As filed with the Securities and Exchange
Commission on November 13, 2019
Registration No. 333-
UNITED
STATES
securities
and exchange commission
Washington, D.C. 20549
form
s-1
Registration Statement Under The Securities
Act of 1933
Applied
DNA Sciences, Inc.
(Exact name of Registrant as specified in
its charter)
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Delaware
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7380
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59-2262718
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(State or other jurisdiction
of incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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50 Health Sciences Drive
Stony Brook, New York 11790
(631) 240-8800
(Address, including zip code, and telephone
number, including area code, of Registrant’s principal executive offices)
James A. Hayward, Ph.D., Sc.D.
Chairman, Chief Executive Officer and
President
Applied DNA Sciences, Inc.
50 Health Sciences Drive
Stony Brook, New York 11790
(631) 240-8801
(Name, address, including zip code, and
telephone
number, including area code, of agent for service)
COPIES TO:
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Merrill M. Kraines, Esq.
Pepper Hamilton LLP
The New York Times Building
620 Eighth Avenue, 37th Floor
New York, NY 10018-1405
(212) 808-2711
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Alexander R. McClean, Esq.
Harter Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
(585) 232-6500
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Approximate date of commencement of proposed
sale to the public:
As soon as practicable after this Registration
Statement becomes effective.
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, check the following box. x
If this Form is filed
to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering
x 333-233830
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, 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(d) 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. ¨
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
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Smaller reporting company
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x
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Emerging Growth Company
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¨
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If an emerging growth
company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided in Section 7(a)(2)(B) of the Securities Act. ¨
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered(1)
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Proposed Maximum
Aggregate Offering
Price(2)
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Amount of
Registration Fee
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Common stock, $0.001 par value per share
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$
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2,300,0000
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(3) (4)
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$
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298.54
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Pre-funded warrants to purchase shares of common stock and shares of common stock issuable upon exercise of the pre-funded warrants
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$
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2,000,000
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(4)
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$
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259.60
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Common warrants to purchase shares of common stock and shares of common stock issuable upon exercise of the common warrants
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$
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2,300,0000
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(3) (5)
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$
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298.54
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Total
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$
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6,600,000
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$
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856.68
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(1)
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Represents only the additional number of shares of common stock, common warrants, pre-funded warrants,
and shares of common stock issuable upon exercise of the common warrants and pre-funded warrants being registered and includes
shares of common stock issuable upon exercise of the option of the representative of the underwriters to purchase additional shares
of common stock and/or common warrants. This does not include the securities that the Registrant previously registered on the Registration
Statement on Form S-1, as amended (File No. 333-233830). Pursuant to Rule 416, the securities being registered hereunder include
such indeterminate number of additional securities as may be issuable to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(o) under the Securities Act.
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(3)
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Includes the offering price of additional securities that the representative of the underwriters has the option to purchase to cover over-allotments, if any.
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(4)
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The proposed maximum offering price of the common stock registered pursuant to this registration statement (excluding any securities the representative of the underwriters has the option to purchase from the registrant) will be reduced on a dollar-for-dollar basis based on the offering price of any pre-funded warrants offered and sold in the offering, and as such the proposed maximum aggregate offering price of the common stock and pre-funded warrants (excluding any securities the representative of the underwriters has the option to purchase from the registrant but including the common stock issuable upon exercise of the pre-funded warrants), if any, will remain at $2,000,000.
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(5)
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The common warrants are exercisable at a per share exercise price equal to 100% of the public offering price. For purposes of calculating the registration fee, the proposed maximum aggregate public offering price of the common warrants being registered pursuant to this registration statement was calculated to be $2,300,000, which is equal to 100% of $2,300,000.
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The Registration Statement shall become effective upon filing
with the Securities and Exchange Commission in accordance with Rule 462(b) under the Securities Act of 1933, as amended.
EXPLANATORY NOTE
This registration statement is being filed with respect to the registration of additional shares of common
stock, pre-funded warrants and common warrants (collectively, the “Securities”) of Applied DNA Sciences, Inc., a Delaware
corporation, pursuant to Rule 462(b) under the Securities Act of 1933, as amended. The contents of the registration statement on
Form S-1 (333-233830), initially filed by Applied DNA Sciences, Inc. with the Securities and Exchange Commission (the “Commission”)
on September 18, 2019, as amended by Pre-Effective Amendment No. 1, as filed with the Commission on October 25, 2019, Pre-Effective
Amendment No. 2, as filed with the Commission on November 1, 2019 and Pre- Effective Amendment No. 3, as filed with the Commission
on November 8, 2019, which was declared effective on November 13, 2019, including all exhibits thereto (collectively, the “Prior
Registration Statement”), are incorporated herein by reference. The additional Securities that are being registered for issuance
and sale are in an amount and at a price that together represent no more than 20% of the maximum aggregate offering price set forth
in the Calculation of Registration Fee table contained in the Prior Registration Statement. The contents of the Prior Registration
Statement, including all amendments and exhibits thereto, are incorporated by reference herein.
The required opinion and consents are
listed on the exhibit index attached hereto and filed herewith.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item
16.
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Exhibits
and Financial Statement Schedules.
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(a) Exhibits. All exhibits
filed with or incorporated by reference in the Registration Statement on Form S-1 (SEC File No. 333-233830) are incorporated
by reference into, and shall be deemed a part of, this registration statement, and the following additional exhibits are filed
herewith, as part of this registration statement:
EXHIBIT INDEX
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*
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Filed herewith.
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**
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Previously filed.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Stony Brook, State of New York, on November 13, 2019.
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APPLIED DNA SCIENCES, INC.
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By:
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/s/ James A. Hayward
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James A. Hayward
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/ James A. Hayward
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President, Chairman of the Board of Directors and Director
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November 13, 2019
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James A. Hayward
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Chief Executive Officer (Principal Executive Officer)
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/s/ Beth Jantzen
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Chief Financial Officer
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November 13, 2019
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Beth M. Jantzen
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(Principal Financial Officer and Principal Accounting Officer)
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/s/ *
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Director
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November 13, 2019
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Scott L. Anchin
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/s/ *
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Director
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November 13, 2019
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John Bitzer, III
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/s/ *
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Director
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November 13, 2019
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Robert Catell
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/s/ *
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Director
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November 13, 2019
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Joseph D. Ceccoli
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/s/ *
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Director
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November 13, 2019
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Yacov A. Shamash
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/s/ *
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Director
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November 13, 2019
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Sanford R. Simon
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/s/ *
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Director
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November 13, 2019
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Elizabeth M. Schmalz Ferguson
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*By:
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/s/ Beth Jantzen
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Beth M. Jantzen
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Attorney-in-Fact
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EXHIBIT INDEX
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*
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Filed herewith.
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**
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Previously filed.
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Exhibit 5.1
The New York Times Building
37th Floor
620 Eighth Avenue
New York, NY 10018-1405
212.808.2700
Fax 212.286.9806
November 13, 2019
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Applied DNA Sciences, Inc.
50
Health Sciences Drive
Stony Brook, NY 11790
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Re:
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Registration Statement for Additional Shares Filed
Under Rule 462(b)
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Ladies and Gentlemen:
We have acted as counsel to Applied DNA Sciences,
Inc., a Delaware corporation (the “Company”), in connection with the preparation of the Registration
Statement on Form S-1 filed by the Company with the Securities and Exchange Commission (the “Commission”)
on November 13, 2019 (as amended, the “Registration Statement”) pursuant to the requirements of Rule
462(b) of the Securities Act of 1933, as amended (the “Act”). The Registration Statement incorporates
by reference the Registration Statement filed by the Company on September 18, 2019, as amended by Pre-Effective Amendment No.
1 filed with the Commission on October 25, 2019, Pre-Effective Amendment No. 2 filed with the Commission on November 1, 2019,
and Pre-Effective Amendment No. 3 filed with the Commission on November 8, 2019 (as amended, the “Original Registration
Statement”, File No. 333-233830). The Registration Statement relates to the registration under the Act (the “Offering”)
of (i) up to an additional $2.3 million of shares (including up to $300,000 of shares for the purpose of covering over-allotments)
(the “Common Shares”) of the Company’s common stock, par value $0.001 per share (the “Common
Stock”), (ii) up to an additional $2.3 million of warrants to purchase shares of Common Stock (including up to $300,000
of warrants for the purpose of covering over-allotments) (the “Common Warrants”), (iii) up to an additional
$2.0 million of warrants to purchase shares of Common Stock at an exercise price equal to $0.01 per share (the “Pre-Funded
Warrants”), and (iv) up to an additional $4.3 million of shares of Common Stock underlying the Common Warrants and
Pre-Funded Warrants (including up to $300,000 of shares of Common Stock underlying the Common Warrants for the purpose of covering
over-allotments) (the “Warrant Shares”), in an underwritten public offering pursuant to an underwriting
agreement (the “Underwriting Agreement”) substantially in the form filed as an exhibit to the Original
Registration Statement to be entered into by and between the Company and Maxim Group LLC, as representative of the underwriters
listed in Schedule I thereto. The Common Shares, the Common Warrants, the Pre-Funded Warrants and the Warrant Shares are hereinafter
referred to collectively as the “Securities.”
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Philadelphia
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Boston
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Washington,
D.C.
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Los
Angeles
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New
York
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Pittsburgh
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Detroit
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Berwyn
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Harrisburg
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Orange
County
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Princeton
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Silicon
Valley
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Wilmington
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www.pepperlaw.com
Applied DNA Sciences, Inc.
November 13, 2019
Page 2
In our capacity as counsel, you have requested
that we render the opinions set forth in this letter and we are furnishing this opinion letter to you pursuant to the requirements
of Item 601(b)(5) of Regulation S-K under the Act.
In connection herewith, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement as filed with the
Commission, (ii) the form of Underwriting Agreement filed as Exhibit 1.1 to the Original Registration Statement, (iii) the form
of Warrant Agreement filed as Exhibit 4.1 to the Original Registration Statement (the “Warrant Agreement”),
(iv) the form of common warrant certificate filed as Exhibit 4.2 to the Original Registration Statement, (v) the form of pre-funded
warrant filed as Exhibit 4.3 to the Original Registration Statement, (vi) the
Company’s certificate of incorporation, as amended to date, (vii) the Company’s amended and restated bylaws, as amended
to date, (viii) resolutions of the board of directors of the Company (the “Board”) relating
to the Offering and (ix) such other documents as we have deemed necessary or appropriate for purposes of rendering the opinion
set forth herein.
In rendering the opinions set forth below,
we have assumed that (i) all information contained in all documents reviewed by us is true and correct; (ii) all signatures on
all documents examined by us are genuine; (iii) all documents submitted to us as originals are authentic and all documents submitted
to us as copies conform to the originals of those documents; and (iv) any certificates representing securities to be issued pursuant
to the Offering, as applicable, will be duly executed and delivered. As to any facts material to the opinions expressed herein,
which were not independently established or verified, we have relied upon statements and representations of officers and other
representatives of the Company and others.
Based upon the foregoing, and having due regard
for such legal considerations as we deem relevant, we are of the opinion that:
1. The
Common Shares have been duly authorized and, when issued and delivered by the Company in accordance with and in the manner described
in the Original Registration Statement and the terms of the Underwriting Agreement and upon receipt by the Company of the consideration
therefor provided therein, will be validly issued, fully paid and non-assessable;
2. The
Pre-Funded Warrants have been duly authorized and, when duly executed and delivered by the Company in accordance with and in the
manner described in the Original Registration Statement and the terms of the Underwriting Agreement and upon receipt by the Company
of the consideration therefor provided therein, will constitute valid and binding agreements of the Company under the laws of Delaware
enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, arrangement,
fraudulent conveyance, moratorium and similar laws affecting creditors’ rights generally and equitable principles of general
applicability;
Applied DNA Sciences, Inc.
November 13, 2019
Page 3
3. The
Common Warrants have been duly authorized and, when duly executed and delivered by the Company in accordance with and in the manner
described in the Original Registration Statement, the terms of the Warrant Agreement and the Underwriting Agreement and upon receipt
by the Company of the consideration therefor provided therein, will constitute valid and binding agreements of the Company under
the laws of Delaware enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium and similar laws affecting creditors’ rights generally and
equitable principles of general applicability; and
4. The
Warrant Shares have been duly authorized and, if issued upon exercise of the Common Warrants or the Pre-Funded Warrants against
payment therefor in accordance with the terms of the Common Warrants or the Pre-Funded Warrants, as applicable, would be validly
issued, fully paid and nonassessable.
The foregoing opinions are limited to the
substantive laws of the State of Delaware and we do not express any opinion herein concerning any other law. We express no opinion
as to compliance with any federal or state securities laws, including the securities laws of the State of Delaware or as to federal
or state laws regarding fraudulent transfers. We assume no obligation to supplement this opinion if any applicable law changes
after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
We hereby consent to the filing of this opinion
as a part of the Registration Statement and to the reference of our firm under the caption “Legal Matters” in the Original
Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of the Commission.
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Very truly yours,
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/s/ Pepper Hamilton LLP
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Pepper Hamilton LLP
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