As filed with the Securities and Exchange Commission on June 30, 2017
 
Registration No. 333-218116
 

 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM S-3/A
(Amendment No. 1)
 
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
 
BRIDGELINE DIGITAL, INC.
 (Exact Name of Registrant as Specified in Its Charter)
 
Delaware
 
52-2263942
(State or Other Jurisdiction of
Incorporation or Organization)
 
(I.R.S. Employer
Identification Number)
 
80 Blanchard Road
Burlington, MA 01803
(781) 376-5555
 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
 
 
Michael D. Prinn
Chief Financial Officer
Bridgeline Digital, Inc.
80 Blanchard Road
Burlington, MA 01803
(781) 376-5555
 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
 
Copies to
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group, a Professional Corporation
600 West Broadway, Suite 700
San Diego, CA 92101
(619) 272-7050
 
Approximate date of commencement of proposed sale to the public : From time to time after this registration statement becomes effective, as determined by market conditions and other factors.
 
 
 
 
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.   ☐
 
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  ☒
 
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ☐
 
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ☐
 
If this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.   ☐
 
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.   ☐
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting 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. (Check one):
 
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 13(a) of the Exchange Act. [  ]
 
 

 
 
 
Explanatory Note
 
Bridgeline Digital, Inc. is hereby filing this Pre-Effective Amendment No. 1 to the Registration Statement on Form S-3 (Registration No. 333-218116), originally filed on May 19, 2017 (the “ Registration Statement ”), as an exhibit-only filing to file an opinion of Disclosure Law Group, a Professional Corporation, filed herewith as Exhibit 5.1 (the “ Opinion ”), as well as an updated consent from Marcum LLP, the Company's independent registered public accounting firm (together with the Opinion, the " Exhibits "). Accordingly, this Pre-Effective Amendment No. 1 consists only of the facing page, this explanatory note, Item 16 of Part II of the Registration Statement, the signature page to the Registration Statement, and the Exhibits filed herewith as Exhibits 5.1 and 23.1, respectively. The prospectus and the balance of Part II of the Registration Statement are unchanged and have been omitted.
 
 
 
 
 
 
 
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
  
ITEM 16.  EXHIBITS
 
1.1*
Form of Underwriting Agreement
1.2*
Form of Placement Agent Agreement
4.1*
Form of any certificate of designation with respect to any preferred stock issued hereunder and the related form of preferred stock certificate
4.2*
Form of any warrant agreement with respect to each particular series of warrants issued hereunder
4.3*
Form of any unit agreement with respect to any unit issued hereunder
5.1+
Opinion of Disclosure Law Group, a Professional Corporation
12.1*
Computation of Ratio of Earnings to Fixed Charges
23.1+
Consent of Independent Registered Public Accounting Firm – Marcum LLP
23.2+
Consent of Disclosure Law Group, a Professional Corporation (included as part of Exhibit 5.1)
24
Power of Attorney (included on signature page of the Registration Statement on Form S-3, filed May 19, 2017)
 
*
To be filed, if necessary, subsequent to the effectiveness of this registration by an amendment to this registration statement or incorporation by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities.
+
 
Filed herewith
 
 
 
 
 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Burlington, Massachusetts on June 30, 2017.
 
 
BRIDGELINE DIGITAL, INC.
 
 
 
 
By:
/s/ Roger Kahn
 
 
Roger Kahn
 
 
President and Chief Executive Officer
(Principal Executive Officer) 
 
 
 
POWER OF ATTORNEY
  
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
 
Signature
 
Title
 
Date
 
 
 
 
 
/s/ *
 
President and Chief Executive Officer
 
June 30, 2017
 Roger Kahn
 
(Principal Executive Officer) 
 
 
 
 
 
 
 
/s/ *
 
Executive Vice-President and
 
June 30, 2017
Michael Prinn
 
Chief Financial Officer
(Principal Financial Officer)
 
 
 
 
 
 
 
/s/ *
 
Director
 
June 30, 2017
Kenneth Galaznik
 
 
 
 
 
 
 
 
 
 
/s/ *
 
Director
 
June 30, 2017
Joni Kahn
 
 
 
 
 
 
 
 
 
  /s/ *
 
Director
 
June 30, 2017
Scott Landers
 
 
 
 
 
 
 
 
 
  /s/ *
 
Director
 
June 30, 2017
Michael Taglich
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
* By
/s/ Roger Kahn
 
Roger Kahn, Attorney-in-Fact
 
June 30, 2017
 
 
 
 
Exhibit 5.1
 
 
 
 
June 30, 2017
 
Bridgeline Digital, Inc.
80 Blanchard Road
Burlington, MA 01803
 
Re:    Registration Statement on Form S-3
 
Ladies and Gentlemen:
 
We are acting as counsel for Bridgeline Digital, Inc., a Delaware corporation (the “ Company ”), in connection with the filing on the date hereof of Amendment No. 1 to a Registration Statement on Form S-3 relating to the registration under the Securities Act of 1933 (the “ Act ”) of the following securities of the Company having an aggregate public offering price of up to $10,000,000: (i) shares (the “ Shares ”) of common stock, par value $0.001 per share (“ Common Stock ”), (ii) shares of preferred stock, par value $0.001 per share (“ Preferred Stock ”), in one or more series, (iii) warrants to purchase Common Stock or Preferred Stock or any combination thereof (“ Warrants ”), and (iv) units consisting of one or more shares of common stock, shares of preferred stock, warrants or any combination of such securities (as defined below) (“ Units ”). The Shares, Preferred Stock, Warrants and Units are collectively referred to herein as the “ Securities .” The Securities shall include any additional amounts of such securities the offer and sale of which are registered pursuant to a registration statement filed pursuant to Rule 462(b) under the Act in connection with one or more offerings contemplated by such Registration Statement. Such Registration Statement, as amended, and including any registration statement related thereto and filed pursuant to Rule 462(b) under the Act, is herein referred to as the “ Registration Statement .”
 
The Securities may be offered and sold from time to time by the Company as set forth in the Registration Statement, the prospectus contained within the Registration Statement (the “ Prospectus ”), and supplements to the Prospectus (each, a “ Prospectus Supplement ”). The Warrants may be issued under one or more warrant agreements (each, a “ Warrant Agreement ”) by and between the Company and a bank or trust company to be identified therein as warrant agent. The Units may be issued under one or more unit agreements (each, a “ Unit Agreement ”) between the Company and a third party to be identified therein as unit agent. Each Warrant Agreement and each Unit Agreement are herein collectively called the “ Agreements .”
 
We have reviewed the Registration Statement and such other agreements, documents, records, certificates and other materials, and have reviewed and are familiar with such corporate proceedings and satisfied ourselves as to such other matters, as we have considered relevant or necessary as a basis for this opinion. In such review, we have assumed the accuracy and completeness of all agreements, documents, records, certificates and other materials submitted to us, the conformity with the originals of all such materials submitted to us as copies (whether or not certified and including facsimiles), the authenticity of the originals of such materials and all materials submitted to us as originals, the genuineness of all signatures and the legal capacity of all natural persons.
 
On the basis of the assumptions and subject to the qualifications and limitations set forth herein, we are of the opinion that:
 
 
1.
When an issuance of the Shares has been duly authorized by all necessary corporate action of the Company, upon issuance, delivery and payment therefor in an amount not less than the par value thereof in the manner contemplated by the Registration Statement and/or the Prospectus and related Prospectus Supplement(s) and by such corporate action, such Shares will be validly issued, fully paid and nonassessable.
 
 
2.
When a series of Preferred Stock has been duly established in accordance with the terms of the Company’s Amended and Restated Certificate of Incorporation, as amended (the “ Certificate of Incorporation ”) and authorized by all necessary corporate action of the Company, and upon issuance, delivery and payment therefor in the manner contemplated by the Registration Statement and/or the Prospectus and related Prospectus Supplement(s) and by such corporate action, such shares of such series of Preferred Stock will be validly issued, fully paid and nonassessable.
 
 
 
 
 
 
3.
When a Warrant Agreement has been duly authorized by all necessary corporate action of the Company and duly executed and delivered, and when the specific terms of a particular issuance of Warrants have been duly established in accordance with such Warrant Agreement and authorized by all necessary corporate action of the Company, and the Warrants have been duly executed, authenticated, issued and delivered against payment therefor in accordance with such Warrant Agreement and in the manner contemplated by the Registration Statement and/or the Prospectus and related Prospectus Supplement(s) and by such corporate action (assuming the securities issuable upon exercise of the Warrants have been duly authorized and reserved for issuance by all necessary corporate action), the Warrants will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
 
 
4.
When a Unit Agreement has been duly authorized by all necessary corporate action of the Company and duly executed and delivered, and when the specific terms of a particular issuance of Units have been duly established in accordance with such Unit Agreement and authorized by all necessary corporate action of the Company, and the Units have been duly executed, authenticated, issued and delivered against payment therefor in accordance with such Unit Agreement and in the manner contemplated by the Registration Statement and/or the Prospectus and related Prospectus Supplement(s) and by such corporate action (assuming the constituent securities of the Units have been duly authorized and reserved for issuance by all necessary corporate action), the Units will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
     
Our opinions set forth above are subject to and limited by the effect of (a) applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, receivership, conservatorship, arrangement, moratorium and other laws affecting and relating to the rights of creditors generally, (b) general equitable principles and (c) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief and limitation of rights of acceleration, regardless of whether such enforceability is considered in a proceeding in equity or at law.
 
In connection with the opinions expressed above, we have assumed that at or prior to the time of the delivery of any of the Securities (a) the Registration Statement, and any amendments thereto (including post-effective amendments), will have been declared effective under the Act and a Prospectus Supplement relating to the offer and sale of such Securities to the Prospectus will have been prepared and filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Act, (b) in the case of the issuance of the Shares or the Preferred Stock, the Company will have a sufficient number of authorized but unissued shares thereof under the Certificate of Incorporation at the time of such issuance, (c) the Board shall not have rescinded or otherwise modified the authorization of such Securities, (d) that a definitive purchase, underwriting or similar agreement, including any Agreements, with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto and (e) that any Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise (f) neither the establishment of any terms of such Securities after the date hereof nor the issuance and delivery of, or the performance of the Company’s obligations under, such Securities will require any authorization, consent, approval or license of or exemption from, or registration or filing with, or report or notice to, any governmental unit, agency, commission, department or other authority (a “ Governmental Approval ”) or violate or conflict with, result in a breach of, or constitute a default under, (i) any agreement or instrument to which the Company or any of its affiliates is a party or by which the Company or any of its affiliates or any of their respective properties may be bound, (ii) any Governmental Approval that may be applicable to the Company or any of its affiliates or any of their respective properties, (iii) any order, decision, judgment or decree that may be applicable to the Company or any of its affiliates or any of their respective properties or (iv) any applicable law (other than the federal laws of the United States of America and the General Corporation Law of the State of Delaware, in each case as in effect on the date hereof).
 
 
 
 
 
The opinions set forth in this letter are limited to the federal laws of the United States of America and the General Corporation Law of the State of Delaware, in each case as in effect on the date hereof.
 
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Registration Statement and in the Prospectus forming a part thereof and any supplement thereto. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
 
Very truly yours,
 
/s/ Disclosure Law Group
Disclosure Law Group, a Professional Corporation
 
 
 
 
 
 
Exhibit 23.1

INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
 
We consent to the incorporation by reference in this Registration Statement of Bridgeline Digital, Inc. on Form S-3/A Amendment #1 of our report dated December 16, 2016, with respect to our audits of the consolidated financial statements of Bridgeline Digital, Inc. as of September 30, 2016 and 2015 and for the years then ended appearing in the Annual Report on Form 10-K of Bridgeline Digital, Inc. for the year ended September 30, 2016. We also consent to the reference to our firm under the heading “Experts” in the Prospectus, which is part of this Registration Statement.
 
/s/ Marcum  llp
 
Marcum  llp
Boston, Massachusetts
June 30, 2017