S-3ASR 1 nt10023917x1_s3asr.htm S-3ASR

As filed with the Securities and Exchange Commission on May 6, 2021

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

TILRAY, INC.

(Exact name of registrant as specified in its charter)

Delaware (State or other jurisdiction of incorporation or organization)			82-4310622 (I.R.S. Employer Identification Number)
745 Fifth Avenue, Suite 1602 New York, NY 10151 (519) 322-8800 (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) APHRIA INC. (Exact name of registrant as specified in its charter)

Ontario, Canada (State or other jurisdiction of incorporation or organization)			Not Applicable (I.R.S. Employer Identification Number)
98 Talbot Street West Leamington, ON, Canada N8H 1M8 (844) 427-4742 (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Irwin Simon

President and Chief Executive Officer

Tilray, Inc.

745 Fifth Avenue, Suite 1602

New York, NY 10151

(519) 322-8800

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Dara Redler

General Counsel & Corporate Secretary

Tilray, Inc.

745 Fifth Avenue, Suite 1602

New York, NY 10151

(519) 322-8800

Christopher P. Giordano

Jon Venick

Stephen P. Alicanti

DLA Piper LLP (US)

1251 Avenue of the Americas

New York, NY 10020

(212) 335-4500

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☒	Accelerated filer	☐
Non-accelerated filer	☐	Smaller reporting company	☐
		Emerging growth company	☐

If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities to be Registered	Amount to be Registered⁽¹⁾	Proposed Maximum Offering Price	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Tilray, Inc.
Primary Offering:
Class 2 Common Stock, par value $0.0001 per share	5,885,534⁽²⁾	$9.08 ⁽³⁾	$52,910,950⁽³⁾	$5,773
Secondary Offering:
Class 2 Common Stock, par value $0.0001 per share, issuable upon exercise of the 5.25% Convertible Senior Notes due 2024, issued by Aphria Inc.	(4)(5)	(4)(5)	(4)(5)	(6)
Class 2 Common Stock, par value $0.0001 per share	(4)	(4)	(4)	(7)
Class 2 Common Stock, par value $0.0001 per share	8,320,457 ⁽⁸⁾	$18.28 ⁽⁹⁾	$152,056,352⁽³⁾	$16,590
Guarantee of 5.25% Convertible Senior Notes due 2024, issued by Aphria Inc.	—	—	—	(10)
Aphria Inc.
Secondary Offering:
5.25% Convertible Senior Notes due 2024, issued by Aphria Inc.	(4)	(4)	(4)	(7)
Total	14,205,991	—	$204,967,302	$22,361.93

(1)	The securities that may be offered pursuant to this Registration Statement include, pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), such additional number of securities as may become issuable as a result of any stock split, stock dividend or similar event.

(2)

Represents the number of shares of Class 2 common stock, par value $0.0001 per share (“Tilray Common Stock”), of Tilray, Inc. (“Tilray”) issuable upon the exercise of certain warrants originally issued by its wholly-owned subsidiary, Aphria Inc. (“Aphria”), in January 2020, as part of units issued by Aphria. The issuance of the aforementioned Aphria units, and the issuance of the shares underlying the Aphria Warrants, were previously registered under the Securities Act pursuant to registration statements on Form F-10 filed by Aphria (File Nos. 333-250195 and 333-233426) (collectively, the “Prior Registration Statement”) prior to the consummation of the Arrangement (as defined below).

(3)	Represents the U.S. dollar equivalent of the exercise price of the warrants for one whole share of Tilray Common Stock calculated using the noon-buying rate of one Canadian dollar to $1.2291 U.S. dollars, as announced by the Federal Reserve on April 30, 2021.

(4)	Omitted pursuant to General Instruction II.E of Form S-3.

(5)

Represents shares of Tilray Common Stock issuable upon conversion of the 5.25% Convertible Senior Notes due 2024, which were issued by Aphria in April 2019 (the “Aphria Notes”). Each $1,000 principal amount of the Aphria Notes may be converted into 89.31162364 shares of common stock, subject to adjustments. Aphria had maintained the Prior Registration Statement to provide for, among other things, the resale of the Aphria Notes and underlying shares of Tilray Common Stock, in each case under the Securities Act and upon request of such securityholders.

(6)	No separate consideration will be received for the shares of common stock issuable upon conversion of the Aphria Notes, and, therefore, no registration fee is required pursuant to Rule 457(i) under the Securities Act.

(7)	Pursuant to Rules 456(b) and 457(r), the Registrant is deferring payment of all applicable registration fees.

(8)	Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(c) under the Securities Act based on the average of the high and low price per share of Tilray Common Stock on April 29, 2021, as reported on The Nasdaq Global Select Market.

(9)

Represents 8,061,658 shares of Tilray Common Stock originally issued by Aphria (as common shares of Aphria) in November 2020 to certain individuals and entities in connection with an agreement of merger and acquisition, dated November 4, 2020, between, among others, Aphria and SW Brewing Company, LLC (the “SweetWater transaction”) and 258,799 shares of Tilray Common Stock issued by Tilray in April 2021 in a private transaction. The resale of the shares issued in connection with the SweetWater transaction was previously registered under the Prior Registration Statement.

(10)	The Aphria Notes are guaranteed by Tilray, Inc. No separate consideration has been or will be received for the guarantee. Pursuant to Rule 457(n) under the Securities Act, there is no filing fee with respect to the guarantee.


TILRAY, INC. Class 2 Common Stock Guarantee of 5.25% Convertible Senior Notes due 2024, issued by Aphria Inc., by Tilray, Inc.			APHRIA INC. 5.25% Convertible Senior Notes due 2024

ABOUT THIS PROSPECTUS			ii
PROSPECTUS SUMMARY			1
RISK FACTORS			4
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS			13
USE OF PROCEEDS			15
DESCRIPTION OF CAPITAL STOCK			16
DESCRIPTION OF CONVERTIBLE NOTES			19
DESCRIPTION OF GUARANTEE			57
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS			59
CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS			67
SELLING SECURITYHOLDERS			70
PLAN OF DISTRIBUTION			72
LEGAL MATTERS			75
EXPERTS			75
WHERE YOU CAN FIND MORE INFORMATION			75
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE			76

SEC Form S-3ASR filed by Aphria Inc.