As filed with the Securities and Exchange Commissionon March 11, 2024.
Registration Statement
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Applied DNA Sciences, Inc.
(Exact name of Registrant as specified in itscharter)
Delaware | | 7380 | | 59-2262718 |
(State or other jurisdiction of incorporation or organization) | | (Primary Standard Industrial Classification Code Number) | | (I.R.S. Employer Identification Number) |
50 Health Sciences Drive
Stony Brook, New York 11790
631-240-8800
(Address, including zip code, and telephonenumber, including area code, of Registrant’s principal executive offices)
James A. Hayward, Ph.D., Sc.D.
Chairman, Chief Executive Officer and President
Applied DNA Sciences, Inc.
50 Health Sciences Drive
Stony Brook, New York 11790
631-240-8801
(Name, address, including zip code, and telephonenumber, including area code, of agent for service)
Copies to:
Merrill M. Kraines
Todd Kornfeld
McDermott Will & Emery LLP
One Vanderbilt Avenue
New York, New York 10017-3852
(212)
547-5616
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offeredon a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. x
If this form is filed to register additional securities for an offeringpursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registrationstatement 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) underthe Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registrationstatement for the same offering. ¨
If this form is a post-effective amendment filed pursuant to Rule 462(d) underthe Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registrationstatement for the same offering. ¨
Indicate by check mark whether the registrant is a large acceleratedfiler, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerginggrowth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | | ¨ | | Accelerated filer | | ¨ |
| | | |
Non-accelerated filer | | x | | Smaller reporting company | | x |
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| | | | Emerging growth company | | ¨ |
If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accountingstandards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
The Registrant hereby amends this RegistrationStatement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment whichspecifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of theSecurities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and ExchangeCommission, acting pursuant to said Section 8(a), may determine.
The information contained in this prospectus isnot complete and may be changed. The selling stockholders named in this prospectus may not sell these securities until the registrationstatement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities andwe are not soliciting offers to buy these securities in any jurisdiction where such offer or sale is not permitted.
PRELIMINARY PROSPECTUS | | SUBJECT TO COMPLETION | | DATED MARCH 11, 2024 |
Up to 11,288,122 shares of Common Stock underlyingthe Common Warrants
Applied DNA Sciences, Inc.
This prospectus relates to the resale from timeto time, by the selling stockholders (the “Selling Stockholders”) identified in this prospectus under the caption “SellingStockholders,” of up to 11,288,122 shares of common stock, par value $0.001 per share (the “Common Stock”), which theselling stockholders may acquire upon the exercise of outstanding warrants (the “Common Warrants”).
We issued the Common Warrants to the Selling Stockholdersin a private placement concurrent with a registered direct offering (the “Offering”) of 3,228,056 shares of Common Stock andpre-funded warrants (the “Pre-Funded Warrants”) to purchase 2,416,005 shares of Common Stock. Each Common Warrant will havean exercise price of $0.609 per share of Common Stock and will become exercisable upon Shareholder Approval. “Shareholder Approval”means the first trading day after the filing of a Form 8-K disclosing the approval pursuant to the applicable rules and regulationsof The Nasdaq Capital Market (“Nasdaq”) from the shareholders of the Company with respect to the issuance of all of the sharesunderlying the Common Warrants and the reduction in exercise price and extension of expiration dates of the Warrants described in “WarrantRepricing” beginning on page 16. The Common Warrants will expire on the five-year anniversary of Shareholder Approval.
The closing of the issuance and sale of the CommonWarrants, Common Stock and Pre-Funded Warrants was consummated on February 2, 2024.
The Selling Stockholders of the securities andany of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered herebyon the principal trading market or any other stock exchange, market or trading facility on which the securities are traded or in privatetransactions. These sales may be at fixed or negotiated prices. See “Plan of Distribution” in this prospectus for more information.We will not receive any proceeds from the resale or other disposition of the Common Stock by the Selling Stockholders. However, we willreceive the proceeds of any cash exercise of the Common Warrants. See “Use of Proceeds” beginning on page 14 and “Plan of Distribution” beginning on page 18 of this prospectus for more information.
Our Common Stock is listed on Nasdaq under thesymbol “APDN.” On March 7, 2024, the last reported sale price of our Common Stock was $0.56 per share.
We are a “smaller reporting company,”as defined under the federal securities laws and, as such, have elected to comply with certain reduced reporting requirements for thisprospectus and may elect to do so in future filings. See the section titled “Implications of Being a Smaller Reporting Company.”
Investingin our securities involves a high degree of risk. See “Risk Factors”beginning on page 8 of this prospectus and under similar headings in the other documents that are incorporated byreference into this prospectus for a discussion of information that should be considered in connection with an investment in our securities.
Neither the Securities and Exchange Commissionnor 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 securities are not being offered in any jurisdiction where the offer isnot permitted.
The date of this prospectus is ,2024.
TABLE OF CONTENTS
Prospectus
ABOUT THIS PROSPECTUS
The information containedin this prospectus is not complete and may be changed. You should rely only on the information provided in or incorporated by referencein this prospectus, or in a related free writing prospectus, or documents to which we otherwise refer you. We have not authorized anyoneelse to provide you with different information.
We have not authorized any dealer, agent or otherperson to give any information or to make any representation other than those contained or incorporated by reference in this prospectusor any related free writing prospectus. You must not rely upon any information or representation not contained or incorporated by referencein this prospectus or any related free writing prospectus. This prospectus and any related free writing prospectus, if any, do not constitutean offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nordo this prospectus and any related free writing prospectus, if any, constitute an offer to sell or the solicitation of an offer to buysecurities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You shouldnot assume that the information contained in this prospectus and any related free writing prospectus, if any, is accurate on any datesubsequent to the date set forth on the front of such document or that any information we have incorporated by reference is correct onany date subsequent to the date of the document incorporated by reference, even though this prospectus and any related free writing prospectusis delivered or securities are sold on a later date.
We have not done anything that would permit thisoffering or possession or distribution of this prospectus or any free writing prospectus in any jurisdiction where action for that purposeis required, other than in the United States. You are required to inform yourself about and to observe any restrictions relating as tothis offering and the distribution of this prospectus and any such free writing prospectus outside the United States.
We further note that the representations, warrantiesand covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectuswere made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk amongthe parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants shouldnot be relied on as accurately representing the current state of our affairs.
PROSPECTUS SUMMARY
Thissummary highlights certain information about us, this offering and information appearing elsewhere in this prospectus and in the documentswe incorporate by reference in this prospectus. This summary is not complete and does not contain all of the information that you shouldconsider before investing in our securities. After you carefully read this summary, to fully understand our Company and this offeringand its consequences to you, you should read this entire prospectus and any related free writing prospectus authorized by us, includingthe information referred to under the heading “Risk Factors” in this prospectus beginning on page 8, and anyrelated free writing prospectus, as well as the other documents that we incorporate by reference into this prospectus, including our financialstatements and the notes to those financial statements, which are incorporated herein by reference from our Annual Reporton Form 10-K for the year ended September 30, 2023, filed December 7, 2023, as amended on January 26, 2024, and our QuarterlyReport on Form 10-Q for the three month period ended December 31, 2023, filed on February 8, 2024. Please read “WhereYou Can Find More Information” on page 24 of this prospectus.
In this prospectus, unless context requires otherwise,references to “we,” “us,” “our,” or “the Company” refer to Applied DNA Sciences, Inc.,a Delaware corporation and its consolidated subsidiaries. Our trademarks currently used in the United States include Applied DNA Sciences®,SigNature® molecular tags, SigNature® T molecular tags, fiberTyping®, SigNify®, Beacon®, CertainT®, Linea™DNA, Linea™ RNAP, Linea™ COVID-19 Diagnostic Assay Kit, safeCircle® COVID-19 testing and TR8TM pharmacogenetictesting. We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsementor sponsorship of us by, any other companies. All trademarks, service marks and trade names included in this prospectus are the propertyof the respective owners.
Overview
Applied DNA Sciences, Inc.
Company Overview
We are a biotechnology company developing andcommercializing technologies to produce and detect deoxyribonucleic acid (“DNA”) and ribonucleic acid (“RNA”).Using polymerase chain reaction (“PCR”) to enable the production and detection of DNA and RNA, we currently operate in threeprimary business markets: (i) the enzymatic manufacture of synthetic DNA for use in the production of nucleic acid-based therapeutics(including biologics and drugs) and, through our recent acquisition of Spindle Biotech, Inc. (“Spindle”), the developmentand sale of a proprietary RNA polymerase (“RNAP”) for use in the production of messenger RNA (“mRNA”) therapeutics(“Therapeutic DNA Production Services”); (ii) the detection of DNA and RNA in molecular diagnostics and genetic testingservices (“MDx Testing Services”); and (iii) the manufacture and detection of DNA for industrial supply chain securityservices (“DNA Tagging and Security Products and Services”).
Our current growth strategy is to primarily focusour resources on the further development, commercialization, and customer adoption of our Therapeutic DNA Production Services, includingthe expansion of our contract development and manufacturing operation (“CDMO”) for the manufacture of synthetic DNA for usein the production of nucleic acid-based therapies, and to further expand and commercialize our MDx Testing Services through genetic testing.
We will continue to update our business strategyand monitor the use of our resources regarding our various business markets. In addition, we expect that based on available opportunitiesand our beliefs regarding future opportunities, we will continue to modify and refine our business strategy.
Therapeutic DNA Production Services
Through LRx we are developingand commercializing our Linea DNA and Linea IVT platforms.
Linea DNA Platform
Our Linea DNA platformis our core enabling technology, and enables the rapid, efficient, and large-scale cell-free manufacture of high-fidelity DNA sequencesfor use in the manufacturing of a broad range of nucleic acid-based therapeutics. The Linea DNA platform enzymatically produces a linearform of DNA we call “LineaDNA” that is an alternative to plasmid-based DNA manufacturing technologies that have suppliedthe DNA used in biotherapeutics for the past 40 years.
As of the fourth quarterof calendar year 2023, there were 3,951 gene, cell and RNA therapies in development from preclinical through pre-registration stages,almost all of which use DNA in their manufacturing process. (Source: ASGCT Gene, Cell & RNA Therapy Landscape: Q4 2023 QuarterlyReport). Due to what we believe are the Linea DNA platform’s numerous advantages over legacy nucleic acid-based therapeutic manufacturingplatforms, we believe this large number of therapies under development represents a substantial market opportunity for the Linea DNA platformto supplant legacy manufacturing methods in the manufacture of nucleic acid-based therapies.
We believe our LineaDNA platform holds several important advantages over existing cell-based plasmid DNA manufacturing platforms. Plasmid-based DNA manufacturingis based on the complex, costly and time-consuming biological process of amplifying DNA in living bacterial cells. Once amplified, theDNA must be separated from the living cells and other process contaminants via multiple rounds of purification, adding further complexityand costs. Unlike plasmid-based DNA manufacturing, the Linea DNA platform does not require living cells and instead amplifies DNA viathe enzymatic process of PCR. The Linea DNA platform is simple and can rapidly produce very large quantities of DNA without the need forcomplex purification steps.
We believe the key advantagesof the Linea DNA platform include:
| ● | Speed – Production of Linea DNA can be measured in terms of hours, not days and weeks as is the case with plasmid-based DNA manufacturing platforms. |
| ● | Scalability – Linea DNA production takes place on efficient bench-top instruments, allowing for rapid scalability in a minimal footprint. |
| ● | Purity – DNA produced via PCR is pure, resulting in only large quantities of only the target DNA sequence. Unwanted DNA sequences such as the plasmid backbone and antibiotic resistance genes, inherent to plasmid DNA, are not present in Linea DNA. |
| ● | Simplicity – The production of Linea DNA is streamlined relative to plasmid-based DNA production. Linea DNA requires only four primary ingredients, does not require living cells or complex fermentation systems and does not require multiple rounds of purification. |
| ● | Flexibility – DNA produced via the Linea DNA platform can be easily chemically modified to suit specific customer applications. In addition, the Linea DNA platform can produce a wide range of complex DNA sequences that are difficult to produce via plasmid-based DNA production platforms. These complex sequences include inverted terminal repeats (“ITRs”) and long homopolymers such as polyadenylation sequences (poly (A) tail) important for gene therapy and mRNA therapies, respectively. |
Preclinical studies conductedby the Company have shown that Linea DNA is substitutable for plasmid DNA in numerous nucleic acid-based therapies, including:
| ● | DNA templates to produce RNA, including mRNA therapeutics; and |
| ● | adoptive cell therapy (CAR-T) manufacturing. |
Further, we believe thatLinea DNA is also substitutable for plasmid DNA in the following nucleic acid-based therapies:
| ● | viral vector manufacturing for in vivo and ex vivo gene editing; |
| ● | clustered regularly interspaced short palindromic repeats (“CRISPR”)-mediated gene therapy; and |
| ● | non-viral gene therapy. |
Linea IVT Platform
Thenumber of mRNA therapies under development is growing at a rapid rate, thanks in part to the success of the mRNA COVID-19 vaccines. mRNAtherapeutics are produced via a process called in vitro transcription (“IVT”) that requires DNA as a startingmaterial. As of the 4th quarter of calendar 2023, there were almost 425 mRNAtherapies under development, with the large majority of these therapies (67%) in the preclinical stage (Source: ASGCT Gene, Cell &RNA Therapy Landscape: Q4 2023 Quarterly Report). The Company believes that the mRNA market is in a nascent stage that represents a largegrowth opportunity for the Company via the production and supply of DNA critical starting materials and RNAP to produce mRNA therapies.
In August 2022,the Company launched DNA IVT templates manufactured via its Linea DNA platform and has since secured proof of concept contracts with numerousmRNA manufacturing customers. In response to this demand, the continued growth of the mRNA therapeutic market, and the unique abilitiesof the Linea DNA platform, the Company acquired Spindle in July 2023 to potentially increase its mRNA-related total addressable market(“TAM”).
Through our acquisitionof Spindle, we recently launched our Linea IVT platform, which combines Spindle’s proprietary high-performance RNAP, now marketedby the Company as Linea RNAP, with our enzymatically produced Linea DNA IVT templates. We believe the Linea IVT platform enables our customersto make better mRNA, faster. Based on data generated by the Company, we believe the integrated Linea IVT platform offers the followingadvantages over conventional mRNA production to therapy developers and manufacturers:
| ● | The prevention or reduction of double stranded RNA (“dsRNA”) contamination resulting in higher target mRNA yields with the potential to reduce downstream processing steps. dsRNA is a problematic immunogenic byproduct produced during conventional mRNA manufacture; |
| ● | delivery of IVT templates in as little as 14 days for milligram scale and 30 days for gram scale; and |
| ● | reduced mRNA manufacturing complexities. |
According to the Company’sinternal modeling, the ability to sell both Linea DNA IVT templates and Linea RNAP under the Linea IVT platform potentially increasesthe Company’s mRNA-related TAM by approximately 3x as compared to selling Linea DNA IVT templates alone, while also providing amore competitive offering to the mRNA manufacturing market. Currently, Linea RNAP is produced for the Company by a third-party CDMO locatedin the United States.
Manufacturing Scale-up
The Company plans tooffer several quality grades of Linea DNA, each of which will have different permitted uses.
Quality Grade | Permitted Use | Company Status |
GLP | Research and pre-clinical discovery | Currently available |
GMP for Starting Materials | DNA critical starting materials for the production of mRNA therapies | Planned availability first half of CY2024 |
GMP | DNA biologic, drug substance and/or drug product | Planned availability first half of CY 2025 (1) |
(1) Dependenton the availability of future financing.
The Company currentlymanufactures Linea DNA pursuant to Good Laboratory Practices (“GLP”) and, is creating a fit for purpose manufacturing facilitywithin our current Stony Brook, NY laboratory space capable of producing Linea DNA IVT templates under Good Manufacturing Practices (“GMP”)suitable for use as a critical starting material for clinical and commercial mRNA therapeutics, with a planned completion date in thefirst half of calendar year 2024. The Company also plans to offer Linea DNA materials manufactured under GMP suitable for use as, or incorporationinto, a biologic, drug substance and/or drug product, with availability expected during the first half of calendar year 2025, dependentupon the availability of future funding. GMP is a quality standard used globally and by the U.S. Food and Drug Administration (“FDA”)to ensure pharmaceutical quality. Drug substances are the pharmaceutically active components of drug products.
Segment Business Strategy
Our business strategyfor our Therapeutic DNA Production Services is to capitalize upon the rapid growth of mRNA therapies in the near term via our plannednear term future availability of Linea DNA IVT templates manufactured under GMP, while at the same time laying the basis for additionalclinical and commercial applications of Linea DNA with our future planned availability of Linea DNA manufactured under GMP suitable foruse as, or incorporation into, a biologic, drug substance and/or drug product. Our current plan is: (i) through our Linea IVT platformand planned near term future GMP manufacturing capabilities for IVT templates to secure commercial-scale supply contracts with clinicaland commercial mRNA and/or self-amplifying mRNA (“sa-RNA”) manufacturers for Linea DNA IVT templates and/or Linea RNAP ascritical starting materials; (ii) to utilize our current GLP production capacity for non-IVT template applications to secure supplyand/or development contracts with pre-clinical therapy developers that use DNA in their therapy manufacturing, and (iii) upon ourdevelopment of our planned future Linea DNA production under GMP suitable for use as, or incorporation into, a biologic, drug substanceand/or drug product, to convert existing and new Linea DNA customers into large-scale supply contracts to supply Linea DNA for clinicaland commercial use as, or incorporation into, a biologic, drug substance and/or drug product in a wide range of nucleic acid therapies.Until we complete our GMP facility to produce DNA critical starting materials (DNA IVT templates) for mRNA manufacturing, we will notbe able to realize significant revenues from this business. We estimate the cost of creating the critical starting materials fit-for-purposemanufacturing facility will be approximately $1.5 million. We anticipate that the proceeds from the Offering should be sufficient to supportthe costs of this facility. If we were to expand the facility to enable GMP production of Linea DNA for use as, or incorporation,into a biologic, drug substance and/or drug product, the cost may be up to approximately $7 million which would require additional funding.We anticipate that the fit-for-purpose manufacturing facility would be created within our existing laboratory space. We anticipate thata facility to enable GMP production of biologic, drug substances and/or drug products would require us to acquire additional space.
In addition, we planto leverage our Therapeutic DNA Production Services and deep knowledge of PCR to develop and monetize, ourselves or with strategic partners,one or more Linea DNA-based therapeutic or prophylactic vaccines for high-value veterinary health indications (collectively “LineaDNA Vaccines”). We currently seek to commercialize our Linea DNA Vaccines in conjunction with lipid nanoparticle (“LNP”)encapsulation to facilitate intramuscular (“IM”) administration. We have recently demonstrated in vitro and invivo (mice studies) expression of generic reporter proteins via Linea DNA encapsulated by LNPs. For the in vivo study,successful expression of the LNP-encapsulated Linea DNA was administered and achieved via IM injection. We believe that our Linea DNAVaccines under development provide a substantial advantage over plasmid DNA-based vaccines for the veterinary health market.
MDx Testing Services
Through ADCL, we leverageour expertise in DNA detection via PCR to provide and develop clinical molecular diagnostics and genetic (collectively “MDx”)testing services. ADCL is a NYSDOH clinical laboratory improvement amendments -permitted, clinical laboratory improvement amendments-certifiedlaboratory which is currently permitted for virology. Permitting for genetics (molecular) is currently pending with the NYSDOH. In providingMDx testing services, ADCL employs its own or third-party molecular diagnostic tests.
We have successfullyvalidated internally our pharmacogenomics testing services (the “PGx Testing Services”). Our PGx Testing Services will utilizea 120-target PGx panel test to evaluate the unique genotype of a specific patient to help guide individual drug therapy decisions. OurPGx Testing Services are designed to interrogate DNA targets on over 33 genes and provide genotyping information relevant to certaincardiac, mental health, oncology, and pain management drug therapies. Our PGx Testing Services cannot commence until we receive approvalfrom the NYSDOH.
On March 22, 2023,we submitted our validation package to the NYSDOH for our PGx Testing Services. On September 21, 2023, we received a first set ofcomments from NYSDOH requesting additional data and clarifications. A response was submitted to NYSDOH on November 17, 2023. OnDecember 26, 2023, we received a second set of comments from NYSDOH requesting additional data and clarifications to which a responsewas submitted on February 23, 2024. Currently, timing of any approval by NYSDOH for our PGx Testing Services is unclear. Recentlypublished studies show that population-scale PGx enabled medication management can significantly reduce overall population healthcarecosts, reduce adverse drug events, and increase overall population wellbeing. These benefits can result in significant cost savings tolarge entities and self-insured employers, the latter accounting for approximately 65% of all U.S. employers in 2022. If and when approvedby the NYSDOH, we plan to leverage our PGx Testing Services to provide PGx testing services to large entities and self-insured employers.
Historically, the majorityof our revenue attributable to our MDx Testing Services has been derived from our safeCircle® COVID-19 testing solutions, for whichtesting demand has significantly dropped. While we continue to support several safeCircle customers, we are currently observing a markeddecrease in market demand for COVID-19 testing, resulting in significantly reduced revenues. We expect future demand for COVID-19 testingto continue to be reduced and we may terminate COVID-19 testing services in the future.
DNA Tagging and Security Products andServices
By leveraging our expertisein both the manufacture and detection of DNA via PCR, our DNA Tagging and Security Products and Services allow our customers to use non-biologicDNA tags manufactured on our Linea DNA platform to mark objects in a unique manner and then identify these objects by detecting the absenceor presence of the DNA tag. The Company’s core DNA Tagging and Security Products and Services, which are marketed collectively asa platform under the trademark CertainT®, include:
| ● | SigNature® Molecular Tags, which are short non-biologic DNA taggants produced by the Company’s Linea DNA platform, provide a methodology to authenticate goods within large and complex supply chains with a focus on cotton, nutraceuticals and other products. |
| ● | SigNify® portable DNA readers and SigNify consumable reagent test kits provide definitive real-time authentication of the Company’s DNA tags in the field. |
| ● | fiberTyping® and other product genotyping services use PCR-based DNA detection to determine a cotton species or cultivar, via a product’s naturally occurring DNA sequence for the purposes of product provenance authentication. |
| ● | Isotopic analysis testing services, provided in partnership with third-party labs, use cotton’s carbon, hydrogen and oxygen elements to indicate origin of its fiber through finished goods. |
To date, our largestcommercial application for our DNA Tagging and Security Products and Services is in the tracking and provenance authentication of cotton.
The Uyghur Forced LaborPrevention Act (“UFLPA”) signed into law on December 23, 2021 establishes that any goods mined, produced, or manufacturedwholly or in part in the Xinjiang Uyghur Autonomous Region (“XUAR”) of the People’s Republic of China are not entitledto entry to the United States. On June 17, 2022, the UFLPA additionally listed DNA tagging and isotopic analysis as evidence thatimporters may use to potentially prove that a good did not originate in XUAR.
Our business plan isto leverage growing consumer and governmental awareness for product traceability catalyzed by the UFLPA to expand our existing partnershipsand seek new partnerships for our DNA Tagging and Security Products and Services with a focus on cotton.
Company Information
We are a Delaware corporation, which was initiallyformed in 1983 under the laws of the State of Florida as Datalink Systems, Inc. In 1998, we reincorporated in the State of Nevada,and in 2002, we changed our name to our current name, Applied DNA Sciences, Inc. On December 17, 2008, we reincorporated fromthe State of Nevada to the State of Delaware.
Our corporate headquarters are located at theLong Island High Technology Incubator at Stony Brook University in Stony Brook, New York, where we have established laboratories for themanufacture and detection of nucleic acids (DNA and mRNA) to support our various business units. In addition, this location also housesour NYSDOH CLEP-permitted, Clinical Laboratory Improvement Amendments (“CLIA”)-certified clinical laboratory where we performMDx Testing Services. The mailing address of our corporate headquarters is 50 Health Sciences Drive, Stony Brook, New York 11790, andour telephone number is (631) 240-8800.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company”as defined in the Securities Exchange Act of 1934, as amended, or the Exchange Act, and have elected to take advantage of certain of thescaled disclosures available to smaller reporting companies. We will continue to be a “smaller reporting company” until wehave $250 million or more in public float (based on our Common Stock) measured as of the last business day of our most recently completedsecond fiscal quarter or, in the event we have no public float (based on our Common Stock) or a public float (based on our CommonStock) that is less than $700 million, annual revenues of $100 million or more during the most recently completed fiscal year.
We may choose to take advantage of some, but not all, of these exemptions.We have taken advantage of reduced reporting requirements in this prospectus. Accordingly, the information contained herein may be differentfrom the information you receive from other public companies in which you hold stock.
THE OFFERING
Common Stock offered by us | 11,288,122 shares of Common Stock issuable upon exercise of the Common Warrants (subject to Shareholder Approval). |
Use of proceeds | We will not receive any proceeds from the Common Stock offered by the Selling Stockholders under this prospectus. However, we will receive the proceeds of any cash exercise of the Common Warrants. We intend to use the net proceeds from any cash exercise of the Common Warrants for working capital and general corporate purposes. See “Use of Proceeds.” |
Market for Common Stock | Our Common Stock is listed on The Nasdaq Capital Market under the symbol “APDN.” On March 7, 2024, the last reported sale price of our Common Stock was $0.56 per share. |
Risk Factors | See “Risk Factors” beginning on page 8 and the other information included in this prospectus for a discussion of factors you should carefully consider before investing in our securities. |
The number of shares of our Common Stock to be outstanding after thisoffering is based on the 16,978,703 shares of our Common Stock outstanding as of March 7, 2024, and excludes the following:
● | 2,192,019 shares of Common Stock issuable upon exercise of options outstanding as of March 7, 2024, with a weighted average exercise price of $9.23 per share; |
● | 18,917,340 shares of Common Stock issuable upon exercise of warrants outstanding as of March 7, 2024, with a weighted average exercise price of $1.28 per share; |
● | 1,340,464 shares of Common Stock reserved for future grant or issuance as of March 7, 2024, under our equity incentive plan; and |
● | 282,640 shares of Common Stock underlying restricted stock units as of March 7, 2024. |
Unless otherwise indicated, this prospectus reflects and assumes noexercise of outstanding options and warrants. The foregoing does not reflect adjustments relating to the repricing of certain warrants.See “Warrant Repricing” beginning on page 16 of this prospectus for more information regarding these adjustments.
RISK FACTORS
Investing in our securities involves a highdegree of risk. In addition to the other information included or incorporated by reference in this prospectus, you should carefully considerthe risks described below and in the section titled “Risk Factors” in our Annual Report on Form 10-K for our most recentfiscal year filed with the SEC, subsequent Quarterly Reports on Form 10-Q, any amendment or updates thereto reflected in subsequentfilings with the SEC, and in other reports we file with the SEC that are incorporated by reference herein, before making an investmentdecision. The following risks are presented as of the date of this prospectus and we expect that these will be updated from time to timein our periodic and current reports filed with the SEC, which will be incorporated herein by reference. Please refer to these subsequentreports for additional information relating to the risks associated with investing in our securities.
The risks and uncertainties described thereinand below could materially adversely affect our business, operating results and financial condition, as well as cause the value of oursecurities to decline. You may lose all or part of your investment as a result. You should also refer to the other information containedin this prospectus, or incorporated by reference, including our financial statements and the notes to those statements, and the informationset forth under the caption “Special Note Regarding Forward-Looking Statements.” Our actual results could differ materiallyfrom those anticipated in these forward-looking statements as a result of certain factors, including the risks mentioned below. Forward-lookingstatements included in this prospectus are based on information available to us on the date hereof, and all forward-looking statementsin documents incorporated by reference are based on information available to us as of the date of such documents. We disclaim any intentto update any forward-looking statements. The risks described below and contained in our Annual Report on Form 10-K, Quarterly Reportson Form 10-Q and in our other periodic reports are not the only ones that we face. Additional risks not presently known to us orthat we currently deem immaterial may also adversely affect our business operations.
Summary of Risks Associated with Our Business
Our business is subject to numerous risks and uncertainties that youshould consider before investing in our Company.
● | We have produced limited revenue. This makes it difficult to evaluate our future prospects and increase the risk that we will not be successful. |
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● | There is substantial doubt relating to our ability to continue as a going concern. |
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● | Our opportunities to work with customers to develop pharmaceuticals and biologics will require substantial additional funding. Our customers may not be successful in their efforts to create a pipeline of product candidates, to develop commercially successful products, or to develop commercially successful biologic production. |
● | We may not successfully implement our business strategies, including achieving our growth objectives. |
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● | We may require additional financing which may in turn require the issuance of additional shares of Common Stock, preferred stock or other debt or equity securities (including convertible securities) and which would dilute the ownership held by or stockholders. |
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● | Our operating results have been and could be adversely affected by a reduction in business with our significant customers. |
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● | We may encounter difficulties in managing our growth and these difficulties could impair our profitability. |
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● | Our current emphasis on Therapeutic DNA Production Services may reduce our ability to maintain and expand our existing MDX Testing Services and DNA Tagging and Security Products and Services businesses. |
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● | If in the future our MDX Testing Services and DNA Tagging and Security Products and Services businesses do not generate significant cash flows, we may not have sufficient capital to develop, commercialize and have our customers adopt our Therapeutic DNA Production Services. |
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● | If we are unable to expand our DNA manufacturing capacity, we could lose revenue and our business could suffer. |
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● | Rapidly changing technology and extensive competition in synthetic biology could make the services or products we are developing obsolete or non-competitive unless we continue to develop new and improved services or products and pursue new market opportunities. |
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● | Pharmaceutical and biologic products are highly complex, and if we or our collaborators and customers are unable to provide quality and timely offerings to our respective customers, our business could suffer. |
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● | We will need to develop and maintain manufacturing facilities that meet GMP. |
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● | Pharmaceutical and biologic-related revenue will be dependent on our collaborators’ and customers’ demand for our manufacturing services. |
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● | Our safeCircleTM COVID-19 testing service could become obsolete or its utility could be significantly diminished, including in light of significantly decreasing demand for COVID-19 testing services. |
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● | We may be unable to consistently manufacture or source our products to the necessary specifications or in quantities necessary to meet demand on a timely basis and at acceptable performance and cost levels. |
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● | The markets for drug and biologic candidates and synthetic DNA are very competitive, and we may be unable to continue to compete effectively in these industries in the future. |
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● | The markets for our supply chain security and product authentication solutions are very competitive, and we may be unable to continue to compete effectively in these industries in the future. |
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● | We compete with life science, pharmaceutical and biotechnology companies, some of whom are our customers, who are substantially larger than we are and potentially capable of developing new approaches that could make our products and technology obsolete or develop their own internal capabilities that compete with our products. |
● | Our intellectual property rights are valuable, and any inability to protect them could reduce the value of our products, services and brand. |
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● | Pharmaceutical and biologic-related revenue is generally dependent on regulatory approval, oversight and compliance. |
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● | If the FDA were to begin to enforce regulation of laboratory-developed tests, we could incur substantial costs and delays associated with trying to obtain pre-market clearance or approval and costs associated with complying with post-market requirements. |
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● | If we fail to comply with laboratory licensing requirements, we could lose the ability to offer our clinical testing services or experience disruptions to our business. |
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● | If we fail to comply with healthcare laws, we could face substantial penalties and our business, operations and financial conditions could be adversely affected. |
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● | If we are unable to continue to retain the services of Dr. Hayward, we may not be able to continue our operations. |
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● | We may have conflicts of interest with our affiliates and related parties, and in the past we have engaged in transactions and entered into agreements with affiliates that were not negotiated at arms’ length. |
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● | There are a large number of shares of Common Stock underlying our outstanding options and warrants and the sale of these shares may depress the market price of our Common Stock and cause immediate and substantial dilution to our existing stockholders. |
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● | We have received written notice from Nasdaq that we are not in compliance with Nasdaq’s minimum bid requirements and if we are unable to regain compliance with the Nasdaq continued listing standards, which may require effecting a reverse stock split of our Common Stock, we could be delisted from Nasdaq, which would negatively impact our business, our ability to raise capital, and the market price and liquidity of our Common Stock. |
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● | In addition to the above key factors, as well as other variables affecting our operating results and financial condition, past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. The following are important factors that could cause actual results or events to differ materially from those contained in any forward-looking statements made by us or on our behalf. The risks and uncertainties described below are not the only ones we face. In addition to the factors discussed elsewhere in this prospectus and our other reports and documents filed with the SEC, risks and uncertainties not presently known to us or that we may currently deem immaterial also may impair our business, financial condition, operating results and/or stock price. If any of the following risks or such other risks actually occurs, our business, financial condition, operating results and/or stock price could be harmed. In the following factors, “volatility in our share price”, “adverse impact on the price (or value) of our shares”, “decline in the price of our Common Stock” and similar terms also refer to our warrants and shares to be received upon exercise of our warrants. |
Risks Relating to Our Common Stock and Other Securities:
There are a large number of shares of CommonStock underlying our outstanding options and warrants and the sale of these shares may depress the market price of our Common Stock andcause immediate and substantial dilution to our existing stockholders.
As of March 7, 2024, we had 16,978,703shares of Common Stock issued and outstanding, outstanding options to purchase 2,192,019 shares of Common Stock, outstanding warrantsto purchase 18,917,340 shares of Common Stock, 282,640 unvested restricted stock units, and 1,340,464 shares available for grant underour 2005 and 2020 Equity Incentive Plans. The issuance of shares upon exercise of our outstanding options and warrants will cause immediateand substantial dilution to our stockholders and any sale thereof may depress the market price of our Common Stock.
We may be required to repurchase certainof our warrants.
Under the Common Warrants and our warrants soldprivately that have registration rights, in the event of a “Fundamental Transaction” (as defined in the related warrant agreement,which generally includes any merger with another entity, the sale, transfer or other disposition of all or substantially all of our assetsto another entity, or the acquisition by a person of more than 50% of our Common Stock), each warrant holder will have the right at anytime prior to the consummation of the Fundamental Transaction to require us to repurchase the warrant for a purchase price in cash equalto the Black Scholes value (as calculated under the warrant agreement) of the then remaining unexercised portion of such warrant on thedate of such Fundamental Transaction, which may materially adversely affect our financial condition and/or results of operations and mayprevent or deter a third party from acquiring us.
We have received written notice from Nasdaqthat we are not in compliance with Nasdaq’s minimum bid price requirements and if we are unable to regain compliance with Nasdaqcontinued listing standards, which may require effecting a reverse stock split of our Common Stock, we could be delisted from Nasdaq,which would negatively impact our business, our ability to raise capital, and the market price and liquidity of our Common Stock.
Nasdaq’s Minimum Bid Price Requirement requiresthat the Company’s Common Stock maintain a closing bid price for 30 consecutive business days of $1.00 per share. On December 1,2023, the Company received the Notice from Nasdaq notifying the Company that, because the closing bid price for its Common Stock has beenbelow $1.00 per share for 30 consecutive business days, it no longer complies with the Minimum Bid Price Requirement for continued listingon The Nasdaq Stock Market. There is no assurance that we will be able to regain compliance with the Minimum Bid Price Requirement. TheNotice had no immediate effect on the listing of the Company’s Common Stock on The Nasdaq Stock Market. The Company has been providedan initial compliance period of 180 calendar days, or until May 29, 2024, toregain compliance with the Minimum Bid Price Requirement. During the compliance period, the Company’s shares of Common Stock willcontinue to be listed and traded on The Nasdaq Stock Market. To regain compliance, the closing bid price of the Company’s CommonStock must meet or exceed $1.00 per share for a minimum of ten consecutive business days during the 180-day compliance period. The Companyintends to actively monitor the bid price for its Common Stock and will consider available options, including effecting a reverse stocksplit, to regain compliance with the Minimum Bid Price Requirement.
If our Common Stock is delisted by Nasdaq, ourCommon Stock may be eligible for quotation on an over-the-counter quotation system or on the pink sheets but will lack the market efficienciesassociated with Nasdaq. Upon any such delisting, our Common Stock would become subject to the regulations of the SEC relating to the marketfor penny stocks. A penny stock is any equity security not traded on a national securities exchange that has a market price of less than$5.00 per share. The regulations applicable to penny stocks may severely affect the market liquidity for our Common Stock and could limitthe ability of stockholders to sell securities in the secondary market. In such a case, an investor may find it more difficult to disposeof or obtain accurate quotations as to the market value of our Common Stock, and there can be no assurance that our Common Stock willbe eligible for trading or quotation on any alternative exchanges or markets.
Delisting from Nasdaq could adversely affect ourability to raise additional financing through public or private sales of equity securities, would significantly affect the ability ofinvestors to trade our securities and would negatively affect the value and liquidity of our Common Stock. Delisting could also have othernegative results, including the potential loss of confidence by employees and customers, the loss of institutional investor interest andfewer business development opportunities.
The exercisability of the Common Warrantsis contingent upon us obtaining Shareholder Approval. If we do not obtain such Shareholder Approval, the Common Warrants may never becomeexercisable.
The Common Warrants are not immediately exercisable,as their exercisability is contingent upon us obtaining Shareholder Approval. The Common Warrants will become exercisable upon ShareholderApproval and will expire on the five-year anniversary of such date. “Shareholder Approval” means the first trading day afterthe filing of a Form 8-K disclosing the approval pursuant to the applicable rules and regulations of Nasdaq from the shareholdersof the Company with respect to the issuance of all of the shares underlying the Common Warrants and the reduction in exercise price andextension of expiration dates of the warrants described in “Warrant Repricing” beginning on page 16. In the eventthat we cannot obtain Shareholder Approval, the Common Warrants may never become exercisable. In no event will we be requiredto net cash settle any Common Warrant.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus andthe documents that we incorporate herein by reference contain forward-looking statements concerning our business, operations andfinancial performance and condition, as well as our plans, objectives and expectations for our business operations and financial performanceand condition. Any statements contained herein that are not statements of historical facts may be deemed to be forward-looking statements.In some cases, you can identify forward-looking statements by terminology such as “can”, “may”, “could”, “should”, “assume”, “forecasts”, “believe”, “designed to”, “will”, “expect”, “plan”, “anticipate”, “estimate”, “potential”, “position”, “predicts”, “strategy”, “guidance”, “intend”, “budget”, “seek”, “project” or “continue”, or the negative thereof or other comparable terminology regarding beliefs, plans, expectationsor intentions regarding the future. You should read statements that contain these words carefully because they:
| · | discuss our future expectations; |
| · | contain projections of our future results of operations or of our financial condition; and |
| · | state other “forward-looking” information. |
We believe it is important to communicate our expectations. However,forward-looking statements are based on our current expectations, assumptions, estimates and projections about our business and our industryand are subject to known and unknown risks, uncertainties and other factors. Accordingly, our actual results and the timing of certainevents may differ materially from those expressed or implied in such forward-looking statements due to a variety of factors and risks,including, but not limited to, those set forth under “Risk Factors” in this prospectus, and the following factors and risks:
| · | our expectations of future revenues, expenditures, capital or other funding requirements; |
| · | the adequacy of our cash and working capital to fund present and planned operations and growth; |
| · | the substantial doubt relating to our ability to continue as a going concern; |
| · | our need for additional financing which may in turn require the issuance of additional shares of Common Stock, preferred stock or other debt or equity securities (including convertible securities) which would dilute the ownership held by stockholders; |
| · | our business strategy and the timing of our expansion plans, including the development of new production facilities for our Therapeutic DNA Production Services; |
| · | demand for Therapeutic DNA Production Services; |
| · | demand for DNA Tagging Services; |
| · | demand for MDx Testing Services, including in light of significantly decreasing demand for COVID testing services; |
| · | our expectations concerning existing or potential development and license agreements for third-party collaborations or joint ventures; |
| · | regulatory approval and compliance for our Therapeutic DNA Production Services, upon which our business strategy is substantially dependent; |
| · | whether we are able to achieve the benefits expected from the acquisition of Spindle; |
| · | the effect of governmental regulations generally; |
| · | our expectations of when regulatory submissions may be filed or when regulatory approvals may be received; |
| · | our expectations concerning product candidates for our technologies; |
| · | our expectations of when or if we will become profitable; and |
| · | our current non-compliance with Nasdaq's minimum bid price requirements, which in the absence of a reverse split, may lead to delisting, potentially negatively impacting our business, our ability to raise capital, and the market price and liquidity of our Common Stock. |
Any or all of our forward-looking statements mayturn out to be wrong. They may be affected by inaccurate assumptions that we might make or by known or unknown risks and uncertainties.Actual outcomes and results may differ materially from what is expressed or implied in our forward-looking statements. Among the factorsthat could affect future results are:
| · | the inherent uncertainties of product development based on our new and as yet not fully proven technologies; |
| · | the risks and uncertainties regarding the actual effect on humans of seemingly safe and efficacious formulations and treatments when tested clinically; |
| · | formulations and treatments that utilize our Therapeutic DNA Production Services; |
| · | the inherent uncertainties associated with clinical trials of product candidates, including product candidates that utilize our Therapeutic DNA Production Services; |
| · | the inherent uncertainties associated with the process of obtaining regulatory clearance or approval to market product candidates, including product candidates that utilize our Therapeutic DNA Production Services; |
| · | the inherent uncertainties associated with commercialization of products that have received regulatory clearance or approval, including products that utilize our Therapeutic DNA Production Services; |
| · | economic and industry conditions generally and in our specific markets; |
| · | the volatility of, and decline in, our stock price; and |
| · | our ability to obtain the necessary financing to fund our operations and effect our strategic development plan. |
All forward-looking statements and risk factorsincluded in this prospectus are made as of the date hereof, and all forward-looking statements and risk factors included in documentsincorporated herein by reference are made as of their original date, in each case based on information available to us as of the datehereof, or in the case of documents incorporated by reference, the original date of any such document, and we assume no obligations toupdate any forward-looking statement or risk factor, unless we are required to do so by law. If we do update one or more forward-lookingstatements, no inference should be drawn that we will make updates with respect to other forward-looking statements or that we will makeany further updates to those forward-looking statements at any future time.
Forward-looking statements may include our plansand objectives for future operations, including plans and objectives relating to our products and our future economic performance, projections,business strategy and timing and likelihood of success. Assumptions relating to the foregoing involve judgments with respect to, amongother things, future economic, competitive and market conditions, future business decisions, demand for our products and services, andthe time and money required to successfully complete development and commercialization of our technologies, all of which are difficultor impossible to predict accurately and many of which are beyond our control.
Any of the assumptions underlying the forward-lookingstatements contained in this prospectus could prove inaccurate and, therefore, we cannot assure you that any of the results or eventscontemplated in any of such forward-looking statements will be realized. Based on the significant uncertainties inherent in these forward-lookingstatements, the inclusion of any such statement should not be regarded as a representation or as a guarantee by us that our objectivesor plans will be achieved, and we caution you against relying on any of the forward looking-statements contained herein.
MARKET, INDUSTRY AND OTHER DATA
Market data and certainindustry data and forecasts used throughout this prospectus were obtained from sources we believe to be reliable, including market researchdatabases, publicly available information, reports of governmental agencies and industry publications and surveys. We have relied on certaindata from third-party sources, including internal surveys, industry forecasts and market research, which we believe to be reliable basedon our management’s knowledge of the industry. Forecasts are particularly likely to be inaccurate, especially over long periodsof time. In addition, we do not necessarily know what assumptions regarding general economic growth were used in preparing the third-partyforecasts we cite. Statements as to our market position are based on the most currently available data. While we are not aware of anymisstatements regarding the industry data presented in this prospectus and the documents incorporated by reference into this prospectus,our estimates involve risks and uncertainties and are subject to change based on various factors, including those discussed under theheading “Risk Factors” in this prospectus and the documents incorporated by reference into this prospectus.
USE OF PROCEEDS
We will not receive any proceeds from the saleof the shares of Common Stock by the Selling Stockholders. However, we will receive proceeds from the exercise of the Common Warrantsby the Selling Stockholders to the extent they are exercised for cash. We estimate that the maximum proceeds that we may receive fromthe exercise of the Common Warrants, assuming all the Common Warrants are exercised at their exercise price of $0.609, will be $6,874,466.We do not know, however, whether any of the Common Warrants will be exercised or, if any of the Common Warrants are exercised, when theywill be exercised. It is possible that the Common Warrants will expire and never be exercised. There are circumstances under which theCommon Warrants may be exercised on a cashless basis. In these circumstances, even if the Common Warrants are exercised, we may not receiveany proceeds, or the proceeds that we do receive may be significantly less than what we might expect. We intend to use the aggregate netproceeds from the exercise of the Common Warrants for general corporate purposes, including working capital. The actual allocation ofproceeds realized from the exercise of these Common Warrants will depend upon the amount and timing of such exercises, our operating revenuesand cash position at such time and our working capital requirements. The Selling Stockholders will pay any expenses incurred by the SellingStockholders for brokerage, accounting, tax or legal services or any other expenses incurred by the Selling Stockholders in disposingof its shares of Common Stock. We will bear all other costs, fees and expenses incurred in effecting the registration of the shares coveredby this prospectus, including, without limitation, all registration fees and fees and expenses of our counsel and our accountants.
MARKET PRICE OF OUR COMMON STOCK AND RELATEDSTOCKHOLDER MATTERS
Market Information
Our Common Stock is listed on The Nasdaq CapitalMarket under the symbol “APDN.” A description of our Common Stock is set forth under the heading “Description of CapitalStock” beginning on page 20 of this prospectus.
The last reported sale price for our Common Stockon March 7, 2024 was $0.56 per share.
Holders
Asof March 7, 2024, we had 131 record holders of our Common Stock and no preferred stock issued and outstanding.The number of record holders was determined from the records of our transfer agent and does not include beneficial owners of Common Stockwhose shares are held in the names of various security brokers, dealers, and registered clearing agencies. The transfer agent of our CommonStock is Equiniti Trust Company, LLC. The transfer agent and registrar’s address is 6201 15thAve, Brooklyn, NY 11219.
Dividend Policy
The Company has never previously declared or paidany cash dividends on its Common Stock. We currently intend to retain earnings and profits, if any, to support our business strategy anddo not intend to pay any cash dividends within the foreseeable future. Any future determination to pay cash dividends will be at the solediscretion of our Board of Directors and will depend upon the financial condition of the Company, its operating results, capital requirements,general business conditions and any other factors that our board of directors deems relevant.
PRIVATE PLACEMENT OF COMMON WARRANTS
Concurrently with the sale of shares of Common Stock and Pre-Funded Warrants, we also issued and sold to the Selling Stockholdersthe Common Warrants to purchase an aggregate of up to 11,288,122 shares of our Common Stock. Each Warrant will have an exercise priceof $0.609 per share of common stock and will become exercisable upon Shareholder Approval. The Common Warrants will expire on the five-yearanniversary of Shareholder Approval. The Common Warrants are exercisable, at the option of each holder, in whole or in part by deliveringto us a duly executed exercise notice and, at any time a registration statement registering the issuance of the Common Stock underlyingthe Common Warrants under the Securities Act of 1933, as amended (the “Securities Act”) is effective and available for theissuance of such shares, or an exemption from registration under the Securities Act is available for the issuance of such shares, by paymentin full in immediately available funds for the number of common stock purchased upon such exercise. If at the time of exercise there isno effective registration statement registering, or the prospectus contained therein is not available for the issuance of the common stockunderlying the Common Warrants, then the Common Warrants may also be exercised, in whole or in part, at such time by means of a cashlessexercise, in which case the holder would receive upon such exercise the net number of common shares determined according to the formulaset forth in the Common Warrants.
Subject to limited exceptions, a holder of CommonWarrants will not have the right to exercise any portion of its Common Warrants if the holder, together with its affiliates, would beneficiallyown in excess of 4.99% (or, at the election of the purchaser prior to issuance of the Common Warrants, 9.99%) of the number of sharesof our common stock outstanding immediately after giving effect to such exercise. A holder may increase or decrease the beneficial ownershiplimitation up to 9.99%, provided, however, that any increase in the beneficial ownership limitation shall not be effective until 61 daysfollowing notice of such change to the Company.
Pursuant to the securitiespurchase agreements entered into in connection with the Offering, within 45 calendar days from the date of the securities purchase agreements,we agreed to file a registration statement on Form S-3 (or other appropriate form if the Company is not then S-3 eligible) providingfor the resale by the Selling Stockholders of the shares of Common Stock issuable upon exercise of the Common Warrants. We agreed to usecommercially reasonable efforts to cause such registration statement to become effective within 90 days following the closing date ofthe securities purchase agreements and to keep such registration statement effective at all times until no Selling Stockholder owns anyCommon Warrants or shares of common stock issuable upon exercise thereof.
In the event of anyfundamental transaction, as described in the Common Warrants and generally including any merger with or into another entity, sale ofall or substantially all of the Company’s assets, tender offer or exchange offer, or reclassification of the shares of common stock,subject to certain exceptions, then upon any subsequent exercise of a Common Warrant, the holder will have the right to receive as alternativeconsideration, for each share of common stock that would have been issuable upon such exercise immediately prior to the occurrence ofsuch fundamental transaction, the number of shares of common stock of the successor or acquiring corporation of the Company, if it isthe surviving corporation, and any additional consideration receivable upon or as a result of such transaction by a holder of the numberof shares of common stock for which the Common Warrant is exercisable immediately prior to such event. Notwithstanding the foregoing,in the event of a fundamental transaction, the holders of the Common Warrants have the right to require the Company or a successor entityto purchase the Common Warrants for cash in the amount of the Black Scholes Value (as defined in the Common Warrants) of the unexercisedportion of the Common Warrants concurrently with or within 30 days following the consummation of a fundamental transaction. However,in the event of a fundamental transaction which is not in the Company’s control or in which the consideration payable consistsof equity securities of a successor entity that is quoted or listed on a nationally recognized securities exchange, the holders of theCommon Warrants will only be entitled to receive from the Company or its successor entity, as of the date of consummation of such fundamentaltransaction the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portionof the Common Warrants that is being offered and paid to the holders of Common Stock in connection with the fundamental transaction,whether that consideration is in the form of cash, stock or any combination of cash and stock, or whether the holders of common stockare given the choice to receive alternative forms of consideration in connection with the fundamental transaction.
WARRANT REPRICING
On January 31, 2024, in connection with theOffering and the Purchase Agreements, the Company agreed to reduce the exercise price of warrants to purchase up to an aggregate of 3,055,139shares of Common Stock previously issued to the Purchasers with exercise prices ranging from $1.29 to $4.00 per warrant to $0.609 perwarrant. The Company also agreed to extend the expiration dates for such warrants to August 2028. In addition, 58,074 outstandingwarrants held by other investors who did not participate in the Offering will have their exercise price reduced to $0.609 per warrantshare and will have their warrant expiration dates extended to August 2028. The foregoing reductions of the exercise prices and extensionof expiration dates of such warrants is subject to Shareholder Approval.
SELLING STOCKHOLDERS
The Common Stock being offered by the SellingStockholders are those issuable to the Selling Stockholders, upon exercise of the Common Warrants. For additional information regardingthe issuances of the Common Warrants, see “Private Placement of Common Warrants” above. We are registering the shares of CommonStock underlying the Common Warrants in order to permit the Selling Stockholders to offer the shares for resale from time to time. Inaddition to the ownership of the shares of Common Stock and the Common Warrants, the Selling Stockholders have had material relationshipswith us within the past three years.
On February 21, 2022, we entered into a securitiespurchase agreement with Armistice Capital Master Fund Ltd. (“Armistice”). Pursuant to the securities purchase agreement, weagreed to sell in a registered direct offering 1,496,400 shares of Common Stock and/or Pre-Funded Warrants to purchase shares of CommonStock. Each share of Common Stock was sold at an offering price of $2.80 and each Pre-Funded Warrant was sold at an offering price of$2.7999 (equal to the purchase price per share minus the exercise price of the Pre-Funded Warrant). Pursuant to the securities purchaseagreement, in a concurrent private placement, the Company also agreed to issue to Armistice unregistered warrants to purchase up to 1,496,400shares of Common Stock. Each warrant has an exercise price of $2.84 per share, is exercisable six months from the date of issuance andwill expire five years from the initial exercise date.
On each of December 9 and 10, 2020, DillonHill Capital, LLC and Dillon Hill Investment Company, LLC, exercised 100,000 of certain common warrants received in an underwritten publicoffering that closed on November 15, 2019 (the “2019 Warrants”), for an aggregate exercise of 200,000 of their 2019 Warrants,resulting in total net proceeds to the Company of approximately $1.1 million. As a result of these exercises, the Company issued to theDillon Hill Capital, LLC and Dillon Hill Investment Company, LLC, an aggregate of 100,000 additional replacement warrants, which are substantiallysimilar to the 2019 Warrants except that 50,000 of the newly issued replacement warrants have an exercise price of $6.57 and 50,000 ofsuch replacement warrants have an exercise price of $6.46.
The table below lists the Selling Stockholdersand other information regarding the beneficial ownership of the shares of Common Stock by each of the Selling Stockholders. The secondcolumn lists the number of shares of Common Stock beneficially owned by each Selling Stockholders, based on its ownership of the sharesof Common Stock, Common Warrants, and other warrants, as of March 7, 2024, assuming exercise of the warrants held by theSelling Stockholders on that date, without regard to any limitations on exercises. The third and fourth columns assume the sale of allof the shares offered by the Selling Stockholders pursuant to this prospectus. The third column lists the shares of Common Stock underlyingthe Common Warrants offered by this prospectus by the Selling Stockholders.
In accordance with the terms of the Purchase Agreementswith the Selling Stockholders, this prospectus generally covers the resale of the maximum number of shares of Common Stock issuable uponexercise of the Common Warrants.
Under the terms of the Common Warrants, a SellingStockholder may not exercise the warrants to the extent such exercise would cause such Selling Stockholder, together with its affiliatesand attribution parties, to beneficially own a number of shares of Common Stock which would exceed 4.99% or 9.99%, as applicable, ofour then outstanding Common Stock following such exercise, excluding for purposes of such determination shares of Common Stock issuableupon exercise of such Common Warrants which have not been exercised. The number of shares in the table below does not reflect this limitation.The Selling Stockholder may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Name of Selling Stockholders | | Shares Owned prior to Offering | | | Shares Offered by this Prospectus | | | Shares Owned after Offering | | | Percentage of Shares Beneficially Owned after Offering (1) | |
Armistice Capital, LLC (2) | | | 14,584,466 | (3) | | | 8,210,066 | (4) | | | 6,374,400 | | | | 21.25 | % |
Dillon Hill Capital, LLC (5) | | | 2,218,084 | (6) | | | 1,278,056 | (7) | | | 940,028 | | | | 5.07 | % |
Dillon Hill Investment Company, LLC (8) | | | 3,035,509 | (9) | | | 1,800,000 | (10) | | | 1,235,509 | | | | 6.46 | % |
(1) | Percentages are based on 16,978,703 shares of Common Stock outstanding as of March 7, 2024. |
(2) | The securities are directly held as of March 7, 2024, by Armistice Capital Master Fund Ltd. (the “Master Fund”), and may be deemed to be beneficially owned by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. The warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation restricts the Selling Stockholder from exercising that portion of the warrants that would result in the Selling Stockholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The beneficial ownership of the Master Fund reported in this table does not reflect this limitation The address of Armistice Capital Master Fund Ltd. is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022. |
(3) | Consists of (i) 1,561,995 shares of Common Stock, (ii) Common Warrants to purchase up to 8,210,066 shares of Common Stock, (iii) warrants to purchase up to 2,396,400 shares of Common Stock, and (iv) Pre-Funded Warrants to purchase up to 2,416,005 shares of Common Stock. |
(4) | Represents Common Stock underlying Common Warrants to purchase up to 8,210,066 shares of Common Stock. |
(5) | Based on a Schedule 13G filed by Bruce Grossman on February 12, 2024, the securities directly held by Dillon Hill Capital, LLC, a New York limited liability company, and may be deemed to be indirectly beneficially owned by Bruce Grossman, as the sole member of Dillon Hill Capital, LLC. Dillon Hill Capital, LLC and Bruce Grossman disclaim beneficial ownership of the reported securities except to the extent of their respective pecuniary interest therein. The address of Dillon Hill Capital, LLC is c/o Bruce Grossman, 200 Business Park Drive, Suite 306, Armonk, NY 10504. Under the terms of the Common Warrants, a Selling Stockholder may not exercise the Common Warrants to the extent such exercise would cause such Selling Stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of Common Stock which would exceed 4.99% or 9.99%, as applicable, of our then outstanding Common Stock following such exercise, excluding for purposes of such determination shares of Common Stock issuable upon exercise of such Common Warrants which have not been exercised. The beneficial ownership of Dillon Hill Capital, LLC reported in this table does not reflect this limitation. |
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(6) | Consists of (i) 639,028 shares of Common Stock, (ii) Common Warrants to purchase up to 1,278,056 shares of Common Stock, and (iii) warrants to purchase up to 301,000 shares of Common Stock. |
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(7) | Represents Common Stock underlying Common Warrants to purchase up to 1,278,056 shares of Common Stock. |
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(8) | Based on a Schedule 13G filed by Bruce Grossman on February 12, 2024, the securities are directly held by Dillon Hill Investment Company, LLC, a New York limited liability company, and may be deemed to be indirectly beneficially owned by Bruce Grossman, who exercises control over the investment decisions of Dillon Hill Investment Company LLC. Dillon Hill Investment Company LLC and Bruce Grossman disclaim beneficial ownership of the reported securities except to the extent of their respective pecuniary interest therein. The address of Dillon Hill Investment Company LLC is c/o Bruce Grossman, 200 Business Park Drive, Suite 306, Armonk, NY 10504. Under the terms of the Common Warrants, a Selling Stockholder may not exercise the Common Warrants to the extent such exercise would cause such Selling Stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of Common Stock which would exceed 4.99% or 9.99%, as applicable, of our then outstanding Common Stock following such exercise, excluding for purposes of such determination shares of Common Stock issuable upon exercise of such Common Warrants which have not been exercised. The beneficial ownership of Dillon Hill Investment Company LLC reported in this table does not reflect this limitation. |
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(9) | Consists of (i) 877,770 shares of Common Stock, (ii) Common Warrants to purchase up to 1,800,000 shares of Common Stock, and (iii) warrants to purchase up to 357,739 shares of Common Stock. |
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(10) | Represents Common Stock underlying Common Warrants to purchase up to 1,800,000 shares of Common Stock. |
PLAN OF DISTRIBUTION
Each Selling Stockholder of the securities andany of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered herebyon the principal trading market or any other stock exchange, market or trading facility on which the securities are traded or in privatetransactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may use any one or more of the following methodswhen selling securities:
| ● | | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| ● | | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| ● | | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| ● | | an exchange distribution in accordance with the rules of the applicable exchange; |
| ● | | privately negotiated transactions; |
| ● | | settlement of short sales; |
| ● | | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; |
| ● | | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| ● | | a combination of any such methods of sale; or |
| ● | | any other method permitted pursuant to applicable law. |
The Selling Stockholders may also sell securitiesunder Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholdersmay arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Stockholders(or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, exceptas set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commissionin compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.
If at thetime of any offering made under this prospectus a member of FINRA participating in the offering has a “conflict of interest”as defined in FINRA Rule 5121 (“Rule 5121”), that offering will be conducted in accordance with the relevant provisionsof Rule 5121.
Our Common Stock is listed the Nasdaq CapitalMarket under the symbol “APDN.”
In connection with the sale of the securitiesor interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions,which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Stockholdersmay also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealersthat in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with broker-dealersor other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or otherfinancial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution mayresell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealersor agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the SecuritiesAct in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resaleof the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each Selling Stockholderhas informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any personto distribute the securities.
The Company is required to pay certain fees andexpenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the Selling Stockholdersagainst certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective untilthe earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without regardto any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance withthe current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) allof the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similareffect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securitieslaws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualifiedfor sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations underthe Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activitieswith respect to the Common Stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution.In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulationsthereunder, including Regulation M, which may limit the timing of purchases and sales of the Common Stock by the Selling Stockholdersor any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them of the need todeliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 underthe Securities Act).
DESCRIPTION OF CAPITAL STOCK
Thefollowing description of our Common Stock and Common Warrants summarizes the material terms and provisions of the securities thatwe may issue in connection with this offering. It may not contain all the information that is important to you. For the complete termsof our Common Stock, please refer to our Certificate of Incorporation and our by-laws (“By-Laws”), which are filed as exhibitsto the registration statement which includes this prospectus. See “Where You Can Find More Information.” The Delaware GeneralCorporation Law (“DGCL”) may also affect the terms of these securities. The summary below is qualified in its entirety byreference to our Certificate of Incorporation and By-Laws, each as in effect at the time of any offering of securities under this prospectus.
Asof March 7, 2024, our authorized capital stock consists of 200,000,000 shares of Common Stock, par value $0.001 pershare, of which 16,978,703 shares were issued and outstanding, and 10,000,000 shares of preferred stock, par value $0.001 per share, ofwhich no shares were issued and outstanding. In addition, as of March 7, 2024, there were 2,192,019 shares of Common Stockissuable upon exercise of options outstanding, 18,917,340 shares of Common Stock issuable upon exercise of warrants outstanding, 1,340,464shares of Common Stock reserved for future grant or issuance, and 282,640 shares of Common Stock underlying restricted stock units. Theauthorized and unissued shares of Common Stock and preferred stock are available for issuance without further action by our stockholders.
Common Stock
Each stockholder of our Common Stock is entitledto one vote for each share issued and outstanding held on all matters to be voted upon by the stockholders. Our shares of Common Stockhave no preemptive, conversion, or redemption rights. The rights, preferences, and privileges of the holders of Common Stock are subjectto, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock. Upon the sale of substantiallyall of our stock or assets or dissolution, liquidation or winding up, and after all liquidation preferences payable to any series of preferredstock entitled thereto have been satisfied, our remaining assets shall be distributed to all holders of Common Stock and any similarlysituated stockholders who are not entitled to any liquidation preference or, if there be an insufficient amount to pay all such stockholders,then ratably among such holders. All of our issued and outstanding shares of Common Stock are fully paid and non-assessable. The holdersof shares of our Common Stock will be entitled to such cash dividends as may be declared from time to time by our board of directors fromfunds available therefor.
Our Common Stock is listed the Nasdaq CapitalMarket under the symbol “APDN.” The transfer agent and registrar for our Common Stock is Equiniti Trust Company, LLC. Thetransfer agent and registrar’s address is 6201 15th Ave, Brooklyn, NY 11219.
Common Warrants
Duration and Exercise Price
Each Common Warrant will have an exercise priceof $0.609 per share of Common Stock and will become exercisable upon Shareholder Approval. The Common Warrants will expire on the five-yearanniversary of Shareholder Approval.
Exercisability
The Common Warrants are exercisable, at the optionof each holder, in whole or in part by delivering to us a duly executed exercise notice and, at any time a registration statement registeringthe issuance of the Common Stock underlying the Common Warrants under the Securities Act is effective and available for the issuance ofsuch shares, or an exemption from registration under the Securities Act is available for the issuance of such shares, by payment in fullin immediately available funds for the number of Common Stock purchased upon such exercise. Subject to limited exceptions, a holder ofCommon Warrants will not have the right to exercise any portion of its Common Warrants if the holder, together with its affiliates, wouldbeneficially own in excess of 4.99% (or, at the election of the purchaser prior to issuance of the Common Warrants, 9.99%) of the numberof shares of our Common Stock outstanding immediately after giving effect to such exercise. A holder may increase or decrease the beneficialownership limitation up to 9.99%, provided, however, that any increase in the beneficial ownership limitation shall not be effective until61 days following notice of such change to the Company.
Cashless Exercise
If at the time of exercise there is no effectiveregistration statement registering, or the prospectus contained therein is not available for the issuance of the Common Stock underlyingthe Common Warrants, then the Common Warrants may also be exercised, in whole or in part, at such time by means of a cashless exercise,in which case the holder would receive upon such exercise the net number of common shares determined according to the formula set forthin the Common Warrant.
Fundamental Transactions
In the event of any fundamentaltransaction, as described in the Common Warrants and generally including any merger with or into another entity, sale of all or substantiallyall of the Company’s assets, tender offer or exchange offer, or reclassification of the shares of Common Stock, subject to certainexceptions, then upon any subsequent exercise of a Common Warrant, the holder will have the right to receive as alternative consideration,for each share of Common Stock that would have been issuable upon such exercise immediately prior to the occurrence of such fundamentaltransaction, the number of shares of Common Stock of the successor or acquiring corporation of the Company, if it is the surviving corporation,and any additional consideration receivable upon or as a result of such transaction by a holder of the number of shares of Common Stockfor which the Common Warrant is exercisable immediately prior to such event. Notwithstanding the foregoing, in the event of a fundamentaltransaction, the holders of the Common Warrants have the right to require the Company or a successor entity to purchase the Common Warrantsfor cash in the amount of the Black Scholes Value (as defined in the Common Warrants) of the unexercised portion of the Common Warrantsconcurrently with or within 30 days following the consummation of a fundamental transaction. However, in the event of a fundamental transactionwhich is not in the Company’s control or in which the consideration payable consists of equity securities of a successor entitythat is quoted or listed on a nationally recognized securities exchange, the holders of the Common Warrants will only be entitled to receivefrom the Company or its successor entity, as of the date of consummation of such fundamental transaction the same type or form of consideration(and in the same proportion), at the Black Scholes Value of the unexercised portion of the Common Warrants that is being offered and paidto the holders of Common Stock in connection with the fundamental transaction, whether that consideration is in the form of cash, stockor any combination of cash and stock, or whether the holders of Common Stock are given the choice to receive alternative forms of considerationin connection with the fundamental transaction.
Transferability
In accordance with itsterms and subject to applicable laws, a Common Warrant may be transferred at the option of the holder upon surrender of the Common Warrantto us together with the appropriate instruments of transfer and payment of funds sufficient to pay any transfer taxes (if applicable).
Fractional Shares
No fractional sharesof Common Stock will be issued upon the exercise of the Common Warrants. Rather, the number of shares of Common Stock to be issued will,at our election, either be rounded up to the nearest whole number or we will pay a cash adjustment in respect of such final fraction inan amount equal to such fraction multiplied by the exercise price.
Trading Market
There is no establishedtrading market for the Common Warrants, and we do not expect a market to develop. We do not intend to apply for a listing for the CommonWarrants on any securities exchange or other nationally recognized trading system. Without an active trading market, the liquidity ofthe Common Warrant will be limited.
Rights as a Shareholder
Except as otherwise provided in the Common Warrants or by virtue of the holders’ ownership of shares of Common Stock, the holdersof Common Warrants do not have the rights or privileges of holders of our shares of Common Stock, including any voting rights, until suchCommon Warrant holders exercise their warrants.
Possible Anti-Takeover Effects of DelawareLaw and our Certificate of Incorporation and By-Laws
Our Certificate of Incorporation contains provisionsthat could make it more difficult to acquire control of our company by means of a tender offer, open market purchases, a proxy contestor otherwise. A description of these provisions is set forth below.
Anti-Takeover Effects of Delaware Law
Companies incorporated in Delaware are subjectto the provisions of Section 203 of the DGCL, or Section 203, unless the corporation has “opted out” of these provisionswith an express provision in its original certificate of incorporation or an express provision in its certificate of incorporation orby-laws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We have optedout of Section 203 with an express provision in our Certificate of Incorporation. Therefore, the anti-takeover effects of Section 203do not apply to us.
In general, Section 203 prohibits a publicly-heldDelaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-yearperiod following the time that this stockholder becomes an interested stockholder, unless the business combination is approved in a prescribedmanner. A “business combination” includes, among other things, a merger, asset or stock sale or other transaction resultingin a financial benefit to the interested stockholder. An “interested stockholder” is a person who, together with affiliatesand associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation’svoting stock.
Under Section 203, a business combinationbetween a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions: before the stockholderbecame interested, the board of directors approved either the business combination or the transaction which resulted in the stockholderbecoming an interested stockholder; 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, shares owned by persons who are directors and also officers, and employeestock plans, in some instances; or at or after the time the stockholder became interested, the business combination was approved by theboard of directors of the corporation and authorized at an annual or special meeting of the stockholders by the affirmative vote of atleast two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
Election and Removal of Directors
Directors will be elected by a plurality of thevoting power of the shares present in person or represented by proxy at the stockholders meeting and entitled to vote on the electionof directors. Our Certificate of Incorporation does not provide for a classified board of directors or for cumulative voting in the electionof directors. Under Article VIII of the Certificate of Incorporation and Section 3.13 of the By-Laws, directors may be removedby the stockholders of the Company only for cause, and in such case only by the affirmative vote of the holders of at least a majorityof the voting power of the issued and outstanding shares of capital stock of the Company then entitled to vote in the election of directors.On December 21, 2015, the Court of Chancery of the State of Delaware invalidated as a matter of law certain provisions of the certificateof incorporation and bylaws of VAALCO Energy, Inc. (“VAALCO”), a Delaware corporation, that permitted the removal ofVAALCO’s directors by its stockholders only for cause. In In re VAALCO Energy, Inc. Stockholder Litigation, Consol.C.A. No. 11775-VCL (Del. Ch. Dec. 21, 2015), the Court ruled from the bench to hold that, in the absence of a classified boardof directors or cumulative voting, VAALCO’s “only for-cause” director removal provisions conflict with Section 141(k) ofthe DGCL and are therefore invalid. Because the Company’s Certificate of Incorporation and By-Laws contain similar “only for-cause”director removal provisions and the Company does not have a classified board of directors or cumulative voting, the Company will not attemptto enforce the foregoing “only for-cause” director removal provision in light of the recent VAALCO decision.
Size of Board and Vacancies
The authorized number of directors may be determinedby the board of directors, provided the board shall consist of at least one (1) member. No decrease in the number of directors constitutingthe board shall shorten the term of any incumbent director.
Vacancies occurring on our board of directorsfor any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled only bya vote of a majority of the remaining members of the board of directors, although less than a quorum, or by a sole remaining director,at any meeting of the board of directors.
Amendment
The Certificate of Incorporation may be amendedin the manner prescribed by the DGCL. The board of directors is authorized to adopt, amend, alter or repeal the By-Laws by the affirmativevote of at least a majority of the board of directors then in office. No amendment to the Certificate of Incorporation or the By-Lawsmay adversely affect any indemnification right or protection of any director, officer, employee or other agent existing at the time ofsuch amendment, repeal or adoption of an inconsistent provision for or in respect of any act, omission or other matter occurring, or anyaction or proceeding accruing or arising prior to such amendment, repeal or adoption of an inconsistent provision.
Authorized but Unissued Shares of Common Stockand of Preferred Stock
We believe that the availability of the “BlankCheck” preferred stock under our Certificate of Incorporation provides us with flexibility in addressing corporate issues that mayarise. The board of directors has the power, subject to applicable law, to issue series of preferred stock that could, depending on theterms of the series, impede the completion of a merger, tender offer or other takeover attempt that some, or a majority, of the stockholdersmight believe to be in their best interests or in which stockholders might receive a premium for their stock over the then prevailingmarket price of the stock. Our board of directors may issue preferred stock with voting rights or conversion rights that, if exercised,could adversely affect the voting power of the holders of Common Stock.
The authorized shares of preferred stock, as wellas shares of Common Stock, will be available for issuance without further action by our stockholders, unless action is required by applicablelaw or the rules of any stock exchange on which our securities may be listed. Having these authorized shares available for issuanceallows us to issue shares without the expense and delay of a special stockholders’ meeting. We may use additional shares for a varietyof purposes, including future public offerings to raise additional capital, to fund acquisitions and as employee compensation. The existenceof authorized but unissued shares of Common Stock and preferred stock could render more difficult or discourage an attempt to obtain controlof our company by means of a proxy contest, tender offer, merger or otherwise. The above provisions may deter a hostile takeover or delaya change in control or management of our company.
Advance Notice Procedure
Our By-Laws provide an advance notice procedurefor stockholders to nominate director candidates for election or to bring business before an annual meeting of stockholders. Only personsnominated by, or at the direction of, our board of directors or by a stockholder of record who has given proper and timely notice to oursecretary prior to the meeting at which such stockholder is entitled to vote and appears, will be eligible for election as a director.In addition, any proposed business other than the nomination of persons for election to our board of directors must constitute a propermatter for stockholder action pursuant to a proper notice of meeting delivered to us. For notice to be timely, it must generally be deliveredto our secretary not less than 90 nor more than 120 calendar days prior to the first anniversary of the previous year’s annual meeting(or if the date of the annual meeting is more than 30 calendar days before or more than 60 calendar days after the anniversary date ofthe previous year’s annual meeting, not earlier than the 120th calendar day prior to such meeting and not later than either the90th calendar day prior to such meeting or the 10th calendar day after public disclosure of the date of such meeting is first made byus). These advance notice provisions may have the effect of precluding the conduct of certain business at a meeting if the proper proceduresare not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directorsor otherwise attempt to obtain control of us.
Special Meetings of Stockholders
Our By-Laws provide that special meetings of stockholdersmay be called only by the Chairman of the Board, the Chief Executive Officer, or the board of directors pursuant to a resolution adoptedby a majority of the board.
LEGAL MATTERS
The validity of the issuance of our securitiesoffered in this prospectus will be passed upon for us by McDermott Will & Emery LLP, New York, New York.
EXPERTS
Marcum LLP, independent registered public accountingfirm, has audited our consolidated financial statements at September 30, 2023 and 2022. We have incorporatedby reference into this prospectus and in the registration statement our financial statements in reliance on Marcum LLP’sreport, which includes an explanatory paragraph as to the Company’s ability to continue as a going conern, given on their authorityas experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statementon Form S-1 under the Securities Act with respect to the securities offered by this prospectus. This prospectus, which constitutesa part of the registration statement, does not contain all of the information set forth in the registration statement, as permitted bythe rules and regulations of the SEC. For further information with respect to us and our securities, we refer you to the registrationstatement, including the exhibits filed as a part of the registration statement. Statements contained in this prospectus concerning thecontents of any contract or any other document are not necessarily complete. If a contract or document has been filed as an exhibit tothe registration statement, please see the copy of the contract or document that has been filed. Each statement in this prospectus relatingto a contract or document filed as an exhibit is qualified in all respects by the filed exhibit. The SEC also maintains an Internet websitethat contains the registration statement of which this prospectus forms a part, as well as the exhibits thereto. These documents, alongwith future reports, proxy statements and other information about us, are available at the SEC’s website, www.sec.gov.
We are subject to the information and reportingrequirements of the Exchange Act, and, in accordance with this law, file periodic reports and other information with the SEC. These periodicreports and other information are available at the SEC’s website, www.sec.gov. We also maintain a website at http://www.adnas.com.You may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnishedto, the SEC. Information contained on our website is not a part of this prospectus, and the inclusion of our website address in this prospectusis an inactive textual reference only.
MATERIALCHANGES
None.
Incorporationof Certain Information by Reference.
We have elected to incorporate certain informationby reference into this prospectus. By incorporating by reference, we can disclose important information to you by referring you to otherdocuments we have filed or will file with the SEC. The information incorporated by reference is deemed to be part of this prospectus,except for information incorporated by reference that is superseded by information contained in this prospectus. This means that you mustlook at all of the SEC filings that we incorporate by reference to determine if any statements in the prospectus or any document previouslyincorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents set forth below thatwe have previously filed with the SEC, except in each case the information contained in such document to the extent “furnished”and not “filed”:
| · | | Our Annual Report on Form 10-K for the fiscal year September 30, 2023 filed with the SEC on December 7, 2023, as amended on January 26, 2024. |
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| · | | Our Quarterly Report on Form 10-Q for the three month period ended December 31, 2023 filed with the SEC on February 8, 2024. |
Uponwritten or oral request, we will provide without charge to each person, including any beneficial owner, to whom a copy of the prospectusis delivered a copy of the documents incorporated by reference in this prospectus (other than exhibits to such documents unless such exhibitsare specifically incorporated by reference in this prospectus). You may request a copy of these filings, at no cost, by writing or telephoningus at the following address: Applied DNA Sciences, Inc., 50 Health Sciences Drive, Stony Brook, New York 11790, c/o Investor Relations,telephone: 631-240-8800. You may also access these documents on our website at www.adnas.com.
Information on our website,including subsections, pages, or other subdivisions of our website, or any website linked to by content on our website, is not part ofthis prospectus and you should not rely on that information unless that information is also in this prospectus or incorporated by referencein this prospectus.
Up to 11,288,122 shares of Common Stock underlyingthe Common Warrants
Applied DNA Sciences, Inc.
PRELIMINARY PROSPECTUS
, 2024
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 13. | Other Expenses of Issuance and Distribution |
The following table sets forth the expenses to be incurred in connectionwith the offering described in this Registration Statement. All amounts are estimates except the SEC’s registration fee.
| | Amount to be Paid | |
SEC Registration Fee | | $ | 941.36 | |
Printing expenses | | $ | 10,000 | |
Legal fees and expenses | | $ | 75,000 | |
Accounting fees and expenses | | $ | 7,000 | |
Transfer agent and registrar fees | | $ | 5,000 | |
Miscellaneous expenses | | $ | 2,000 | |
Total | | $ | 99,941.36 | |
Item 14. | Indemnification of Directors and Officers |
Section 145 of the Delaware General CorporationLaw empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out oftheir capacity or status as directors and officers, provided that the person acted in good faith and in a manner the person reasonablybelieved to be in our best interests, and, with respect to any criminal action, had no reasonable cause to believe the person’sactions were unlawful. The Delaware General Corporation Law further provides that the indemnification permitted thereunder shall not bedeemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws, any agreement,a vote of stockholders or otherwise. The amended and restated certificate of incorporation of the registrant provides for the indemnificationof the registrant’s directors and officers to the fullest extent permitted under the Delaware General Corporation Law. In addition,the amended and restated bylaws of the registrant require the registrant to fully indemnify any person who was or is a party or is threatenedto be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative)by reason of the fact that such person is or was a director or officer of the registrant, or is or was a director or officer of the registrantserving at the registrant’s request as a director, officer, employee or agent of another corporation, partnership, joint venture,trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actuallyand reasonably incurred by such person in connection with such action, suit or proceeding, to the fullest extent permitted by applicablelaw.
Section 102(b)(7) of the Delaware GeneralCorporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personallyliable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except (i) for anybreach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faithor which involve intentional misconduct or a knowing violation of law; (iii) for payments of unlawful dividends or unlawful stockrepurchases or redemptions; or (iv) for any transaction from which the director derived an improper personal benefit. The registrant’samended and restated certificate of incorporation provides that the registrant’s directors shall not be personally liable to itor its stockholders for monetary damages for breach of fiduciary duty as a director and that if the Delaware General Corporation Law isamended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the registrant’sdirectors shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
As permitted by the Delaware General CorporationLaw, the registrant intends to enter into separate indemnification agreements with each of the registrant’s directors and certainof the registrant’s officers which require the registrant, among other things, to indemnify them against certain liabilities whichmay arise by reason of their status as directors, officers or certain other employees.
The registrant has obtained and maintains insurancepolicies under which its directors and officers are insured, within the limits and subject to the limitations of those policies, againstcertain expenses in connection with the defense of, and certain liabilities which might be imposed as a result of, actions, suits or proceedingsto which they are parties by reason of being or having been directors or officers. The coverage provided by these policies may apply whetheror not the registrant would have the power to indemnify such person against such liability under the provisions of the Delaware GeneralCorporation Law.
These indemnification provisions and the indemnificationagreements the registrant intends to enter into between the registrant and the registrant’s officers and directors may be sufficientlybroad to permit indemnification of the registrant’s officers and directors for liabilities (including reimbursement of expensesincurred) arising under the Securities Act of 1933, as amended.
The registration rights agreements between theregistrant and certain Selling Stockholders filed as Exhibit 10.23 to this registration statement provides for the indemnificationby such Selling Stockholders of the registrant against specified liabilities, including liabilities under the Securities Act with respectto information provided by such Selling Stockholders specifically for inclusion in the registration statement.
Item 15. | Recent Sales of Unregistered Securities |
OnJanuary 31, 2024, the Company entered into the Placement Agreement with Maxim Group pursuant to which Maxim Group agreed toserve as the sole placement agent, on a “reasonable best efforts” basis, in connection with the Offering of 3,228,056shares of the Company’s Common Stock and Pre-Funded Warrants to purchase up to 2,416,005 shares of Common Stock, and in a concurrentprivate placement, unregistered Common Warrants to purchase up to 11,288,122 shares of Common Stock. Also on January 31, 2024, inconnection with the Offering, the Company entered into Purchase Agreements with the Purchasers.
The Offering closed onFebruary 2, 2024. The Company received gross proceeds from the Offering, before deducting placement agent fees and other estimatedoffering expenses payable by the Company, of approximately $3.4 million.
Pursuantto the Placement Agreement, the Company paid Maxim Group a cash placement fee equal to 6.5% of the aggregate gross proceeds raisedin the Offering from sales arranged for by Maxim Group. Subject to certain conditions, the Company has also agreed to reimburse certainexpenses of Maxim Group in connection with the Offering, including but not limited to legal fees, up to a maximum of $50,000.
Securities Act Exemptions
The Common Warrants andthe shares of Common Stock issuable upon the exercise of the Common Warrants are not registered under the Securities Act. The Common Warrantsand the shares of Common Stock issuable upon exercise thereof were issued in reliance on the exemptions from registration provided bySection 4(a)(2) under the Securities Act and Regulation D promulgated thereunder, for transactions not involving a public offering.
Pursuant to the PurchaseAgreements, within 45 calendar days from the date of the Purchase Agreements, the Company agreed to file a registration statement on Form S-3(or other appropriate form if the Company is not then S-3 eligible) providing for the resale by the Purchasers of the shares of CommonStock issuable upon exercise of the Common Warrants. The Company agreed to use commercially reasonable efforts to cause such registrationstatement to become effective within 90 days following the closing date of the Purchase Agreements and to keep such registration statementeffective at all times until no Purchaser owns any Common Warrants or shares of Common Stock issuable upon exercise thereof.
Item 16. | Exhibit and Financial Statement Schedules |
(a) Exhibits.
The exhibit index attached hereto is incorporatedherein by reference.
(b) Financial Statement Schedules.
Schedules have been omitted because the informationrequired to be set forth therein is not applicable or is shown in the financial statements or notes thereto.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offersor sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required bySection 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any factsor 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. Notwithstandingthe foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceedthat which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in theform of prospectus filed with the U.S. Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, thechanges in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculationof Registration Fee” table in the effective registration statement; and
(iii) To include any material informationwith respect to the plan of distribution not previously disclosed in the registration statement or any material change to such informationin the registration statement; provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the informationrequired to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securitiesand Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934that are incorporated by reference in the registration statement.
(2) That, for the purpose of determiningany liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statementrelating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fideoffering thereof.
(3) To remove from registration by meansof 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 determiningliability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registrationstatement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in relianceon 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 ormade in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of theregistration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statementthat was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediatelyprior to such date of first use.
(5) That for the purpose of determiningliability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of securities, the undersignedregistrant 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 purchaserby means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be consideredto offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectusof the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relatingto 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 writingprospectus relating to the offering containing material information about the undersigned registrant or its securities provided by oron behalf of the undersigned registrant; and
(iv) Any other communication that is an offerin the offering made by the undersigned registrant to the purchaser.
(6) Insofar as indemnification for liabilitiesarising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant toany charter provision, by law or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commissionsuch indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the eventthat a claim for indemnification against such liabilities (other than 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 counselthe matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnificationby it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(7) The undersigned registrant hereby undertakesthat:
(i) For purposes of determining any liabilityunder the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement inreliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective;and
(ii) For the purpose of determining anyliability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be anew registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemedto be the initial bona fide offering thereof.
EXHIBIT INDEX
Exhibit | | | | Incorporated by Reference | | Filed or Furnished |
Number | | Description | | Form | | Exhibit | | File No. | | Date Filed | | Herewith |
2.1*† | | Share Purchase Agreement, dated July 12, 2023, by and among Spindle Acquisition Corp., Spindle Biotech Inc., the persons listed on Schedule 1.1 therein, Lai Him Chung and Applied DNA Sciences, Inc. | | 8-K | | 2.1 | | 001-36745 | | 7/13/2023 | | |
3.1 | | Conformed version of Certificate of Incorporation of Applied DNA Sciences, Inc., as most recently amended by the Fifth Certificate of Amendment, effective Thursday, September 17, 2020 | | S-8 | | 4.1 | | 333-249365 | | 10/07/2020 | | |
3.2 | | By-Laws | | 8-K | | 3.2 | | 002-90539 | | 1/16/2009 | | |
4.1 | | Description of Securities | | 10-K | | 4.1 | | 001-36745 | | 12/9/2021 | | |
4.2 | | Form of Purchase Warrant | | 8-K | | 4.1 | | 001-36745 | | 12/20/2017 | | |
4.3 | | Common Stock Purchase Warrant | | 8-K | | 4.1 | | 001-36745 | | 12/21/2018 | | |
4.4 | | Form of common warrant certificate (included in the Warrant Agreement, dated November 15, 2019) | | 8-K | | 4.2 | | 001-36745 | | 11/18/2019 | | |
4.5 | | Form of Indenture | | S-3 | | 4.1 | | 333-238557 | | 05/21/2020 | | |
4.6 | | Form of Common Stock Purchase Warrant | | 8-K | | 10.3 | | 001-36745 | | 10/14/2020 | | |
4.7 | | Form of Pre-Funded Common Stock Purchase Warrant | | 8-K | | 4.1 | | 001-36745 | | 2/23/2022 | | |
4.8 | | Form of Common Stock Purchase Warrant | | 8-K | | 4.2 | | 001-36745 | | 2/23/2022 | | |
4.9 | | Form of Series A Warrant | | 8-K | | 4.1 | | 001-36745 | | 8/9/2022 | | |
4.10 | | Form of Series B Warrant | | 8-K | | 4.2 | | 001-36745 | | 8/9/2022 | | |
4.11 | | Form of Prefunded Warrant | | 8-K | | 4.3 | | 001-36745 | | 8/9/2022 | | |
4.12 | | Form of Pre-Funded Warrant. | | 8-K | | 4.1 | | 001-36745 | | 02/01/2024 | | |
4.13 | | Form of Private Common Warrant. | | 8-K | | 4.2 | | 001-36745 | | 02/01/2024 | | |
5.1 | | Opinion of McDermott Will & Emery LLP | | | | | | | | | | Filed |
10.1† | | Form of employee stock option agreement under the Applied DNA Sciences, Inc. 2005 Incentive Stock Plan | | 10-Q | | 4.1 | | 002-90539 | | 05/15/2012 | | |
10.2† | | Applied DNA Sciences, Inc. 2005 Incentive Stock Plan, as amended and restated | | DEF 14A | | Appendix A | | 001-36745 | | 04/04/2019 | | |
10.3† | | Form of employee stock option agreement under the Applied DNA Sciences, Inc. 2005 Incentive Stock Plan, as amended | | 10-K | | 10.1 | | 001-36745 | | 12/14/2015 | | |
10.4† | | Applied DNA Sciences, Inc. 2020 Equity Incentive Plan | | DEF 14A | | Appendix A | | 001-36745 | | 08/03/2020 | | |
10.5† | | Applied DNA Sciences, Inc. 2020 Equity Incentive Plan Stock Option Grant Notice and Award Agreement | | S-8 | | 10.3 | | 333-249365 | | 10/07/2020 | | |
10.6† | | Employment Agreement, dated July 1, 2016, between James A. Hayward and Applied DNA Sciences, Inc. | | 8-K | | 10.1 | | 001-36745 | | 8/2/2016 | | |
10.7† | | Form of Indemnification Agreement dated as of September 7, 2012, by and between Applied DNA Sciences, Inc. and each of its directors and executive officers | | 8-K | | 10.1 | | 002-90539 | | 9/13/2012 | | |
10.8 | | Warrant Agreement, dated November 20, 2014, between Applied DNA Sciences, Inc. and American Stock Transfer & Trust Company, LLC as warrant agent | | 8-K | | 4.1 | | 001-36745 | | 11/20/2014 | | |
10.9 | | First Amendment to Warrant Agreement dated April 1, 2015 between Applied DNA Sciences, Inc. and American Stock Transfer & Trust Company, LLC as warrant agent | | 8-K | | 4.1 | | 001-36745 | | 4/1/2015 | | |
10.10 | | Second Amendment to Warrant Agreement dated November 2, 2016 | | 8-K | | 10.4 | | 001-36745 | | 11/2/2016 | | |
10.11 | | Registration Rights Agreement dated November 2, 2016 | | 8-K | | 10.3 | | 001-36745 | | 11/2/2016 | | |
10.12* | | License Agreement with Himatsingka America, Inc. dated June 23, 2017 | | 10-Q | | 10.1 | | 001-36745 | | 8/10/2017 | | |
10.13 | | Placement Agency Agreement by and between Applied DNA Sciences, Inc. and Maxim Group LLC, dated December 20, 2017. | | 8-K | | 10.1 | | 001-36745 | | 12/20/2017 | | |
10.14 | | Registration Rights Agreement, dated November 29, 2018 | | 8-K | | 10.2 | | 001-36745 | | 12/6/2018 | | |
10.15 | | Securities Purchase Agreement, dated November 29, 2018 | | 8-K | | 10.3 | | 001-36745 | | 12/6/2018 | | |
10.16 | | Registration Rights Agreement, dated August 31, 2018 | | 8-K/A | | 10.2 | | 001-36745 | | 12/10/2018 | | |
10.17 | | Securities Purchase Agreement, dated August 31, 2018 | | 10-K | | 10.45 | | 001-36745 | | 12/18/2018 | | |
10.18+ | | Patent and Know-How License and Cooperation Agreement, dated March 28, 2019, between the Company, APDN (B.V.I.), Inc., and ETCH BioTrace S.A. | | 10-Q | | 10.10 | | 001-36745 | | 5/9/2019 | | |
10.19 | | Registration Rights Agreement, dated July 16, 2019 by and among Applied DNA Sciences, Inc. and the investor named on the signature page thereof. | | 8-K | | 10.2 | | 001-36745 | | 07/17/2019 | | |
10.20 | | Securities Purchase Agreement, dated July 16, 2019 by and among Applied DNA Sciences, Inc. and the investor named on the signature page thereof. | | 8-K | | 10.3 | | 001-36745 | | 07/17/2019 | | |
10.21 | | Asset Purchase Agreement, dated July 29, 2019 by and between LineaRX, Inc. and Vitatex Inc. | | 8-K | | 10.1 | | 001-36745 | | 8/12/2019 | | |
10.22 | | Form of Subscription Agreement between investors and Applied DNA Sciences, Inc., dated August 22, 2019. | | 8-K | | 10.1 | | 001-36745 | | 8/26/2019 | | |
10.23 | | Underwriting Agreement entered into by and between Applied DNA Sciences, Inc. and Maxim Group LLC, as Representative of the Underwriters listed in Schedule I hereto, dated November 13, 2019. | | 8-K | | 1.1 | | 001-36745 | | 11/14/2019 | | |
10.24 | | Warrant Agreement, dated November 15, 2019, between Applied DNA Sciences, Inc. and American Stock Transfer & Trust Company, LLC | | 8-K | | 4.1 | | 001-36745 | | 11/18/2019 | | |
10.25† | | Consulting Agreement, dated as of December 12, 2019, by and between Applied DNA Sciences, Inc. and Meadow Hill Place, LLC | | 10-Q | | 10.1 | | 001-36745 | | 08/06/2020 | | |
10.26 | | Agreement of Lease dated June 14, 2013, between Applied DNA Sciences, Inc. and Long Island High Technology Incubator, Inc. | | 10-Q | | 10.2 | | 002-90539 | | 8/13/2013 | | |
10.27 | | Agreement of Lease, dated November 1, 2015, by and between Applied DNA Sciences, Inc. and Long Island High Technology Incubator, Inc. | | 10-Q | | 10.2 | | 001-36745 | | 08/06/2020 | | |
10.28 | | Option Exercise Notice, dated December 3, 2015, Pursuant to Lease dated June 14, 2013, between Applied DNA Sciences, Inc. and Long Island High Technology Incubator, Inc. | | 10-Q | | 10.2 | | 001-36745 | | 05/12/2016 | | |
10.29 | | Temporary Lease Extension Agreement, dated August 9, 2019, by and between Applied DNA Sciences, Inc. and Long Island High Technology Incubator, Inc. | | 10-Q | | 10.3 | | 001-36745 | | 08/06/2020 | | |
10.30 | | Amendment to Leases, dated November 4, 2019, by and between Long Island High Technology Incubator, Inc. and Applied DNA Sciences, Inc. | | 10-Q | | 10.4 | | 001-36745 | | 08/06/2020 | | |
10.31 | | Amendment to Leases, dated January 17, 2020, by and between Long Island High Technology Incubator, Inc. and Applied DNA Sciences, Inc. | | 10-Q | | 10.5 | | 001-36745 | | 08/06/2020 | | |
10.32 | | Registration Rights Agreement, dated October 7, 2020, by and between Applied DNA Sciences, Inc. and Dillon Hill Capital, LLC. | | 8-K | | 10.4 | | 001-36745 | | 10/14/2020 | | |
10.33 | | Registration Rights Agreement, dated October 7, 2020, by and between Applied DNA Sciences, Inc. and Dillon Hill Investment Company LLC. | | 8-K | | 10.5 | | 001-36745 | | 10/14/2020 | | |
10.34+ | | Joint Development Agreement, dated September 11, 2018, between LineaRx, Inc., Takis S.R.L. and Evvivax S.R.L., as amended by that First Amendment, dated February 3, 2020 | | 10-K | | 10.46 | | 001-36745 | | 12/17/2020 | | |
10.35 | | Animal Clinical Trial Agreement, dated September 14, 2020, between Applied DNA Sciences, Inc., Evvivax S.R.L. and Veterinary Oncology Services, PLLC | | 10-K | | 10.47 | | 001-36745 | | 12/17/2020 | | |
10.36 | | Letter Agreement dated March 2, 2021, by and between the Company and Dr. James Hayward | | 8-K | | 10.1 | | 001-36745 | | 3/4/2021 | | |
10.37 | | Office Lease Renewal Letter Agreement, dated February 1, 2022, by and between Long Island High Technology Incubator, Inc. and Applied DNA Sciences, Inc. | | 10-K | | 10.43 | | 001 36745 | | 12/14/2022 | | |
10.38 | | Laboratory Lease Renewal Letter Agreement, dated February 1, 2022, by and between Long Island High Technology Incubator, Inc. and Applied DNA Sciences, Inc. | | 10-K | | 10.44 | | 001 36745 | | 12/14/2022 | | |
10.39+ | | Contract Number T212206, dated August 3, 2021, by and between The City University of New York and Applied DNA Clinical Labs, LLC. | | 10-K | | 10.45 | | 001 36745 | | 12/14/2022 | | |
10.40+ | | First Amendment to Contract No. T212206, dated December 16, 2021, by and between The City University of New York and Applied DNA Clinical Labs, LLC. | | 10-K | | 10.46 | | 001 36745 | | 12/14/2022 | | |
10.41+ | | Second Amendment to Contract No. T212206, dated July 19, 2022, by and between The City University of New York and Applied DNA Clinical Labs, LLC. | | 10-K | | 10.47 | | 001 36745 | | 12/14/2022 | | |
10.42 | | Equity Distribution Agreement, dated November 7, 2023, by and between Applied DNA Sciences, Inc. and Maxim Group LLC | | 8-K | | 10.1 | | 001-36745 | | 11/7/2023 | | |
10.43† | | Letter Agreement, dated January 4, 2024, by and between Applied DNA Sciences, Inc. and James A. Hayward. | | 8-K | | 10.1 | | 001-36745 | | 1/5/2024 | | |
10.44† | | Letter Agreement, dated January 4, 2024, by and between Applied DNA Sciences, Inc. and Judith Murrah. | | 8-K | | 10.2 | | 001-36745 | | 1/5/2024 | | |
10.45 | | Amended and Restated Lease Agreement, dated February 24, 2023, by and between Long Island High Technology Incubator, Inc. and Applied DNA Sciences, Inc. (Office Lease). | | 8-K | | 10.1 | | 001-36745 | | 02/28/2023 | | |
10.46 | | Amended and Restated Lease Agreement, dated February 24, 2023, by and between Long Island High Technology Incubator, Inc. and Applied DNA Sciences, Inc. (Laboratory Lease). | | 8-K | | 10.2 | | 001-36745 | | 02/28/2023 | | |
10.47 | | Lease Renewal Agreement dated January 10, 2024 (Laboratory Lease). | | 10-Q | | 10.3 | | 001-36745 | | 02/08/2024 | | |
10.48 | | Placement Agency Agreement by and between Applied DNA Sciences, Inc. and Maxim Group LLC, dated January 31, 2024. | | 8-K | | 10.1 | | 001-36745 | | 01/05/2024 | | |
10.49 | | Form of Securities Purchase Agreement, dated January 31, 2024, by and between Applied DNA Sciences, Inc. and the parties thereto. | | 8-K | | 10.2 | | 001-36745 | | 01/05/2024 | | |
14.1 | | Code of Business Conduct and Ethics. | | 10-K | | 14.1 | | 001-36745 | | 12/14/2022 | | |
21.1 | | Subsidiaries of Applied DNA Sciences, Inc. | | 10-K | | 21.1 | | 001-36745 | | 12/07/2023 | | |
23.1 | | Consent of Marcum LLP | | | | | | | | | | Filed |
23.2 | | Consent of McDermott Will & Emery LLP (included in Exhibit 5.1) | | | | | | | | | | Filed |
101 INS | | Inline XBRL Instance Document | | | | | | | | | | Filed |
101 SCH | | Inline XBRL Taxonomy Extension Schema Document | | | | | | | | | | Filed |
101 CAL | | Inline XBRL Taxonomy Extension Calculation Linkbase Document | | | | | | | | | | Filed |
101 DEF | | Inline XBRL Taxonomy Extension Definition Linkbase Document | | | | | | | | | | Filed |
101 LAB | | Inline XBRL Taxonomy Extension Label Linkbase Document | | | | | | | | | | Filed |
101 PRE | | Inline XBRL Taxonomy Extension Presentation Linkbase Document | | | | | | | | | | Filed |
104 | | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibits 101) | | | | | | | | | | Filed |
107 | | Filing Fee Table | | | | | | | | | | Filed |
| | | | | | | | | | | | |
| † | Indicates a management contract or any compensatory plan, contract or arrangement. |
| * | A request for confidentiality has been granted for certain portions of the indicated document. Confidential portions have been omitted and filed separately with the SEC as required by Rule 24b-2 promulgated under the Exchange Act. |
| + | Portions of this exhibit have been omitted because the information is both not material and is the type that the Company treats as private or confidential. The omissions have been indicated by bracketed asterisks (“[***]”). |
SIGNATURES
Pursuant to the requirements of the SecuritiesAct of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereuntoduly authorized, in the Town of Stony Brook, State of New York, on the 11th day of March, 2024.
APPLIED DNA SCIENCES, INC. | |
| | |
By: | | /s/ James A. Hayward | |
| | James A. Hayward | |
| | President and Chief Executive Officer | |
POWEROF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each officerand director of Applied DNA Sciences, Inc. whose signature appears below constitutes and appoints Beth M. Jantzen his or her trueand lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place andstead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this RegistrationStatement, and any additional Registration Statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto,and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agentfull power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents andpurposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substituteor substitutes, may lawfully do or cause to be done by virtue hereof.
****
Pursuant to the requirements of the SecuritiesAct of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | |
Signature | | Title | | Date |
| | | | |
/s/ James A. Hayward James A. Hayward | | Chief Executive Officer, President and Chairman of the Board of Directors (Principal Executive Officer) | | March 11, 2024 |
| | |
/s/ Beth Jantzen Beth Jantzen | | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | | March 11, 2024 |
| | |
/s/ Robert B. Catell Robert B. Catell | | Director | | March 11, 2024 |
| | |
/s/ Joseph D. Ceccoli Joseph D. Ceccoli | | Director | | March 11, 2024 |
| | |
/s/ Sanford R. Simon Sanford R. Simon | | Director | | March 11, 2024 |
| | |
/s/ Yacov A. Shamash Yacov A. Shamash | | Director | | March 11, 2024 |
| | | | |
/s/ Elizabeth M. Schmalz Shaheen Elizabeth M. Schmalz Shaheen | | Director | | March 11, 2024 |