of common stock, preferred stock, debt securities, warrants or
units of securities consisting of some or all of these securities, in any combination, together or separately, in one or more offerings,
in amounts, at prices and on the terms determined at the time of the offering. We will specify in the accompanying prospectus supplement
the terms of the securities to be offered and sold. We may sell these securities directly to you, through underwriters, dealers or agents
we select, or through a combination of these methods. We will describe the plan of distribution for any particular offering of these
securities in the applicable prospectus supplement.
This
prospectus may not be used to consummate a sale of any securities unless it is accompanied by a prospectus supplement.
Our
common stock is listed on The NASDAQ Global Market and is traded under the symbol “GBS”. On April 7, 2022, the closing price
of the common stock, as reported on NASDAQ, was $0.9912 per share.
As
of April 7, 2022, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $14,751,556, based on 14,882,522 shares of outstanding common stock, of which approximately 14,835,214 shares were held
by non-affiliates, and a per share price of $0.9912 based on the closing sale price of our common stock on April 7, 2022. Pursuant to
General Instruction I.B.6. of Form S-3, in no event will we sell the securities covered hereby in a public primary offering with a value
exceeding more than one-third of our public float in any twelve-month period so long as our public float remains below $75.0 million.
We have not offered any securities pursuant to General Instruction I.B.6. of Form S-3 during the prior twelve calendar month period that
ends on and includes the date of this prospectus.
Investing
in our securities is highly speculative and involves a high degree of risk. You should purchase these securities only if you can afford
a complete loss of your investment. You should carefully consider the risks and uncertainties described under the heading “Risk
Factors” beginning on page 7 of this prospectus before making a decision to purchase our securities.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED
IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The
date of this prospectus is ____, 2022.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf”
registration process. Under this shelf registration process, we may sell the securities described in this prospectus in one or more offerings
up to a total dollar amount of $100,000,000.
We
have provided to you in this prospectus a general description of the securities we may offer. Each time we sell securities under this
shelf registration process, we will provide a prospectus supplement that will contain specific information about the terms of that offering.
That prospectus supplement may include additional risk factors or other special considerations applicable to the securities being offered.
We may also add, update or change in the prospectus supplement any of the information contained in this prospectus. To the extent there
is a conflict between the information contained in this prospectus and the prospectus supplement, you should rely on the information
in the prospectus supplement, provided that if a statement in any document is inconsistent with a statement in another document having
a later date - for example, a document incorporated by reference in this prospectus or any prospectus supplement - the statement in the
document having the later date modifies or supersedes the earlier statement. You should read both this prospectus and the prospectus
supplement together with the additional information described under “Where You Can Find More Information.”
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The
registration statement containing this prospectus, including the exhibits to the registration statement, provides additional information
about us and the securities offered under this prospectus. The registration statement, including the exhibits, can be read at the SEC
website or at the SEC offices mentioned under the heading “Where You Can Find More Information.”
You
should rely only on the information incorporated by reference or provided in this prospectus and the accompanying prospectus supplement.
We have not authorized anyone to provide you with different information. We are not making an offer to sell or soliciting an offer to
buy these securities in any jurisdiction in which the offer or solicitation is not authorized or in which the person making the offer
or solicitation is not qualified to do so or to anyone to whom it is unlawful to make the offer or solicitation. You should not assume
that the information in this prospectus or the accompanying prospectus supplement is accurate as of any date other than the date on the
front of the document.
Unless
the context requires otherwise, references to the “Company,” “we,” “our,” and “us,” refer
to GBS Inc. and its subsidiaries, except that such terms refer to only GBS Inc. and not its subsidiaries in the sections entitled “Description
of Common Stock,” “Description of Preferred Stock,” “Description of Warrants,” “Description of the
Debt Securities,” and “Description of the Stock Purchase Contracts and Stock Purchase Units.”
PROSPECTUS
SUMMARY
This
summary provides an overview of selected information contained elsewhere or incorporated by reference in this prospectus and does not
contain all of the information you should consider before investing in our securities. You should carefully read the prospectus, the
information incorporated by reference and the registration statement of which this prospectus is a part in their entirety before investing
in our securities, including the information discussed under “Risk Factors” in this prospectus and the documents incorporated
by reference and our financial statements and notes thereto that are incorporated by reference in this prospectus. As used in this prospectus,
unless the context otherwise indicates, the terms “we,” “our,” “us,” the “Company,” or
“GBS” refer to GBS, Inc., a Delaware corporation.
OUR
COMPANY
We
are a biosensor diagnostic technology company operating across the Asia-Pacific region and an interest in the United States with the
biosensor platform comprising of biochemistry, immunology, tumor markers, hormones, and nucleic acid diagnostic modalities, and worldwide
with our COV2 test. GBS Inc. and its wholly owned subsidiary, GBS Operations Inc. were formed on December 5, 2016 under the laws of the
State of Delaware. Our headquarters are located in New York City, New York.
Our
objective is to introduce and launch initially the Saliva Glucose Biosensor, or “SGB”, the diagnostic test that stems from
the Biosensor Platform that we license from Life Science Biosensor Diagnostics Pty Ltd, or Life Science Biosensor Diagnostics Pty Ltd
(“LSBD”), in our regions and the COV2 test globally. This will be followed by developing the platform to its full capacity
testing across the diagnostic modalities of Immunology, Hormones, Chemistry, Tumor markers and Nucleic Acid tests.
The
Saliva Glucose Biosensor
The
SGB uses saliva to measure glucose non-invasively. When the SGB interacts with saliva, an electrochemical reaction is initiated that
produces an electrical signal directly correlated to the amount of glucose present in the saliva. This measurement is then converted
into a real-time saliva glucose reading by a software app on a smart device or a dedicated smart reader for those that do not possess
a compliant and compatible smart device. The reading may then be stored in our proprietary cloud-based digital information system.
Self-testing
blood glucose monitors were introduced to the market in the 1970s and, since then, the method of glucose self-monitoring has not meaningfully
changed. The industry remains dominated by invasive methods that ultimately use blood or interstitial fluid to measure glucose. We believe
the methodology of the SGB represents a breakthrough in glucose monitoring as it represents the only non-invasive, painless and cost-effective
saliva-based method of measuring glucose levels. The biosensor technology has been developed over several decades of university-based
scientific research and has been extensively referenced in scientific literature.
The
SGB is an organic transistor, which in its structure embeds the glucose oxidase enzyme (referred to as “GOX”). When the single-use
SGB interacts with saliva it initiates an electrochemical reaction, producing an electrical signal directly correlated to the amount
of glucose present in the saliva. This measurement is then converted into a real-time saliva glucose reading, through the biosensor app
installed on a smart device or a dedicated reader.
In
our development of the Saliva Glucose Test (“SGT”), we aim to go beyond the innovation of changing the sampling medium from
blood to saliva, and further create value for the patient and the payers by decreasing the cost of managing diabetes, improving the outcomes
of the disease and providing convenience in testing methodology. This will be achieved by directly transferring the SGB reading from
the smart device or dedicated reader to our proprietary digital information system, which is cloud-based to enable every patient the
option to create their own medical record where the SGB results will be uploaded.
Our
digital information system is intended to be interfaced to an artificial intelligence system and will be able to, at the patient’s
or authorized care giver’s direction, disseminate patient data to a remote caregiver, a service for consultation or to any other
individual with whom the patient chooses to share his or her glucose level measurements. We believe patients and payers will be able
to leverage our digital information system to decrease cost and improve outcomes and convenience.
The
SGB has been under continuous development for over six years, first by the University of Newcastle, Australia, then by LSBD (our licensor)
and us. The SGB development program is approaching clinical stage which involves:
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generation
of prospective data from the recruitment of 20-40 patients. The initial objective is to explore the relationship between salivary
glucose and plasma glucose as well as the time course between the two. |
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the
development of the algorithm between plasma and salivary glucose. |
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to
confirm the algorithm and generate data for regulatory submission. |
After
analysis of the results from the above, this will progress to the testing needed to verify and validate the final product. This stage
involves implementation of the clinical evidence module, which incorporates the completion of transfer to manufacture, commercial production
of the investigative biosensor devices to commence the clinical evaluation of analytical performance of the device and generate the clinical
evidence necessary to gain regulatory approval.
On
May 1, 2020, LSBD filed a submission with the FDA for the Saliva Glucose Biosensor Diagnostic Test, currently in development as a point-of-care
test intended to replace blood glucose testing for diabetes management. Following the 513(g) submission to the FDA (Submitted May 01,
2020), it was determined that the Company could seek the De Novo application pathway for the Saliva Glucose Biosensor Diagnostic Test,
we were appointed an expert contact person, Acting Branch Chief from the Diabetes Diagnostic Devices Branch. We have further commenced
planning discussions with the FDA Office of In Vitro Diagnostics and Radiological Health and the Office of Product Evaluation and Quality
pertaining to the clinical development and study plan of the Saliva Glucose Biosensor. We expect to leverage synergies from the planned
approval process with the FDA within the Asia-Pacific region, where China has the highest number of people with diabetes., We intend
to apply for regulatory approval in the major jurisdictions across the Asia-Pacific region and at the same time formalize distribution
arrangements in these jurisdictions. .
We
anticipate that the non-invasive nature of saliva-based glucose testing will make patients more amenable to glucose monitoring, with
the expected result of increasing the number of times a patient tests per day. The data generated by the SGB, combined with the interface
of the smart device or dedicated reader with our digital information system and the artificial intelligence feedback, will allow the
patient to achieve better glucose control through a practical understanding of lifestyle factors that affect glucose levels, thereby
helping prevent or delay diabetes complications and ultimately personalizing diabetes management.
Commercialization
We
intend to introduce and launch the test through assignment of a sublicense and or distributors agreements in our licensed jurisdictions.
The development path will also follow the geographical regulatory path, including the North American Markets through our 50% subsidiary
BiosensX (North America) Inc. We have an option to acquire all of the North American license for saliva-based glucose testing from LSBD
for a sum of $5 million. This option expires on 29, March 2023.
Intellectual
Property
Our
business depends on the proprietary biosensor technologies licensed by us from LSBD. LSBD has secured and continues to pursue intellectual
property rights related to this technology in China, the United States and other countries.
Employees
We
have assembled an outstanding team of 14 people, including our 8 employees, our scientific advisory board and personnel at the University
of Newcastle through a collaboration with the institution, to execute on our mission to create next generation non-invasive diagnostic
tools to help patients suffering with diabetes. From time to time, we also contract for various administrative and other services from
LSBD, as required.
December
2020 Initial Public Offering
On
December 28, 2020, the Company closed its initial public offering (“IPO”) and sold 1,270,589 units, consisting of (a) one
share of the Company’s common stock (or, at the purchaser’s election, one share of Series B Convertible Preferred Stock),
(b) one Series A warrant (the “Series A Warrants”) to purchase one share of the Company’s common stock at an exercise
price equal to $8.50 per share, exercisable until the fifth anniversary of the issuance date, and (c) one Series B warrant (the “Series
B Warrants”) to purchase one share of the Company’s common stock at an exercise price equal to $17.00 per share, exercisable
until the fifth anniversary of the issuance date and subject to certain adjustment and cashless exercise provisions. The public offering
price of the shares sold in the IPO was $17.00 per unit. In aggregate, the units issued in the offering generated $17,732,448 in net
proceeds, which amount is net of $1,714,001 in underwriters’ discount and commissions, and $2,153,564 in offering costs. Offering
costs include underwriters’ warrants to acquire up to 63,529 shares with an exercise price of $18.70 per share, exercisable until
the fifth anniversary of the issuance date. The Company also issued to the underwriter an option, exercisable one or more times in whole
or in part to purchase up to 190,588 additional shares of common stock and/or Series A Warrants to purchase up to an aggregate of 190,588
shares of common stock and/or Series B Warrants to purchase up to an aggregate of 190,588 shares of common stock, in any combinations
thereof, from us at the public offering price per security, less the underwriting discounts and commissions, for 45 days after the date
of the IPO to cover over-allotments, if any (the “Over-Allotment Option”).
Upon
the closing of the IPO, all shares of preferred stock then outstanding were automatically converted into 2,810,190 shares of common stock,
and all convertible notes then outstanding were automatically converted into 710,548 shares of common stock.
Pre-IPO
preferred shareholders were issued warrants following the Company’s completed IPO, that allow the holders to acquire 2,736,675
shares of common stock at the IPO price during year two through to year three following the completion of the IPO. At exercise date,
the shareholder must hold, for each warrant to be exercised, the underlying common share to exercise the warrant. The warrants are not
transferable and apply to the number of shares that were subscribed for.
December
2020 Transactions
On
December 14, 2020, the Company and LSBD, the Company’s parent company, agreed to cancel the previously agreed share repurchase
transaction dated as of December 7, 2020, under which LSBD was to exchange a total of 3,800,000 shares of the Company’s common
stock for a 3-year non-transferrable warrant to purchase 1,900,000 shares of the Company’s shares of common stock. Effective as
of the same date, the Company agreed to issue to LSBD, in consideration of LSBD’s contribution towards the research and development
of applications other than glucose and COVID-19 applications to a maximum of $2 million over a 5-year period, a 5-year non-transferable
warrant to purchase 3,000,000 shares of the Company’s common stock at the exercise price of $17.00 per share.
On
December 18, 2020, the Company entered into an Exchange Agreement (the “EA”) with LSBD to exchange 3,000,000 shares of its
common stock held by LSBD for 3,000,000 shares of the Company’s Series B Convertible Preferred Stock. In addition, the parties
to the Exchange Agreement entered into a Registration Rights Agreement (the “RRA”) pursuant to which the Company agreed to
prepare and file within 30 days following the closing of the IPO with the Securities and Exchange Commission a registration statement
to register for resale the shares of Common Stock issuable upon conversion of the Series B Convertible Preferred Stock. If and to the
extent the Company fails to, among other things, file such resale registration statement or have it declared as required under the terms
of the RRA, the Company will be required to pay to the holder of such registration rights partial liquidated damages payable in cash
in the amount equal to the product of 1.0% multiplied by the aggregate purchase price paid by such holder pursuant to the EA. The EA
and the RRA contain customary representations, warranties, agreements and, indemnification rights and obligations of the parties.
On
December 18, 2020, LSBD entered into a certain Purchase and Assignment Agreement (the “PAA”) with an institutional accredited
investor (the “Purchaser”) pursuant to which LSBD sold and assigned to the Purchaser 3,000,000 shares of the Series B Convertible
Preferred Stock and assigned to the Purchaser its rights under the EA and the RRA with respect to the such preferred shares for a total
purchase price of $2,000,000. The investor’s Series B Convertible Preferred Stock is convertible into 3,000,000 shares of the Company’s
common stock, subject to beneficial ownership limitation. The price per share of the 3,000,000 shares of common stock issuable upon conversion
of the investor’s Series B Convertible Preferred Stock is $0.67.
The
Purchaser’s obligations are subject to the satisfaction of conditions, including, among others, that immediately following the
time of consummation of the transactions contemplated under the PAA, the IPO is to be consummated. The PAA contains customary representations,
warranties, agreements and obligations of the parties.
CORPORATE
INFORMATION
Our
principal executive offices are located at 420 Lexington Ave, Suite 300, New York, NY 10170. Our telephone number is (646) 828-8258.
The Company’s website address is http://www.gbs.inc. Information contained in, or accessible through, our website does not constitute
part of this prospectus and inclusions of our website address in this prospectus are inactive textual references only.
SECURITIES
WE MAY OFFER
With
this prospectus, we may offer common stock, preferred stock, debt securities, warrants, and/or units consisting of some or all of these
securities in any combination. The aggregate offering price of securities that we offer with this prospectus will not exceed $100,000,000.
Each time we offer securities with this prospectus, we will provide offerees with a prospectus supplement that will contain the specific
terms of the securities being offered. The following is a summary of the securities we may offer with this prospectus.
Common
Stock
We
may offer shares of our common stock, par value $0.01 per share.
Preferred
Stock
We
may offer shares of our preferred stock, par value $0.01 per share, in one or more series. Our board of directors or a committee designated
by the board will determine the dividend, voting, conversion and other rights of the series of shares of preferred stock being offered.
Each series of preferred stock will be more fully described in the particular prospectus supplement that will accompany this prospectus,
including redemption provisions, rights in the event of our liquidation, dissolution or the winding up, voting rights and rights to convert
into common stock.
Debt
Securities
We
may offer general obligations, which may be secured or unsecured, senior or subordinated and convertible into shares of our common stock
or preferred stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together as the “debt
securities.” Our board of directors will determine the terms of each series of debt securities being offered. We will issue the
debt securities under an indenture between us and a trustee. In this document, we have summarized general features of the debt securities
from the indenture. We encourage you to read the indenture, which is an exhibit to the registration statement of which this prospectus
is a part.
Warrants
We
may offer warrants for the purchase of debt securities, shares of preferred stock or shares of common stock. We may issue warrants independently
or together with other securities. Our board of directors will determine the terms of the warrants.
Units
We
may offer units consisting of some or all of the securities described above, in any combination, including common stock, preferred stock,
warrants and/or debt securities. The terms of these units will be set forth in a prospectus supplement. The description of the terms
of these units in the related prospectus supplement will not be complete. You should refer to the applicable form of unit and unit agreement
for complete information with respect to these units.
RISK
FACTORS
Before
making an investment decision, you should consider the “Risk Factors” included under Item 1A. of our most recent Annual Report
on Form 10-K and in our updates to those Risk Factors in our Quarterly Reports on Form 10-Q, all of which are incorporated by reference
in this prospectus, as updated by our future filings with the SEC. The market or trading price of our common stock could decline due
to any of these risks. In addition, please read “Forward-Looking Statements” in this prospectus, where we describe additional
uncertainties associated with our business and the forward-looking statements included or incorporated by reference in this prospectus.
Please note that additional risks not currently known to us or that we currently deem immaterial may also impair our business and operations.
The accompanying prospectus supplement may contain a discussion of additional risks applicable to an investment in us and the particular
type of securities we are offering under that prospectus supplement.
FORWARD-LOOKING
STATEMENTS
Some
of the information in this prospectus, and the documents we incorporate by reference, contain forward-looking statements within the meaning
of the federal securities laws. You should not rely on forward-looking statements in this prospectus, and the documents we incorporate
by reference. Forward-looking statements typically are identified by use of terms such as “anticipate,” “believe,”
“plan,” “expect,” “future,” “intend,” “may,” “will,” “should,”
“estimate,” “predict,” “potential,” “continue,” and similar words, although some forward-looking
statements are expressed differently. This prospectus, and the documents we incorporate by reference, may also contain forward-looking
statements attributed to third parties relating to their estimates regarding the markets we may enter in the future. All forward-looking
statements address matters that involve risk and uncertainties, and there are many important risks, uncertainties and other factors that
could cause our actual results to differ materially from the forward-looking statements contained in this prospectus, and the documents
we incorporate by reference.
You
should also consider carefully the statements under “Risk Factors” and other sections of this prospectus, and the documents
we incorporate by reference, which address additional facts that could cause our actual results to differ from those set forth in the
forward-looking statements. We caution investors not to place significant reliance on the forward-looking statements contained in this
prospectus, and the documents we incorporate by reference. We undertake no obligation to publicly update or review any forward-looking
statements, whether as a result of new information, future developments or otherwise.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered in this
offering. We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission.
You may read and copy the registration statement and any other documents we have filed at the Securities and Exchange Commission’s
Public Reference Room 100 F Street, N.E., Washington, D.C. 20549. Please call the Securities and Exchange Commission at 1-800-SEC-0330
for further information on the Public Reference Room. Our Securities and Exchange Commission filings are also available to the public
at the Securities and Exchange Commission’s Internet site at www.sec.gov.
This
prospectus is part of the registration statement and does not contain all of the information included in the registration statement.
Whenever a reference is made in this prospectus to any of our contracts or other documents, the reference may not be complete and, for
a copy of the contract or document, you should refer to the exhibits that are a part of the registration statement.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” into this prospectus the information we file with it, which means that we can
disclose important information to you by referring you to those documents. Later information filed with the SEC will update and supersede
this information.
The
following documents are incorporated by reference into this document:
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our
Annual Report on Form 10-K for the year ended June 30, 2021 (filed on September 16, 2021), as amended on Form 10-K/A (filed on September
30, 2021); |
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2021 (filed on November 12, 2021); |
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2021 (filed on February 11, 2022); |
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our
Current Reports on Form 8-K filed on August 11, 2021, October 14, 2021, November 3, 2021, November 24, 2021, December 1, 2021, December
16, 2021, February 28, 2022, March 23, 2022, March 24, 2022, and April 1, 2022 (except for information contained therein which is
furnished rather than filed); and |
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the
description of our common stock, par value $0.01 per share contained in our prospectus forming a part of the Registration Statement
on Form S-1 (File No. 333-252277), originally filed with the U.S. Securities and Exchange Commission on January 1, 2021, as thereafter
amended and supplemented from time to time. |
An
updated description of our capital stock is included in this prospectus under “Description of Common Stock” and “Description
of Preferred Stock”.
We
also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus
forms a part and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination
of the offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K, as well as proxy statements.
We
will provide to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, at no
cost to the requester, a copy of any and all of the information that is incorporated by reference in this prospectus, including exhibits
which are specifically incorporated by reference into such documents. You may request a copy of these filings, at no cost, by contacting
us at:
GBS
Inc.
Attn:
Corporate Secretary
420
Lexington Ave, Suite 300
New
York, NY 10170
Telephone:
(646) 828-8258
Any
statement contained herein or in a document incorporated or deemed to be incorporated by reference into this document will be deemed
to be modified or superseded for purposes of the document to the extent that a statement contained in this document or any other subsequently
filed document that is deemed to be incorporated by reference into this document modifies or supersedes the statement.
USE
OF PROCEEDS
We
expect to use the net proceeds from the sale of securities offered by this prospectus and the prospectus supplement for our clinical
trials and preclinical programs, for other research and development activities and for general corporate purposes. These may include
additions to working capital and acquisitions.
If
we decide to use the net proceeds of any offering of securities other than for our clinical trials and preclinical programs, for other
research and development activities and for general corporate purposes, we will describe the use of the net proceeds in the prospectus
supplement for that offering.
DESCRIPTION
OF COMMON STOCK
General
We
have authorized capital stock consisting of 100,000,000 shares of common stock,
par value $0.01.
As
of the date of this prospectus, we have 14,882,522 shares of common stock issued and outstanding.
The
holders of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders,
including the election of directors, and do not have cumulative voting rights. Accordingly, the holders of a majority of the outstanding
shares of common stock entitled to vote in any election of directors can elect all of the directors standing for election, if they so
choose, other than any directors that holders of any Preferred Stock we may issue may be entitled to elect.
Subject
to limitations under Delaware law and preferences that may be applicable to any then outstanding preferred stock, holders of common stock
are entitled to receive ratably those dividends, if any, as may be declared by our Board of Directors out of legally available funds.
In
the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs, the holders of our common stock will
be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of or provision for
all of our debts and other liabilities, subject to the prior rights of any Preferred Stock then outstanding.
Holders
of common stock have no preemptive or conversion rights or other subscription rights and there are no redemption or sinking funds provisions
applicable to the common stock. Our issued and outstanding shares of common stock are fully paid and non-assessable.
Anti-Takeover
Effects of Provisions of Our Certificate of Incorporation, Our By-laws and Delaware Law
Some
provisions of Delaware law, our Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and
our Amended and Restated By-Laws (the “By-Laws”) contain provisions that could make hostile takeovers, including the following
transactions, more difficult: an acquisition of us by means of a tender offer; an acquisition of us by means of a proxy contest or otherwise;
or the removal of our incumbent officers and directors. As a consequence, they may also inhibit temporary fluctuations in the market
price of our common stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect
of preventing changes in the composition of our board and management. It is possible that these provisions could make it more difficult
to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests,
including transactions which provide for payment of a premium over the market price for our shares.
These
provisions, summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are
also designed to encourage persons seeking to acquire control of us to first negotiate with our Board of Directors. We believe that the
benefits of the 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 these proposals because negotiation of these proposals could
result in an improvement of their terms.
We
are subject to Section 203 of the Delaware General Corporation Law, which prohibits persons deemed to be “interested stockholders”
from engaging in a “business combination” with a publicly held Delaware corporation for three years following the date these
persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested
stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an “interested stockholder”
is a person who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder
status did own, 15% or more of a corporation’s voting stock. Generally, a “business combination” includes a merger,
asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision
may have an anti-takeover effect with respect to transactions not approved in advance by the Board of Directors. A Delaware corporation
may “opt out” of these provisions with an express provision in its original certificate of incorporation or an express provision
in its certificate of incorporation or by-laws resulting from a stockholders’ amendment approved by at least a majority of the
outstanding voting shares. We have not opted out of these provisions. As a result, mergers or other takeover or change in control attempts
of us may be discouraged or prevented.
Quotation
Our
common stock is listed on The NASDAQ Global Market and traded under the symbol “GBS”.
Transfer
Agent
The
transfer agent for our common stock is Continental Stock Transfer & Trust Company, 1 State Street, 30th Floor, New York, New York
10004.
DESCRIPTION
OF PREFERRED STOCK
General
We
are currently authorized to issue 10,000,000 shares of preferred stock, par value $0.01. Of our preferred stock, 4,500,000 shares have
been designated Series B Convertible Preferred Stock. As of the date of this prospectus, we have no shares of preferred stock outstanding.
Our
Board of Directors currently has the authority, without further action by our stockholders, to issue shares of preferred stock in one
or more series and to fix the rights, preferences, privileges and restrictions thereof. These rights, preferences and privileges could
include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms and the number
of shares constituting, or the designation of, such series, any or all of which may be greater than the rights of common stock. The issuance
of preferred stock could adversely affect the voting power of holders of common stock and the likelihood that such holders will receive
dividend payments and payments upon our liquidation. In addition, the issuance of preferred stock could have the effect of delaying,
deferring or preventing a change in control of our company or other corporate action.
DESCRIPTION
OF DEBT SECURITIES
General
The
following description sets forth general terms that will apply to the debt securities. We will describe the particular terms of any debt
securities that we offer in the prospectus supplement relating to those debt securities.
The
debt securities will be either our senior debt securities or our subordinated debt securities. The senior debt securities will be issued
under an indenture between us and the trustee named in the indenture. We refer to this indenture as the “senior indenture.”
The subordinated debt securities will be issued under a separate Subordinated Indenture between us and the trustee named in the indenture.
We refer to this indenture as the “subordinated indenture” and, together with the senior indenture, as the “indentures.”
Except as permitted by applicable law, the indentures have been or will be qualified under the Trust Indenture Act of 1939.
We
have filed the forms of the indentures as exhibits to the registration statement. For your convenience, we have included references to
specific sections of the indentures in the descriptions below. Capitalized terms not otherwise defined in this prospectus will have the
meanings given in the indenture to which they relate.
The
following summaries of provisions of the debt securities and the indentures are not complete and are qualified in their entirety by reference
to the provisions of the indentures and the debt securities.
Neither
of the indentures limits the principal amount of debt securities that we may issue. Each indenture provides that debt securities may
be issued in one or more series up to the principal amount that we may authorize from time to time. Each indenture also provides that
the debt securities may be denominated in any currency or currency unit that we designate. In addition, each series of debt securities
may be reopened in order to issue additional debt securities of that series in the future without the consent of the holders of debt
securities of that series. Unless otherwise described in the prospectus supplement relating to a particular offering, neither the indentures
nor the debt securities will contain any provisions to afford holders of any debt securities protection in the event of a takeover, recapitalization
or similar restructuring of our business.
Unless
otherwise described in the prospectus supplement relating to a particular offering, the senior debt securities will rank equally with
all of our other unsecured and unsubordinated debt. The subordinated debt securities will be subordinated to the prior payment in full
of our senior debt securities. We will describe the particular terms of the subordinated debt securities that we offer in the prospectus
supplement relating to those subordinated debt securities.
We
will describe the specific terms relating to each particular series of debt securities in the prospectus supplement relating to the offering
of those debt securities. The terms we will describe in the prospectus supplement will include some or all of the following:
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the
title and type of the debt securities; |
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the
total principal amount or initial offering price of the debt securities; |
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the
date or dates when the principal of the debt securities will be payable; |
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whether
we will have the right to extend the stated maturity of the debt securities; |
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whether
the debt securities will bear interest and, if so, the rate or rates, or the method for calculating the rate or rates, of interest; |
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if
the debt securities will bear interest, the date from which interest will accrue, the dates when interest will be payable and the
regular record dates for these interest payment dates; |
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the
place where the principal, premium, if any, and interest, if any, on the debt securities will be paid, registered debt securities
may be surrendered for registration of transfer, and debt securities may be surrendered for exchange; |
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any
sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the debt securities; |
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the
terms and conditions upon which we will have the option or the obligation to redeem the debt securities; |
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the
denominations in which any registered debt securities will be issuable; |
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the
identity of each security registrar and paying agent, and the designation of the exchange rate agent, if any, if other than the trustee; |
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the
portion of the principal amount of debt securities that will be payable upon acceleration of the maturity of the debt securities; |
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the
currency used to pay principal, premium, if any, and interest, if any, on the debt securities, if other than U.S. dollars, and whether
you or we may elect to have principal, premium and interest paid in a currency other than the currency in which the debt securities
are denominated; |
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any
index, formula or other method used to determine the amount of principal, premium or interest on the debt securities; |
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any
changes or additions to the events of default, defaults or our covenants made in the applicable indenture; |
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whether
the debt securities are issuable as registered debt securities or bearer debt securities, whether there are any restrictions relating
to the form in which they are issued and whether bearer and registered debt securities may be exchanged for each other; |
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to
whom interest will be payable |
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if
other than the registered holder (for registered debt securities), |
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if
other than upon presentation and surrender of the related coupons (for bearer debt securities), or |
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if
other than as specified in the indentures (for global debt securities); |
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whether
the debt securities are to be convertible or exchangeable for other securities and, if so, the terms of conversion or exchange; |
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particular
terms of subordination with respect to subordinated debt securities; and |
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any
other terms of the debt securities consistent with the provisions of the applicable indenture. |
We
may issue debt securities as original issue discount securities to be sold at a substantial discount below their principal amount. If
we issue original issue discount securities, then we will describe the material U.S. federal income tax consequences that apply to those
debt securities in the applicable prospectus supplement.
Registration
and Transfer
We
presently plan to issue each series of debt securities only as registered securities. However, we may issue a series of debt securities
as bearer securities, or a combination of both registered securities and bearer securities. If we issue senior debt securities as bearer
securities, they will have interest coupons attached unless we elect to issue them as zero coupon securities. If we issue bearer securities,
we may describe material U.S. federal income tax consequences and other material considerations, procedures and limitations in the applicable
prospectus supplement.
Holders
of registered debt securities may present the debt securities for exchange for different authorized amounts of other debt securities
of the same series and in the same aggregate principal amount at the corporate trust office of the trustee or at the office of any other
transfer agent we may designate for the purpose and describe in the applicable prospectus supplement. The registered securities must
be duly endorsed or accompanied by a written instrument of transfer. The agent will not impose a service charge on you for the transfer
or exchange. We may, however, require that you pay any applicable tax or other governmental charge. If we issue bearer securities, we
will describe any procedures for exchanging those bearer securities for other senior debt securities of the same series in the applicable
prospectus supplement. Generally, we will not allow you to exchange registered securities for bearer securities.
In
general, unless otherwise specified in the applicable prospectus supplement, we will issue registered securities without coupons and
in denominations of $1,000 or integral multiples, and bearer securities in denominations of $5,000. We may issue both registered and
bearer securities in global form.
Conversion
and Exchange
If
any debt securities will be convertible into or exchangeable for our common stock, preferred stock or other securities, the applicable
prospectus supplement will set forth the terms and conditions of the conversion or exchange, including:
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the
conversion price or exchange ratio; |
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the
conversion or exchange period; |
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whether
the conversion or exchange will be mandatory or at the option of the holder or us; |
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provisions
for adjustment of the conversion price or exchange ratio; and |
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provisions
that may affect the conversion or exchange if the debt securities are redeemed. |
Redemption
Unless
otherwise indicated in the applicable prospectus supplement, we may, at our option, redeem any series of debt securities in whole at
any time or in part from time to time. If any series of debt securities are redeemable only on or after a certain date or only upon satisfaction
of additional conditions, the applicable prospectus supplement will specify the date or the additional conditions. Unless otherwise specified
in the applicable prospectus supplement, the redemption price for debt securities will equal 100% of the principal amount plus any accrued
and unpaid interest on those debt securities.
The
applicable prospectus supplement will contain the specific terms on which we may redeem a series of debt securities prior to its stated
maturity. Unless otherwise described in the prospectus supplement relating to a particular offering, we will send a notice of redemption
to holders at least 30 days but not more than 60 days prior to the redemption date. The notice will state:
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the
redemption date; |
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the
redemption price; |
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if
less than all of the debt securities of the series are being redeemed, the particular debt securities to be redeemed (and the principal
amounts, in the case of a partial redemption); |
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that
on the redemption date, the redemption price will become due and payable and any applicable interest will cease to accrue on and
after that date; |
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the
place or places of payment; |
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whether
the redemption is for a sinking fund; and |
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any
other provisions required by the terms of the debt securities of the series that are being redeemed. |
On
or before any redemption date, we will deposit an amount of money with the trustee or with a paying agent sufficient to pay the redemption
price.
Unless
otherwise described in the prospectus supplement relating to a particular offering, if we are redeeming less than all the debt securities,
the trustee will select the debt securities to be redeemed using a method it considers fair and appropriate. After the redemption date,
holders of redeemed debt securities will have no rights with respect to the debt securities except the right to receive the redemption
price and any unpaid interest to the redemption date.
Events
of Default
Unless
otherwise described in the prospectus supplement relating to a particular offering, an “event of default” regarding any series
of debt securities is any one of the following events:
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default
for 30 days in the payment of any interest installment when due and payable; |
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default
in the making of any sinking fund payment when due; |
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default
in the payment of principal or premium (if any) when due at its stated maturity, by declaration, when called for redemption or otherwise; |
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default
in the performance of any covenant in the debt securities of that series or in the applicable indenture for 60 days after notice
to us by the trustee or by the holders of 25% in principal amount of the outstanding debt securities of that series; |
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certain
events of bankruptcy, insolvency and reorganization; and |
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any
other event of default provided with respect to that series of debt securities. |
We
are required to file every year with each trustee an officers’ certificate stating whether any default exists and specifying any
default that exists.
Acceleration
of Maturity
Unless
otherwise described in the prospectus supplement relating to a particular offering, if an event of default has occurred and is continuing
with respect to debt securities of a particular series (except, in the case of subordinated debt securities, defaults relating to bankruptcy
events), the trustee or the holders of not less than 25% in principal amount of outstanding debt securities of that series may declare
the principal amount of outstanding debt securities of that series due and payable immediately.
Unless
otherwise described in the prospectus supplement relating to a particular offering, at any time after a declaration of acceleration of
maturity with respect to debt securities of any series has been made and before a judgment or decree for payment of the money due has
been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series by written
notice to us and the trustee, may rescind and annul the declaration and its consequences if:
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we
have paid or deposited with the trustee a sum sufficient to pay: |
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all
overdue interest on all outstanding debt securities of that series and any related coupons, |
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all
unpaid principal of and premium, if any, on any of the debt securities which has become due otherwise than by the declaration of
acceleration, and interest on the unpaid principal at the rate or rates prescribed in the debt securities, |
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to
the extent lawful, interest on overdue interest at the rate or rates prescribed in the debt securities, and |
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all
sums paid or advanced by the trustee and the reasonable compensation, expenses, disbursements and advances of the trustee, its agents
and counsel; and |
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all
events of default with respect to debt securities of that series, other than the non-payment of amounts of principal, interest or
any premium on the debt securities which have become due solely by the declaration of acceleration, have been cured or waived. |
No
rescission will affect any subsequent default or impair any right consequent thereon.
Waiver
of Defaults
Unless
otherwise described in the prospectus supplement relating to a particular offering, the holders of not less than a majority in principal
amount of the outstanding debt securities of any series may, on behalf of the holders of all the debt securities of the series and any
related coupons, waive any past default under the applicable indenture with respect to the series and its consequences, except a default:
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in
the payment of the principal of or premium, if any, or interest on any debt security of the series or any related coupon, or |
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in
respect of a covenant or provision that cannot be modified or amended without the consent of the holder of each outstanding debt
security of the series affected thereby. |
If
an event of default with respect to debt securities of a particular series occurs and is continuing, the trustee will not be obligated
to exercise any of its rights or powers under the applicable indenture at the request or direction of any of the holders of debt securities
of the series, unless the holders have offered to the trustee reasonable indemnity and security against the costs, expenses and liabilities
that might be incurred by it in compliance with the request.
The
holders of a majority in principal amount of the outstanding debt securities of any series have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee under the applicable indenture, or exercising any trust
or power conferred on the trustee with respect to the debt securities of that series. The trustee may refuse to follow directions in
conflict with law or the indenture that may expose the trustee to personal liability or may be unduly prejudicial to the other, non-directing
holders. Additionally, the trustee may take any other action the trustee deems proper which is not inconsistent with the direction.
Modification
of Indenture
We
and the trustee may, without the consent of any holders of debt securities, enter into supplemental indentures for various purposes,
including:
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to
evidence the succession of another entity to us and the assumption by the successor of our covenants and obligations under the debt
securities and the indenture; |
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establishing
the form or terms of any series of debt securities issued under the supplemental indentures; |
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adding
to our covenants for the benefit of the holders or to surrender any of our rights or powers under the indenture; |
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adding
additional events of default for the benefit of the holders; |
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to
change or eliminate any provisions of the indenture provided that the change or elimination becomes effective only when there is
no debt security outstanding entitled to the benefit of any changed or eliminated provision; |
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to
secure the debt securities; |
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to
cure any ambiguities or correct defective or inconsistent provisions of the indenture, provided that holders of debt securities are
not materially affected by the change; |
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to
evidence and provide for acceptance of a successor trustee; and |
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to
comply with the requirements of the Trust Indenture Act. |
We
and the trustee may, with the consent of the holders of not less than a majority in principal amount of the outstanding debt securities
of all affected series acting as one class, execute supplemental indentures adding any provisions to or changing or eliminating any of
the provisions of the indenture or modifying the rights of the holders of the debt securities of the series. Without the consent of the
holders of all the outstanding debt securities affected thereby, no supplemental indenture may:
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change
the stated maturity of the principal of, or any installment of principal of or interest on, any debt security; |
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reduce
the principal amount of, the rate of interest on or any premium payable upon the redemption of, or change the manner of calculating
the rate of interest on, any debt security; |
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reduce
the amount of the principal of any original issue discount security that would be due and payable upon acceleration of the maturity
of the debt security; |
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change
the place of payment where, or the currency in which, principal or interest on any debt security is payable; |
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impair
the right to institute suit for enforcement of payments; |
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reduce
the percentage in principal amount of the outstanding debt securities of any series, the holders of which must consent to a supplemental
indenture or any waiver of compliance with various provisions of, or defaults and covenants under, the indenture; or |
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modify
any of the provisions described in this section. |
Consolidation,
Merger and Sale of Assets
Unless
otherwise described in the prospectus supplement relating to a particular offering, as provided in the indentures, we may not consolidate
with or merge into any other person, or convey, transfer or lease all or substantially all of our assets to any other person, unless:
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the
person surviving or formed by the transaction is organized and validly existing under the laws of any United States jurisdiction
and expressly assumes our obligations under the debt securities and the indentures; |
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immediately
after giving effect to the transaction, no event of default will have occurred and be continuing under the indentures; and |
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the
trustees under the indentures receive certain officers’ certificates and opinions of counsel. |
Satisfaction
and Discharge
We
may terminate our obligations with respect to debt securities of any series not previously delivered to the trustee for cancellation
when those debt securities:
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have
become due and payable; |
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will
become due and payable at their stated maturity within one year; or |
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are
to be called for redemption within one year under arrangements satisfactory to the indenture trustee for giving notice of redemption. |
We
may terminate our obligations with respect to the debt securities of a series by depositing with the trustee, as trust funds in trust
dedicated solely for that purpose, an amount sufficient to pay and discharge the entire indebtedness on the debt securities of that series.
In that case, the applicable indenture will cease to be of further effect, and our obligations will be satisfied and discharged with
respect to that series (except our obligations to pay all other amounts due under the indenture and to provide certain officers’
certificates and opinions of counsel to the trustee). At our expense, the trustee will execute proper instruments acknowledging the satisfaction
and discharge.
The
Trustees
Any
trustee may be deemed to have a conflicting interest for purposes of the Trust Indenture Act and may be required to resign as trustee
if there is an event of default under the applicable indenture and, as more fully described in Section 310(b) of the Trust Indenture
Act, one or more of the following occurs:
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the
trustee is a trustee under another indenture under which our securities are outstanding; |
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the
trustee is a trustee for more than one outstanding series of debt securities under a single indenture; |
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we
or our affiliates or underwriters hold certain threshold ownership beneficial ownership interest in the trustee; |
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the
trustee holds certain threshold beneficial ownership interests in us or in securities of ours that are in default; |
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the
trustee is one of our creditors; or |
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the
trustee or one of its affiliates acts as an underwriter or agent for us. |
We
may appoint an alternative trustee for any series of debt securities. The appointment of an alternative trustee would be described in
the applicable prospectus supplement.
We
and our affiliates may engage in transactions with the trustee and its affiliates in the ordinary course of business.
Governing
Law
Each
of the indentures are, and the related senior debt securities and subordinated debt securities will be, governed by and construed under
the internal laws of the State of New York.
DESCRIPTION
OF THE WARRANTS
We
may issue warrants to purchase debt securities, preferred stock or common stock. We may offer warrants separately or together with one
or more additional warrants, debt securities, shares of preferred stock or common stock, or any combination of those securities in the
form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit, the prospectus supplement
will specify whether those warrants may be separated from the other securities in the unit prior to the warrants’ expiration date.
We may issue the warrants under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all as
described in the prospectus supplement. If we issue the warrants under warrant agreements, the warrant agent will act solely as our agent
in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial
owners of warrants.
We
will describe the particular terms of any warrants that we offer in the prospectus supplement relating to those warrants. Those terms
may include the following:
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the
specific designation and aggregate number of warrants, and the price at which we will issue the warrants; |
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the
currency or currency units in which the offering price, if any, and the exercise price are payable; |
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the
date on which the right to exercise the warrants will begin and the date on which the right will expire or, if the warrants are not
continuously exercisable throughout that period, the specific date or dates on which they are exercisable; |
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whether
the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these
forms; |
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any
applicable material United States federal income tax considerations; |
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the
identity of the warrant agent, if any, for the warrants and of any other depositaries, execution or paying agents, transfer agents,
registrars or other agents; |
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the
designation, aggregate principal amount, currency, denomination and terms of any debt securities that may be purchased upon exercise
of the warrants; |
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the
designation, amount, currency, denominations and terms of any preferred stock or common stock purchasable upon exercise of the warrants; |
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if
applicable, the designation and terms of the debt securities, preferred stock or common stock with which the warrants are issued
and the number of warrants issued with each security; |
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if
applicable, the date from and after which the warrants and the related debt securities, preferred stock or common stock will be separately
transferable; |
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the
principal amount of debt securities or the number of shares of preferred stock or common stock purchasable upon exercise of any warrant
and the price at which those shares may be purchased; |
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provisions
for changes to or adjustments in the exercise price; |
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if
applicable, the minimum or maximum number of warrants that may be exercised at any one time; |
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information
with respect to any book-entry procedures; |
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any
anti-dilution provision of the warrants; |
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any
redemption or call provisions; and |
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Each
warrant will entitle the holder thereof to purchase such number of shares of common stock or preferred stock or other securities at the
exercise price as will in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement. Warrants
may be exercised at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After
the close of business on the expiration date, unexercised warrants will become void. Warrants may be exercised as set forth in the applicable
prospectus supplement relating to the warrants offered thereby. Upon receipt of 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, as soon as practicable, forward the purchased securities. If less than all of the warrants represented by the warrant certificate
are exercised, a new warrant certificate will be issued for the remaining warrants.
DESCRIPTION
OF UNITS
We
may issue, in one or more series, units comprised of shares of our common stock or preferred stock, warrants to purchase common stock
or preferred stock, debt securities or any combination of those securities. Each unit will be issued so that the holder of the unit is
also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of
each included security.
We
may evidence units by unit certificates that we issue under a separate agreement. We may issue the units under a unit agreement between
us and one or more unit agents. If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent
in connection with the units and will not assume any obligation or relationship of agency or trust for or with any registered holders
of units or beneficial owners of units. We will indicate the name and address and other information regarding the unit agent in the applicable
prospectus supplement relating to a particular series of units if we elect to use a unit agent.
We
will describe in the applicable prospectus supplement the terms of the series of units being offered, including: (i) the designation
and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may
be held or transferred separately; (ii) any provisions of the governing unit agreement that differ from those described herein; and (iii)
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
The
other provisions regarding our common stock, preferred stock, warrants and debt securities as described in this section will apply to
each unit to the extent such unit consists of shares of our common stock, preferred stock, warrants and/or debt securities.
PLAN
OF DISTRIBUTION
We
may sell the securities covered by this prospectus in one or more of the following ways from time to time:
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to
or through underwriters or dealers for resale to the purchasers; |
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directly
to purchasers; |
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through
agents or dealers to the purchasers; or |
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through
a combination of any of these methods of sale. |
In
addition, we may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus
to third parties in privately negotiated transactions. The applicable prospectus supplement may indicate that third parties may sell
securities covered by this prospectus and the prospectus supplement, including in short sale transactions, in connection with those derivatives.
If so, the third party may use securities we pledge or that are borrowed from us or others to settle those sales or to close out any
related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related
open borrowings of stock. The third party in those sale transactions will be an underwriter and, if applicable, will be identified in
the prospectus supplement (or a post-effective amendment thereto).
A
prospectus supplement with respect to each series of securities will include, to the extent applicable:
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the
terms of the offering; |
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the
name or names of any underwriters, dealers, remarketing firms, or agents and the terms of any agreement with those parties, including
the compensation, fees, or commissions received by, and the amount of securities underwritten, purchased, or remarketed by, each
of them, if any; |
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the
public offering price or purchase price of the securities and an estimate of the net proceeds to be received by us from any such
sale, as applicable; |
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any
underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
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the
anticipated delivery date of the securities, including any delayed delivery arrangements, and any commissions we may pay for solicitation
of any such delayed delivery contracts; |
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that
the securities are being solicited and offered directly to institutional investors or others; |
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any
discounts or concessions to be allowed or reallowed or to be paid to agents or dealers; and |
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any
securities exchange on which the securities may be listed. |
Any
offer and sale of the securities described in this prospectus by us, any underwriters, or other third parties described above may be
effected from time to time in one or more transactions, including, without limitation, privately negotiated transactions, either:
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at
a fixed public offering price or prices, which may be changed; |
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at
market prices prevailing at the time of sale; |
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at
prices related to prevailing market prices at the time of sale; or |
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at
negotiated prices. |
Offerings
of securities covered by this prospectus also may be made into an existing trading market for those securities in transactions at other
than a fixed price, either:
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on
or through the facilities of the NASDAQ Global Market or any other securities exchange or quotation or trading service on which those
securities may be listed, quoted, or traded at the time of sale; and/or |
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to
or through a market maker otherwise than on the NASDAQ Global Market or those other securities exchanges or quotation or trading
services. |
Those
at-the-market offerings, if any, will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers
of securities as described above.
In
addition, we may sell some or all of the securities covered by this prospectus through:
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purchases
by a dealer, as principal, who may then resell those securities to the public for its account at varying prices determined by the
dealer at the time of resale or at a fixed price agreed to with us at the time of sale; |
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block
trades in which a dealer will attempt to sell as agent, but may position or resell a portion of the block as principal in order to
facilitate the transaction; and/or |
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ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers. |
Any
dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933 of the securities so offered and sold.
In
connection with offerings made through underwriters or agents, we may enter into agreements with those underwriters or agents pursuant
to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection
with these arrangements, the underwriters or agents also may sell securities covered by this prospectus to hedge their positions in any
such outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received
from us under those arrangements to close out any related open borrowings of securities.
We
may loan or pledge securities to a financial institution or other third party that in turn may sell the loaned securities or, in any
event of default in the case of a pledge, sell the pledged securities using this prospectus and the applicable prospectus supplement.
That financial institution or third party may transfer its short position to investors in our securities or in connection with a simultaneous
offering of other securities covered by this prospectus.
We
may solicit offers to purchase the securities covered by this prospectus directly from, and we may make sales of such securities directly
to, institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to
any resale of such securities.
The
securities may also be offered and sold, if so indicated in a prospectus supplement, in connection with a remarketing upon their purchase,
in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals
for their own accounts or as agents for us.
If
indicated in the applicable prospectus supplement, we may sell the securities through agents from time to time. We generally expect that
any agent will be acting on a “best efforts” basis for the period of its appointment.
If
underwriters are used in any sale of any securities, the securities may be either offered to the public through underwriting syndicates
represented by managing underwriters, or directly by underwriters. Unless otherwise stated in a prospectus supplement, the obligations
of the underwriters to purchase any securities will be conditioned on customary closing conditions, and the underwriters will be obligated
to purchase all of that series of securities, if any are purchased.
Underwriters,
dealers, agents, and remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us
to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect
to payments that the underwriters, dealers, agents, and remarketing firms may be required to make. Underwriters, dealers, agents, and
remarketing agents may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or
our affiliates.
Any
underwriters to whom securities covered by this prospectus are sold by us for public offering and sale, if any, may make a market in
the securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
LEGAL
MATTERS
ArentFox
Schiff LLP, Washington, DC, will pass upon the validity of the securities offered by this prospectus for us. Legal matters will be passed
upon for any underwriters, dealers or agents by counsel named in the applicable prospectus supplement.
EXPERTS
The
audited financial statements incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated
by reference in reliance upon the report of BDO Audit Pty Ltd, independent registered public accountants, upon the authority of said
firm as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses, other than the underwriting discounts and commissions, payable by the registrant
in connection with the offering of the securities being registered. All the amounts shown are estimates, except for the registration
fee.
These
fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time.
An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included
in the applicable prospectus supplement.
SEC registration
fee | |
$ | 9,270 | |
FINRA filing fee | |
$ | 15,500 | |
Printing fees and expenses | |
| * | |
Legal fees and expenses | |
| 25,000 | |
Accounting fees and expenses | |
| * | |
Miscellaneous
fees and expenses | |
| * | |
Total | |
$ | * | |
*
Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses that we anticipate we will incur
in connection with the offering of securities under this registration statement. An estimate of the aggregate expenses in connection
with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement, information
incorporated by reference or related free writing prospectus.
Item
15. Indemnification of Directors and Officers
The
Company’s Certificate of Incorporation and By-Laws allow for its directors and officers to be indemnified by us to the fullest
extent permitted by law.
The
Company’s Certificate of Incorporation provides, in relevant part, that no director of the Company shall be personally liable to
the Company or any stockholder for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach
of the director’s duty of loyalty to the Company or any stockholder, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit [and if] the Delaware General Corporation Law is amended after
the date of our Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Company shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
The
Company’s By-Laws provide, in relevant part, that the Company shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company by reason of the fact that he is or was a director, officer, employee or agent
of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
The
Company’s By-Laws also provide that the Company shall indemnify any person who was or is a party, or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Company unless and only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Indemnification, as described above, shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct.
The
Company’s By-Laws further provide that that indemnification and advancement of expenses provided by, or granted pursuant to the
Company’s By-Laws shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity while holding such office.
In
addition, we have entered into customary
indemnification agreements with each of our directors and officers.
Section
145 of the Delaware General Corporation Law concerning indemnification of officers, directors, employees and agents is set forth below.
“Section
145. Indemnification of officers, directors, employees and agents; insurance.
(a)
A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and
in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that
the person’s conduct was unlawful.
(b)
A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person
is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including
attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c)
(1) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith. For indemnification with respect to any act or omission occurring after December 31, 2020, references
to “officer” for purposes of paragraphs (c)(1) and (2) of this section shall mean only a person who at the time of such act
or omission is deemed to have consented to service by the delivery of process to the registered agent of the corporation pursuant to
§ 3114(b) of Title 10 (for purposes of this sentence only, treating residents of this State as if they were nonresidents to apply
§ 3114(b) of Title 10 to this sentence). (2) The corporation may indemnify any other person who is not a present or former director
or officer of the corporation against expenses (including attorneys’ fees) actually and reasonably incurred by such person to the
extent he or she has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or matter therein.
(d)
Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent
is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made, with respect to a person who is a director or officer of the corporation at the time
of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less
than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum,
or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e)
Expenses (including attorneys’ fees) incurred by an officer or director of the corporation in defending any civil, criminal, administrative
or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including
attorneys’ fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving
at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust
or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
(f)
The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not
be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and
as to action in another capacity while holding such office. A right to indemnification or to advancement of expenses arising under a
provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to or repeal or elimination
of the certificate of incorporation or the bylaws after the occurrence of the act or omission that is the subject of the civil, criminal,
administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the
provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission
has occurred.
(g)
A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the
power to indemnify such person against such liability under this section. For purposes of this subsection, insurance shall include any
insurance provided directly or indirectly (including pursuant to any fronting or reinsurance arrangement) by or through a captive insurance
company organized and licensed in compliance with the laws of any jurisdiction, including any captive insurance company licensed under
Chapter 69 of Title 18, provided that the terms of any such captive insurance shall:
(1)
Exclude from coverage thereunder, and provide that the insurer shall not make any payment for, loss in connection with any claim made
against any person arising out of, based upon or attributable to any (i) personal profit or other financial advantage to which such person
was not legally entitled or (ii) deliberate criminal or deliberate fraudulent act of such person, or a knowing violation of law by such
person, if (in the case of the foregoing paragraph (g)(1)(i) or (ii) of this section) established by a final, nonappealable adjudication
in the underlying proceeding in respect of such claim (which shall not include an action or proceeding initiated by the insurer or the
insured to determine coverage under the policy), unless and only to the extent such person is entitled to be indemnified therefor under
this section;
(2)
Require that any determination to make a payment under such insurance in respect of a claim against a current director or officer (as
defined in paragraph (c)(1) of this section) of the corporation shall be made by a independent claims administrator or in accordance
with the provisions of paragraphs (d)(1) through (4) of this section; and
(3)
Require that, prior to any payment under such insurance in connection with any dismissal or compromise of any action, suit or proceeding
brought by or in the right of a corporation as to which notice is required to be given to stockholders, such corporation shall include
in such notice that a payment is proposed to be made under such insurance in connection with such dismissal or compromise.
For
purposes of paragraph (g)(1) of this section, the conduct of an insured person shall not be imputed to any other insured person. A corporation
that establishes or maintains a captive insurance company that provides insurance pursuant to this section shall not, solely by virtue
thereof, be subject to the provisions of Title 18.
(h)
For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who
is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate existence had continued.
(i)
For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the
request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the
corporation” as referred to in this section.
(j)
The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a person.
(k)
The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).”
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
*
Filed herewith
+
As applicable, to be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated
herein by reference
#
As applicable, to be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture
Act.
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 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 (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this Registration Statement as of the
date the filed prospectus was deemed part of and included in this Registration Statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) (ß 230.424(b)(2), (b)(5), or (b)(7) of this
chapter) 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) (ß 230.415(a)(1)(i), (vii), or (x) of this chapter) for the purpose of providing the information required by section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act 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 a 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.
(d)
The undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(e)
If and when applicable, the undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed
by the Commission under section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned
thereunto duly authorized, in the City of New York, State of New York, on April 8, 2022.
|
GBS INC. |
|
(Registrant) |
|
|
|
By: |
/s/
Steven Boyages |
|
Name: |
Steven Boyages |
|
Title: |
Interim Chief Executive
Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Steven Boyages and Spiro Sakiris,
and each and either of them, his or her true and lawful attorney-in-fact and agent, each with full power of substitution and resubstituting,
for him or her and in his or her name, place, and stead, in any and all capacities, to (i) act on, sign and file with the Securities
and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all
schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933,
as amended, together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and
other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included
in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and (iv) take any and all actions which may be necessary or appropriate to be done, as fully for
all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her 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 registration statement has been signed below by the following persons
in the capacities and on the dates indicated:
Signature
|
|
Title |
|
Date |
|
|
|
|
|
/s/
Steven Boyages |
|
Interim
Chief Executive Officer |
|
April
8, 2022 |
Dr.
Steven Boyages |
|
and
Chairman of the Board
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Spiro Sakiris |
|
Chief
Financial Officer |
|
April
8, 2022 |
Spiro
Sakiris |
|
(Principal
Financial Officer) |
|
|
|
|
|
|
|
/s/
Harry Simeonidis |
|
|
|
|
Harry
Simeonidis |
|
President |
|
April
8, 2022 |
|
|
|
|
|
|
|
|
|
|
/s/
Jonathan Hurd |
|
|
|
|
Jonathan
Hurd |
|
Director |
|
April
8, 2022 |
|
|
|
|
|
/s/
Leon Kempler |
|
|
|
|
Leon
Kempler |
|
Director |
|
April
8, 2022 |
|
|
|
|
|
/s/
George Margelis |
|
|
|
|
Dr.
George Margelis |
|
Director |
|
April
8, 2022 |
|
|
|
|
|
/s/
Lawrence Fisher |
|
|
|
|
Lawrence
Fisher |
|
Director |
|
April
8, 2022 |
|
|
|
|
|
/s/Christopher
Towers |
|
|
|
|
Christopher
Towers |
|
Director |
|
April
8, 2022 |
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