As filed with the Securities and Exchange Commission
on August 8, 2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INNODATA
INC.
(Exact name of registrant as specified in its charter)
| Delaware |
13-347594 |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification Number) |
55 Challenger Road
Ridgefield Park, New Jersey 07660
(201) 371-8000
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
Jack S. Abuhoff
Chief Executive Officer and President
Innodata Inc.
55 Challenger Road
Ridgefield Park, New Jersey 07660
(201) 371-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
David C. Schwartz, Esq.
Thurston J. Hamlette, Esq.
Morgan Lewis & Bockius LLP
502 Carnegie Center, Suite 201
Princeton, New Jersey 08540
(609) 919-6600
(Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this Registration Statement, as determined by market conditions.)
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ |
Accelerated filer ¨ |
| Non-accelerated filer x |
Smaller reporting company x |
| |
Emerging growth company ¨ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus
is not complete and may be changed or supplemented. No securities described in this prospectus can be sold until the registration statement
that we filed to cover the securities has become effective under the rules of the Securities and Exchange Commission. This prospectus
is not an offer to sell the securities, nor is it a solicitation of an offer to buy the securities in any state where an offer or sale
of the securities is not permitted.
Subject
to Completion, dated august 8, 2024
PROSPECTUS
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer from time to
time in one or more offerings up to an aggregate of $50,000,000 of the common stock, preferred stock, debt securities, warrants or units
described in this prospectus, separately or together in one or more combinations. The preferred stock, debt securities, and warrants
may be convertible into or exercisable or exchangeable for common stock or preferred stock or other securities, as identified in the
applicable prospectus supplement.
This prospectus provides
a general description of the securities we may offer. This prospectus will allow us to offer for sale securities over time. Each time
we sell securities, we will provide specific terms of the securities offered in the applicable prospectus supplement. We may also authorize
one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related
free writing prospectus may add, update or change information contained in this prospectus. You should carefully read this prospectus,
the applicable prospectus supplement and any related free writing prospectus, as well as the documents incorporated by reference herein
and therein, before you invest in any of our securities. This prospectus may not be used to sell the securities unless accompanied by
a prospectus supplement.
We may offer and sell the
securities through underwriters, dealers or agents, or directly to purchasers, or through a combination of these methods. See “Plan
of Distribution” beginning on page 14 of this prospectus.
Our common stock is listed
on the Nasdaq Global Market under the symbol “INOD.” On August 7, 2024, the last reported sale price of our common
stock was $15.46 per share.
Investing in our securities
involves risk. See “Risk Factors” beginning on page 4 of this prospectus. You should carefully read this prospectus,
any applicable prospectus supplement and any related free writing prospectus, as well as the documents incorporated by reference herein
and therein, before you invest in any of 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 , 2024
TABLE OF CONTENTS
About
This Prospectus
This prospectus is part of
a registration statement that we have filed with the Securities and Exchange Commission (the “SEC” or the “Commission”)
using a “shelf” registration process under the Securities Act of 1933, as amended (the “Securities Act”). Under
this shelf registration process, we may offer and sell, from time to time, any combination of the securities described in this prospectus
in one or more offerings up to a total dollar amount of $50,000,000.
This prospectus provides
a general description of the securities we may offer. Each time we sell the securities, we will, to the extent required by law, provide
a prospectus supplement that will contain specific information about the terms of the offering. We may also authorize one or more free
writing prospectuses to be provided to you in connection with the offering. The prospectus supplement and any related free writing prospectus
may add, update or change information contained in this prospectus. This prospectus does not contain all of the information included
in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration
statement, including its exhibits. You should carefully read this prospectus, the applicable prospectus supplement, and any applicable
free writing prospectus, as well as the information and documents incorporated herein and therein by reference and the additional information
under the heading “Where You Can Find More Information,” before making an investment decision.
We have not authorized any
dealer, salesman or other person to give any information or to make any representation other than those contained in, or incorporated
by reference into, this prospectus and the applicable prospectus supplement, and any free writing prospectus we have authorized for use
in connection with a specific offering.
This prospectus and any accompanying
prospectus supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other
than the registered securities to which they relate, nor do this prospectus or any accompanying prospectus supplement to this prospectus
constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful
to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus, any
accompanying prospectus supplement and any applicable free writing prospectus is accurate on any date subsequent to the date set forth
on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date
of the document incorporated by reference, even though this prospectus, any accompanying prospectus supplement or any applicable free
writing prospectus is delivered, or securities sold, on a later date.
This prospectus may not be
used by us to consummate sales of our securities unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies
between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date
will control.
This prospectus and the information
incorporated herein by reference include our trademarks, trade names and service marks, which are protected under applicable intellectual
property laws and are the property of Innodata Inc., or its subsidiaries. Solely for convenience, trademarks, trade names and service
marks referred to in this prospectus may appear without the ®, TM or SM symbols, but such references are not intended to indicate,
in any way, that we will not assert, to the fullest extent under applicable law, our rights or the right of the applicable licensor to
these trademarks, trade names and service marks. We do not intend our use or display of other parties’ trademarks, trade names
or service marks to imply, and such use or display should not be construed to imply, a relationship with, or endorsement or sponsorship
of us by, these other parties.
Unless the context otherwise
requires, references in this prospectus to “we,” “us,” “our,” the “Company,” and “Innodata”
refer to Innodata Inc., a Delaware corporation, and its subsidiaries.
The
Company
Our Business
We are a leading data engineering
company. Our mission is to help the world’s most prestigious companies deliver the promise of ethical, high-performing artificial
intelligence (“AI”), which we believe will contribute to a safer and more prosperous world.
Innodata was founded on a
simple idea: engineer the highest quality data so organizations across broad industry segments could make smarter decisions. Today, we
believe we are delivering the highest quality data for some of the world’s most innovative technology companies to use to train
the AI models of the future.
AI holds the promise that
computers can perceive and understand the world, enabling products and services that would have been previously unimaginable and impossible
with traditional coding. AI learns from data, and the highest-performing AI will have learned from the highest-quality data. We believe
that we can contribute meaningfully by harnessing our capabilities, honed over 30+ years, in collecting and annotating data at scale
with consistency and high accuracy.
We are also helping companies
deploy and integrate AI into their operations and products and providing innovative AI-enabled industry platforms, helping ensure that
our customers’ businesses are prepared for a world in which machines augment human activity in ways previously unimaginable.
We developed our capabilities
and honed our approaches progressively over the last 30+ years creating high-quality data for many of the world’s most demanding
information companies. Approximately eight years ago, we formed Innodata Labs, a research and development center, to research, develop
and apply machine learning and emerging AI to our large-scale, human-intensive data operations. In 2019, we began packaging the capabilities
that emerged from our R&D efforts in order to align with several fast-growing new markets and help companies use AI/ML to drive performance
benefits and business insights.
Our historical core competency
in high-quality data, combined with these R&D efforts in applied AI, created the foundation for the evolution of our offerings, which
include AI Data Preparation, AI Model Deployment and Integration, and AI-Enabled Industry Platforms.
Corporate Information
Innodata Inc. was founded
in 1988 as a Delaware corporation. Our principal executive offices are located at 55 Challenger Road, Ridgefield Park, New Jersey 07660,
just outside New York City, and our telephone number is (201) 371-8000.
Our website is www.innodata.com;
information contained on our website is not included as a part of, or incorporated by reference into, this prospectus. There we make
available, free of charge, our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K,
and any amendments to those reports, as soon as reasonably practicable after we electronically file that material with, or furnish it
to, the SEC. Our SEC reports can be obtained through the Investor Relations section of our website or from the Securities and Exchange
Commission at www.sec.gov.
Risk
Factors
Investing in our securities
involves risks. Before making an investment decision, you should carefully consider these risks as well as other information we include
or incorporate by reference in this prospectus. In particular, you should carefully consider the information under the heading “Risk
Factors,” as well as the factors listed under the heading “Cautionary Note Regarding Forward-Looking Statements,” in
each case contained in our Annual Report on Form 10-K for our most recent fiscal year, as supplemented and updated by subsequent
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that we have filed or will file with the SEC, and in other documents
incorporated by reference into this prospectus, as well as the risk factors and other information contained in or incorporated by reference
into any accompanying prospectus supplement before investing in any of our securities. New risks may emerge in the future at any time,
and we cannot predict such risks or estimate the extent to which they may affect our financial condition or performance. Any such risks
could result in a decrease in the value of the securities and your investment therein.
CAUTIONARY
Note Regarding Forward-Looking Statements
This prospectus and the documents
incorporated by reference into this prospectus and any prospectus supplement or free writing prospectus may contain “forward-looking
statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). These forward-looking statements include, without limitation, statements concerning
our operations, economic performance, and financial condition. Words such as “project,” “believe,” “expect,”
“can,” “continue,” “could,” “intend,” “may,” “should,” “will,”
“anticipate,” “indicate,” “predict,” “likely,” “estimate,” “plan,”
“potential,” “possible,” or the negatives thereof, and other similar expressions generally identify forward-looking
statements.
These forward-looking statements
are based on management’s current expectations, assumptions and estimates and are subject to a number of risks and uncertainties,
including, without limitation:
| · | impacts resulting from ongoing geopolitical
conflicts, including between Russia and the Ukraine, Hamas’ attack against Israel and
the ensuing conflict and increased hostilities between Iran and Israel; |
| · | investments in large language models; |
| · | that contracts may be terminated
by customers; |
| · | projected or committed volumes of
work may not materialize; |
| · | pipeline opportunities and customer
discussions which may not materialize into work or expected volumes of work; |
| · | the likelihood of continued development
of the markets, particularly new and emerging markets, that our services support; |
| · | the ability and willingness of our
customers and prospective customers to execute business plans that give rise to requirements
for our services; |
| · | continuing reliance on project-based
work in the Digital Data Solutions (DDS) segment and the primarily at-will nature of such
contracts and the ability of these customers to reduce, delay or cancel projects; |
| · | potential inability to replace projects
that are completed, canceled or reduced; continuing DDS segment revenue concentration in
a limited number of customers; |
| · | our dependency on content providers
in our Agility segment; |
| · | the Company’s ability to achieve
revenue and growth targets; |
| · | difficulty in integrating and deriving
synergies from acquisitions, joint ventures and strategic investments; |
| · | potential undiscovered liabilities
of companies and businesses that we may acquire; |
| · | potential impairment of the carrying
value of goodwill and other acquired intangible assets of companies and businesses that we
acquire; |
| · | a continued downturn in or depressed
market conditions; |
| · | changes in external market factors;
changes in our business or growth strategy; |
| · | the emergence of new, or growth in
existing competitors; |
| · | various other competitive and technological
factors; |
| · | our use of and reliance on information
technology systems, including potential security breaches, cyber-attacks, privacy breaches
or data breaches that result in the unauthorized disclosure of consumer, customer, employee
or Company information, or service interruptions; and |
| · | other risks and uncertainties indicated
from time to time on our filings with the SEC. |
Our actual results could
differ materially from the results referred to in forward-looking statements. Factors that could cause or contribute to such differences
include, but are not limited to, the risks discussed in Part I, Item 1A. “Risk Factors,” “Part II, Item
7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and other parts of our
Annual Report on Form 10-K, filed with the SEC on March 4, 2024 and in our other filings that we may make with the SEC.
Any forward-looking statements
that we make in this prospectus speak only as of the date of such statements and we undertake no obligation to publicly update any forward-looking
statements or to publicly announce revisions to any of the forward-looking statements, whether as a result of new information, future
events or otherwise, except as may otherwise be required by the federal securities laws.
Use
of Proceeds
Except as described in any
applicable prospectus supplement or in any related free writing prospectuses we may authorize for use in connection with a specific offering,
we anticipate that the net proceeds from our sale of any securities will be used for general corporate purposes. General corporate purposes
may include additions to working capital, capital expenditures, investments in our subsidiaries, possible acquisitions, and the repurchase,
redemption or retirement of securities, including our common stock. We believe it is prudent to have an effective shelf registration
statement on file with the SEC to preserve the flexibility to raise capital from time to time, if and when needed. Although we have no
specific plans to raise money as of the time of filing this registration statement, we believe it’s good corporate governance to
ensure future flexibility to enable us to take advantage of opportunities we may identify in the market.
As of the date of this prospectus,
we cannot specify with certainty all of the particular uses for the net proceeds to us from the sale of the securities offered by us
hereunder. We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds
received from the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus.
Description
of the Securities We May Offer
The descriptions of the securities
contained in this prospectus summarize the material terms and provisions of the various types of securities that we may offer. We will
describe in the applicable prospectus supplement relating to any securities the particular terms of the securities offered by that prospectus
supplement. If we so indicate in the applicable prospectus supplement, the terms of the securities may differ from the terms we have
summarized below. We will also include in the prospectus supplement information, where applicable, about material U.S. federal income
tax considerations relating to the securities, and the securities exchange, if any, on which the securities will be listed.
We may offer and sell from
time to time, in one or more primary offerings, our common stock, preferred stock, debt securities, warrants or units, or any combination
of the foregoing.
In this prospectus, we refer
to the common stock, preferred stock, debt securities, warrants or units, or any combination of the foregoing securities to be sold by
us in a primary offering collectively as “securities.” The total dollar amount of all securities that we may issue under
this prospectus will not exceed $50,000,000.
This prospectus may not be
used by us to consummate a sale of securities unless it is accompanied by a prospectus supplement.
Description
of Capital Stock
The following description
of our common stock and preferred stock, together with the additional information we include in the applicable prospectus supplement,
summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus. It may
not contain all the information that is important to you. For the complete terms of our common stock and preferred stock, please refer
to our Restated Certificate of Incorporation, dated April 27, 1993, as amended February 28, 2001, and as further amended November 14,
2003 and June 5, 2012 (the “Certificate of Incorporation”) and our Amended and Restated By-Laws (the “By-Laws”).
General
The total number of shares
of capital stock that the Company has authority to issue is 79,998,000, divided into two classes consisting of (i) 75,000,000 shares
of common stock, $0.01 par value per share and (ii) 4,998,000 shares of preferred stock, $0.01 par value per share.
As of August 1, 2024,
28,988,841 shares of common stock were issued and outstanding and no shares of preferred stock were issued and outstanding.
Common Stock
Dividends
Subject to the preferential
rights of any other class or series of capital stock, including preferred stock, holders of our common stock are entitled to receive
dividends when and as declared by our Board of Directors out of funds legally available for the payment of dividends.
Ranking
The common stock ranks junior
with respect to dividend rights and rights upon liquidation, dissolution or winding-up of the Company to all other securities and indebtedness
of the Company.
Conversion Rights
The shares of common stock
are not convertible into other securities.
Voting Rights
Holders of shares of our
common stock are entitled to one vote per share on all matters voted on by our stockholders. A majority of the shares entitled to vote
at any meeting of stockholders shall constitute a quorum for the transaction of any business thereat. In all matters other than the election
of directors, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders. Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on the election of directors. There are no cumulative voting
rights for the election of directors.
Liquidation
In the event of a liquidation,
dissolution or winding up of the Company, after payments to creditors and the holders of any senior securities, the holders of common
stock will be entitled to receive pro rata all of the remaining assets of the Company available for distribution to our stockholders.
Redemption
We have no obligation or
right to redeem our common stock.
Preferred Stock
The issuance of shares of
preferred stock, or the issuance of rights to purchase preferred stock, could be used to discourage an unsolicited acquisition proposal.
For example, a business combination could be impeded by the issuance of a series of preferred stock containing class voting rights that
would enable the holder or holders of such series to block any such transaction. Alternatively, a business combination could be facilitated
by the issuance of a series of preferred stock having sufficient voting rights to provide a required percentage vote of the Company’s
stockholders. In addition, under some circumstances, the issuance of preferred stock could adversely affect the voting power and other
rights of the holders of common stock. Although prior to issuing any series of preferred stock the Board is required to make a determination
as to whether the issuance is in the best interests of the Company’s stockholders, the Board could act in a manner that would discourage
an acquisition attempt or other transaction that some, or a majority, of the stockholders might believe to be in their best interests
or in which the stockholders might receive a premium for their stock over prevailing market prices of such stock. The Board does not
presently intend to seek stockholder approval prior to any issuance of currently authorized preferred stock, unless otherwise required
by law or applicable stock exchange requirements.
Indemnification of Directors and Officers
The Company’s directors
and officers are indemnified as provided by the DGCL, the Company’s Certificate of Incorporation, and the Company’s By-Laws.
The Company has been advised that, in the opinion of the SEC, indemnification for liabilities arising under the Securities Act 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 is asserted by one of the Company’s directors, officers, or controlling persons in connection with the securities
being registered, the Company will, unless in the opinion of its legal counsel the matter has been settled by controlling precedent,
submit the question of whether such indemnification is against public policy to a court of appropriate jurisdiction. The Company will
then be governed by the court’s decision.
We are party to indemnification
agreements with each of our directors and officers. These agreements require us to, among other things, indemnify our directors and officers
against certain liabilities that may arise by reason of their status or service as directors or officers to the fullest extent permitted
by applicable laws. These indemnification provisions and the indemnification agreements are sufficiently broad to permit indemnification
of our officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act. The Company
also maintains director and officer liability insurance.
Delaware Anti-Takeover Law
The Company is subject to
the provisions of Section 203 of the DGCL. Section 203 prohibits publicly held Delaware corporations from engaging in a “business
combination” with an “interested stockholder” for a period of three years after the date of the transaction in which
the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination”
includes mergers, asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to certain
exceptions, an “interested stockholder” is a person who, together with affiliates and associates, owns, or within three years
did own, 15% or more of the corporation’s voting stock. These provisions could have the effect of delaying, deferring or preventing
a change of control of the Company or reducing the price that certain investors might be willing to pay in the future for shares of the
Company’s stock.
Transfer Agent
Equiniti Trust Company, LLC
serves as the transfer agent and registrar for the Company’s common stock.
Description
of Debt Securities
We may issue from time to
time, in one or more offerings, senior or subordinated debt securities covered by this prospectus. When we offer to sell a particular
series of debt securities, we will describe the specific terms of the series in the applicable prospectus supplement.
Description
of Warrants
We may issue warrants to
purchase our debt or equity securities or other rights, including rights to receive payment in cash or securities based on the value,
rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants
may be issued independently or together with any other securities and may be attached to, or separate from, such securities. Each series
of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants
to be issued and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus
supplement.
Description
of Units
As specified in the applicable
prospectus supplement, we may issue units consisting of warrants, debt securities, shares of preferred stock, shares of common stock
or any combination of such securities.
Legal
Ownership of Securities
We can issue securities in
registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those
persons who have securities registered in their own names on the books that we or any applicable trustee maintain for this purpose as
the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who,
indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders”
of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form
or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in
book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or
more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions
that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants,
in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose
name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the
name of the depositary or its nominee. Consequently, for securities issued in global form, we will recognize only the depositary as the
holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments
it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so
under the terms of the securities.
As a result, investors in
a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank,
broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant.
As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
We may terminate a global
security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or
in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other
financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an
account he or she maintains at that institution.
For securities held in street
name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered
as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments
they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because
they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well
as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the
securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other
indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we
are issuing the securities only in global form.
For example, once we make
a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required,
under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly,
we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation
to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the
holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations for Indirect Holders
If you hold securities through
a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution
to find out:
| · | how it handles securities payments
and notices; |
| · | whether it imposes fees or charges; |
| · | how it would handle a request for
the holders’ consent, if ever required; |
| · | whether and how you can instruct
it to send you securities registered in your own name so you can be a holder, if that is
permitted in the future; |
| · | how it would exercise rights under
the securities if there were a default or other event triggering the need for holders to
act to protect their interests; and |
| · | if the securities are in book entry
form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
A global security is a security
held by a depositary that represents one or any other number of individual securities. Generally, all securities represented by the same
global securities will have the same terms.
Each security issued in book-entry
form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee
that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the
applicable prospectus supplement, The Depository Trust Company (DTC) will be the depositary for all securities issued in book-entry form.
A global security may not
be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special
termination situations arise. We describe those situations below under “—Special Situations When a Global Security Will Be
Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of
all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account
with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will
not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement
for a particular security indicates that the security will be issued in global form only, then the security will be represented by a
global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through
another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an
investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If securities are issued
only in the form of a global security, an investor should be aware of the following:
| · | an investor cannot cause the securities
to be registered in his or her name, and cannot obtain non global certificates for his or
her interest in the securities, except in the special situations we describe below; |
| · | an investor will be an indirect holder
and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe under “—Legal
Holders” above; |
| · | an investor may not be able to sell
interests in the securities to some insurance companies and to other institutions that are
required by law to own their securities in non-book entry form; |
| · | an investor may not be able to pledge
his or her interest in a global security in circumstances where certificates representing
the securities must be delivered to the lender or other beneficiary of the pledge in order
for the pledge to be effective; |
| · | the depositary’s policies,
which may change from time to time, will govern payments, transfers, exchanges and other
matters relating to an investor’s interest in a global security. We and any applicable
trustee have no responsibility for any aspect of the depositary’s actions or for its
records of ownership interests in a global security. We and the trustee also do not supervise
the depositary in any way; |
| · | the depositary may, and we understand
that DTC will, require that those who purchase and sell interests in a global security within
its book entry system use immediately available funds, and your broker or bank may require
you to do so as well; and |
| · | financial institutions that participate
in the depositary’s book entry system, and through which an investor holds its interest
in a global security, may also have their own policies affecting payments, notices and other
matters relating to the securities. There may be more than one financial intermediary in
the chain of ownership for an investor. We do not monitor and are not responsible for the
actions of any of those intermediaries. |
Special Situations When a Global Security Will Be Terminated
In a few special situations
described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those
interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors
must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that
they will be direct holders. We have described the rights of holders and street name investors above.
The global security will
terminate when the following special situations occur:
| · | if the depositary notifies us that
it is unwilling, unable or no longer qualified to continue as depositary for that global
security and we do not appoint another institution to act as depositary within 90 days; |
| · | if we notify any applicable trustee
that we wish to terminate that global security; or |
| · | if an event of default has occurred
with regard to securities represented by that global security and has not been cured or waived. |
The prospectus supplement
may also list additional situations for terminating a global security that would apply only to the particular series of securities covered
by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial direct holders.
Plan
of Distribution
We may offer securities under
this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of
these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be distributed
from time to time in one or more transactions:
| · | at a fixed price or prices, which
may be changed; |
| · | at market prices prevailing at the
time of sale; |
| · | at prices related to such prevailing
market prices; or |
Each time that securities
covered by this prospectus are sold, we will provide a prospectus supplement or supplements that will describe the method of distribution
and set forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds
to us.
Offers to purchase the securities
being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities
from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in
the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may
then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized
in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the
time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we, or the purchasers of securities for whom the underwriter
may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities
to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent
will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying
prices to be determined by the dealer.
Any compensation paid to
underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities
under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those persons
for certain expenses.
The securities may or may
not be listed on a national securities exchange. To facilitate the offering of securities, certain persons participating in the offering
may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments
or short sales of the securities, which involve the sale by persons participating in the offering of more securities than were sold to
them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market
or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions.
The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might
otherwise prevail in the open market. These transactions may be discontinued at any time.
If indicated in the applicable
prospectus supplement, underwriters or other persons acting as agents may be authorized to solicit offers by institutions or other suitable
purchasers to purchase the securities at the public offering price set forth in the prospectus supplement, pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in the prospectus supplement. These purchasers may include,
among others, commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Delayed delivery contracts will be subject to the condition that the purchase of the securities covered by the delayed delivery contracts
will not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which the purchaser is subject.
The underwriters and agents will not have any responsibility with respect to the validity or performance of these contracts.
We may engage in at the market
offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. The terms of such “at
the market offerings” will be set forth in the applicable prospectus supplement. We may engage an agent to act as a sales agent
in such “at the market offerings” on a best efforts basis using commercially reasonable efforts consistent with normal trading
and sales practices, on mutually agreed terms between such agent and us. We will name any agent involved in such “at the market
offerings” of securities and will list commissions payable by us to these agents in the applicable prospectus supplement.
In addition, we may enter
into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third
party may use securities pledged by us or 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 such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable
prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution
or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial
institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent
offering of other securities.
The specific terms of any
lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers
and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive
compensation.
General Information
Underwriters, dealers and
agents that participate in the distribution of our securities may be underwriters as defined in the Securities Act, and any discounts
or commissions they receive and any profit they make on the resale of the offered securities may be treated as underwriting discounts
and commissions under the Securities Act. Any underwriters or agents will be identified and their compensation described in a prospectus
supplement. We may indemnify agents, underwriters, and dealers against certain civil liabilities, including liabilities under the Securities
Act, or make contributions to payments they may be required to make relating to those liabilities. Our agents, underwriters, and dealers,
or their affiliates, may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
Each series of securities
offered by this prospectus may be a new issue of securities with no established trading market. Any underwriters to whom securities offered
by this prospectus are sold by us for public offering and sale may make a market in the securities offered by this prospectus, but the
underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given
as to the liquidity of the trading market for any securities offered by this prospectus.
Representatives of the underwriters
through whom our securities are sold for public offering and sale may engage in over-allotment, stabilizing transactions, syndicate short
covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves syndicate sales
in excess of the offering size, which creates a syndicate short position. Stabilizing transactions permit bids to purchase the offered
securities so long as the stabilizing bids do not exceed a specified maximum.
Syndicate covering transactions
involve purchases of the offered securities in the open market after the distribution has been completed in order to cover syndicate
short positions. Penalty bids permit the representative of the underwriters to reclaim a selling concession from a syndicate member when
the offered securities originally sold by such syndicate member are purchased in a syndicate covering transaction to cover syndicate
short positions. Such stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the offered securities
to be higher than it would otherwise be in the absence of such transactions. These transactions may be effected on a national securities
exchange and, if commenced, may be discontinued at any time.
Underwriters, dealers and
agents may be customers of, engage in transactions with or perform services for, us and our subsidiaries in the ordinary course of business.
We will bear all costs, expenses
and fees in connection with the registration of the securities as well as the expense of all commissions and discounts, if any, attributable
to the sales of any of our securities by us.
Where
You Can Find More Information
We file annual, quarterly
and periodic reports, proxy statements and other information with the SEC. Many of our SEC filings are available to the public from the
SEC’s website: www.sec.gov. We make available free of charge our annual, quarterly and current reports, proxy statements and other
information upon request or such reports are available on the Company’s website at www.innodata.com. To access or request such
materials, please visit www.innodata.com or contact us at the following address or telephone number: Innodata Inc., 55 Challenger Road,
Ridgefield Park, New Jersey 07660, Attention: Investor Relations, at (201)-371-8000. Exhibits to the documents will not be sent unless
those exhibits have specifically been incorporated by reference in this prospectus.
You may also obtain reports,
statements or other information that we file with the SEC by accessing our website at www.innodata.com, under the Investor Relations
tab, SEC Filings. Information contained in, or accessible through, our website does not constitute a part of this prospectus or any accompanying
prospectus supplement.
Incorporation
of Certain Documents by Reference
The SEC allows us to “incorporate
by reference” the information we file with it, which means that we can disclose important information to you by referring you to
those documents. The information that is incorporated by reference is considered to be part of this prospectus, and the information that
we file later with the SEC will automatically update and supersede this information. We incorporate by reference into this prospectus
the following documents:
| · | our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March
4, 2024; |
| · | our definitive Proxy Statement on Schedule 14A for our 2024 Annual Meeting of Stockholders, filed April
25, 2024 (solely to the extent incorporated by reference into Part III of our Annual Report on Form 10-K for the fiscal year ended
December 31, 2023); |
| · | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May
8, 2024; |
| · | our Current Report on Form 8-K filed with the SEC on June
6, 2024; and |
| · | the description of common stock set forth in Exhibit
4.2 to our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 24, 2022, as supplemented
by the “Description of Capital Stock” found on page 8 of this prospectus and including any amendments or reports filed for
the purpose of updating such description. |
All documents subsequently
filed with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering shall
be deemed to be incorporated by reference into the prospectus. Any statement contained in any document incorporated by reference herein
will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus
or any additional prospectus supplements modifies or supersedes such statement. Any statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
Legal
Matters
The validity of the securities
offered hereby will be passed upon for us by Morgan, Lewis & Bockius LLP, Princeton, New Jersey. Any underwriters will be advised
about other issues relating to any offering by their own legal counsel.
Experts
The consolidated financial
statements of Innodata Inc. as of December 31, 2023 and 2022 and for each of the two years in the period ended December 31,
2023 incorporated by reference in this Prospectus and in the Registration Statement have been so incorporated in reliance on the report
of BDO India LLP an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Prospectus
,
2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets
forth an estimate of the costs and expenses payable by us in connection with the offering described in this registration statement. All
of the amounts shown are estimates except the Securities and Exchange Commission registration fee:
| Securities and Exchange Commission registration fee |
|
$ |
7,380.00 |
|
| Printing expenses |
|
$ |
|
(1) |
| Legal fees and expenses |
|
$ |
|
(1) |
| Accounting fees and expenses |
|
$ |
|
(1) |
| Transfer Agent and Registrar fees and expenses |
|
$ |
|
(1) |
| Miscellaneous |
|
$ |
|
(1) |
| Total |
|
$ |
|
(1) |
(1) These fees are calculated based on the securities offered
and the number of issuances and accordingly cannot be estimated at this time.
| Item 15. | Indemnification of Directors and Officers. |
Our directors and officers
are indemnified as provided by the Delaware General Corporation Law, our Certificate of Incorporation, and our By-Laws. We have been
advised that, in the opinion of the Securities and Exchange Commission, indemnification for liabilities arising under the Securities
Act 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 is asserted by one of our directors, officers, or controlling persons in connection with the securities being
registered, we will, unless in the opinion of our legal counsel the matter has been settled by controlling precedent, submit the question
of whether such indemnification is against public policy to a court of appropriate jurisdiction. We will then be governed by the court’s
decision.
We are party to indemnification
agreements with each of our directors and officers. These agreements require us to, among other things, indemnify our directors and officers
against certain liabilities which may arise by reason of their status or service as directors or officers to the fullest extent permitted
by applicable laws. These indemnification provisions and the indemnification agreements are sufficiently broad to permit indemnification
of our officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act. The Company
also maintains director and officer liability insurance.
Exhibit No. |
Description |
| |
|
| 1.1** |
Form of Underwriting Agreement. |
| |
|
| 3.1(a) |
Restated Certificate of Incorporation dated April 27, 1993 (incorporated
herein by reference to Exhibit 3.1(a) to the Company’s Annual Report on Form 10-K for the year ended December 31,
2003, filed with the SEC on March 26, 2004). |
| |
|
| 3.1(b) |
Certificate of Amendment of Certificate of Incorporation of Innodata Corporation
dated February 28, 2001 (incorporated herein by reference to Exhibit 3.1(b) to the Company’s Annual Report on
Form 10-K for the year ended December 31, 2003, filed with the SEC on March 26, 2004). |
| |
|
| 3.1(c) |
Certificate of Amendment of Certificate of Incorporation of Innodata Corporation
dated November 14, 2003 (incorporated herein by reference to Exhibit 3.1(c) to the Company’s Annual Report on
Form 10-K for the year ended December 31, 2003, filed with the SEC on March 26, 2024). |
| |
|
| 3.1(d) |
Certificate of Amendment of Certificate of Incorporation of Innodata Isogen, Inc.
dated June 5, 2012 (incorporated herein by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 2012, filed with the SEC on August 7, 2012). |
| |
|
| 3.2 |
Amended and Restated By-laws of Innodata Corporation (incorporated herein
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on December 20,
2002). |
| |
|
| 4.1 |
Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.1
to the Company’s Quarterly Report on Form 10-Q, filed with the SEC on August 7, 2015). |
| |
|
| 4.2** |
Form of Senior Note. |
| |
|
| 4.3** |
Form of Subordinated Note. |
| |
|
| 4.4** |
Form of Warrant Agreement. |
| |
|
| 4.5** |
Form of Warrant Certificate. |
| |
|
| 4.6** |
Form of Certificate of Designations. |
| |
|
| 4.7** |
Form of Preferred Stock Certificate. |
| |
|
| 4.8** |
Form of Unit Agreement. |
| |
|
| 5.1* |
Legal Opinion of Morgan, Lewis & Bockius LLP (relating to the base
prospectus). |
| |
|
| 23.1* |
Consent of BDO India LLP. |
| |
|
| 23.2* |
Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1). |
| |
|
| 24.1* |
Power of Attorney (included on signature page). |
| |
|
| 25.1*** |
Statement of Eligibility of Trustee on Form T-1 for Senior Indenture
under Trust Indenture Act of 1939. |
| |
|
| 25.2*** |
Statement of Eligibility of Trustee on Form T-1 for Subordinated Indenture
under Trust Indenture Act of 1939. |
| |
|
| 107.1* |
Filing fee table. |
| ** | To be filed by amendment or as an exhibit
to a document filed under the Securities Exchange Act of 1934, as amended, and incorporated
by reference herein. |
| *** | To be filed separately pursuant to Section 305(b)(2) of
the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations
thereunder. |
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; (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 20 percent change
in the maximum aggregate offering price set forth in the “Calculation of Filing Fee
Tables” or “Calculation of the Registration Fee” table, as applicable,
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 Section 15(d) of
the Exchange Act, that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement
| 2) | That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| 3) | To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering. |
| 4) | That, for the purpose of determining
liability under the Securities Act to any purchaser: |
| i. | Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement;
and |
| ii. | Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii) or (x) for the purpose of providing the information required by Section 10(a) of
the Securities Act 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 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
the 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 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or sell such
securities to such purchaser: |
| i. | Any preliminary prospectus or prospectus
of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| ii. | Any free writing prospectus relating to
the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant; |
| iii. | The portion of any other free writing
prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of an undersigned registrant; and |
| iv. | Any other communication that is an offer
in the offering made by the undersigned registrant to the purchaser. |
| 6) | The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. |
| 7) | 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 Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person
of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue. |
| 8) | 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 Ridgefield Park, State of New Jersey, on August 8, 2024.
| |
INNODATA INC. |
| |
|
| |
By: |
/s/ Jack S. Abuhoff |
| |
|
Jack S. Abuhoff |
| |
|
Chief Executive Officer and President |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints Jack S. Abuhoff and Marissa B. Espineli, and each of
them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution and revocation, for and in
the undersigned’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement and any registration statement filed pursuant to Rule 462(b) under the Securities Act, and to
file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratify and confirming
all that said attorneys-in-fact and agents or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements
of the Securities Exchange Act, as amended, this registration statement has been signed below by the following persons on behalf of the
registrant and in the capacities indicated on the date listed below.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Jack S. Abuhoff |
|
Chief Executive Officer and President (Principal Executive Officer) |
|
August 8, 2024 |
| Jack S. Abuhoff |
|
|
|
|
| |
|
|
|
|
| /s/ Marissa B. Espineli |
|
Interim Chief Financial Officer
|
|
August 8, 2024 |
| Marissa B. Espineli |
|
(Principal Financial Officer and Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Louise C. Forlenza |
|
Director |
|
August 8, 2024 |
| Louise C. Forlenza |
|
|
|
|
| |
|
|
|
|
| /s/ Stewart R. Massey |
|
Director |
|
August 8, 2024 |
| Stewart R. Massey |
|
|
|
|
| |
|
|
|
|
| /s/ Nauman (Nick) Toor |
|
Director (Chairman) |
|
August 8, 2024 |
| Nauman (Nick) Toor |
|
|
|
|
Exhibit 5.1
August 8, 2024
Innodata Inc.
55 Challenger Road
Ridgefield Park, New Jersey 07660
Re: Registration Statement on Form S-3
of Innodata Inc.
Ladies and Gentlemen:
We have acted as counsel to Innodata Inc., a Delaware corporation
(the “Company”), in connection with a Registration Statement on Form S-3 filed by the Company on August 8,
2024 (as may be amended, the “Registration Statement”) with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the “Act”).
The Registration Statement, including the base prospectus (the “Prospectus”),
as supplemented from time to time by one or more prospectus supplements, provides for the registration of the offer and sale by the Company
of an indeterminate amount of the Company’s securities having an aggregate public offering price not to exceed $50,000,000 to be
offered from time to time on a delayed or continuous basis pursuant to Rule 415 of the Act. Such securities may include (i) shares
of the Company’s common stock, $0.01 par value per share (the “Common Stock”), (ii) shares of the Company’s
preferred stock, $0.01 par value per share (the “Preferred Stock”), (iii) one or more series (senior and subordinated)
of the Company’s debt securities (collectively, “Debt Securities”), (iv) warrants to purchase Common Stock,
Preferred Stock, Debt Securities or other rights or any combination thereof (the “Warrants”), (v) units consisting
of Warrants, Debt Securities, shares of Preferred Stock, shares of Common Stock or any combination of such securities (the “Units”
and, together with the Common Stock, Preferred Stock, Debt Securities, and Warrants, the “Securities”), and (vi) any
combination of the above Securities.
The Securities may be sold pursuant to an underwriting
agreement, placement agency agreement, subscription agreement or other contract, which will be in substantially the form to be filed
as an exhibit to a report filed pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
or an amendment to the Registration Statement. The Preferred Stock, Debt Securities, Warrants, and Units are to be issued in forms to
be filed as exhibits to a report filed pursuant to the Exchange Act or an amendment to the Registration Statement.
| |
Morgan, Lewis &
Bockius llp |
| |
|
|
| |
502 Carnegie Center |
|
| |
Princeton, NJ 08540-6241 |
 +1.609.919.6600 |
| |
United States |
 +1.609.919.6701 |
August 8, 2024
Page 2
As counsel to the Company, in rendering the opinions
hereinafter expressed, we have examined and relied upon originals or copies of such corporate records, agreements, documents and instruments
as we have deemed necessary or advisable for purposes of this opinion, including (i) the Restated Certificate of Incorporation,
as amended to date (as so amended, the “Certificate of Incorporation”), (ii) the Amended and Restated Bylaws
of the Company (the “Bylaws”), and (iii) the Registration Statement.
We have assumed:
| (i) | the genuineness of all signatures, the
conformity to the originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form and the legal
competence of each individual executing any document; |
| (ii) | that any shares of Common Stock issued
pursuant to the Registration Statement from time to time will not exceed the maximum authorized
number of shares of Common Stock under the current Certificate of Incorporation of the Company,
as the same may have been amended, minus that number of shares of Common Stock that may have
been issued and are outstanding, or are reserved for issuance for other purposes, at such
time; |
| (iii) | that any shares of Preferred Stock issued
pursuant to the Registration Statement from time to time will not exceed the maximum authorized
number of shares of Preferred Stock under the current Certificate of Incorporation of the
Company, as the same may have been amended, minus that number of shares of Preferred Stock
that may have been issued and are outstanding, or are reserved for issuance for other purposes,
at such time and that an appropriate certificate of designation relating to each such series
of Preferred Stock will have been duly authorized and established by proper action of the
board of directors of the Company or a duly constituted and acting committee thereof (such
board of directors or committee being hereinafter referred to as the “Board”
of the Company) and filed with the Secretary of State of the State of Delaware as required
under Delaware General Corporation Law (the “DGCL”), and in accordance
with the Certificate of Incorporation of the Company, as amended from time to time, the Bylaws
of the Company, as amended from time to time, and applicable Delaware law; |
| (iv) | that any Debt Securities issued pursuant
to the Registration Statement will be issued under and pursuant to a senior indenture and/or
a subordinated indenture, a form of which will be filed as an exhibit to the Registration
Statement (the “Indenture”) and is to be entered into, in each case, between
the Company and a trustee (the “Trustee”). Each Indenture may be supplemented,
as applicable, in connection with the issuance of each series of Debt Securities by a supplemental
indenture or other appropriate action of the Company creating such series; |
August 8, 2024
Page 3
| (v) | that (1) the execution, delivery
and performance by the Company of the applicable Indenture will not, and the execution, delivery
and performance by the Company of any warrant agreement or other similar agreement entered
into in connection with the issuance of any Securities will not, violate the laws of the
jurisdiction of incorporation of the Company or any other applicable laws, excepting the
internal substantive laws of the State of New York (other than tax, usury, antitrust, insolvency,
fraudulent conveyance or fraudulent transfer laws, blue sky and securities laws, as to which
we express no opinion) and, to the limited extent provided herein, the DGCL; and (2) the
execution, delivery and performance by the Company of the applicable Indenture will not,
and the execution, delivery and performance by the Company of any warrant agreement or other
similar agreement entered into in connection with the issuance of any Securities will not,
constitute a breach or violation of any agreement or instrument that is binding upon the
Company; and |
| (vi) | that, at the time of each issuance and
sale of the Securities, the Company will continue to be validly existing and in good standing
under the laws of its jurisdiction of organization with the requisite corporate power and
authority to issue and sell such Securities. |
This opinion is limited solely to the DGCL, as
applied by courts located in Delaware, and the internal substantive laws of the State of New York as applied by courts located in New
York without regard to choice of law, in each case to the extent that the same may apply to or govern the transactions contemplated by
the Registration Statement, and we express no opinion with respect to the laws of any other state or jurisdiction. We express no opinion
as to the effect of events occurring, circumstances arising, or changes of law becoming effective or occurring, after the date hereof
on the matters addressed in this opinion.
Each opinion set forth below with respect to
enforceability is subject to the following general qualifications:
| (a) | enforceability may be limited by the effect
of applicable bankruptcy, insolvency, reorganization, moratorium, marshaling, fraudulent
conveyance or other similar laws and rules of law affecting the enforcement generally
of creditors’ or secured parties’ rights and remedies; |
| (b) | rights to indemnification and contribution
may be limited by applicable law or equitable principles, and exculpatory provisions and
waivers of the benefits of statutory provisions may be limited on public policy grounds; |
| (c) | enforceability may be limited by general
principles of equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing, and the possible unavailability of specific performance or injunctive
relief and limitation of rights of acceleration, regardless of whether such enforceability
is considered in a proceeding in equity or at law; and |
| (d) | we express no opinion with respect to
the enforceability of: |
| i. | consents to, or restrictions upon, judicial
relief or, except to the extent that such waivers or consents are made enforceable by New
York General Obligations Law (as applied by a New York State court), jurisdiction or venue; |
| ii. | advance waivers of claims, defenses, rights
granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of
limitation, trial by jury or at law, or other procedural rights; |
August 8, 2024
Page 4
| iii. | waivers of broadly or vaguely stated rights;
and |
| iv. | provisions for liquidated damages, default
interest, late charges, monetary penalties, make-whole premiums or other economic remedies
to the extent such provisions are deemed to constitute a penalty or a forfeiture. |
Based on such examination and subject to the
foregoing, we are of the opinion that:
| 1. | With respect to shares of Common Stock,
when the shares of Common Stock have been duly registered and delivered, either (i) in
accordance with the applicable definitive placement agency, underwriting, subscription or
similar agreement approved by the Board, upon payment of the consideration therefor (not
less than the par value of the Common Stock), (ii) upon the exercise of Warrants to
purchase Common Stock and payment of the consideration therefor (not less than the par value
of the Common Stock) provided for therein, or (iii) upon conversion or exercise of any
other Security, in accordance with the terms of such Security or the instrument governing
such Security providing for such conversion or exercise as approved by the Board, for the
stated consideration (not less than the par value of the Common Stock), then the shares of
Common Stock will be validly issued, fully paid and nonassessable. |
| 2. | With respect to any particular series of
shares of Preferred Stock, when both (a) the Board has adopted a certificate of designation
relating to such Preferred Stock conforming to the DGCL (a “Certificate”)
and the Certificate has been filed with the Secretary of State of the State of Delaware,
and (b) the shares of Preferred Stock have been duly registered and delivered, either
(i) in accordance with the applicable definitive placement agency, underwriting, subscription
or similar agreement approved by the Board, upon payment of the consideration therefor (not
less than the par value of the Preferred Stock), (ii) upon the exercise of Warrants
to purchase Preferred Stock and payment of the consideration therefor (not less than the
par value of the Preferred Stock) provided for therein, or (iii) upon conversion or
exercise of any other Security, in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion or exercise as approved by the Board
and for the stated consideration (not less than the par value of the Preferred Stock), then
the shares of Preferred Stock will be validly issued, fully paid and nonassessable. |
| 3. | With respect to Debt Securities to be issued
under the applicable Indenture, when (a) the Trustee is qualified to act as Trustee
under the applicable Indenture, (b) the Trustee has duly authorized, validly executed
and delivered the Indenture, (c) the applicable Indenture has been duly authorized and
validly executed and delivered by the Company to the Trustee, (d) the applicable Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended, and (e) such
Debt Securities have been duly executed, authenticated, issued and delivered in accordance
with the provisions of the applicable Indenture, and the applicable definitive placement
agency, underwriting, subscription or similar agreement approved by the Board, or upon the
exercise of Warrants to purchase Debt Securities, upon payment of the consideration therefor
provided for therein, then such Debt Securities will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms and entitled
to the benefits of the applicable Indenture. |
August 8, 2024
Page 5
| 4. | With respect to the Warrants, when the
Warrants have been duly executed and delivered against payment therefor, pursuant to the
applicable definitive placement agency, underwriting, subscription, warrant or similar agreement
duly authorized, executed and delivered by the Company and any applicable warrant agent and
the certificates for the Warrants have been duly executed and delivered by the Company and
any applicable warrant agent, then the Warrants will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms. |
| 5. | With respect to the Units, when the Units
have been duly executed and delivered against payment therefor, pursuant to the applicable
definitive placement agency, underwriting, subscription, unit or similar agreement duly authorized,
executed and delivered by the Company and any applicable unit agent and the certificates
for the Units have been duly executed and delivered by the Company and any applicable unit
agent, then the Units will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms. |
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading “Legal Matters” in the Prospectus included in
the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required
under Section 7 of the Act, or the rules and regulations of the Securities and Exchange Commission thereunder. In rendering
this opinion, we are opining only as to the specific legal issues expressly set forth herein, and no opinion shall be inferred as to
any other matter or matters. This opinion is intended solely for use in connection with the issuance and sale of the Securities subject
to the Registration Statement and is not to be relied upon for any other purpose.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We hereby consent to the incorporation by reference
in the Prospectus constituting a part of this Registration Statement of our reports dated March 4, 2024, relating to the consolidated
financial statements of Innodata, Inc. (the Company) appearing in the Company’s Annual Report on Form 10-K for the year
ended December 31, 2023.
We also consent to the reference to us under the caption “Experts”
in the Prospectus.
/s/ BDO India LLP
August 8, 2024
Exhibit 107.1
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Innodata Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
| |
Security
Type |
Security
Class Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
effective
date |
Filing
Fee
Previously
Paid In
Connection
with Unsold
Securities to
be Carried
Forward |
Newly
Registered
Securities |
| Fees
to Be Paid |
Equity |
Common
Stock, $0.01 par value per share |
Rule 457(o) |
(1) |
(2) |
(2) |
N/A |
N/A |
|
|
|
|
| Equity |
Preferred
Stock, $0.01 par value per share |
Rule 457(o) |
(1) |
(2) |
(2) |
N/A |
N/A |
|
|
|
|
| Debt |
Debt
Securities |
Rule 457(o) |
(1) |
(2) |
(2) |
N/A |
N/A |
|
|
|
|
| Other |
Warrants |
Rule 457(o) |
(1) |
(2) |
(2) |
N/A |
N/A |
|
|
|
|
| |
Other |
Units |
Rule 457(o) |
(1) |
(2) |
(2) |
N/A |
N/A |
|
|
|
|
| |
Unallocated
(Universal) Shelf |
|
Rule 457(o) |
(1) |
(2) |
$50,000,000 |
0.00014760 |
$7,380.00 |
|
|
|
|
| Fees
Previously Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
|
|
|
Carry
Forward
Securities |
| Carry
Forward Securities |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
|
N/A |
N/A |
N/A |
N/A |
| |
Total
Offering Amounts |
|
$50,000,000 |
|
$7,380.00 |
|
|
|
|
| |
Total
Fees Previously Paid |
|
|
|
N/A |
|
|
|
|
| |
Total
Fee Offsets |
|
|
|
N/A |
|
|
|
|
| |
Net
Fee Due |
|
|
|
$7,380.00 |
|
|
|
|
| (1) | The amount to
be registered consists of up to $50,000,000 of an indeterminate amount of common stock, preferred
stock, debt securities, warrants and/or units. An indeterminate amount of the securities
of each identified class is being registered as may from time to time be offered hereunder
at indeterminate prices, along with an indeterminate number of securities that may be issued
upon exercise, exchange, or conversion of securities offered or sold hereunder. Any securities
registered hereunder may be sold separately or as units with the other securities registered
hereunder. |
| (2) | The proposed
maximum per unit and aggregate offering prices per class of securities will be determined
from time to time by the registrant in connection with the issuance by the registrant of
the securities registered under this registration statement and is not specified as to each
class of security pursuant to Instruction 2.A.iii.b. to the Calculation of Filing Fee Tables
and Related Disclosure on Form S-3 under the Securities Act. |
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