As filed with the Securities and Exchange Commission on November 23, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Applied DNA Sciences, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware | 59-2262718 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
50 Health Sciences Drive
Stony Brook, New York 11790
(631) 240-8800
(Address, Including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)
James A. Hayward, Ph.D., Sc.D.
Chief Executive Officer
50 Health Sciences Drive
Stony Brook, New York 11790
(631) 240-8800
(Name, Address, Including Zip Code, and Telephone Number, including Area Code, of Agent for Service)
Copy to:
Merrill M. Kraines, Esq.
Pepper Hamilton LLP
620 Eighth Avenue, 37th Floor
New York, New York 10018-1405
Telephone: (212) 808-2711
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. x Registration No. 333-202432
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a 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” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ¨ | Accelerated filer x | Non-accelerated filer ¨ | Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered(1) | Amount
to be Registered/ Proposed Maximum Offering Price Per Unit/Proposed Maximum Aggregate Offering Price(2)(3) | Amount
of Registration Fee | ||||||
Common Stock, $0.001 par value per share | $ | 1,470,320 | $ | 148.06 |
(1) In accordance with Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), an additional amount of securities having a proposed maximum aggregate offering price of no more than 20% of the maximum aggregate offering price of the securities which remain eligible to be sold under the registrant’s Registration Statement on Form S-3 (File No. 333-202432) is hereby registered. The registrant’s Registration Statement on Form S-3 (File No. 333-202432) registered up to a maximum aggregate offering price of $25,000,000, of which $7,351,600 remains eligible to be sold.
(2) Pursuant to this registration statement, the registrant is registering an additional indeterminate number of shares of common stock with an aggregate offering price not to exceed $1,470,320. Pursuant to Rule 416 under 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.
(3) Calculated pursuant to Rule 457(o) under the Securities Act.
Pursuant to Rule 462(b) under the Securities Act, this Registration Statement shall become effective upon filing with the Securities and Exchange Commission.
EXPLANATORY NOTE
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement is being filed pursuant to Rule 462(b) and General Instruction IV.A of Form S-3, both promulgated under the Securities Act (this “Rule 462(b) Registration Statement”), for the sole purpose of increasing the aggregate dollar amount of securities registered under the Registration Statement on Form S-3 (Registration No. 333-202432) filed by Applied DNA Sciences, Inc., a Delaware corporation, with the Securities and Exchange Commission (the “Commission”) on March 2, 2015, and declared effective by the Commission on March 10, 2015 (the “Initial Registration Statement”), by $1,470,320. Pursuant to Rule 462(b) under the Securities Act, the contents of the Initial Registration Statement, including each of the documents filed by the registrant and incorporated or deemed to be incorporated by reference therein and all exhibits thereto, are hereby incorporated by reference herein. The required opinion and consents are listed on the Exhibit Index attached hereto and filed herewith. Pursuant to Rule 462(b) under the Securities Act, this Rule 462(b) Registration Statement is to be effective upon filing with the Commission.
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 Rule 462(b) Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stony Brook, State of New York on November 23, 2015.
APPLIED DNA SCIENCES, INC. | ||
By: | /s/ James A. Hayward | |
JAMES A. HAYWARD | ||
Chairman, President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this Rule 462(b) Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ James A. Hayward | Chief Executive Officer | November 23, 2015 | ||
James A. Hayward |
(Principal Executive Officer), President, Chairman of the Board of Directors and Director |
|||
/s/ Beth Jantzen | Chief Financial Officer | November 23, 2015 | ||
Beth Jantzen |
(Principal Financial and Accounting Officer) |
|||
/s/ John Bitzer, III | Director | November 23, 2015 | ||
John Bitzer, III | ||||
/s/ Joseph D. Ceccoli | Director | November 23, 2015 | ||
Joseph D. Ceccoli | ||||
/s/ Charles S. Ryan | Director | November 23, 2015 | ||
Charles S. Ryan | ||||
/s/ Yacov A. Shamash | Director | November 23, 2015 | ||
Yacov A. Shamash | ||||
/s/ Sanford R. Simon | Director | November 23, 2015 | ||
Sanford R. Simon |
EXHIBIT INDEX
Exhibit Number |
Description of Exhibit | |
5.1 | Opinion of Pepper Hamilton LLP | |
23.1 | Consent of Pepper Hamilton LLP (included in Exhibit 5.1) | |
23.2 | Consent of Marcum LLP, independent registered public accounting firm | |
23.3 | Consent of RBSM LLP, independent registered public accounting firm |
Exhibit 5.1
The New York Times Building
37th Floor
620 Eighth Avenue
New York, NY 10018-1405
212.808.2700
Fax 212.286.9806
November 23, 2015
Applied DNA Sciences, Inc.
50 Health Sciences Drive
Stony Brook, NY 11790
Re: Registration Statement for Additional Shares Filed Under Rule 462(b)
Ladies and Gentlemen:
We have acted as counsel to Applied DNA Sciences, Inc., a Delaware corporation (the “Company”), in connection with the Company’s registration statement on Form S-3 (the “462(b) Registration Statement”) filed on the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to Rule 462(b) under the Securities Act, relating to the registration of up to an aggregate of $1,470,320 of shares of the Company’s common stock, $0.001 par value per share (the “Additional Shares”). The 462(b) Registration Statement was filed in connection with, and incorporates by reference the information contained in, the Company’s registration statement on Form S-3 (Registration No. 333-202432), initially filed with the Securities and Exchange Commission (the “Commission”) on March 2, 2015 and declared effective on March 10, 2015 (the “Shelf Registration Statement” and together with the 462(b) Registration Statement, the “Registration Statements”), including the prospectus which forms a part of the Shelf Registration Statement (the “Prospectus”), as supplemented from time to time by one or more prospectus supplements (each, a “Prospectus Supplement”). The Additional Shares may be offered and sold as set forth in the Prospectus and any Prospectus Supplement after the 462(b) Registration Statement becomes effective and are being offered pursuant to the respective Securities Purchase Agreements (the “Securities Purchase Agreements”), dated as of the date hereof, with each purchaser named in the signature pages thereto and the Placement Agent Agreement, dated as of the date hereof, by and among the Company and Maxim Group, LLC.
We have made such examination of law, and examined the originals, or copies certified or otherwise identified to our satisfaction, of such records, documents, certificates and other instruments, as we have deemed appropriate to give the opinions set forth below. In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as certified or photostatic copies, the accuracy and completeness of all documents and records reviewed by us, the accuracy, completeness and authenticity of certificates issued by any government official, office or agency and the absence of
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Applied DNA Sciences, Inc.
November 23, 2015
Page 2
change in the information contained therein from the effective date
of any such certificate. As to any facts material to the opinion expressed herein which were not independently established or verified,
we have relied upon statements and representations of officers and other representatives of the Company and others.
We express no opinion herein as to the law of any state or jurisdiction other than the General Corporation Law of the State of Delaware, including the statutory provisions and all applicable provisions of the Constitution of the State of Delaware and reported judicial decisions interpreting the foregoing. Without limiting the generality of the foregoing qualification, we express no opinion as to compliance with any federal or state securities or “blue sky” laws, including without limitation the securities laws of the State of Delaware.
Based upon and subject to the assumptions and qualifications set forth herein, we are of the opinion that, following effectiveness of the 462(b) Registration Statement, the Additional Shares, when duly issued and sold against the full payment specified therefor as set forth in each Securities Purchase Agreement, will be validly issued, fully paid and non-assessable.
This opinion is being furnished to you in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statements or any Prospectus Supplement related to the Registration Statements, other than as expressly stated herein with respect to the Additional Shares. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. No opinion is rendered as to matters not specifically referred to herein and under no circumstances may any person infer from anything stated or not stated herein any opinion with respect to which such specific reference is not made.
We hereby consent to the filing of this opinion as an exhibit to the 462(b) Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules or regulations of the Commission thereunder.
Very truly yours, | |
/s/ Pepper Hamilton LLP |
Exhibit 23.2
Independent Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference in the Registration Statement of Applied DNA Sciences, Inc. on Form S-3 of our report dated December 15, 2014, with respect to our audit of the consolidated financial statements of Applied DNA Sciences Inc. as of September 30, 2014 and for the year ended September 30, 2014 and our report dated December 15, 2014 with respect to our audit of the effectiveness of internal control over financial reporting of Applied DNA Sciences, Inc. as of September 30, 2014, appearing in the Annual Report on Form 10-K of Applied DNA Sciences, Inc. for the year ended September 30, 2014, as amended by Amendment No. 1 to Annual Report on Form 10-K/A filed March 6, 2015.
/s/ Marcum llp
Marcum llp
Melville, NY
November 19, 2015
Exhibit 23.3
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement of Applied DNA Sciences, Inc. (the “Company”) on Form S-3 of our report dated May 1, 2014, except for paragraph 3 to Note B, as to which the date is October 29, 2014, relating to the consolidated financial statements of the Company as of September 30, 2013 and for each of the two years in the period ended September 30, 2013 as included in the Company’s September 30, 2014 Annual Report on Form 10-K, filed with the Securities and Exchange Commission. We also consent to the reference to our firm under the caption “Experts” in such Prospectus.
/s/ RBSM LLP
New York, New York
November 20, 2015