Filed
pursuant to Rule 424(b)(5)
Registration
No. 333-217860
PROSPECTUS
SUPPLEMENT
(To
Prospectus Dated May 16, 2017)
1,388,889
Shares
of Common Stock
We are offering 1,388,889 shares of our common
stock.
Our
common stock is traded on the NASDAQ Capital Market under the symbol “USAU.” On October 5, 2017, the last reported
sale price of our common stock on the NASDAQ Capital Market was $1.84 per share.
As
of October 4, 2017, the aggregate market value of our common stock held by non-affiliates was approximately $31,198,571
based on 12,717,688 shares of common stock outstanding, of which 12,282,902 shares were held by non-affiliates, and a last reported
sale price on the NASDAQ Capital Market of $2.54 per share on August 28, 2017.
We have not offered
any securities pursuant to Instruction I.B.6 of Form S-3 during the preceding 12 calendar months.
Our business and an investment in our common
stock involve a high degree of risk. See “Risk Factors” beginning on page S-5 of this prospectus supplement for a
discussion of information that you should consider before investing in our securities.
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Per Share
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Total
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Public offering price
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$
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1.80
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$
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2,500,000
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Underwriting discounts and commissions(1)
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$
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0.126
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$
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175,000
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Proceeds, before expenses, to us
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$
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1.674
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$
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2,325,000
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(1)
We have agreed to reimburse the underwriter for certain expenses. See “Underwriting.” The underwriting discount is
$0.126 per share.
We
have granted the underwriter an option for a period of 45 days to purchase from us up to an additional 208,333 shares of
our common stock at a price of $1.674 per share. If the underwriter exercises its option in full, the total underwriting
discounts and commissions payable by us will be $201,250 and the total proceeds to us, before expenses, will be $2,673,750.
The
underwriter expects to deliver shares of common stock to purchasers on or about October 10, 2017
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus supplement or the accompanying prospectus. Any representation
to the contrary is a criminal offense.
Laidlaw &
Company (UK) Ltd.
The date of this prospectus supplement is October
5, 2017.
TABLE
OF CONTENTS
Prospectus
Supplement
Prospectus
ABOUT
THIS PROSPECTUS SUPPLEMENT
You
should rely only on the information contained in or incorporated by reference in this prospectus supplement, the accompanying
prospectus and any free writing prospectus that we have authorized for use in connection with this offering. We have not, and
the underwriter has not, authorized anyone to provide you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not, and the underwriter has not, making an offer to sell these securities
in any jurisdiction where the offer or sale is not permitted or in which the person making that offer or solicitation is not qualified
to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing
in this prospectus supplement, the accompanying prospectus, the documents incorporated by reference in this prospectus supplement
and the accompanying prospectus, and any free writing prospectus that we have authorized for use in connection with this offering,
is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects
may have changed since those dates. You should read this prospectus supplement, the accompanying prospectus, the documents incorporated
by reference in this prospectus supplement and the accompanying prospectus, and any free writing prospectus that we have authorized
for use in connection with this offering, in their entirety before making an investment decision. You should also read and consider
the information in the documents to which we have referred you in the sections of this prospectus supplement entitled “Where
You Can Find More Information” and “Incorporation of Documents by Reference.”
This
document is in two parts. The first part is this prospectus supplement, which describes the terms of this offering and also adds
to and updates information contained in the accompanying prospectus and the documents incorporated by reference in this prospectus
supplement and the accompanying prospectus. The second part, the accompanying prospectus dated May 16, 2017, including the documents
incorporated by reference therein, provides more general information, some of which may not apply to this offering. Generally,
when we refer to this “prospectus,” we are referring to both parts of this document combined. To the extent there
is a conflict between the information contained in this prospectus supplement, on the one hand, and the information contained
in the accompanying prospectus or in any document incorporated by reference that was filed with the Securities and Exchange Commission
(the “SEC”), before the date of this prospectus supplement, on the other hand, you should rely on the information
in this prospectus supplement. If any statement in one of these documents is inconsistent with a statement in another document
having a later date — for example, a document incorporated by reference in the accompanying prospectus — the statement
in the document having the later date modifies or supersedes the earlier statement.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in the accompanying prospectus were made solely for the benefit of the parties to such
agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be
deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate
only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately
representing the current state of our affairs.
We have filed or incorporated by reference
exhibits to the registration statement of which this prospectus supplement and the accompanying prospectus forms a part.
You should read the exhibits carefully for provisions that may be important to you.
This
prospectus supplement, the accompanying prospectus, and the information incorporated by reference herein and therein include
trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade names included
or incorporated by reference into this prospectus are the property of their respective owners.
Unless
the context otherwise requires, references to “we,” “our,” “us,” or the “Company”
in this prospectus supplement mean U.S. Gold Corp. on a consolidated basis with its subsidiaries, as applicable.
PROSPECTUS
SUPPLEMENT SUMMARY
This
summary highlights selected information about us, this offering and information appearing elsewhere in this prospectus supplement,
in the accompanying prospectus, in the documents we incorporate by reference and in any free writing prospectus that we have authorized
for use in connection with this offering. This summary is not complete and does not contain all the information that you should
consider before investing in our securities. You should read this entire prospectus supplement and the accompanying prospectus
carefully, including the “Risk Factors” contained in this prospectus supplement, the accompanying prospectus and the
financial documents and notes incorporated by reference in this prospectus supplement and the accompanying prospectus and any
free writing prospectus that we have authorized for use in connection with this offering, before making an investment decision.
This prospectus supplement may add to, update or change information in the accompanying prospectus.
The
Company
We
are an exploration stage company that owns certain mining leases and other mineral rights comprising the Copper King Project,
located in the Silver Crown Mining District of southeast Wyoming and the Keystone Project, located in Eureka County, Nevada. The
Copper King Project is located in southeastern Wyoming, approximately 32km west of the city of Cheyenne, on the southeastern margin
of the Laramie Range. The property covers about five square kilometers that include the S½ Section 25, NE¼ Section
35, and all of Section 36, T.14N., R.70W., Sixth Principal Meridian. Access to within 1.5km of the property is provided by paved
and maintained gravel roads. An easement agreement providing access for exploration and other minimal impact activities has been
negotiated with Ferguson Ranch Inc. on the S½ Section 25, T14N, R70W, and the W½ Section 30, T14N, R69W. The fee
for this easement is $10,000 per year, renewable each year prior to July 11.
The
project is entirely located on land owned and administered by the State of Wyoming. There are no federal lands within or adjoining
the Copper King land position. Curt Gowdy State Park lies northwest of the property, partially within Section 26. The state park’s
southeastern boundary is approximately 300m northwest of the property and approximately 900m northwest of the mineralized area.
The Copper King property position consists of two State of Wyoming Metallic and Non-metallic Rocks and Minerals Mining Leases.
The
Keystone Project consists of 479 unpatented lode mining claims situated in Eureka County, Nevada. The claims making up the Keystone
Project are situated in Eureka County, Nevada in Sections 2-4 and 9-11, Township 23 North, Range 48 East, and Sections 22-28,
and 33-36 Township 24 North, all Range 48 East of the Mount Diablo Meridian.
Historically,
we have been an independent manufacturer of memory products and provider of performance solutions. On May 23, 2017, we acquired
Gold King Corp. and its assets and began operating as a single entity with two reporting businesses- a junior mining business
and a memory business.
Company
History and Available Information
Our
principal executive offices are located at 1910 E. Idaho Street, Suite 102-Box 604, Elko, NV 89801 and our telephone number is
(800) 557-4550. Our web site address is www.usgoldcorp.gold. We are incorporated in the State of Nevada and were originally incorporated
in the State of New Jersey in 1967. On July 6, 2016, we filed a certificate of amendment to our Articles of Incorporation in order
to effectuate a reverse stock split of our issued and outstanding common stock on a 1 for 3 basis. The reverse stock split was
effective on July 11, 2016. On May 3, 2017, we filed a certificate of amendment to our Articles of Incorporation in order to effectuate
a reverse stock split of our issued and outstanding common stock on a 1 for 4 basis. The reverse stock split was effective on
May 5, 2017. All share and per share amounts have been retrospectively adjusted for all periods presented to give effect to the
reverse stock-splits. On May 23, 2017, we closed our acquisition of Gold King Corp. (
f/k/a
U.S. Gold Corp.) and on June
26, 2017, we changed our name to “U.S. Gold Corp.”
The
Offering
Issuer
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U.S.
Gold Corp., a Nevada corporation.
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|
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Common
stock offered by us
Common
Stock Outstanding After this Offering
Overallotment
Option
Use
of Proceeds
Risk
Factors
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|
1,388,889 shares of our common stock,
par value $0.001 per share.
14,106,577 shares of our common stock.
We have granted the underwriters an option for a period of up to
45 days from the date of this prospectus to purchase up to an aggregate of 208,333 additional shares of our common stock,
less the underwriting discount, solely to cover over-allotments.
We intend to use the net proceeds from this offering, after
deducting commissions and estimated offering expenses, for general corporate purposes and working capital requirements. Pending
their ultimate use, we intend to invest the net proceeds in a variety of securities, including commercial paper, government and
non-government debt securities and/or money market funds that invest in such securities. See “Use of Proceeds.”
See
“Risk Factors” beginning on page S-5 of this prospectus supplement and the “Risk Factors”
sections of our Annual Report on Form 10-K for the year ended April 30, 2017 and our Quarterly Report on Form 10-Q for
the three months ended July 31, 2017 for a discussion of factors that you should read and consider before investing in
our securities. To the extent that the risk factors contained in this prospectus supplement, the accompanying prospectus
or our annual or quarterly reports differ, the risk factors contained in this prospectus supplement shall control.
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Management Participation
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Our Chief Executive Officer
intends to purchase $50,000 of our common stock in the offering.
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NASDAQ Capital Market Symbol
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USAU
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Transfer
Agent
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Equity
Stock Transfer LLC
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The number of shares of common stock to be
outstanding after this offering as reflected above is based on the actual number of shares outstanding at October 4, 2017, which
was 12,717,688, and does not include, as of that date:
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●
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231,458
shares of common stock issuable upon the exercise of outstanding options, with a weighted average exercise price of $3.60
per share;
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●
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450,018
shares
of common stock issuable upon the conversion of 4,500 shares of Series C Convertible Preferred Stock; and
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●
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1,286,102
shares of common stock reserved for future issuance under our equity incentive plans.
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Except as otherwise indicated, all information
in this prospectus supplement assumes no exercise by the underwriter of its option to purchase up to an additional 208,333
shares of our common stock.
RISK
FACTORS
Investing
in our common stock involves a high degree of risk. Before purchasing our securities, you should carefully consider the
risks, uncertainties and forward-looking statements described under “Risk Factors” in Item 1A of our most recent Annual
Report on Form 10-K for the fiscal year ended April 30, 2017 and filed with the SEC on July 31, 2017, as well as information incorporated
by reference into this prospectus, any applicable prospectus supplement or any free writing prospectus. If any of these risks
were to occur, our business, financial condition or results of operations would likely suffer. In that event, the value of our
securities could decline, and you could lose part or all of your investment. The risks and uncertainties we describe are not the
only ones facing us. Additional risks not presently known to us or that we currently deem immaterial may also impair our business
operations.
Additional
Risks Related to This Offering
Our
management will have broad discretion as to the use of the proceeds of this offering.
We
have not designated the amount of net proceeds we will receive from this offering for any particular purpose. Accordingly, our
management will have broad discretion as to the application of these net proceeds. Accordingly you will be relying on the judgment
of our management with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment
decision, to assess whether the proceeds are being used appropriately. It is possible that, pending their use, we may invest the
net proceeds in a way that does not yield a favorable, or any, return for the Company.
You
will experience immediate and substantial dilution in the net tangible book value per share of the stock you purchase.
The public offering price of our common stock
being offered is substantially higher than the net tangible book value per share of our common stock outstanding prior to this
offering. Therefore, if you purchase our common stock in this offering, you will incur an immediate substantial dilution of $1.04
in net tangible book value per share from the price you paid, based on our financial statements as of July 31, 2017. If outstanding
options or warrants to purchase our common stock are exercised, you will experience additional dilution. For a further description
of the dilution that you will experience immediately after this offering, see “Dilution.”
You
may experience future dilution as a result of future equity offerings or other equity issuances.
To
raise additional capital, we may in the future offer additional shares of our common stock, preferred stock or other securities
convertible into or exchangeable for our common stock. We cannot assure you that we will be able to sell shares or other securities
in any other offering at a price per share that is equal to or greater than the price per share paid by investors in this offering.
The price per share at which we sell additional shares of our common stock or other securities convertible into or exchangeable
for our common stock in future transactions may be higher or lower than the price per share in this offering.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein contain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and
Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These forward-looking statements
involve known or unknown risks, uncertainties and other factors that may or may not be outside our control and that may cause
our actual results, performance, or achievements to be materially different from any future results, performance or achievements
expressed or implied by the forward-looking statements. Specifically, the actions of suppliers, customers and the NASDAQ Stock
Market are generally outside of our control. Our ability to execute our business plans and to generate revenues and operating
income are each dependent upon our ability to continue to expand our current businesses, as well as upon general economic conditions
and other factors, including some of the factors identified as “Risk Factors” in this prospectus supplement and from
time to time in our other SEC filings. You can identify forward-looking statements by terminology such as “may,” “will,”
“should,” “expects,” “intends,” “plans,” “anticipates,” “believes,”
“estimates,” “predicts,” “potential,” “continues,” or the negative of these terms,
or other comparable terminology. Although we believe that the expectations reflected in the forward-looking statements are reasonable,
we cannot guarantee future results, levels of activity, performance, achievements or continued market listing. We do not intend
to publicly release any revisions to these forward-looking statements to reflect events or circumstances after the date hereof
or to reflect the occurrence of unanticipated events, unless required by law.
The
forward-looking statements contained herein reflect our views and assumptions only as of the date such forward-looking statements
are made. You should not place undue reliance on forward-looking statements. Except as required by law, we assume no responsibility
for updating any forward-looking statements nor do we intend to do so. Our actual results, performance or achievements could differ
materially from the results expressed in, or implied by, these forward-looking statements. The risks included in this section
are not exhaustive. Additional factors that could cause actual results to differ materially from those described in the forward-looking
statements are set forth in the section entitled “Risk Factors” beginning on page S-5 of this prospectus supplement.
USE
OF PROCEEDS
We
estimate that we will receive net proceeds of approximately $1.96 million from the sale of the shares of common stock offered
by us in this offering, or approximately $2.3 million if the underwriter exercises in full its option to purchase 208,333
additional shares of common stock, after deducting the underwriting discounts and commissions and estimated offering
costs payable by us. We intend to use the net proceeds from the sale of the common stock that we may offer under this prospectus
supplement and the accompanying prospectus, after deducting commissions and estimated offering expenses, for general corporate
purposes and working capital requirements. We have not determined the amounts we plan to spend or the timing of expenditures.
As a result, our management will have broad discretion to allocate the net proceeds from the sale of the common stock that we
may offer under this prospectus supplement and the accompanying prospectus. Pending their ultimate use, we intend to invest the
net proceeds in a variety of securities, including commercial paper, government and non-government debt securities and/or money
market funds that invest in such securities.
DILUTION
Purchasers of common stock offered by this
prospectus supplement and the accompanying prospectus will suffer immediate and substantial dilution in the net tangible book
value per share of common stock. Our net tangible book value as of July 31, 2017 was approximately $0.68 per share of our
common stock. Net tangible book value per share represents the amount of total tangible assets less total liabilities, divided
by the number of shares of our common stock outstanding as of July 31, 2017.
After
giving effect to the sale by us of 1,388,889 shares of common stock in this offering at a public offering price of $1.80 per share,
and after deducting the underwriting discount and estimated offering expenses payable by us, our as adjusted net tangible book
value as of July 31, 2017, would have been approximately $10.2 million, or approximately $0.76 per share. This represents
an immediate increase in net tangible book value of approximately $0.08 per share to existing stockholders and an immediate dilution
of approximately $1.04 per share to new investors purchasing shares of our common stock in this offering. The following table
illustrates this per share dilution:
Public offering price per share of common stock
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$
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1.80
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Net tangible book value per share as of July 31, 2017
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$
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0.68
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Increase per share attributable to this offering
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$
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0.08
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As adjusted net tangible book value per share as of July 31, 2017 after this offering
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$
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0.76
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Dilution per share to new investors participating in this offering
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|
|
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$
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1.04
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If the underwriters exercise in full their
option to purchase 208,333 additional shares of common stock at the public offering price of $1.80 per share, the
as adjusted net tangible book value of our common stock after this offering would be $0.76 per share, representing an immediate
increase in net tangible book value of approximately $0.08 per share to existing stockholders and an immediate dilution
of $1.04 per share to the investors in this offering, after deducting the underwriting discount and estimated offering
expenses payable by us.
This
table does not take into account further dilution to new investors that could occur upon the exercise of outstanding options and
warrants having a per share exercise price less than the public offering price per share in this offering. In addition, we may
choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient
funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity or
convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
The
number of shares of our common stock that will be outstanding immediately after the offering is based on
12,035,816
shares outstanding as of July
31, 2017, and excludes:
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●
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485,771shares
of our common stock issuable upon the exercise of outstanding options and warrants as of July 31, 2017 at a weighted-average
exercise price of $3.80 per share;
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●
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818,180
shares
of common stock issuable upon the conversion of 8,182 shares of Series C Convertible Preferred Stock; and
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●
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1,286,102
shares of common stock reserved for future issuance under our equity incentive plans.
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The
foregoing illustration does not reflect potential dilution from the exercise of outstanding options or warrants to purchase shares
of our common stock.
DESCRIPTION
OF SECURITIES WE ARE OFFERING
We are offering an aggregate of 1,388,889
shares of common stock.
Common
Stock
The
material terms and provisions of our common stock and each other class of our securities which qualifies or limits our common
stock are described under the heading “Description of Capital Stock” in the accompanying prospectus.
As
of October 4, 2017, we had
12,717,688
shares
of common stock issued and outstanding.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “USAU.”
DIVIDEND
POLICY
Other
than as set forth below, during the past two years, we have not declared or paid any cash dividends on our capital stock.
We currently intend to retain future earnings, if any, and all currently available funds for use in the operation of our business
and do not anticipate paying any cash dividends in the foreseeable future. Any future determination related to our dividend policy
will be made at the discretion of our board of directors after considering our financial condition, results of operations, capital
requirements, business prospects and other factors the board of directors deems relevant, and subject to the restrictions contained
in our current or future financing instruments.
On
August 5, 2016, we issued and sold 3,699 shares of Series D Preferred Stock convertible into an aggregate of 369,853 shares of
common stock to accredited investors, with each share of Series D convertible Preferred Stock initially convertible into 100 shares
of common stock. Upon the consummation of a “Qualified Transaction” (as define in the governing Certificate
of Designation) within 120 days of the sale of the Series D Preferred Stock, or at the discretion of the Board of Directors thereafter
each share of Series D Preferred Stock will be entitled to receive a special dividend equal to one additional share of Series
D Preferred Stock. On December 15, 2016, our Board of Directors approved the special dividend to the holders of Series D Preferred
Stock as of December 15, 2016, and issued an aggregate of 3,699 additional shares of Series D Preferred Stock on February 1, 2017.
UNDERWRITING
We
have entered into an underwriting agreement with Laidlaw & Company (UK) Ltd. with respect to the shares of common stock subject
to this offering. Subject to certain conditions, we have agreed to sell to the underwriter, and the underwriter has agreed to
purchase, the number of shares of common stock provided below opposite its name.
Underwriter
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Number of Shares
of
Common Stock
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Laidlaw
& Company (UK) Ltd.
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1,388,889
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Total
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The
underwriter is offering the shares of common stock subject to its acceptance of the shares of common stock from us and
subject to prior sale. The underwriting agreement provides that the obligation of the underwriter to pay for and
accept delivery of the shares of common stock offered by this prospectus supplement and the accompanying prospectus is
subject to the approval of certain legal matters by its counsel and to certain other conditions. The underwriter
is obligated to take and pay for all of the shares of common stock if any such shares are taken. However, the
underwriters are not required to take or pay for the shares of common stock covered by the underwriters’ over-allotment
option described below.
Over-Allotment
Option
We have granted the underwriter a 45-day option
to purchase up to an additional 208,333 shares of our common stock, to cover over-allotments, if any, of the shares of
our common stock offered by this prospectus supplement and the accompanying prospectus. If the underwriter exercises this option,
the underwriter will be obligated, subject to certain conditions, to purchase the additional shares for which the option has been
exercised. The underwriter may satisfy some or all of the overallotment of shares of our common stock, if any, by purchasing
shares in the open market and will have no obligation to exercise the overallotment option with respect to our common stock.
Discount,
Commissions and Expenses
The underwriter has advised us that it
proposes to offer the shares of common stock to the public at the public offering price set forth on the cover page of this
prospectus supplement and, in the case of common stock sold to investors introduced to us by the underwriter, to certain
dealers at that price less a concession not in excess of $0.63 per share. After this offering, the public offering
price, concession and reallowance to dealers may be changed by the underwriter. No such change shall change the amount of
proceeds to be received by us as set forth on the cover page of this prospectus supplement. The shares of common stock are
offered by the underwriter as stated herein, subject to receipt and acceptance by it and subject to its right to reject any
order in whole or in part. The underwriter has informed us that it does not intend to confirm sales to any accounts over
which it exercises discretionary authority.
The
following table shows the underwriting discount payable to the underwriter by us in connection with this offering. Such
amounts are shown assuming both no exercise and full exercise of the underwriters’ over-allotment option to purchase additional
shares.
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Per Share
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Total Without Exercise of Over-Allotment Option
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Total With Exercise of Over-Allotment Option
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Public offering price
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$
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1.80
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$
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2,500,000
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$
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2,875,000
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Underwriting discount(1)
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$
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0.126
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$
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175,000
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$
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201,250
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The
underwriter will receive a discount of 7% of the public offering price on sales to investors introduced by the underwriter. The
underwriting discount in table set forth above reflects the total cash fees we expect to pay to the underwriter in connection
with the offering.
We
have also agreed to pay the underwriters' expenses relating to the offering, including but not limited to (a) all filing
fees and communication expenses relating to the registration of the securities to be sold in this offering; (b) all filing
fees associated with the review of this offering by FINRA; (c) all fees and expenses relating to the listing of such
securities on the NASDAQ Capital Market and on such other stock exchanges as we and the underwriter together determine; (d)
all fees, expenses and disbursements relating to background checks of our officers and directors in an amount not to exceed
$2,500 per individual with a $15,000 cap; (e) all actual fees, expenses, and disbursements relating to the registration or
qualification of the securities under the “blue sky” securities laws of such states and other jurisdictions as
the underwriter may reasonably designate (including, without limitation, all filing and registration fees, and the reasonable
disbursements of underwriter’s counsel); (f) all actual fees, expenses and disbursements relating to the registration,
qualification or exemption of such securities under the securities laws of such foreign jurisdictions as the underwriter may
reasonably designate; (g) the costs of all mailing and printing of the underwriting documents (including, without limitation,
the underwriting agreement, any blue sky surveys and, if appropriate, any agreement among underwriters, selected
dealers’ agreement, underwriters’ questionnaire and power of attorney), registration statements, prospectuses and
all amendments, supplements and exhibits thereto and as many final prospectuses as the underwriter may reasonably deem
necessary; (h) the costs of preparing, printing and delivering certificates representing the shares; (i) fees and expenses of
the transfer agent for our common stock; (j) stock transfer and/or stamp taxes, if any, payable upon the transfer of
securities from us to the underwriter; (k) stock transfer and/or stamp taxes, if any, payable upon the transfer of such
securities from us to the underwriter, (l) the costs associated with bound volumes of the public offering materials as well
as commemorative mementos and lucite tombstones, each of which we or our designee will provide within a reasonable time after
the closing in such quantities as the underwriter may reasonably request; (m) the fees and expenses of our accountants; (n)
the fees and expenses of our legal counsel and other agents and representatives; (o) the fees and expenses of
underwriter’s counsel not to exceed $85,000 (not including any fees, expenses and disbursements under section (e) above); (p)
the underwriter’s costs of mailing prospectuses to prospective investors; (q) up to $15,000 of underwriter’s
actual accountable “road show” expenses for this offering; and (r) a non-accountable expenses reimbursement equal
to 1.0% of the aggregate public offering price (excluding securities issued in connection with the exercise of any
over-allotment).
Expenses payable by us in connection
with this offering, including reimbursement of Laidlaw & Company (UK) Ltd.’s expenses but excluding the underwriting
discount referred to above, are estimated to be approximately $365,000.
Roth
Capital partners LLC acted as a financial advisor to us in connection with the offering in consideration for which we paid a one-
time fee of $25,000 and an expense reimbursement of $50,000.
Indemnification
We
have agreed to indemnify the underwriter against certain liabilities, including liabilities under the Securities Act, and liabilities arising from breaches of representations and warranties contained in the underwriting
agreement, or to contribute to payments that the underwriter may be required to make in respect of those liabilities.
Lock
-up
Agreements
We,
our officers and our directors have agreed, subject to limited exceptions including the offer and sale by us of any of our securities
through one or more at the market offerings (“ATM”) with third party bankers and the incurrence of any convertible
or non-convertible debt principally structured as gold loans, for a period of 90 days after the date of the underwriting agreement,
not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of, directly
or indirectly any shares of common stock or any securities convertible into or exchangeable for our common stock either owned
as of the date of the underwriting agreement or thereafter acquired without the prior written consent of Laidlaw & Company
(UK) Ltd. Laidlaw & Company (UK) Ltd., may, in its sole discretion and at any time or from time to time before
the termination of the lock-up period, without notice, release all or any portion of the securities subject to lock-up agreements.
Right
of First Offer for At the Market Offerings
If,
during the six-month period for which we engage Laidlaw & Company (UK) Ltd. pursuant to that certain engagement letter, dated
October 3, 2017, between Laidlaw & Company (UK) Ltd. and us, we decide to consummate an ATM, then we must first offer Laidlaw
& Company (UK) Ltd. the right to act as the bank for such ATM, under a separate agreement containing terms and condition customary
for such transaction, to be mutually agreed upon between the parties.
Price
Stabilization, Short Positions and Penalty Bids
In
connection with the offering the underwriter may engage in stabilizing transactions, over-allotment transactions, syndicate covering
transactions and penalty bids in accordance with Regulation M under the Exchange Act:
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Stabilizing
transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
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Over-allotment
involves sales by the underwriter of securities in excess of the number of securities the underwriter is obligated to purchase,
which creates a syndicate short position. The short position may be either a covered short position or a naked short position.
In a covered short position, the number of securities over-allotted by the underwriter is not greater than the number of securities
that they may purchase in the over-allotment option. In a naked short position, the number of securities involved is
greater than the number of securities in the over-allotment option. The underwriter may close out any covered short position
by either exercising its over-allotment option and/or purchasing securities in the open market.
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Syndicate covering
transactions involve purchases of securities in the open market after the distribution has been completed in order to cover
syndicate short positions. In determining the source of securities to close out the short position, the underwriter will consider,
among other things, the price of securities available for purchase in the open market as compared to the price at which it
may purchase securities through the over-allotment option. If the underwriter sells more securities than could be covered
by the over-allotment option, a naked short position, the position can only be closed out by buying securities in the open
market. A naked short position is more likely to be created if the underwriter is concerned that there could be downward pressure
on the price of the securities in the open market after pricing that could adversely affect investors who purchase in the
offering.
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Penalty
bids permit the underwriter to reclaim a selling concession from a syndicate member when the common stock originally sold
by the syndicate member is purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.
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These stabilizing
transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market prices
of our common stock or preventing or retarding a decline in the market price of the common stock. As a result, the price of our
common stock may be higher than the prices that might otherwise exist in the open market. Neither we nor the underwriter make
any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have
on the prices of our common stock. In addition, neither we nor the underwriter make any representations that the underwriter will
engage in these stabilizing transactions or that any transaction, once commenced, will not be discontinued without notice.
Electronic
Distribution
This
prospectus supplement and the accompanying prospectus in electronic format may be made available on websites or through other
online services maintained by the underwriter, or by its affiliates. Other than this prospectus supplement and the
accompanying prospectus in electronic format, the information on the underwriter’s website and any information
contained in any other website maintained by the underwriter is not part of this prospectus supplement and the accompanying
prospectus or the registration statement of which this prospectus supplement and the accompanying prospectus forms a part,
has not been approved and/or endorsed by us or the underwriter in its capacity as underwriter, and should not be relied upon
by investors.
Other
Relationships
From
time to time, the underwriter and/or its affiliates may have provided, and may in the future provide, various investment banking
and other financial services for us for which services it may have received and, may in the future receive, customary fees. In
the course of its business, the underwriter and its affiliates may actively trade our securities or loans for their own account
or for the accounts of customers, and, accordingly, the underwriter and its affiliates may at any time hold long or short positions
in such securities or loans. Except for services provided in connection with this offering, the underwriter has not
provided any investment banking or other financial services to us during the 180-day period preceding the date of this prospectus
and we do not expect to retain the underwriter to perform any investment banking or other financial services for at least 90 days
after the date of this prospectus.
NOTICE
TO INVESTORS
Notice
to Investors in the United Kingdom
In
relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant
Member State”) an offer to the public of any securities which are the subject of the offering contemplated by this prospectus
may not be made in that Relevant Member State except that an offer to the public in that Relevant Member State of any such securities
may be made at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant
Member State:
(a)
to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(b)
to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total
balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last
annual or consolidated accounts;
(c)
by the underwriter to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus
Directive); or
(d)
in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of these securities
shall result in a requirement for the publication by the issuer or the underwriter of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For
the purposes of this provision, the expression an “offer to the public” in relation to any of the securities in any
Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer
and any such securities to be offered so as to enable an investor to decide to purchase any such securities, as the same may be
varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
The
underwriter has represented, warranted and agreed that:
(a)
it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the
FSMA)) received by it in connection with the issue or sale of any of the securities in circumstances in which section 21(1) of
the FSMA does not apply to the issuer; and
(b)
it has complied with and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation
to the securities in, from or otherwise involving the United Kingdom.
European
Economic Area
In
particular, this document does not constitute an approved prospectus in accordance with European Commission’s Regulation
on Prospectuses no. 809/2004 and no such prospectus is to be prepared and approved in connection with this offering. Accordingly,
in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (being the Directive
of the European Parliament and of the Council 2003/71/EC and including any relevant implementing measure in each Relevant Member
State) (each, a Relevant Member State), with effect from and including the date on which the Prospectus Directive is implemented
in that Relevant Member State (the Relevant Implementation Date) an offer of securities to the public may not be made in that
Relevant Member State prior to the publication of a prospectus in relation to such securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of securities to the public in that Relevant Member State at any
time:
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to
legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
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to
any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total
balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in the
last annual or consolidated accounts; or
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in
any other circumstances which do not require the publication by the Issuer of a prospectus pursuant to Article 3 of the Prospectus
Directive.
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For
the purposes of this provision, the expression an “offer of securities to the public” in relation to any of the securities
in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the
offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe for the securities, as the
same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State. For these purposes
the securities offered hereby are “securities.”
Listing
Our
common stock is listed on the Nasdaq Capital Market under the symbol “USAU”.
Transfer
Agent
The
transfer agent and registrar for our common stock is Equity Stock Transfer, LLC, with an address of 237 W. 37
th
Street,
Suite 601, New York, NY 10018.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon for us by Sichenzia Ross Ference Kesner LLP, New
York, New York. Certain legal matters related to the offering will be passed upon for the placement agent by Reed Smith
LLP, New York, New York.
EXPERTS
The
consolidated financial statements of U.S. Gold Corp. and subsidiaries as of and for the year ended April 30, 2017 and 2016, incorporated
herein by reference, have been audited by Marcum LLP, independent registered public accounting firm, as set forth in their report,
such report includes an explanatory paragraph as to the Company’s ability to continue as going concern, and are incorporated
by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus supplement and the accompanying prospectus constitute a part of a registration statement on Form S-3 filed under
the Securities Act. As permitted by the SEC’s rules, this prospectus supplement and the accompanying prospectus,
which form a part of the registration statement, do not contain all the information that is included in the registration statement.
You will find additional information about us in the registration statement. Any statements made in this prospectus supplement
and the accompanying prospectus concerning legal documents are not necessarily complete and you should read the documents
that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of
the document or matter.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any materials
we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information
on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available to the
public over the Internet at the SEC’s website at http://www.sec.gov. In addition, we make available on or through our Internet
site copies of these reports as soon as reasonably practicable after we electronically file or furnish them to the SEC. Our Internet
website can be found at http://www.usgoldcorp.gold.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
have filed a registration statement on Form S-3 with the SEC under the Securities Act. This prospectus supplement and the accompanying
prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional
information and exhibits. The SEC permits us to “incorporate by reference” the information contained in documents
we file with the SEC, which means that we can disclose important information to you by referring you to those documents rather
than by including them in this prospectus supplement and the accompanying prospectus. Information that is incorporated
by reference is considered to be part of this prospectus supplement and the accompanying prospectus and you should read
it with the same care that you read this prospectus supplement and the accompanying prospectus. Information that we file
later with the SEC will automatically update and supersede the information that is either contained, or incorporated by reference,
in this prospectus supplement and the accompanying prospectus, and will be considered to be a part of this prospectus supplement
and the accompanying prospectus from the date those documents are filed. We have filed with the SEC, and incorporate by reference
in this prospectus:
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Annual Report on Form 10-K for the year ended April 30, 2017 filed with the SEC on July 31, 2017;
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Quarterly Report on Form 10-Q for the quarterly period ended July 31, 2017, filed with the SEC on September
14, 2017;
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Our
Current Reports on Form 8-K or Form 8-K/A (excluding any reports or portions thereof that are deemed to be furnished and not
filed) filed with the SEC on May 5, 2017, May 26, 2017, May 31, 2017, June 12, 2017, June 26, 2017, July 7, 2017, July 10,
2017, July 31, 2017, August 3, 2017 and August 24, 2017;
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Our
joint proxy statement/prospectus filed with the SEC on March 7, 2017; and
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The
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on January 27, 2000,
including any amendment or reports filed for the purpose of updating such description.
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We
also incorporate by reference all additional documents that we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act that are made after the date of this prospectus but prior to the termination of the offering of the securities
covered by this prospectus. We are not, however, incorporating, in each case, any documents or information that we are deemed
to furnish and not file in accordance with SEC rules.
You
may request, and we will provide you with, a copy of any or all of these filings, at no cost, by calling us at (800) 557-4550
or by writing to us at the following address:
U.S.
Gold Corp.
1910
E. Idaho Street, Suite 102-Box 604
Elko,
NV 89801
PROSPECTUS
DATARAM
CORPORATION
$20,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, debt securities
or warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually
or as units comprised of one or more of the other securities, having an aggregate initial offering price not exceeding $20,000,000.
This
prospectus provides a general description of the securities we may offer.
Each
time we sell a particular class or series of securities, we will provide specific terms of the securities offered in a supplement
to this prospectus. T
he prospectus supplement and any related free writing prospectus may
also add, update or change information contained in this prospectus. We may also authorize one or more free writing prospectuses
to be provided to you in connection with these offerings. You should read carefully this prospectus, the applicable prospectus
supplement and any related free writing prospectus, as well as any documents incorporated by reference herein or therein before
you invest in any of our securitie
s.
This
prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered
securities.
Our
common stock is presently listed on The NASDAQ Capital Market under the symbol “DRAM.” On May 8, 2017 the last reported
sale price of our common stock was $4.79.
The applicable prospectus supplement will contain
information, where applicable, as to any other listing on The NASDAQ Capital Market or any securities market or other exchange
of the securities, if any, covered by the prospectus supplement.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters, dealers
or through a combination of these methods on a continuous or delayed basis. See “PLAN OF DISTRIBUTION” in this prospectus.
We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement. If any
agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered,
we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The price to the public
of such securities and the net proceeds we expect to receive from any such sale will also be included in a prospectus supplement.
The
aggregate market value of our outstanding common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3
was approximately $5,338,202 based on 1,204,667 shares of common stock outstanding, of which 1,114,447 shares were held by non-affiliates,
and a last reported sale price on The NASDAQ Capital Market of $4.79 per share on May 8, 2017. We have not sold any securities
pursuant to General Instruction I.B.6. of Form S-3 during the prior 12 calendar month period that ends on and includes the date
hereof.
On
May 3, 2017, the Company filed a certificate of amendment to its Articles of Incorporation with the Nevada Secretary of State
in order to effectuate a reverse stock split of the Company’s issued and outstanding common stock, par value $0.001 per
share on a one (1) for four (4) basis, effective on May 8, 2017. The Company’s issued and outstanding common shares and
per share numbers are retroactively restated.
Investing
in our securities involves various risks. See “RISK FACTORS” on page 4, in addition to the risk factors contained
in the applicable prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or
passed upon the adequacy or accuracy of this prospectus or any accompanying prospectus supplement. Any representation to the contrary
is a criminal offense.
The
date of this prospectus is May 16, 2017.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration process.
Under this shelf registration process, we may from time to time sell common stock, preferred stock, debt securities or warrants
to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually or as units
comprised of one or more of the other securities, in one or more offerings up to a total dollar amount of $20,000,000. 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, we will, to the extent required by law, provide a prospectus supplement that will contain specific information
about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents that
we have incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in
this prospectus and the prospectus supplement or any related free writing prospectus, you should rely on the information in the
prospectus supplement or the related free writing prospectus; provided that if any statement in one of these documents is inconsistent
with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus
or any prospectus supplement or any related free writing prospectus — the statement in the document having the later date
modifies or supersedes the earlier statement.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus, any accompanying prospectus supplement or any related free writing prospectus
that we may authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus or an accompanying prospectus supplement, or any related free writing prospectus that we may authorize
to be provided to you. This prospectus, the accompanying prospectus supplement and any related free writing prospectus, if any,
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, the accompanying prospectus supplement or any related free writing prospectus, if
any, 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 applicable prospectus supplement or any related 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 (as our business, financial condition, results of operations
and prospects may have changed since that date), even though this prospectus, any applicable prospectus supplement or any related
free writing prospectus is delivered or securities are sold on a later date.
As
permitted by the rules and regulations of the SEC, the registration statement, of which this prospectus forms a part, includes
additional information not contained in this prospectus. You may read the registration statement and the other reports we file
with the SEC at the SEC’s web site or at the SEC’s offices described below under the heading “WHERE YOU CAN
FIND MORE INFORMATION.”
Company
References
In
this prospectus, “Dataram,” “the Company,” “we,” “us,” and “our” refer
to Dataram Corporation, a Nevada corporation and all subsidiaries, unless the context otherwise requires.
OUR
BUSINESS
Since
1967, we have been an independent manufacturer of memory products and provider of performance solutions. We provide customized
memory solutions for original equipment manufacturers (OEMs) and compatible memory for leading brands including Cisco, Dell, Fujitsu,
HP, IBM, Lenovo and Oracle as well as a line of memory products for Intel and AMD motherboard based servers. We manufacture our
memory in-house to meet three key criteria — quality, compatibility and selection — and test our memory for performance
and OEM compatibility as part of the production process. With memory designed for over 50,000 systems and with products that range
from energy efficient DDR4 modules to legacy SDR offerings, we offer one of the most complete portfolios in the industry. We are
a CMTL Premier Participant and ISO 9001:2008 certified. Our products are fully compliant with JEDEC Specifications. Our customers
include an international network of distributors, resellers, retailers, OEM customers and end users.
On
June 13, 2016, we entered into an Agreement and Plan of Merger, as amended and restated on June 29, 2016, September 14, 2016 and
November 28, 2016 for the acquisition of U.S. Gold Corp., a Nevada corporation, and subsidiaries (“U.S. Gold”). U.S.
Gold is an exploration stage company that owns certain mining leases and other mineral rights comprising the Copper King gold
and copper development project located in the Silver Crown Ming District of southeast Wyoming (the “Copper King Project”)
and mining claims related to a gold development project in Eureka County, Nevada (the “Keystone Project”). The closing
of the merger is subject to customary closing conditions.
Following
the merger, Dataram will operate as a single entity with two reporting businesses – a junior mining business and a memory
business.
Company
Information
We
were incorporated in the State of New Jersey on May 19, 1967. On January 6, 2016, we changed our state of incorporation from the
State of New Jersey to the State of Nevada. Our principal executive office is located at 777 Alexander Road, Suite 100, Princeton,
New Jersey 08540, our telephone number is (609) 799-0071 and our website address is http://www.dataram.com. The information contained
on, or accessible through, our website is not part of this prospectus or any prospectus supplement.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment in our securities. Prior to making a decision about investing
in our securities, you should carefully consider the specific factors discussed under the heading “Risk Factors” in
the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the
prospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties
and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended
April 30, 2016 and any updates described in our Quarterly Reports on Form 10-Q as well as the Risk Factors related to our pending
acquisition of U.S. Gold Corp., set forth in the Current Report on Form 8-K, filed on June 13, 2016, all of which are incorporated
herein by reference, and may be amended, supplemented or superseded from time to time by other reports we file with the SEC in
the future and any prospectus supplement related to a particular offering. The risks and uncertainties we have described are not
the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also
affect our operations. The occurrence of any of these known or unknown risks might cause you to lose all or part of your investment
in the offered securities.
FORWARD-LOOKING
STATEMENTS
This
prospectus and any accompanying prospectus supplement, including the documents that we incorporate by reference, contains 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”). Such forward-looking statements include those that express plans, anticipation, intent,
contingency, goals, targets or future development and/or otherwise are not statements of historical fact. These forward-looking
statements are based on our current expectations and projections about future events and they are subject to risks and uncertainties
known and unknown that could cause actual results and developments to differ materially from those expressed or implied in such
statements.
In
some cases, you can identify forward-looking statements by terminology, such as “expects,” “anticipates,”
“intends,” “estimates,” “plans,” “believes,” “seeks,” “may,”
“should,” “could” or the negative of such terms or other similar expressions. Accordingly, these statements
involve estimates, assumptions and uncertainties that could cause actual results to differ materially from those expressed in
them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this prospectus.
You
should read this prospectus and any accompanying prospectus supplement and the documents that we reference herein and therein
and have filed as exhibits to the registration statement, of which this prospectus is part, completely and with the understanding
that our actual future results may be materially different from what we expect. You should assume that the information appearing
in this prospectus and any accompanying prospectus supplement is accurate as of the date on the front cover of this prospectus
or such prospectus supplement only. Because the risk factors referred to above, as well as the risk factors referred to above
and incorporated herein by reference, could cause actual results or outcomes to differ materially from those expressed in any
forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements.
Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update
any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the
occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which factors
will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination
of factors, may cause actual results to differ materially from those contained in any forward-looking statements. We qualify all
of the information presented in this prospectus and any accompanying prospectus supplement, and particularly our forward-looking
statements, by these cautionary statements.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities offered under this prospectus for working capital, capital expenditures
and investments and general corporate purposes. We may also use the net proceeds for the repayment, refinancing, redemption or
repurchase of current or future indebtedness or capital stock and/or to invest in or acquire complementary or unrelated businesses
or technologies, although we have no current commitments or agreements with respect to any such investments or acquisitions as
of the date of this prospectus. We have not determined the amount of net proceeds to be used specifically for the foregoing purposes.
As a result, our management will have broad discretion in the allocation of the net proceeds and investors will be relying on
the judgment of our management regarding the application of the proceeds of any sale of the securities.
Each
time we offer securities under this prospectus, we will describe the intended use of the net proceeds from that offering in the
applicable prospectus supplement. The actual amount of net proceeds we spend on a particular use will depend on many factors,
including, among other things, our future capital expenditures, the amount of cash required by our operations, and our future
revenue growth, if any. Therefore, we will retain broad discretion in the use of the net proceeds.
THE
SECURITIES WE MAY OFFER
We
may offer shares of common stock, shares of preferred stock, debt securities or warrants to purchase common stock, preferred stock
or debt securities, or any combination of the foregoing, either individually or as units comprised of one or more of the other
securities. We may offer up to $
20,000,000
of
securities under this prospectus. If securities are offered as units, we will describe the terms of the units in a prospectus
supplement.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock, together with any additional information we include in any applicable prospectus supplement
or any related free writing prospectus, summarizes the material terms and provisions of our common stock and the preferred stock
that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future common stock
or preferred stock that we may offer, we will describe the particular terms of any class or series of these securities in more
detail in the applicable prospectus supplement. For the complete terms of our common stock and preferred stock, please refer to
our articles of incorporation, as amended, and our amended and restated bylaws that are incorporated by reference into the registration
statement of which this prospectus is a part or may be incorporated by reference in this prospectus or any applicable prospectus
supplement. The terms of these securities may also be affected by provisions of the Nevada Revised Statutes. The summary below
and that contained in any applicable prospectus supplement or any related free writing prospectus are qualified in their entirety
by reference to our articles of incorporation, as amended, and our amended and restated bylaws.
As
of the date of this prospectus, our authorized capital stock consisted of 200,000,000 shares of common stock, par value $0.001
per share, and 50,000,000 shares of “blank check” preferred stock, par value $0.001 per share, of which 1,300,000
shares are designated as Series A Convertible Preferred Stock, 400,000 shares are designated as Series B Convertible Preferred
Stock, shares are designated as Series C Convertible Preferred Stock and 7,402 shares are designated as Series D Convertible Preferred
Stock. Our Board of Directors has the authority, without further action by the shareholders, to issue shares of preferred stock
in one or more series and to fix the rights, preferences, privileges and restrictions granted to or imposed upon the preferred
stock. As of the date of this prospectus, there were 1,204,667 shares of our common stock issued and outstanding, and no shares
of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock or Series D Convertible Preferred Stock outstanding.
A fixed number of shares of Series C Convertible Preferred Stock will be designated in connection of the closing of our acquisition
of U.S. Gold.
Common
Stock
The
holders of common stock are entitled to one vote per share on all matters to be voted upon by the shareholders and there are no
cumulative rights. Subject to preferences that may be applicable to any outstanding preferred stock, the holders of common stock
are entitled to receive ratably any dividends that may be declared from time to time by the Board of Directors out of funds legally
available for that purpose. In the event of liquidation of the Company, dissolution or winding up, the holders of common stock
are entitled to share ratably in all assets remaining after payment of liabilities, subject to prior distribution rights of preferred
stock then outstanding. The common stock has no preemptive or conversion rights or other subscription rights. There are no redemption
or sinking fund provisions applicable to the common stock. The outstanding shares of common stock are fully paid and non-assessable,
and any shares of common stock to be issued upon an offering pursuant to this prospectus and the related prospectus supplement
will be fully paid and nonassessable upon issuance. To the extent that additional shares of our common stock may be issued in
the future, the relative interests of the then existing shareholders may be diluted.
Preferred
Stock
General
Our
articles of incorporation, as amended, provide that our Board of Directors has the authority, without further action by the shareholders,
to issue shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions granted
to or imposed upon the preferred stock. Preferred stock may be designated and issued without authorization of shareholders unless
such authorization is required by applicable law, the rules of The NASDAQ Capital Market or other securities exchange or market
on which our stock is then listed or admitted to trading.
Our
Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect
the voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility
in connection with possible acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying,
deferring or preventing a change in control of the Company.
A
prospectus supplement relating to any series of preferred stock being offered will include specific terms relating to the offering.
Such prospectus supplement will include, to the extent applicable:
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the
title and stated or par value of the preferred stock;
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the
number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred
stock;
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the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the preferred stock;
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whether
dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall
accumulate;
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the
provisions for a sinking fund, if any, for the preferred stock;
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any
voting rights of the preferred stock;
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the
provisions for redemption, if applicable, of the preferred stock;
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any
listing of the preferred stock on any securities exchange;
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the
terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the
conversion price or the manner of calculating the conversion price and conversion period;
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if
appropriate, a discussion of United States federal income tax consequences applicable to the preferred stock; and
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and
any other specific terms, preferences, rights, limitations or restrictions of the preferred stock.
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The
description of preferred stock in this prospectus and the description of the terms of a particular series of preferred stock in
any applicable prospectus supplement are not complete. You should refer to any applicable certificate of designation for complete
information.
All
shares of preferred stock offered hereby will, when issued, be fully paid and nonassessable, including shares of preferred stock
issued upon the exercise of preferred stock warrants or subscription rights, if any.
Series
A Convertible Preferred Stock
On
December 30, 2015, the Company filed with the Secretary of State of the State of Nevada a Certificate of Designation of Preferences,
Rights and Limitations of Series A Preferred Stock (the “Series A COD”). The Series A COD is substantially similar
to the Certificate of Amendment filed on or about November 10, 2014 with the New Jersey Division of Revenue and Enterprise Services,
which originally designated the preferences, rights and limitations of the Company’s Series A Convertible Preferred Stock.
Pursuant to the Series A COD, the Company designated 1,300,000 shares of its blank check preferred stock as Series A Convertible
Preferred Stock. Each share of Series A Convertible Preferred Stock has a stated value of $5.00 per share. Holders of Series A
Convertible Preferred Stock are entitled to receive preferential cumulative dividends at the rate of 8% per annum (equivalent
to a fixed annual payment of $0.40 per share). The dividends are payable in shares of common stock valued at the weighted average
price of the Company’s common stock over the 10 consecutive trading days ended on the second trading day immediately before
the payment date. In the event of a liquidation, dissolution or winding up of the Company, each share of Series A Convertible
Preferred Stock will be entitled to a per share preferential payment equal to the stated value, plus accrued and unpaid dividends.
Subject to certain limitations as set forth below, each holder may convert the shares of Series A Convertible Preferred Stock
into such number of shares of common stock equal to the stated value divided by $2.00, subject to adjustment. The Company is prohibited
from effecting the conversion of Series A Convertible Preferred Stock to the extent that, as a result of such conversion, the
holder would beneficially own more than 4.99% of the issued and outstanding shares of the Company’s common stock unless
the holder elected a different percentage beneficial ownership limit. For so long as any shares of Series A Convertible Preferred
Stock are outstanding, certain fundamental corporate actions set forth in the Series A COD require the affirmative vote or consent
of holders of at least 90% of the votes entitled to be cast by the holders of Series A Convertible Preferred Stock. On other matters
on which holders of common stock are entitled to vote, the holders of Series A Convertible Preferred Stock vote on an as-converted
to common stock basis together with the holders of common stock. As of the date of this prospectus, there were no shares of Series
A Convertible Preferred Stock outstanding.
Series
B Convertible Preferred Stock
On
January 21, 2016, the Company filed with the Secretary of State of the State of Nevada a Certificate of Designations, Preferences
and Rights of 0% Series B Convertible Preferred Stock (the “Series B COD”). Pursuant to the Series B COD, the Company
designated 400,000 shares of its blank check preferred stock as Series B Convertible Preferred Stock. Each share of Series B Convertible
Preferred Stock has a stated value of $12.20 per share. In the event of a liquidation, dissolution or winding up of the Company,
each share of Series B Convertible Preferred Stock will be entitled to a per share preferential payment equal to the par value.
All shares of capital stock of the Company will be junior in rank to Series B Convertible Preferred Stock with respect to the
preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding-up of the Company unless
otherwise stated. Holders of Series B Convertible Preferred Stock will be entitled to receive dividends if and when declared by
the Company’s Board of Directors. In addition, the Series B Convertible Preferred Stock shall participate on an “as
converted” basis, with all dividends declared on the common stock. Subject to certain limitations as set forth below, each
holder may convert the shares of Series B Convertible Preferred Stock into such number of shares of common stock based on a conversion
ratio, the numerator of which shall be the Base Amount (defined below) and the denominator of which shall be the Conversion Price
(defined below). “Base Amount” is defined, as of the applicable date of determination, as the sum of (1) the aggregate
stated value of the Series B Convertible Preferred Stock to be converted, plus (2) the accrued and unpaid dividends on Series
B Convertible Preferred Stock. The “Conversion Price” of the Series B Convertible Preferred Stock is initially $0.61,
subject to adjustment. The Company is prohibited from effecting the conversion of Series B Convertible Preferred Stock to the
extent that, as a result of such conversion, the holder would beneficially own more than 4.99%, in the aggregate, of the issued
and outstanding shares of the Company’s common stock calculated immediately after giving effect to the issuance of shares
of common stock upon the conversion of the Series B Convertible Preferred Stock. A holder may increase or decrease the maximum
percentage beneficial ownership by providing written notice to the Company; provided, however, that in no event shall the maximum
percentage beneficial ownership exceed 9.99%. Holders of the Series B Convertible Preferred Stock do not possess any voting rights
except as otherwise required by law. As of the date of this prospectus, there were no shares of Series B Convertible Preferred
Stock outstanding.
Series
C Convertible Preferred Stock
In
connection with the closing of our acquisition of U.S. Gold, we will file with the Secretary of State of the State of Nevada a
Certificate of Designation of Preferences, Rights and Limitations of 0% Series C Convertible Preferred Stock (the “Series
C COD”). Each share of Series C Convertible Preferred Stock has a stated value of $100.00 per share and is convertible into
such number of shares of common stock equal to the Base Amount (defined below) divided by the Conversion Price (defined below).
“Base Amount” means the sum of (1) the stated value of the Series C Convertible Preferred Stock, plus (2) the unpaid
dividend amount thereon as of such date of determination. “Conversion Price” means, with respect to each share of
Series C Convertible Preferred Stock, as of the conversion date or other applicable date of determination, $1.00, subject to adjustment.
Upon the liquidation, dissolution or winding up of the business of the Company, each holder of Series C Convertible Preferred
Stock will be entitled to receive, for each share of Series C Convertible Preferred Stock held an amount in cash equal to, and
not more than, the par value before payment is made to any other class or series of capital stock whose terms expressly provide
that the holders of Series C Convertible Preferred Stock should receive preferential payment and the Company’s common stock;
provided, however, that Series B Convertible Preferred Stock shall rank senior to Series C Convertible Preferred Stock. Holders
of Series C Convertible Preferred Stock do not possess any voting rights and are entitled to receive dividends when and as declared
by the Board of Directors. If at any time the Company grants, issues or sells any options, convertible securities or rights to
purchase stock, warrants, securities or other property pro rata to the record holders of any class of common stock purchase rights,
then each holder will be entitled to acquire, upon the terms applicable to such purchase rights, the aggregate purchase rights
which such holder could have acquired if such holder had held the number of shares of common stock acquirable upon complete conversion
of all shares of Series C Convertible Preferred Stock (without taking into account any limitations or restrictions on the convertibility
of such shares) held by such holder immediately before the date on which a record is taken for the grant, issuance or sale of
such purchase rights, or, if no such record is taken, the date as of which the record holders of common stock are to be determined
for the grant, issue or sale of such purchase rights; provided, however, that if the holder’s right to participate in any
such purchase right would result in such holder exceeding the beneficial ownership limitation (described below), then such holder
will not be entitled to participate in such purchase right until such time as the purchase rights would not result in such holder
exceeding the beneficial ownership limitation. At no time may shares of Series C Convertible Preferred Stock be converted if such
conversion would cause the holder to hold in excess of 4.99% of the issued and outstanding common stock of the Company. The Series
C Convertible Preferred Stock is subject to adjustment in the event of stock dividends, splits and fundamental transactions.
Series
D Convertible Preferred Stock
On
August 4, 2016, the Company filed with the Secretary of State of the State of Nevada a Certificate of Designation of Rights, Powers,
Preferences, Privileges and Restrictions of 0% Series D Convertible Preferred Stock (the “Series D COD”). Pursuant
to the Series D COD, the Company designated 7,402 shares of its blank check preferred stock as Series D Convertible Preferred
Stock. Each share of Series D Convertible Preferred Stock has a stated value of $136 per share, subject to adjustment. In the
event of a liquidation, dissolution or winding up of the Company, each share of Series D Convertible Preferred Stock will be entitled
to a per share preferential payment equal to the greater of (a) the Base Amount (defined below) thereof on the date of such payment
and (B) the amount per share such holder would receive if such holder converted such Series D Convertible Preferred Stock into
common stock immediately prior to the date of such payment. The Series D Convertible Preferred Stock ranks senior to the Company’s
capital stock other than the Company’s Series B Convertible Preferred Stock and Series C Convertible Preferred Stock with
respect to the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding-up of the
Company. Holders of Series D Convertible Preferred Stock are entitled to receive dividends if and when declared by the Company’s
Board of Directors. In addition, the Series D Convertible Preferred Stock participates on an “as converted” basis,
with all dividends declared on the common stock. Subject to certain limitations as set forth below, each holder may convert the
shares of Series D Convertible Preferred Stock into such number of shares of common stock based on a conversion ratio, the numerator
of which shall be the Base Amount (defined below) and the denominator of which shall be the Conversion Price (defined below).
“Base Amount” is defined, as of the applicable date of determination, as the sum of (1) the aggregate stated value
of the Series D Convertible Preferred Stock to be converted, plus (2) the accrued and unpaid dividends on Series D Convertible
Preferred Stock. The “Conversion Price” of the Series D Convertible Preferred Stock is initially $1.36, subject to
adjustment. The Company is prohibited from effecting the conversion of Series D Convertible Preferred Stock to the extent that,
as a result of such conversion, the holder would beneficially own more than 4.99%, in the aggregate, of the issued and outstanding
shares of the Company’s common stock calculated immediately after giving effect to the issuance of shares of common stock
upon the conversion of the Series D Convertible Preferred Stock. A holder may increase or decrease the maximum beneficial ownership
percentage by providing written notice to the Company; provided, however, that in no event shall the maximum percentage beneficial
ownership exceed 9.99%. Holders of the Series D Convertible Preferred Stock are entitled to vote on all matters submitted to the
Company’s shareholders based on the number of shares of common stock such Series D Convertible Preferred Stock would be
convertible into (voting as a class together with common stock) based on a per share conversion price of $2.72, subject to adjustment.
As of the date of this prospectus, there were no shares of Series D Convertible Preferred Stock outstanding.
Dividends
The
Company does not anticipate paying dividends in the foreseeable future as the Board of Directors intends to retain future earnings
for use in the Company’s business. Any future determination as to the payment of dividends will depend upon the Company’s
financial conditions, results of operations and such other factors as the Board of Directors deems relevant. In addition, the
Company’s financing agreement with Rosenthal & Rosenthal, Inc. entered into as of November 6, 2013 contains covenants
limiting the declaration and distribution of dividends.
Notwithstanding
the foregoing, any determination to pay dividends will be at the discretion of the Company’s Board of Directors and will
depend upon a number of factors, including the Company’s results of operations, financial condition, future prospects, contractual
restrictions, restrictions imposed by applicable law and other factors the Board of Directors deems relevant.
Authorized
but Unissued Shares
Our
authorized but unissued shares of common stock and preferred stock will be available for future issuance without your approval.
We may use additional shares for a variety of purposes, including future public offerings to raise additional capital, to fund
acquisitions and as employee compensation. The existence of authorized but unissued shares of common stock and preferred stock
could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger
or otherwise.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Equity Stock Transfer. Its address is 237 West 37th Street, Suite 601, New
York, New York 10018.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements or free writing
prospectuses, summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. We
may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. While the terms we have summarized below will apply generally to any future debt securities we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement
or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement may differ from the terms
we describe below. However, no prospectus supplement shall fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness. As of the date of
this prospectus, we have no outstanding registered debt securities. Unless the context requires otherwise, whenever we refer to
the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular series
of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior
indenture. We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that
we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to
the registration statement, of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term “trustee”
to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures
are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related
free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indentures
that contain the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth
or determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be
issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount
for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt
securities being offered, including:
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title;
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the
principal amount being offered, and, if a series, the total amount authorized and the total amount outstanding;
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any
limit on the amount that may be issued;
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms and who the depositary will be;
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the
maturity date;
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a
United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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the
annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the
terms of the subordination of any series of subordinated debt;
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the
place where payments will be made;
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restrictions
on transfer, sale or other assignment, if any;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to
any optional or provisional redemption provisions and the terms of those redemption provisions;
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provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any, on which, and the price at which
we are obligated, pursuant thereto or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt
securities and the currency or currency unit in which the debt securities are payable;
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whether
the indenture will restrict our ability or the ability of our subsidiaries to:
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incur
additional indebtedness;
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issue
additional securities;
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create
liens;
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pay
dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries;
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redeem
capital stock;
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
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make
investments or other restricted payments;
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sell
or otherwise dispose of assets;
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enter
into sale-leaseback transactions;
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engage
in transactions with stockholders or affiliates;
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issue
or sell stock of our subsidiaries; or
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effect
a consolidation or merger;
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial
ratios;
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a
discussion of certain material or special United States federal income tax considerations applicable to the debt securities;
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information
describing any book-entry features;
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the
applicability of the provisions in the indenture on discharge;
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whether
the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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the
denominations in which we will issue the series of debt securities if other than denominations of $1,000 and any integral
multiple thereof;
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional
events of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
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Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into
or exchangeable for our common stock, our preferred stock or other securities (including securities of a third party). We will
include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include
provisions pursuant to which the number of shares of our common stock or preferred stock or other securities (including securities
of a third party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other
securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property
must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have
received if they had converted the debt securities before the consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events
of default under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or
repurchase or otherwise, and the time for payment has not been extended;
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if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice
from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series; and
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if
specified events of bankruptcy, insolvency or reorganization occur.
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We
will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt
securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the
unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due
to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any,
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or
other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event
of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver
shall cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding.
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The
indentures provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise of
its powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however,
may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial
to the rights of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability.
Prior to taking any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and
liabilities that would be incurred by taking or not taking such action.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written
request and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss,
liability or expense or to be incurred in compliance with instituting the proceeding as trustee; and
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and
offer.
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These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The
indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the
trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known
by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured
or waived. Except in the case of a default in the payment of principal or premium of, or interest on, any debt security or certain
other defaults specified in an indenture, the trustee shall be protected in withholding such notice if and so long as the Board
of Directors, the executive committee or a trust committee of directors, or responsible officers of the trustee, in good faith
determine that withholding notice is in the best interests of holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture
without the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture;
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to
comply with the provisions described above under “DESCRIPTION OF DEBT SECURITIES—Consolidation, Merger or Sale”;
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of debt securities, as set forth in the indenture;
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to
provide for the issuance of, and establish the form and terms and conditions of, the debt securities of any series as provided
under “DESCRIPTION OF DEBT SECURITIES—General,” to establish the form of any certifications required to
be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities;
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to
evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to
provide for uncertificated debt securities and to make all appropriate changes for such purpose;
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to
add such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or
the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions
an event of default or to surrender any right or power conferred to us in the indenture; or
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to
change anything that does not adversely affect the interests of any holder of debt securities of any series in any material
respect.
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In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may issue
or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may
only make the following changes with the consent of each holder of any outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon
the redemption or repurchase of any debt securities; or
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver.
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Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement
applicable to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or
more series of debt securities, except for specified obligations, including obligations to:
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register
the transfer or exchange of debt securities of the series;
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replace
stolen, lost or mutilated debt securities of the series;
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maintain
paying agencies;
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hold
monies for payment in trust;
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recover
excess money held by the trustee;
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compensate
and indemnify the trustee; and
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appoint
any successor trustee.
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In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to
pay all the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in
the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that
we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited
with, or on behalf of, The Depository Trust Company, New York, New York, known as DTC, or another depositary named by us and identified
in a prospectus supplement with respect to that series. See “LEGAL OWNERSHIP OF SECURITIES” below for a further description
of the terms relating to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for
other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and
ending at the close of business on the day of the mailing; or
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part.
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Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest payment.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that, unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt
securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The
senior indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing
any other secured or unsecured debt.
Existing
Senior and Subordinated Debt
As
of May 10, 2017, we had no existing senior or subordinated debt issued under any indenture.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which
may consist of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series.
Warrants may be offered independently or together with common stock, preferred stock or debt securities offered by any prospectus
supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally
to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants that
we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any
warrants offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will
fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described
in this prospectus at the time of its effectiveness.
We
will issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. The warrant
agent will act solely as an agent of ours in connection with the warrants and will not act as an agent for the holders or beneficial
owners of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate
by reference from a current report on Form 8-K that we file with the SEC, the form of warrant agreement, including a form of warrant
certificate, that describes the terms of the particular series of warrants we are offering before the issuance of the related
series of warrants. The following summaries of material provisions of the warrants and the warrant agreements are subject to,
and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable
to a particular series of warrants. We urge you to read the applicable prospectus supplement and any applicable free writing prospectus
related to the particular series of warrants that we sell under this prospectus, as well as the complete warrant agreements and
warrant certificates that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants, including:
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the
offering price and aggregate number of warrants offered;
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the
currency for which the warrants may be purchased;
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such security;
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in
the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon
such exercise;
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the
terms of any rights to redeem or call the warrants;
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the
dates on which the right to exercise the warrants will commence and expire;
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the
manner in which the warrant agreements and warrants may be modified;
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United
States federal income tax consequences of holding or exercising the warrants;
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the
terms of the securities issuable upon exercise of the warrants; and
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in
the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon
our liquidation, dissolution or winding up or to exercise voting rights, if any.
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Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth
in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities
purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we
will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement,
holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue
of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement
or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us.
Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus. While
the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe
the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally
change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus
at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a current report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series of units
we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions
of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any
combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time
or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
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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;
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any
provisions of the governing unit agreement that differ from those described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The
provisions described in this section, as well as those described under “DESCRIPTION OF CAPITAL STOCK,” “DESCRIPTION
OF DEBT SECURITIES” and “DESCRIPTION OF WARRANTS” will apply to each unit and to any common stock, preferred
stock, debt security or warrant included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship
of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series
of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal
action its rights as holder under any security included in the unit.
We,
the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested,
despite any notice to the contrary. See “LEGAL OWNERSHIP OF 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 or depositary or warrant agent 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, 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. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, 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 global 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 legal holders, of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in 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 or any applicable trustee or depositary 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 or any
such trustee or depositary 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 legal holders,
of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party 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 its 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 an indenture, or for other purposes. In such an event,
we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal
holders contact the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you should check with your own institution to find out:
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how
it handles securities payments and notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the holders’ consent, if ever required;
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whether
and how you can instruct it to send you securities registered in your own name so you can be a legal holder, if that is permitted
in the future;
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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
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if
the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
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Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. 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 issue to, 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, 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 legal 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 legal 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 as a global security, 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 as global securities, an investor should be aware of the following:
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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;
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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 above;
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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;
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an
investor may not be able to pledge his or her interest in the 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;
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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 the 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 the global security. We and the
trustee also do not supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those who purchase and sell interests in the 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
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financial
institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest
in the 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.
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Special
Situations When A Global Security Will Be Terminated
In
a few special situations described below, a 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 names, so that they will be direct holders. We have described the rights of holders and street
name investors above.
A
global security will terminate when the following special situations occur:
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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;
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if
we notify any applicable trustee that we wish to terminate that global security; or
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if
an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
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The
applicable 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
neither we nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered hereby in one or more of the following ways from time to time:
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through
agents to the public or to investors;
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to
underwriters for resale to the public or to investors;
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negotiated
transactions;
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block
trades;
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directly
to investors; or
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through
a combination of any of these methods of sale.
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As
set forth in more detail below, the securities may be distributed from time to time in one or more transactions:
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at
a fixed 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 such prevailing market prices; or
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at
negotiated prices.
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We
will set forth in a prospectus supplement the terms of that particular offering of securities, including:
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the
name or names of any agents or underwriters;
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the
purchase price of the securities being offered and the proceeds we will receive from the sale;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers; and
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any
securities exchanges or markets on which such securities may be listed.
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Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name
of each underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation
of the underwriters and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more investment banking firms or others, as designated.
If an underwriting syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement.
If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their own accounts and may
be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or
at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or reallowed
or paid to dealers may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the obligations
of the underwriters to purchase the offered securities will be subject to conditions precedent and the underwriters will be obligated
to purchase all of the offered securities if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering
price, with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms
of any over-allotment option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will
sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to
be determined by the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified
in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering
and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public
offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers
of the securities for whom they act as agents in the form of discounts, concessions or commissions. Underwriters may sell the
securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that
participate in the distribution of the securities, and any institutional investors or others that purchase securities directly
and then resell the securities, may be deemed to be underwriters, and any discounts or commissions received by them from us and
any profit on the resale of the securities by them may be deemed to be underwriting discounts and commissions under the Securities
Act.
We
may provide agents and underwriters with indemnification against particular civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities.
Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
In
addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities
not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement
indicates, in connection with such a transaction, the third parties may, pursuant to this prospectus and the applicable prospectus
supplement, sell securities covered by this prospectus and the applicable prospectus supplement. If so, the third party may use
securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short
positions. We may also loan or pledge securities covered by this prospectus and the applicable prospectus supplement to third
parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant
to this prospectus and the applicable prospectus supplement. The third party in such sale transactions will be an underwriter
and will be identified in the applicable prospectus supplement or in a post-effective amendment.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In those
circumstances, such persons would cover such over-allotments or short positions by purchasing in the open market or by exercising
the over-allotment option granted to those persons. In addition, those persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to
underwriters or dealers participating in any such offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at
any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions described
above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on The NASDAQ Capital Market. We may elect to list any other class
or series of securities on any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of
the securities.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will
be sold in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not
be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or
qualification requirement is available and complied with.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance
with the Exchange Act or Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the
distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from
a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those
activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue
any of these activities at any time.
Any
underwriters who are qualified market makers on The NASDAQ Capital Market may engage in passive market making transactions in
the securities on The NASDAQ Capital Market in accordance with Rule 103 of Regulation M, during the business day prior to the
pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must
display its bid at a price not in excess of the highest independent bid for such security. If all independent bids are lowered
below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase
limits are exceeded.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by counsel. Additional legal matters may
be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of Dataram Corporation and subsidiaries as of and for the year ended April 30, 2016, incorporated
herein by reference, have been audited by Marcum LLP, independent registered public accounting firm, as set forth in their report,
such report includes an explanatory paragraph as to the Company’s ability to continue as going concern, and are incorporated
by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. The consolidated
financial statements of Dataram Corporation and subsidiaries as of and for the year ended April 30, 2015, incorporated herein
by reference, have been audited by Anton & Chia, LLP, independent registered public accounting firm, as set forth in their
report, such report includes an explanatory paragraph as to the Company’s ability to continue as going concern, and are
incorporated by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s
rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain all the
information that is included in the registration statement. You will find additional information about us in the registration
statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily
complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the
SEC for a more complete understanding of the document or matter.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any materials
we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information
on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our SEC filings are also available to the
public over the Internet at the SEC’s website at http://www.sec.gov. In addition, we make available on or through our Internet
site copies of these reports as soon as reasonably practicable after we electronically file or furnish them to the SEC. Our Internet
website can be found at http://www.dataram.com.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
have filed a registration statement on Form S-3 with the SEC under the Securities Act. This prospectus is part of the registration
statement but the registration statement includes and incorporates by reference additional information and exhibits. The SEC permits
us to “incorporate by reference” the information contained in documents we file with the SEC, which means that we
can disclose important information to you by referring you to those documents rather than by including them in this prospectus.
Information that is incorporated by reference is considered to be part of this prospectus and you should read it with the same
care that you read this prospectus. Information that we file later with the SEC will automatically update and supersede the information
that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus
from the date those documents are filed. We have filed with the SEC, and incorporate by reference in this prospectus:
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Our
Annual Report on Form 10-K for the year ended April 30, 2016 filed with the SEC on July 29, 2016;
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Our
Quarterly Reports on Form 10-Q for the quarterly periods ended July 31, 2016, October 31, 2016 and January 31, 2017, filed
with the SEC on December 15, 2016, September 14, 2016 and March 15, 2017, respectively;
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Our
Current Reports on Form 8-K or Form 8-K/A (excluding any reports or portions thereof that are deemed to be furnished and not
filed) filed with the SEC on June 13, 2016, July 8, 2016, July 27, 2016, August 2, 2016, August 5, 2016, September 15, 2016,
September 23, 2016, November 29, 2016, February 10, 2017, March 24, 2017, April 3, 2017, April 17, 2017, April 25, 2017, and
May 5, 2017;
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Our
joint proxy statement/prospectus filed with the SEC on March 7, 2017; and
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The
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on January 27, 2000,
including any amendment or reports filed for the purpose of updating such description.
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We
also incorporate by reference all additional documents that we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act that are made after the date of the initial registration statement but prior to effectiveness of the registration
statement and after the date of this prospectus but prior to the termination of the offering of the securities covered by this
prospectus. We are not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not
file in accordance with SEC rules.
You
may request, and we will provide you with, a copy of any or all of these filings, at no cost, by calling us at (609) 799-0071
or by writing to us at the following address:
Dataram
Corporation
777
Alexander Road, Suite 100
Princeton,
NJ 08540
1,388,889
Shares of Common Stock
PROSPECTUS
SUPPLEMENT
October
5
, 2017
Laidlaw
& Company (UK) Ltd.
Neither
we nor the underwriter have authorized anyone to provide information different from that contained in this prospectus supplement.
When you make a decision about whether to invest in our common stock, you should not rely upon any information other than the
information in this prospectus supplement. Neither the delivery of this prospectus supplement nor the sale of shares of our common
stock means that information contained in this prospectus supplement is correct after the date of this prospectus supplement.
This prospectus supplement is not an offer to sell or solicitation of an offer to buy shares of our common stock in any circumstances
under which the offer or solicitation is unlawful.
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