As filed with the Securities and Exchange Commission on May 19,
2017
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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.
[ ]
CALCULATION OF REGISTRATION
FEE
|
Title of each class of securities to
be registered
|
Amount to be Registered
|
Proposed
Maximum Offering Price Per Unit
|
Proposed Maximum Aggregate
Offering
Price
|
Amount of
Registration
Fee (3)
|
|
Common
Stock, par value $0.001 per share
|
(1)
|
(2)
|
(2)
|
$—
|
|
Preferred
Stock, par value $0.001 per share
|
(1)
|
(2)
|
(2)
|
—
|
|
Warrants
|
(1)
|
(2)
|
(2)
|
—
|
|
Units
|
(1)
|
(2)
|
(2)
|
—
|
|
Total
|
(1)
|
(2)
|
$10,000,000
|
$1,159.00
|
(1)
There are being registered hereunder such
indeterminate number of shares of common stock and preferred stock,
and such indeterminate number of warrants and units as shall have
an aggregate offering price not to exceed $10,000,000. Any
securities registered hereunder may be sold separately or as units
with other securities registered hereunder. The securities
registered also include such indeterminate number of shares of
common stock and preferred stock as may be issued upon conversion
of or exchange for shares of preferred stock that provide for
conversion or exchange, upon exercise of warrants or pursuant to
the anti-dilution provisions of any such securities. In addition,
pursuant to Rule 416 under the Securities Act of 1933, as amended
(the “Securities
Act”), the shares being
registered hereunder include such indeterminate number of shares of
common stock and preferred stock as may be issuable with respect to
the shares being registered hereunder as a result of stock splits,
stock dividends or similar transactions.
(2)
The proposed maximum aggregate offering price per class of security
will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder and is not specified as to each class of
security.
(3)
Calculated
pursuant to Rule 457(o) under the Securities
Act.
The Registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said section 8(a),
may determine.
-i-
|
|
|
|
|
|
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
|
|
|
|
|
|
|
PRELIMINARY PROSPECTUS
|
SUBJECT TO COMPLETION
|
DATED MAY 19, 2017
|
PRELIMINARY PROSPECTUS
$10,000,000
Common Stock
Preferred Stock
Warrants
Units
From
time to time, we may offer and sell, in one or more offerings, up
to $10,000,000 of any combination of the securities described in
this prospectus. We may also offer securities as may be issuable
upon conversion, redemption, repurchase, exchange or exercise of
any securities registered hereunder, including any applicable
anti-dilution provisions.
This prospectus provides a general description of the securities we
may offer from time to time. Each time we offer securities, we will
provide specific terms of the securities offered in a supplement to
this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with an offering.
The prospectus supplement and any related free writing prospectus
may also add, update or change information contained in this
prospectus. You should carefully read this prospectus, the
applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference,
before you invest in any of the securities being
offered.
Our common stock is quoted on The NASDAQ Capital
Market under the symbol “BLIN”. The last reported sale
price of our common stock on May 18, 2017 was $0.69 per share.
We may offer and sell our securities to or through
one or more agents, underwriters, dealers or other third parties or
directly to one or more purchasers on a continuous or delayed
basis. If agents, underwriters or dealers are used to sell our
securities, we will name them and describe their compensation in a
prospectus supplement. The price to the public of our securities
and the net proceeds we expect to receive from the sale of such
securities will also be set forth in a prospectus supplement. For
additional information on the methods of sale, you should refer to
the section entitled “Plan of
Distribution” in this
prospectus.
As of May 18, 2017, the aggregate market value of our
outstanding common stock held by non-affiliates was approximately
$9,899,926, which was
calculated based on 14,776,009 shares of outstanding common stock held by
non-affiliates, at a price per share of $0.67. Pursuant to General Instruction I.B.6 of Form
S-3, in no event will we sell the securities described in this
prospectus in a public primary offering with a value exceeding more
than one-third (1/3) of the aggregate market value of our common
stock held by non-affiliates in any twelve (12)-month period, so
long as the aggregate market value of our outstanding common stock
held by non-affiliates remains below $75 million. During the twelve
(12) calendar months prior to and including the date of this
prospectus, we have not offered or sold any securities pursuant to
General Instruction I.B.6 of Form S-3.
-ii-
Our business and investing in our securities involves significant
risks. You should review carefully the risks and uncertainties
referenced under the heading “Risk
Factors” on page 3 of
this prospectus, as well as those contained in the applicable
prospectus supplement and any related free writing prospectus, and
in the other documents that are incorporated by reference into this
prospectus or 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. Any representation to the contrary is a criminal
offense.
The date of this prospectus is [_________], 2017
-iii-
Bridgeline Digital, Inc.
TABLE OF CONTENTS
|
|
|
|
|
|
|
PAGE
|
|
|
|
|
|
|
1
|
|
|
|
|
|
| Company Overview |
|
2
|
|
|
|
|
|
|
3
|
|
|
|
|
|
|
|
4
|
|
|
|
|
|
| Ratio of Earnings to Fixed Charges |
|
5
|
|
|
|
|
| Use Of Proceeds |
|
6
|
|
|
|
|
|
|
7
|
|
|
|
|
|
|
|
15
|
|
|
|
|
|
|
|
17
|
|
|
|
|
|
|
|
17
|
|
|
|
|
|
|
|
17
|
|
|
|
|
|
|
|
17
|
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement filed with the Securities and Exchange Commission
(the “SEC”), using a “shelf” registration
process. Under this shelf registration process, we may
sell the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities which may be offered. Each
time we offer securities for sale, we will provide a prospectus
supplement that contains information about the specific terms of
that offering. Any prospectus supplement may also add or update
information contained in this prospectus. You should
read both this prospectus and any prospectus supplement together
with additional information described below under
“Where You Can Find More
Information” and
“Incorporation of Certain
Information by Reference.”
You
should rely only on the information contained or incorporated by
reference in this prospectus, and in any prospectus
supplement. We have not authorized any other person to
provide you with different information. If anyone
provides you with different or inconsistent information, you should
not rely on it. We are not making offers to sell or
solicitations to buy the securities described in this prospectus in
any jurisdiction in which an offer or solicitation is not
authorized, 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
not assume that the information in this prospectus or any
prospectus supplement, as well as the information we file or
previously filed with the SEC that we incorporate by reference in
this prospectus or any prospectus supplement, is accurate as of any
date other than its respective date. Our business,
financial condition, results of operations and prospects may have
changed since those dates.
This prospectus contains summaries of certain
provisions contained in some of the documents described herein, but
reference is made to the actual documents for complete information.
All of the summaries are qualified in their entirety by the actual
documents. Copies of some of the documents referred to herein have
been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is
a part, and you may obtain copies of those documents as described
below under the heading “Where You Can Find More
Information”.
This summary highlights information
contained elsewhere in this prospectus. This summary does not
contain all the information you should consider before buying our
common stock. You should read the following summary together with
the more detailed information appearing in this prospectus,
including the section titled “Risk Factors” on
page 3, before deciding whether
to purchase our securities.
All brand names or trademarks appearing in this report are the
property of their respective holders. Unless the context requires
otherwise, references in this report to “Bridgeline,”
the “Company,” “we,” “us,” and
“our” refer to Bridgeline Digital, Inc., a Delaware
corporation.
Bridgeline
Digital, The Digital Engagement Company™, helps customers
maximize the performance of their full digital experience from
websites and intranets to online stores. Bridgeline’s
iAPPS® platform deeply integrates Web Content Management,
eCommerce, eMarketing, Social Media management, and Web Analytics
to help marketers deliver digital experiences that attract, engage
and convert their customers across all channels. Bridgeline’s
iAPPS platform combined with its digital services assists customers
in maximizing on-line revenue, improving customer service and
loyalty, enhancing employee knowledge, and reducing operational
costs. Our iAPPS distributed subscription, or iAPPSds, is a
platform that empowers large franchise and multi-unit organizations
with state-of-the-art web engagement management while providing
superior oversight of corporate branding. iAPPSds deeply integrates
content management, eCommerce, eMarketing and web analytics and is
a self-service web platform that is offered to each authorized
franchise or dealer for a monthly subscription fee.
The
iAPPS platform is delivered through a cloud-based Software as
a Service, or SaaS, multi-tenant business model, whose flexible
architecture provides customers with state of the art deployment
providing maintenance, daily technical operation and support; or
via a traditional perpetual licensing business model, in which the
iAPPS software resides on a dedicated server in either the
customer’s facility or via a cloud-based hosted services
model via Amazon Web Services.
The iAPPS Platform is an award-winning application
recognized around the globe. Our teams of Microsoft Gold©
certified developers have won over 100 industry related
awards. In 2016, CIO Review selected iAPPS as one of the 20 Most
Promising Digital Marketing Solution Providers. This followed
accolades from the Software and Information Industry Association
(“SIIA”), which recognized iAPPS Content Manager
with the 2015 SIIA CODiE Award for Best Web Content Management
Platform. Also in 2015, EContent magazine named iAPPS Digital Engagement
Platform to its Trendsetting Products list. The list of 75 products
and platforms was compiled by EContent’s editorial staff, and
selections were based on each offering’s uniqueness and
importance to digital publishing, media, and marketing. We were
also recognized in 2015 as a strong performer by Forrester
Research, Inc in its independence report, “The Forrester Wave
™: Through-Channel Marketing Automation Platforms, Q3
2015.” In recent years, our iAPPS Content Manager and iAPPS
Commerce products were selected as finalists for the 2014, 2013,
and 2012 CODiE Awards for Best Content Management Solution and Best
Electronic Commerce Solution, globally. In 2014 and 2013,
Bridgeline Digital won twenty-five Horizon Interactive Awards for
outstanding development of web applications and websites. Also in
2013, the Web Marketing Association sponsored Internet Advertising
Competition honored Bridgeline Digital with three awards for iAPPS
customer websites and B2B Magazine selected Bridgeline Digital as
one of the Top Interactive Technology companies in the United
States. KMWorld Magazine Editors selected Bridgeline Digital
as one of the 100 Companies That Matter in Knowledge Management and
also selected iAPPS as a Trend Setting Product in
2013.
An investment in our
securities involves a high degree of risk. You should consider the
risks, uncertainties and assumptions described under Item 1A,
“Risk
Factors,” in our Annual
Report on Form 10-K for the fiscal year ended September 30, 2016,
which risk factors 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 in our Annual Report on Form 10-K
for the fiscal year ended September 30, 2016 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.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements that
relate to future events or our future financial performance and
involve known and unknown risks, uncertainties and other factors
that may cause our actual results, levels of activity, performance
or achievements to differ materially from any future results,
levels of activity, performance or achievements expressed or
implied by these forward-looking statements. Words such as, but not
limited to, “believe,” “expect,”
“anticipate,” “estimate,”
“intend,” “plan,” “targets,”
“likely,” “will,” “would,”
“could,” and similar expressions or phrases identify
forward-looking statements. Forward-looking statements include, but
are not limited to, statements about:
●
our
ability to implement our business strategy;
●
anticipated trends
and challenges in our business and the markets in which we
operate;
●
our
expected future financial performance;
●
our
expectations regarding our operating expenses;
●
our
ability to anticipate market needs or develop new or enhanced
products to meet those needs;
●
our
expectations regarding market acceptance of our
products;
●
our
ability to compete in our industry and innovation by our
competitors;
●
our
ability to protect our confidential information and intellectual
property rights;
●
our
ability to successfully identify and manage any potential
acquisitions;
●
our
ability to manage expansion into international
markets;
●
our
ability to maintain or broaden our business relationships and
develop new relationships with strategic alliances, suppliers,
customers, distributors or otherwise;
●
our
ability to recruit and retain qualified sales, technical and other
key personnel;
●
our
ability to obtain additional financing;
●
our
ability to manage growth; and
●
other risks and uncertainties, including
those described
under Item 1A, “Risk
Factors,”
in our Annual Report on Form 10-K for the fiscal year ended
September 30, 2016, which risk factors are incorporated herein by
reference.
All forward-looking statements involve risks,
assumptions and uncertainties. The occurrence of the events
described, and the achievement of the expected results, depend on
many events, some or all of which are not predictable or within our
control. Actual results may differ materially from expected
results. See the section titled “Risk
Factors” and elsewhere in
this prospectus for a more complete discussion of these risks,
assumptions and uncertainties and for other risks and
uncertainties. These risks, assumptions and uncertainties are not
necessarily all of the important factors that could cause actual
results to differ materially from those expressed in any of our
forward-looking statements. Other unknown or unpredictable factors
also could harm our results. In light of these risks, uncertainties
and assumptions, the forward-looking events discussed in this
prospectus might not occur.
Readers are cautioned not to place undue reliance on
forward-looking statements, as there can be no assurance that the
plans, intentions or expectations upon which they are based will
occur. By their nature, forward-looking statements involve numerous
assumptions, known and unknown risks and uncertainties, both
general and specific, that contribute to the possibility that the
predictions, forecasts, projections and other things contemplated
by the forward-looking statements will not occur. Forward-looking
statements in this prospectus are based on management’s
beliefs and opinions at the time the statements are made. The
forward-looking statements contained in this prospectus are
expressly qualified in their entirety by this cautionary statement.
The forward-looking statements included in this prospectus are made
as of the date of this prospectus and we undertake no obligation to
publicly update or revise any forward-looking statements to reflect
new information, future events or otherwise, except as required by
applicable securities laws.
Our
ratio of earnings to fixed charges for recently completed fiscal
years and any required interim periods will be specified in a
prospectus supplement or in a document that we file with the SEC
and incorporated by reference in the future.
USE OF PROCEEDS
Unless
otherwise provided in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities
under this prospectus for general corporate purposes. We may set
forth additional information on the use of proceeds from the
sale or the securities we offer under this prospectus in a
prospectus supplement relating to the specific offering. We
cannot currently allocate specific percentages of the net
proceeds that we may use for the purposes specified above. As a
result, our management will have broad discretion in the
allocation of the net proceeds. Pending the application of the net
proceeds, we intend to invest the net proceeds in short- and
intermediate-term, interest-bearing obligations, investment-grade
instruments, certificates of deposit or direct or guaranteed
obligations of the U.S. government.
The
following summary of the rights of our capital stock is not
complete and is subject to and qualified in its entirety by
reference to our certificate of incorporation and bylaws, copies of
which are filed as exhibits to our Annual Report on Form 10-K for
the year ended September 30, 2016, filed with the SEC on December
19, 2016.
Common Stock
This section describes the general terms of our common stock that
we may offer from time to time. For more detailed information, a
holder of our common stock should refer to our Amended and Restated
Certificate of Incorporation (“Certificate of
Incorporation”) and our Bylaws, copies of which are filed
with the SEC as exhibits to the registration statement of which
this prospectus is a part.
Under
our Certificate of Incorporation, we are authorized to issue
50,000,000 shares of our common stock, par value $0.001 per share.
As of May 18, 2017, there were 20,967,876 shares of our common
stock issued and outstanding.
Voting
Rights. The holders of
common stock are entitled to one vote per share on all matters. The
common stock does not have cumulative voting rights, which means
that holders of the shares of common stock with a majority of the
votes to be cast for the election of directors can elect all
directors then being elected.
Dividends. Each share of common stock has an equal and
ratable right to receive dividends to be paid from our assets
legally available therefore when, as and if declared by our Board
of Directors. We do not anticipate paying cash dividends on the
common stock in the foreseeable future.
Liquidation. In
the event we dissolve, liquidate or wind up, the holders of common
stock are entitled to share equally and ratably in the assets
available for distribution after payments are made to our creditors
and to the holders of any outstanding preferred stock we may
designate and issue in the future with liquidation preferences
greater than those of the common stock.
Other. The holders of shares of our common stock
have no preemptive, subscription or redemption rights and are not
liable for further call or assessment. All of the outstanding
shares of common stock are, and the shares of
common stock offered hereby will be, fully paid and
nonassessable.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company, LLC (“AST”).
Preferred Stock
This section describes the general terms and provisions of our
outstanding shares of preferred stock, as well as preferred stock
that we may offer from time to time. The applicable prospectus
supplement will describe the specific terms of the shares of
preferred stock offered through that prospectus supplement, which
may differ from the terms we describe below. We will file a
copy of the certificate of designation that contains the terms of
each new series of preferred stock with the SEC each time we issue
a new series of preferred stock, and these certificates of
designation will be incorporated by reference into the registration
statement of which this prospectus is a part. Each certificate of
designation will establish the number of shares included in a
designated series and fix the designation, powers, privileges,
preferences and rights of the shares of each series as well as any
applicable qualifications, limitations or restrictions. A holder of
our preferred stock should refer to the applicable certificate of
designation, our Articles and the applicable prospectus supplement
(and any related free writing prospectus that we may authorize to
be provided to you) for more specific information.
Under
our Certificate of Incorporation, we are authorized to issue up to
1.0 million shares of preferred stock, par value $0.001 per share,
in one or more series, to establish from time to time the number of
shares to be included in each series and to fix the designation,
powers, preferences and rights of the shares of each series and any
of its qualifications, limitations or restrictions. Our board of
directors can increase or decrease the number of shares of any
series, but not below the number of shares of that series then
outstanding, without any further vote or action by our
stockholders. 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
the common stock. The issuance of preferred stock, while providing
flexibility in connection with possible acquisitions and other
corporate purposes, could, among other things, have the effect of
delaying, deferring or preventing a change in control of the
Company and may adversely affect the market price of our common
stock and the voting and other rights of the holders of our common
stock.
Outstanding Series of Preferred Stock
Currently, there is one series of our preferred
stock outstanding- Series A Convertible Preferred Stock
(“Series A
Preferred”). There are
currently 236,438 shares of Series A Preferred issued and
outstanding. Shares of Series A Preferred may be converted, at the
option of the holder at any time, into such number of shares of
common stock (“Conversion
Shares”) equal (i) to the
number of shares of Series A Preferred to be converted, multiplied
by the stated value of $10.00 per share (the
“Stated
Value”) and (ii) divided
by the conversion price in effect at the time of conversion,
currently $3.25.
Any
accrued but unpaid dividends on the shares of Series A Preferred to
be converted shall also be converted in common stock at the
conversion price. A mandatory provision also may provide that the
Company will have the right to require the holders to convert
shares of Series A Preferred into Conversion Shares if (i) the
Company’s common stock has closed at or above $6.50 per share
for ten consecutive trading days and (ii) the Conversion Shares are
(A) registered for resale on an effective registration statement or
(B) may be resold pursuant to Rule 144.
In
the event of any liquidation, dissolution, or winding up of the
Company, the holders of shares of Series A Preferred will be
entitled to receive in preference to the holders of common stock,
the amount equal to the Stated Value per share of Series A
Preferred plus declared and unpaid dividends, if any. After such
payment has been made, the remaining assets of the Company will be
distributed ratably to the holders of common stock.
Cumulative dividends are currently payable at a
rate of 12% per year. If the Company does not pay the dividends in
cash, then the Company may pay dividends in any quarter by delivery
of additional shares of Preferred Stock (“PIK
Election”). If the
Company shall make the PIK Election with respect to the dividend
payable, it shall deliver a number of shares of Series A Preferred
equal to (A) the aggregate dividend payable to such holder as of
the end of the quarter divided by (B) the lesser of (x)
the then effective Conversion Price or (y) the average VWAP for the
five consecutive trading days prior to such dividend payment
date.
Shares
of Series A Preferred vote on an as-converted basis along with
shares of common stock.
Shares of Preferred Stock Issuable Pursuant to this
Prospectus
We
will incorporate by reference as an exhibit to the registration
statement, which includes this prospectus, the form of any
certificate of designation that describes the terms of the series
of preferred stock we are offering. This description and the
applicable prospectus supplement will include:
●
the
title and stated value;
●
the
number of shares authorized;
●
the
liquidation preference per share;
●
the purchase price;
●
the dividend rate, period and payment date, and method of
calculation for dividends;
●
whether
dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate;
●
the procedures for any auction and remarketing, if
any;
●
the provisions for a sinking fund, if any;
●
the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise such redemption and
repurchase rights;
●
any listing of the preferred stock on any securities
exchange or market;
●
whether
the preferred stock will be convertible into our common stock, and,
if applicable, the conversion price, or how it will be calculated,
and the conversion period;
●
voting rights, if any, of the preferred stock;
●
preemptive rights, if any;
●
restrictions on transfer, sale or other assignment, if
any;
●
a
discussion of any material United States federal income tax
considerations applicable to the preferred stock;
●
the
relative ranking and preferences of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs;
●
any
limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the series of preferred stock
as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs; and
●
any other specific terms, preferences, rights or limitations
of, or restrictions on the preferred stock.
When
we issue shares of preferred stock under this prospectus, the
shares will fully be paid and nonassessable and will not have, or
be subject to, any preemptive or similar rights.
DESCRIPTION OF OUR
WARRANTS
The following description, together with the additional information
we include in any applicable prospectus supplements or free writing
prospectus, 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 and/or preferred stock in one
or more series. Warrants may be offered independently or together
with common stock and/or preferred stock offered by any prospectus
supplement or free writing prospectus, and may be attached to or
separate from those securities. While the terms we have summarized
below will generally apply to any future warrants we may offer
under this prospectus, we will describe the particular terms of any
warrants that we may offer in more detail in the applicable
prospectus supplement or free writing prospectus. The terms of any
warrants we offer under a prospectus supplement or free writing
prospectus may differ from the terms we describe
below.
In
the event that we issue warrants, we will issue the warrants under
a warrant agreement which we will enter into with a warrant agent
to be selected by us. Forms of these warrant agreements and forms
of the warrant certificates representing the warrants, and the
complete warrant agreements and forms of warrant certificates
containing the terms of the warrants 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. We use the term “warrant agreement”
to refer to any of these warrant agreements. We use the term
“warrant agent” to refer to the warrant agent under any
of these warrant agreements. 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.
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
applicable to a particular series of warrants. We urge you to read
the applicable prospectus supplements or free writing prospectus
related to the warrants that we sell under this prospectus, as well
as the complete warrant agreements that contain the terms of the
warrants.
General
We
will describe in the applicable prospectus supplement or free
writing prospectus the terms relating to a series of warrants. If
warrants for the purchase of common stock or preferred stock are
offered, the prospectus supplement or free writing prospectus will
describe the following terms, to the extent
applicable:
●
the offering price and the aggregate number of warrants
offered;
●
the
total number of shares that can be purchased if a holder of the
warrants exercises them and, in the case of warrants for preferred
stock, the designation, total number and terms of the series of
preferred stock that can be purchased upon exercise;
●
the
designation and terms of any series of preferred stock with which
the warrants are being offered and the number of warrants being
offered with each share of common stock or preferred
stock;
●
the
date on and after which the holder of the warrants can transfer
them separately from the related common stock or series of
preferred stock;
●
the
number of shares of common stock or preferred stock that can be
purchased if a holder exercises the warrant and the price at which
such common stock or preferred stock may be purchased upon
exercise, including, if applicable, any provisions for changes to
or adjustments in the exercise price and in the securities or other
property receivable upon exercise;
●
the terms of any rights to redeem or call, or accelerate the
expiration of, the warrants;
●
the date on which the right to exercise the warrants begins
and expires;
●
federal income tax consequences of holding or exercising the
warrants; and
●
any other specific terms, preferences, rights or limitations
of, or restrictions on, the warrants.
Exercise of Warrants
Each
holder of a warrant is entitled to purchase the number of shares of
common stock or preferred stock, as the case may be, at the
exercise price described in the applicable prospectus supplement or
free writing prospectus. After the close of business on the day
when the right to exercise terminates (or a later date if we extend
the time for exercise), unexercised warrants will become
void.
A
holder of warrants may exercise them by following the general
procedure outlined below:
●
delivering
to the warrant agent the payment required by the applicable
prospectus supplement or free writing prospectus to purchase the
underlying security;
●
properly completing and signing the reverse side of the
applicable warrant certificate; and
●
delivering
the warrant certificate representing the warrants to the warrant
agent within five business days of the warrant agent receiving
payment of the exercise price.
If
you comply with the procedures described above, your warrants will
be considered to have been exercised when the warrant agent
receives payment of the exercise price, subject to the transfer
books for the securities issuable upon exercise of the warrant not
being closed on such date. After you have completed those
procedures and subject to the foregoing, we will, as soon as
practicable, issue and deliver to you the common stock or preferred
stock that you purchased upon exercise. If you exercise fewer than
all of the warrants represented by a warrant certificate, a new
warrant certificate will be issued to you for the unexercised
amount of warrants. Holders of warrants will be required to pay any
tax or governmental charge that may be imposed in connection with
transferring the underlying securities in connection with the
exercise of the warrants.
Amendments and Supplements to the Warrant Agreements
We
may amend or supplement a warrant agreement without the consent of
the holders of the applicable warrants to cure ambiguities in the
warrant agreement, to cure or correct a defective provision in the
warrant agreement, or to provide for other matters under the
warrant agreement that we and the warrant agent deem necessary or
desirable, so long as, in each case, such amendments or supplements
do not materially adversely affect the interests of the holders of
the warrants.
Warrant Adjustments
Unless
the applicable prospectus supplement or free writing prospectus
states otherwise, the exercise price of, and the number of
securities covered by, a common stock warrant or preferred stock
warrant will be adjusted proportionately if we subdivide or combine
our common stock or preferred stock, as applicable. In addition,
unless the prospectus supplement or free writing prospectus states
otherwise, if we, without receiving payment:
●
issue
capital stock or other securities convertible into or exchangeable
for common stock or preferred stock, or any rights to subscribe
for, purchase or otherwise acquire any of the foregoing, as a
dividend or distribution to holders of our common stock or
preferred stock;
●
pay
any cash to holders of our common stock or preferred stock other
than a cash dividend paid out of our current or retained earnings
or other than in accordance with the terms of the preferred
stock;
●
issue
any evidence of our indebtedness or rights to subscribe for or
purchase our indebtedness to holders of our common stock or
preferred stock; or
●
issue
common stock or preferred stock or additional stock or other
securities or property to holders of our common stock or preferred
stock by way of spinoff, split-up, reclassification, combination of
shares or similar corporate rearrangement,
then
the holders of common stock warrants and preferred stock warrants,
as applicable, will be entitled to receive upon exercise of the
warrants, in addition to the securities otherwise receivable upon
exercise of the warrants and without paying any additional
consideration, the amount of stock and other securities and
property such holders would have been entitled to receive had they
held the common stock or preferred stock, as applicable, issuable
under the warrants on the dates on which holders of those
securities received or became entitled to receive such additional
stock and other securities and property.
Except
as stated above or as otherwise set forth in the applicable
prospectus supplement or free writing prospectus, the exercise
price and number of securities covered by a common stock warrant
and preferred stock warrant, and the amounts of other securities or
property to be received, if any, upon exercise of those warrants,
will not be adjusted or provided for if we issue those securities
or any securities convertible into or exchangeable for those
securities, or securities carrying the right to purchase those
securities or securities convertible into or exchangeable for those
securities.
Holders
of common stock warrants and preferred stock warrants may have
additional rights under the following circumstances:
●
certain
reclassifications, capital reorganizations or changes of the common
stock or preferred stock, as applicable;
●
certain
share exchanges, mergers, or similar transactions involving us and
which result in changes of the common stock or preferred stock, as
applicable; or
●
certain sales or dispositions to another entity of all or
substantially all of our property and assets.
If
one of the above transactions occurs and holders of our common
stock or preferred stock are entitled to receive stock, securities
or other property with respect to or in exchange for their
securities, the holders of the common stock warrants and preferred
stock warrants then outstanding, as applicable, will be entitled to
receive upon exercise of their warrants the kind and amount of
shares of stock and other securities or property that they would
have received upon the applicable transaction if they had exercised
their warrants immediately before the transaction.
DESCRIPTION OF OUR UNITS
This section outlines some of the provisions of the units and the
unit agreements. This information may not be complete in all
respects and is qualified entirely by reference to the unit
agreement with respect to the units of any particular series. The
specific terms of any series of units will be described in the
applicable prospectus supplement or free writing prospectus. If so
described in a particular prospectus supplement or free writing
prospectus, the specific terms of any series of units may differ
from the general description of terms presented below.
As
specified in the applicable prospectus supplement, we may issue
units consisting of one or more shares of common stock, shares of
preferred stock, warrants or any combination of such
securities.
The
applicable prospectus supplement will specify the following terms
of any units in respect of which this prospectus is being
delivered:
●
the
terms of the units and of any of the shares of common stock, shares
of preferred stock or warrants comprising the units, including
whether and under what circumstances the securities comprising the
units may be traded separately;
●
a description of the terms of any unit agreement governing
the units;
●
if appropriate, a discussion of material U.S. federal income
tax considerations; and
●
a description of the provisions for the payment, settlement,
transfer or exchange of the units.
Anti-Takeover Effects of Certain Provisions of Delaware Law and of
the Company’s Certificate of Incorporation and
Bylaws
Delaware Law
We are
subject to Section 203 of the DGCL (“Section 203”). In general,
Section 203 prohibits a publicly held Delaware corporation from
engaging in “business combination” transactions with
any “interested stockholder” for a period of three
years following the time that the stockholder became an interested
stockholder, unless:
●
prior
to the time the stockholder became an interested stockholder,
either the applicable business combination or the transaction which
resulted in the stockholder becoming an interested stockholder is
approved by the corporation’s board of
directors;
●
upon
consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for
purposes of determining the voting stock outstanding (but not the
voting stock owned by the interested stockholder) shares owned by
directors who are also officers of the corporation and shares owned
by employee stock plans in which the employee participants do not
have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer;
or
●
at or
subsequent to the time that the stockholder became an interested
stockholder, the business combination is approved by the
corporation’s board of directors and authorized at an annual
or special meeting of stockholders by the affirmative vote of at
least 66 2⁄3% of the outstanding voting stock which is not
owned by the interested stockholder.
A
“business combination” is defined to include, in
general and subject to exceptions, a merger of the corporation with
the interested stockholder; a sale of 10% or more of the market
value of the corporation’s consolidated assets to the
interested stockholder; certain transactions that result in the
issuance of the corporation’s stock to the interested
stockholder; a transaction that has the effect of increasing the
proportionate share of the corporation’s stock owned by the
interested stockholder; and any receipt by the interested
stockholder of loans, guarantees or other financial benefits
provided by the corporation. An “interested
stockholder” is defined to include, in general and subject to
exceptions, a person that (1) owns 15% or more of the outstanding
voting stock of the corporation or (2) is an
“affiliate” or “associate” (as defined in
Section 203) of the corporation and was the owner of 15% or more of
the corporation’s outstanding voting stock at any time within
the prior three year period.
A
Delaware corporation may opt out of Section 203 with an express
provision in its original certificate of incorporation or by an
amendment to its certificate of incorporation or bylaws expressly
electing not to be governed by Section 203 and approved by a
majority of its outstanding voting shares. We have not opted out of
Section 203. As a result, Section 203 could delay, deter or prevent
a merger, change of control or other takeover of our company that
our stockholders might consider to be in their best interests,
including transactions that might result in a premium being paid
over the market price of our common stock, and may also limit the
price that investors are willing to pay in the future for our
common stock.
Undesignated Preferred Stock
The
ability to authorize undesignated preferred stock makes it possible
for our Board of Directors to issue one or more series of preferred
stock with voting or other rights or preferences. These and other
provisions may have the effect of deferring hostile takeovers or
delaying changes in control or management of our
company.
Requirements for Advance Notification of Stockholder Nominations
and Proposals
Our
bylaws establish advance notice procedures with respect to
stockholder proposals and the nomination of candidates for election
as directors, other than nominations made by or at the direction of
the Board of Directors or a committee of the Board of
Directors.
Stockholder Action by Written Consent; Special Meetings of
Stockholders
Our
stockholders may take action by written consent in lieu of a
meeting as provided in our bylaws. Our bylaws provide that certain
procedures, including notifying the Board of Directors and awaiting
a record date, must be followed for stockholders to act by written
consent. A special meeting of our stockholders may be called only
by our Board of Directors, the Chairman of the Board, or the
President. A special meeting may also be called at the request of
stockholders holding a majority of the aggregate number of shares
of capital stock of the Company issued and outstanding and entitled
to vote at that meeting (subject to certain timeliness and content
requirements of the demand).
Amendment of Certificate of Incorporation and Bylaws
Our
charter may be amended by the affirmative vote of a majority of the
aggregate number of shares of each class of our capital stock
issued and outstanding after a resolution of our Board of Directors
declaring the advisability of such amendment has been adopted in
accordance with Delaware law. Our bylaws may be amended by the
affirmative vote of a majority of the aggregate number of shares of
each class of our capital stock issued and outstanding (and
entitled to vote on the subject matter) present in person or
represented by proxy at a meeting of stockholders provided that
notice thereof is stated in the written notice of the meeting. Our
bylaws may also be amended by a majority of the Board of Directors
in accordance with Delaware law and our charter.
We
may sell the securities described in this prospectus to or through
underwriters or dealers, through agents, or directly to one or more
purchasers. A prospectus supplement or supplements (and any related
free writing prospectus that we may authorize to be provided to
you) will describe the terms of the offering of the securities,
including, to the extent applicable:
●
the name or names of any underwriters or agents, if
applicable;
●
the purchase price of the securities and the proceeds we
will receive from the sale;
●
any over-allotment options under which underwriters may
purchase additional securities from us;
●
any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
●
any public offering price;
●
any discounts or concessions allowed or reallowed or paid to
dealers; and
●
any securities exchange or market on which the securities
may be listed.
Only
underwriters named in a prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the securities
for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price
or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement. Any public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement that names the underwriter,
the nature of any such relationship.
We
may sell 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, our agent will act on a best-efforts
basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by certain
types of 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.
We may provide agents and underwriters with
indemnification against civil liabilities related to this offering,
including liabilities under the Securities Act of 1933, as amended
(the “Securities
Act”), or contribution
with respect to payments that the agents or underwriters may make
with respect to these liabilities. Agents and underwriters may
engage in transactions with, or perform services for, us in the
ordinary course of business.
Any
underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with
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 the
activities at any time.
Any
underwriters who are qualified market makers on the NASDAQ Capital
Market may engage in passive market making transactions 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
Certain
legal matters in connection with this offering will be passed upon
for us by Disclosure Law Group, a Professional Corporation, of San
Diego, California.
EXPERTS
The
consolidated financial statements of Bridgeline Digital, Inc. as of
and for the years ended September 30, 2016 and 2015, incorporated
by reference into this prospectus from our Annual Report on Form
10-K for the fiscal year ended September 30, 2016, filed with the
SEC on December 19, 2016, have been audited by Marcum, LLP, an
independent registered accounting firm, to the extent and period
set forth in their report, and are incorporated herein by reference
in reliance on such report given upon the authority of said firm as
experts in accounting and auditing.
We
are a public company and file annual, quarterly and special
reports, proxy statements and other information with the Securities
and Exchange Commission (the “SEC”). You may read and copy any document we
file at the SEC’s public reference room at 100 F Street, NE,
Washington, D.C. 20549. You can request copies of these documents
by writing to the SEC and paying a fee for the copying cost. Please
call the SEC at 1-800-SEC-0330 for more information about the
operation of the public reference room. Our SEC filings are also
available, at no charge, to the public at the SEC’s web site
at http://www.sec.gov.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
following documents filed by us with the SEC are incorporated by
reference in this prospectus:
●
Annual
Report on Form 10-K for the fiscal year ended September 30, 2016,
filed December 19, 2016;
●
Amendment No. 1 to
Form 10-K for the fiscal year ended September 30, 2016, filed
January 24, 2017;
●
Quarterly Report
on Form 10-Q for the quarter ended December 31, 2016, filed on
February 14, 2017;
●
Quarterly Report
on Form 10-Q for the quarter ended March 31, 2017, filed on May 15,
2017;
●
Current Report on
Form 8-K, filed November 4, 2016; and
●
The
description of our common stock contained in the Registration
Statement on Form 8-A filed pursuant to Section 12(b) of the
Exchange Act on June 28, 2007, including any amendment or report
filed with the SEC for the purpose of updating this
description.
We
also incorporate by reference all documents we file pursuant to
Section 13(a), 13(c), 14 or 15 of the Exchange Act (other than any
portions of filings that are furnished rather than filed pursuant
to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the
date of the initial registration statement of which this prospectus
is a part and prior to effectiveness of such registration
statement. All documents we file in the future pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this prospectus and prior to the termination of the offering are
also incorporated by reference and are an important part of this
prospectus.
Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. You may request a
copy of these filings, excluding the exhibits to such filings which
we have not specifically incorporated by reference in such filings,
at no cost, by writing to or calling us at:
Bridgeline Digital, Inc.
Attn: Corporate Secretary
80 Blanchard Road
Burlington, MA
(781) 376-5555
This prospectus is part of a registration
statement we filed with the SEC. You should only rely on the
information or representations contained in this prospectus and any
accompanying prospectus supplement. We have not authorized anyone
to provide information other than that provided in this prospectus
and any accompanying prospectus supplement. We are not making an
offer of the securities in any state where the offer is not
permitted. You should not assume that the information in this
prospectus or any accompanying prospectus supplement is accurate as
of any date other than the date on the front of the
document.
-18-
PROSPECTUS
$10,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
UNITS
[_____________], 2017
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
We
estimate that our expenses in connection with this registration
statement will be as follows:
|
SEC Registration
Fee
|
$1,159.00
|
|
Legal Fees and
Expenses*
|
$15,000.00
|
|
Accounting Fees and
Expenses*
|
$4,000.00
|
|
Printing and
Miscellaneous Expenses*
|
$5,000.00
|
|
|
|
|
Total
|
$25,159.00
|
*
Estimated expenses
ITEM 15. INDEMNIFICATION OF OFFICERS AND
DIRECTORS
Our
certificate of incorporation and bylaws contain provisions relating
to the limitation of liability and indemnification of directors and
officers. Our certificate of incorporation provides that a director
will not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability:
●
for
any breach of the director’s duty of loyalty to us or our
stockholders;
●
for
acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
●
under
Section 174 of the Delaware General Corporation Law (the
“DGCL ”);
or
●
for
any transaction from which the director derived any improper
personal benefit.
Our certificate of incorporation also provides
that if the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of our directors will be eliminated or limited to the
fullest extent permitted by the DGCL.
Our
bylaws provide that we will indemnify our directors and officers to
the fullest extent not prohibited by the DGCL; provided, however,
that we may limit the extent of such indemnification by individual
contracts with our directors and executive officers; and provided,
further, that we are not required to indemnify any director or
executive officer in connection with any proceeding (or part
thereof) initiated by such person or any proceeding by such person
against us or our directors, officers, employees or other agents
unless:
●
such
indemnification is expressly required to be made by
law;
●
the
proceeding was authorized by the Board of Directors;
or
●
such
indemnification is provided by us, in our sole discretion, pursuant
to the powers vested in us under the DGCL.
Our
bylaws provide that we shall advance, prior to the final
disposition of any proceeding, promptly following request therefor,
all expenses by any director or executive officer in connection
with any such proceeding upon receipt of any undertaking by or on
behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to e
indemnified under Article XI of our bylaws or otherwise.
Notwithstanding the foregoing, unless otherwise determined, no
advance shall be made by us if a determination is reasonably and
promptly made by the Board of Directors by a majority vote of a
quorum of directors who were not parties to the proceeding, or if
such a quorum is not obtainable, or even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in
a written opinion, that the facts known to the decision-making
party at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to our
best interests.
Our
bylaws also authorize us to purchase insurance on behalf of any
person required or permitted to be indemnified pursuant to Article
XI of our bylaws.
Section
145(a) of the DGCL authorizes a corporation to indemnify any person
who was or is a party, or is threatened to be made a party, to a
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), by reason of
the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action,
suit or proceeding, if the person acted in good faith and in a
manner the person reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
the person’s conduct was unlawful.
Section
145(b) of the DGCL provides in relevant part that a corporation may
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
The
DGCL also provides that indemnification under Section 145(d) can
only be made upon a determination that indemnification of the
present or former director, officer or employee or agent is proper
in the circumstances because such person has met the applicable
standard of conduct set forth in Section 145(a) and
(b).
Section
145(g) of the DGCL also empowers a corporation to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under Section 145 of
the DGCL.
Section
102(b)(7) of the DGCL permits a corporation to provide for
eliminating or limiting the personal liability of one of its
directors for any monetary damages related to a breach of fiduciary
duty as a director, as long as the corporation does not eliminate
or limit the liability of a director for acts or omissions which
(1) which breached the director’s duty of loyalty to the
corporation or its stockholders, (2) which were not in good faith
or which involve intentional misconduct or knowing violation of
law, (3) under Section 174 of the DGCL; or (4) from which the
director derived an improper personal benefit.
We
have obtained directors’ and officers’ insurance to
cover our directors and officers for certain
liabilities.
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
|
|
24
|
Power of Attorney (included on signature page hereto)
|
*
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.
+
To be filed by amendment to this Registration
Statement.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement.
(iii) To include any material information
with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration
statement; provided,
however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the SEC by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the
initial bona
fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act
to any purchaser:
(i)
If the Registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3)shall
be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the
registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933, as amended shall be
deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(ii) If the registrant is subject to
Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of
a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date
it is first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(5) That,
for the purpose of determining liability of the registrant under
the Securities Act to any purchaser in the initial distribution of
the securities: The undersigned registrant undertakes that in a
primary offering of securities of the undersigned registrant
pursuant to this Registration Statement, regardless of the
underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to
Rule 424;
(ii) Any
free-writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free-writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an offer
in the offering made by the undersigned registrant to the
purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona
fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act, as amended, may be permitted to directors,
officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the SEC such indemnification is against
public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such
issue.
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 May 19, 2017.
|
|
BRIDGELINE DIGITAL, INC.
|
|
|
|
|
|
|
|
By:
|
/s/ Roger
Kahn
|
|
|
|
Roger
Kahn
|
|
|
|
President and Chief Executive Officer (Principal Executive
Officer)
|
POWER OF ATTORNEY
KNOWN
ALL MEN BY THESE PRESENTS, that each person whose signature below
constitutes and appoints Roger Kahn and Michael Prinn, jointly and
severally, his attorneys-in-fact, each with power of substitution,
for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-3, and file the same, with
exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
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/ Roger
Kahn
|
|
President and Chief Executive Officer
|
|
May 19, 2017
|
|
Roger
Kahn
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Michael
Prinn
|
|
Executive
Vice-President and
|
|
May 19, 2017
|
|
Michael
Prinn
|
|
Chief
Financial Officer
(Principal
Financial Officer)
|
|
|
|
|
|
|
|
|
|
/s/Kenneth
Galaznik
|
|
Director
|
|
May 19, 2017
|
|
Kenneth
Galaznik
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Joni
Kahn
|
|
Director
|
|
May 19, 2017
|
|
Joni
Kahn
|
|
|
|
|
|
/s/ Scott
Landers
|
|
Director
|
|
May 19, 2017
|
|
Scott
Landers
|
|
|
|
|
|
/s/ Michael
Taglich
|
|
Director
|
|
May 19, 2017
|
|
Michael
Taglich
|
|
|
|
|
|
/s/ Robert
Taglich
|
|
Director
|
|
May 19, 2017
|
|
Robert
Taglich
|
|
|
|
|
II-6