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Bluejay Diagnostics, Inc. [BJDX]
Date Filed : Jun 05, 2023
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As filed with the Securities and Exchange CommissionJune 5, 2023
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
UNDER THE SECURITIES ACT OF 1933
Bluejay Diagnostics, Inc.
(Exact name of registrant as specified in itscharter)
|(State or other jurisdiction of |
incorporation or organization)
360 Massachusetts Avenue, Suite 203, Acton,MA
(Address, including zip code, and telephonenumber, including area code, of registrant’s principal executive offices)
Bluejay Diagnostics, Inc.
360 Massachusetts Avenue, Suite 203
Acton, MA 01720
(Name, address, including zip code, and telephonenumber, including area code, of agent for service)
Joseph E. Gilligan
Brian C. O'Fahey
Hogan Lovells US LLP
555 Thirteenth Street, NW
Washington, DC 20004
Approximatedate of commencement of proposed sale to the public: From time to time on or after the effective date of this Registration Statement.
If the only securities being registered on thisForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on thisForm are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offeredonly in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securitiesfor an offering pursuant 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 filedpursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number ofthe earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuantto General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuantto Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment toa registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securitiespursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrantis a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”and “emerging growth company” in Rule 12b-2 of the Exchange Act.
|Large accelerated filer||☐||Accelerated filer||☐|
|Non-accelerated filer||☒||Smaller reporting company||☒|
|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 thatspecifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the SecuritiesAct, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuantto said Section 8(a), may determine.
The information inthis prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with theSecurities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting anoffer to buy these securities in any state where the offer or sale is not permitted.
Subject To Completion,Dated June 5, 2023
We may offer and sell up to $25,000,000 in theaggregate of the securities identified above from time to time in one or more offerings. This prospectus provides a general descriptionof the securities that we may offer. Each time that we offer securities under this prospectus, we will provide the specific terms of thesecurities offered, including the public offering price, in a supplement to this prospectus. Any prospectus supplement may add to, updateor change information contained in this prospectus. You should read this prospectus and any applicable prospectus supplement togetherwith additional information described under the heading “Where You Can Find More Information” before you make your investmentdecision.
The securities may be sold by us to or throughunderwriters or dealers, directly to purchasers or through agents designated from time to time. For additional information on the methodsof sale, you should refer to the section entitled “Plan of Distribution” in this prospectus and the comparable section ofany applicable prospectus supplement. If any underwriters are involved in the sale of the securities with respect to which this prospectusis being delivered, the names of such underwriters and any applicable discounts or commissions and over-allotment options will be setforth in the applicable prospectus supplement. No securities may be sold without delivery of this prospectus and the applicable prospectussupplement.
Our common stock trades on the Nasdaq CapitalMarket, or Nasdaq, under the ticker symbol “BJDX.” On June 5, 2023, the last reported sale price per share of our common stockwas $0.244 per share.
INVESTING IN OUR SECURITIES INVOLVES A HIGHDEGREE OF RISK. RISKS ASSOCIATED WITH AN INVESTMENT IN OUR SECURITIES WILL BE DESCRIBED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND CERTAINOF OUR FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION INCORPORATED BY REFERENCE INTO THIS PROSPECTUS, AS DESCRIBED UNDER “RISKFACTORS” ON PAGE 4.
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 date of this prospectus is ,2023.
TABLE OF CONTENTS
This prospectus is a part of a registration statementthat we filed with the Securities and Exchange Commission, or the SEC, and that includes exhibits that provide more detail of the mattersdiscussed in this prospectus, using a “shelf” registration process. Under this shelf registration process, we may offer tosell any of the securities, or any combination of the securities, described in this prospectus, in each case in one or more offerings,up to a total dollar amount of $25,000,000. You should read this prospectus and the related exhibits filed with the SEC using a “shelf”registration process, together with the additional information described under the headings “Where You Can Find More Information”and “Incorporation by Reference” before making your investment decision.
You should rely only on the information providedin this prospectus or in a prospectus supplement or any free writing prospectuses or amendments thereto. We have not authorized anyoneelse to provide you with different information. If anyone provides you with different or inconsistent information, you should not relyon it. You should assume that the information in this prospectus is accurate only as of the date hereof. Our business, financial condition,results of operations and prospects may have changed since that date.
We are not offering to sell or seeking offersto purchase these securities in any jurisdiction where the offer or sale is not permitted. We have not done anything that would permitthis offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other thanin the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, andobserve any restrictions relating to, the offering of the securities as to distribution of the prospectus outside of the United States.
Unless the context otherwise requires, referencesin this prospectus to “Bluejay,” “the Company,” “we,” “us” and “our” referto Bluejay Diagnostics, Inc. Our logo and all product names are our common law trademarks. Solely for convenience, trademarks and tradenamesreferred to in this prospectus may appear without the ® or ™ symbols, but such references are not intended to indicate in anyway that we will not assert, to the fullest extent under applicable law, our rights, or that the applicable owner will not assert itsrights, to these trademarks and tradenames.
This prospectus contains estimates, projectionsand other information concerning our industry, our business, the science of our products and the markets for our products, including dataregarding the incidence of certain medical conditions and the scientific basis of our products. We obtained the industry, science, marketand similar data set forth in this prospectus from our internal estimates and research and from academic and industry research, publications,surveys, and studies conducted by third parties.
The content of the above sources, except to theextent specifically set forth in this prospectus, does not constitute a portion of this prospectus and is not incorporated herein. Informationthat is based on estimates, forecasts, projections, market research, scientific research, or similar methodologies is inherently subjectto uncertainties and actual events or circumstances may differ materially from events and circumstances that are assumed in this information.
This prospectus and the documents incorporatedherein by reference contain forward-looking statements which are made pursuant to the safe harbor provisions of Section 27A of theSecurities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. In somecases, you can identify these statements by forward-looking words such as “may,” “might,” “should,”“would,” “could,” “expect,” “plan,” “anticipate,” “intend,” “believe,”“estimate,” “predict,” “potential” or “continue,” and the negative of these terms andother comparable terminology. These forward-looking statements, which are subject to known and unknown risks, uncertainties and assumptionsabout us, may include projections of our future financial performance based on our growth strategies and anticipated trends in our business.These statements are only predictions based on our current expectations and projections about future events. There are important factorsthat could cause our actual results, level of activity, performance or achievements to differ materially from the results, level of activity,performance or achievements expressed or implied by the forward-looking statements.
While we believe we have identified material risks,these risks and uncertainties are not exhaustive. Other sections of this prospectus and the documents incorporated herein by referencemay describe additional factors that could adversely impact our business and financial performance. Moreover, we operate in a very competitiveand rapidly changing environment. New risks and uncertainties emerge from time to time, and it is not possible to predict all risks anduncertainties, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors,may cause actual results to differ materially from those contained in any forward-looking statements.
Although we believe the expectations reflectedin the forward-looking statements are reasonable, we cannot guarantee future results, level of activity, performance or achievements.Moreover, neither we nor any other person assumes responsibility for the accuracy or completeness of any of these forward-looking statements.You should not rely upon forward-looking statements as predictions of future events. We are under no duty to update any of these forward-lookingstatements after the date of this prospectus to conform our prior statements to actual results or revised expectations, and we do notintend to do so.
We caution you not to place undue reliance onthe forward-looking statements, which speak only as of the date of this prospectus in the case of forward-looking statements containedin this prospectus.
You should not rely upon forward-looking statementsas predictions of future events. Our actual results and financial condition may differ materially from those indicated in the forward-lookingstatements. We qualify all of our forward-looking statements by these cautionary statements. Although we believe that the expectationsreflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements.Therefore, you should not rely on any of the forward-looking statements. In addition, with respect to all of our forward-looking statements,we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of1995.
We are a medical diagnostics company developingrapid tests using whole blood on our Symphony technology platform, or Symphony, to improve patient outcomes in critical care settings.Our Symphony platform is a combination of our intellectual property, or IP, and exclusively licensed and patented IP that consists ofa mobile device and single-use test cartridges that if cleared, authorized, or approved by the U.S. Food and Drug Administration, or theFDA, can provide a solution to a significant market need in the United States. Clinical trials indicate the Symphony device produces laboratory-qualityresults in less than 20 minutes in critical care settings, including intensive care units and emergency rooms where rapid and reliableresults are required.
Our first product, the Symphony IL-6 test, isfor the monitoring of disease progression in critical care settings. IL-6 is a clinically established inflammatory biomarker, and is considereda ‘first-responder,’ for assessment of severity of infection and inflammation across many disease indications, including sepsis.A current challenge of healthcare professionals is the excessive time and cost associated determining a patient’s level of severityat triage and our Symphony IL-6 test has the ability to consistently monitor this critical care biomarker with rapid results.
In the future we plan to develop additional testsfor Symphony including two cardiac biomarkers (hsTNT and NT pro-BNP) as well as other tests using the Symphony platform. We do not yethave regulatory clearance for our Symphony products, and our Symphony products will need to receive regulatory authorization from theFDA in order to be marketed as a diagnostic product in the United States.
Our operations to date have been funded primarilythrough the proceeds of our initial public offering, or the IPO, in November 2021, or the IPO Date. We were incorporated under the lawsof Delaware on March 20, 2015. Our headquarters is located in Acton, Massachusetts.
The Symphony platform and our initial biomarkertest, Symphony IL-6 test, is well suited to address a subset of the global in vitro diagnostics devices, or IVDs, market, includingsepsis, cardio-metabolic diseases, cancer and other diseases that require rapid tests. Symphony targets critical care markets where physiciansmust quickly determine patient acuity to identify optimal treatment regimens.
Our Business Model
Our goal is to become the first provider of rapidtests for infectious, inflammatory and metabolic diseases by leveraging the strengths of our Symphony platform. We intend to target oursales and marketing of Symphony to the largest critical care facilities in the United States. Our business model includes the following:
|●||Attractive Financing Model. We intend to offervarious financing options for the device itself. As such, our business model should not require customers to incur a significant capitaloutlay.|
|●||Recurring Revenue. We intend to sell single-usediagnostic test cartridges. We believe that our cartridges can create a growing and recurring revenue stream, as adoption and utilizationincreases, and as we develop tests for additional indications. We expect the sale of test cartridges to generate the majority of our revenueand gross profit.|
|●||Expand our Menu of Diagnostic Products. As adoptionincreases, the average customer use of the Symphony platform should also increase. As we expand our test menu, we hope to be able to increaseour annual revenue per customer through the resulting increase in utilization.|
The Symphony Platform
The Symphony platform is an innovative and proprietarytechnology platform that provides rapid and accurate measurements of key diagnostic biomarkers found in whole blood. Symphony is compactand can be deployed mobile as compared to current laboratory diagnostic platforms. Symphony incorporates a user-friendly interface whereall sample preparation and reagents are integrated into disposable Symphony cartridges. Symphony only requires a few drops of blood toprovide a measurement in less than 20 minutes.
The Symphony analyzer orchestrates whole bloodprocessing, biomarker isolation, and immunoassay preparation using non-contact centrifugal force. All necessary reagents and componentsare integrated into the Symphony cartridges. Utilizing precision microchannel technology and high specificity antibodies, whole bloodis processed, and the biomarker is isolated within the Symphony cartridge. Intermitted centrifugation cycles enable complex fluid movements,allowing sequential reagent additions and independent reaction steps inside the hermitically sealed Symphony cartridge. At the conclusionof the test, the Symphony analyzer measures the fluorescence signature correlating to a highly sensitive quantitation of the biomarker.
To perform a Symphony test, the test operatoradds three drops of blood to the Symphony cartridge. After scanning in the patient ID, the Symphony cartridge is inserted into the Symphonyanalyzer and the test runs automatically. Each analyzer can run up to six cartridges simultaneously, either with six different patientsamples or six different tests, in less than 20 minutes, providing quantitative measurements used for improved patient management andclinical decision-making.
We plan to manufacture both our devices and cartridgesthrough Contract Manufacturing Organizations, or CMOs. We have contracts with Toray Industries, Inc, or Toray, to manufacture our cartridgesand Sanyoseiko Co. Ltd., or Sanyoseiko, to manufacture both our device and cartridges. Each of our partners are well-established globalmanufacturing companies with capabilities to scale up, re-design and supply our devices and cartridges.
Sanyoseiko had been selected as our CMO, thoughin the near-term Toray will continue to develop, validate and manufacture our IL-6 cartridges as our pilot-manufacturing partner. We expectto meet the demands of our global market. Both Toray’s and Sanyoseiko’s facilities are located in Japan. We license the technologyfor the Symphony cartridges from Toray. Our license grants us exclusive global use with the exception of Japan.
Our current regulatory strategy is designed tosupport commercialization of Symphony in the United States pending authorization from the FDA. The FDA has identified Symphony as a denovo device, and we are subject to the de novo authorization regulatory pathway, which includes expansion of our clinical studies.We have several clinical studies currently active, all designed to support our de novo FDA submission. We have targeted large,well-known medical and academic institutions for our studies, which should also help support initial commercialization and market penetration.This clinical trial expansion could also support additional indications. The expansion also could delay obtaining marketing authorizationfor the product.
Sales and Marketing
Until Symphony products are authorized by theFDA, we expect to focus our sales and marketing efforts on brand awareness and market education to potential customers, emphasizing thevalue of monitoring a critical care patient’s IL-6 levels to improve decision making and patient outcomes. If cleared or approvedby the FDA, we intend to target sales to ERs and ICUs at United States hospitals, as well as to long-term acute care facilities. We planto establish a market presence by selling Symphony devices and tests both directly and through various distribution channels to maximizesales volume and market penetration.
On October 6, 2020, we entered into a Licenseand Supply Agreement, as amended, or the License Agreement, with Toray, providing us with an exclusive global license with Toray, excludingJapan, to use their patents and know-how related to the Symphony detection cartridges for the manufacturing, marketing and sale of theproducts (as defined in the License Agreement). We also have a nonexclusive license for the same purposes in Japan. The agreement terminatesin 2029 upon expiration of the last of the patents included in the license.
In connection with entering into the License Agreement,we are required to pay a 15% royalty fee for the period that any underlying patents exist or for five years after the first sale for thelicensed technology after obtaining regulatory approval based on a percentage of our “Net Sales” of products using these technologies(as defined in the license Agreement) with a minimum royalty of $60,000 for the initial year that royalties are payable increasing toa minimum of $100,000 thereafter.
Intellectual Property, Proprietary Technology
We do not currently hold any patents directly.We rely on a combination either directly or through the License Agreement with Toray of patent, copyright, trade secret, trademark, confidentialityagreements, and contractual protection to establish and protect our proprietary rights.
Our primary competition in the IL-6 market islaboratory size equipment including the Roche Cobas®, Siemens ADVIA Centaur® and Beckman Coulter Access2®, which require pre-processing of whole blood prior to performing their test. We believe that our technology, which useswhole blood, provides us with a substantial competitive advantage over our existing competition that will sustain through commercialization,despite the major life science companies and consistent entry of innovative start-ups that define our competitive landscape.
As of June 5, 2023, we have 14 full-time employees.We also contract with several consultants and contractors performing regulatory advisory, investor relations and manufacturing scale-upsupport. None of our employees are represented by labor unions or covered by collective bargaining agreements.
Our principal executive offices are located at360 Massachusetts Avenue, Suite 203, Acton, MA 01720 and our telephone number is (844) 327-7078. Our website address is www.bluejaydx.com.Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports, proxystatements and other information about us are made available, free of charge, through the SEC Filings section of our website at www.ir.bluejaydx.com/financial-information/sec-filingsand at the SEC’s website at www.sec.gov as soon as reasonably practicable after such material is electronically filed with or furnishedto the SEC. We include our website address in this prospectus only as an inactive textual reference and do not intend it to be an activelink to our website. The contents of our website are not incorporated into this prospectus.
In addition, our Board of Directors has adopteda written Code of Business Conduct and Ethics applicable to all officers, directors and employees, which is available through the “GovernanceOverview” section of our website at www.ir.bluejaydx.com/corporate-governance/governance-overview. We intend to satisfy the disclosurerequirement under Item 5.05 of Form 8-K regarding amendment to, or waiver from, a provision of the Code of Business Conduct and Ethicsand by posting such information on the website address and location specified above.
Our business is influenced by many factors thatare difficult to predict, and that involve uncertainties that may materially affect actual operating results, cash flows and financialcondition. Before making an investment decision, you should carefully consider these risks, including those set forth in the “RiskFactors” section of our most recent AnnualReport on Form 10-K filed with the SEC, as revised or supplemented by our Quarterly Reports on Form 10-Q filed with the SEC sincethe filing of our most recent Annual Report on Form 10-K, each of which is incorporated by reference into this prospectus. You shouldalso carefully consider any other information we include or incorporate by reference in this prospectus or include in any applicable prospectussupplement. Each of the risks described in these sections and documents could materially and adversely affect our business, financialcondition, results of operations and prospects, and could result in a partial or complete loss of your investment.
Unless otherwise indicated in a prospectus supplementor free writing prospectus, we anticipate that the net proceeds from our sale of any securities will be used for general corporate purposes,which may include capital expenditures and funding our working capital needs. We expect from time to time to evaluate the acquisitionof businesses, products and technologies for which a portion of the net proceeds may be used, although we currently are not planning ornegotiating any such transactions. Pending such uses, we may invest the net proceeds in investment grade interest-bearing securities.
The amounts actually expended for each purposemay vary significantly depending upon numerous factors, including the amount and timing of the proceeds from any sale of securities. Expenditureswill also depend upon the establishment of collaborative arrangements with other companies, the availability of additional financing andother factors. Investors will be relying on the judgment of our management regarding the application of the proceeds of any sale of securities.
DESCRIPTION OF OUR DEBT SECURITIES
We may issue debt securities, in one or more series,as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will applygenerally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt securitiesthat we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectussupplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indentures, we alsoare referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the senior debt securities underthe senior indenture that we will enter into with the trustee named in the senior indenture. We will issue the subordinated debt securitiesunder the subordinated indenture that we will enter into with the trustee named in the subordinated indenture. The indentures will bequalified under the Trust Indenture Act of 1939. We use the term “trustee” to refer to either the trustee under the seniorindenture or the trustee under the subordinated indenture, as applicable. We have filed forms of indentures as exhibits to the registrationstatement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debtsecurities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporatedby reference from reports that we file with the SEC.
The following summaries of material provisionsof the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety byreference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicableprospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus,as well as the complete indentures that contain the terms of the debt securities. Except as we may otherwise indicate, the terms of thesenior indenture and the subordinated indenture are identical.
We will describe in the applicable prospectussupplement the terms of the series of debt securities being offered, including:
|●||the principal amount being offered, and if aseries, the total amount authorized and the total amount outstanding;|
|●||the issue price or prices, expressed as a percentageof the aggregate principal amount of the debt securities;|
|●||any limit on the amount that may be issued;|
|●||whether or not we will issue the series of debtsecurities in global form, the terms and who the depositary will be;|
|●||the maturity date;|
|●||whether and under what circumstances, if any,we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes, and whetherwe can redeem the debt securities if we have to pay such additional amounts;|
|●||the annual interest rate, which may be fixedor variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable andthe regular record dates for interest payment dates or the method for determining such dates;|
|●||whether or not the debt securities will be securedor unsecured, and the terms of any secured debt;|
|●||the terms of the subordination of any seriesof subordinated debt;|
|●||whether the debt securities will be guaranteedby any person or persons and, if so, the identity of such person or persons, the terms and conditions upon which such debt securitiesshall be guaranteed and, if applicable, the terms and conditions upon which such guarantees may be subordinated to other indebtednessof the respective guarantors;|
|●||the place where payments will be payable;|
|●||restrictions on transfer, sale or other assignment,if any;|
|●||the date, if any, after which, and the priceat which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions andthe terms of those redemption provisions;|
|●||the date, if any, on which, and the price atwhich we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’soption to purchase, the series of debt securities;|
|●||any addition to or change in the covenants describedin this prospectus or in the applicable indenture;|
|●||any events of default, if not otherwise describedbelow under “Events of Default Under the Indentures”;|
|●||a discussion of any material United States federalincome tax considerations applicable to the debt securities;|
|●||information describing any book-entry features;|
|●||the denominations in which we will issue theseries of debt securities, if other than minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof;|
|●||the currency of payment of debt securities ifother than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and|
|●||any other specific terms, preferences, rightsor limitations of, or restrictions on, the debt securities, and any terms that may be required by us or advisable under applicable lawsor regulations.|
Conversion or Exchange Rights
We will set forth in the prospectus supplementthe terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. Wewill include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may includeprovisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securitiesreceive would be subject to adjustment.
Subordination of Subordinated Debt Securities
The subordinated debt securities will be unsecuredand will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in the applicableprospectus supplement. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue, nor doesit limit us from issuing any other secured or unsecured debt.
Consolidation, Merger or Sale
The indentures will provide that we will not consolidatewith or merge into any other person or convey, transfer or lease (as lessor) our properties and assets as, or substantially as, an entiretyto any person, unless such person and such proposed transaction meets various criteria, which we will describe in detail in the applicableprospectus supplement.
Events of Default Under the Indentures
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are eventsof default under the indentures with respect to any series of debt securities that we may issue:
|●||default in the payment of any interest upon anydebt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days;|
|●||default in the payment of the principal of orany premium on any debt security of that series at its maturity;|
|●||default in the deposit of any sinking fund payment,when and as due by the terms of a debt security of that series;|
|●||default in the performance or breach of any othercovenants or agreements in the applicable indenture with respect to the debt securities of such series; and|
|●||certain events relating to our bankruptcy, insolvencyor reorganization.|
If an event of default with respect to debt securitiesof any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holdersof at least 25% in aggregate principal amount of the outstanding debt securities of that trustee may declare the principal amount of allthe securities of that series to be due and payable immediately, by a notice in writing to us (and to the trustee if given by holders),and upon any such declaration such principal amount shall become immediately due and payable. If an event of default specified in thelast bullet point above occurs with respect to us, the principal amount of all the securities of that series shall automatically, andwithout any declaration or other action on the part of the trustee or any holder, become immediately due and payable.
The holders of a majority in aggregate principalamount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series andits consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have curedthe default or event of default in accordance with the applicable indenture. Any waiver shall cure the default or event of default.
The holders of a majority in principal amountof the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceedingfor any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securitiesof that series; provided that:
|●||the holder has previously given written noticeto the trustee of a continuing event of default with respect to that series;|
|●||the holders of not less than 25% in aggregateprincipal amount of the outstanding debt securities of that series have made written request to the trustee to institute the proceedingas trustee;|
|●||such holders have offered, and if requested,provided to the trustee reasonable security or indemnity against the costs, expenses and liabilities to be incurred in compliance withsuch request;|
|●||the trustee for 60 days after its receipt ofsuch notice, request and offer and, if requested, provision of security or indemnity, has failed to institute any such proceeding; and|
|●||no direction inconsistent with such written requesthas been given to the trustee during such 60-day period by the holders of a majority in aggregate principal amount of the outstandingsecurities of that series.|
These limitations do not apply to a suit institutedby a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with thetrustee regarding our compliance with specified covenants in the indentures.
Modification of Indentures; Waiver
We and the trustee may modify the indentures that govern our debt securities of any series covered by this prospectus with or withoutthe consent of the holders of such debt securities, under certain circumstances to be described in the applicable prospectus supplement.
Defeasance; Satisfaction and Discharge
The applicable prospectus supplement will outlinethe conditions under which we may elect to have certain of our obligations under the indentures discharged and under which the indentureobligations will be deemed to be satisfied.
Information Concerning the Trustee
We will identify the trustee and any relationshipthat we may have with such trustee, with respect to any series of debt securities, in the prospectus supplement relating to the applicabledebt securities. You should note that if the trustee becomes a creditor of us, the indentures and the Trust Indenture Act of 1939 limitthe rights of the trustee to obtain payment of claims in certain cases, or to realize on certain property received in respect of any suchclaim, as security or otherwise. The trustee and its affiliates may engage in, and will be permitted to continue to engage in, other transactionswith us and our affiliates. If, however, the trustee acquires any “conflicting interest” within the meaning of the Trust IndentureAct of 1939, it must eliminate such conflict or resign.
The indentures and the debt securities will begoverned by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act of 1939is applicable.
DESCRIPTIONOF OUR CAPITAL STOCK
Thissection describes the general terms and provisions of the shares of our common stock, par value $0.0001 per share, and preferred stock,par value $0.0001 per share, and some of the provisions of our amended and restated certificate of incorporation and our amended andrestated bylaws and of the Delaware General Corporation Law, or DGCL. This description is only a summary. Our amended and restated certificateof incorporation, as amended, and our amended and restated bylaws have been filed as exhibits to our periodic reports filed with theSEC, which are incorporated by reference in this prospectus. You should read our amended and restated certificate of incorporation andour amended and restated bylaws for additional information before you buy any of our common stock, preferred stock or other securities.See “Where You Can Find More Information.”
Ouramended and restated certificate of incorporation authorizes us to issue up to 100,000,000 shares of common stock and 5,000,000 sharesof preferred stock.
Sharesof our common stock have the following rights, preferences and privileges:
Eachholder of common stock is entitled to one vote for each share of common stock held on all matters submitted to a vote of stockholders.Any action at a meeting at which a quorum is present will be decided by a majority of the voting power present in person or representedby proxy, except in the case of any election of directors, which will be decided by a plurality of votes cast. There is no cumulativevoting.
Holdersof our common stock are entitled to receive dividends when, as and if declared by our Board of Directors out of funds legally availablefor payment, subject to the rights of holders, if any, of any class of stock having preference over the common stock. Any decision topay dividends on our common stock will be at the discretion of our Board of Directors. Our Board of Directors may or may not determineto declare dividends in the future. See “Dividend Policy.” The board’s determination to issue dividends will dependupon our profitability and financial condition, any contractual restrictions, restrictions imposed by applicable law and the SEC, andother factors that our Board of Directors deems relevant.
Inthe event of a voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of our common stock will beentitled to share ratably on the basis of the number of shares held in any of the assets available for distribution after we have paidin full, or provided for payment of, all of our debts and after the holders of all outstanding series of any class of stock have preferenceover the common stock, if any, have received their liquidation preferences in full.
Ourissued and outstanding shares of common stock are fully paid and nonassessable. Holders of shares of our common stock are not entitledto preemptive rights. Shares of our common stock are not convertible into shares of any other class of capital stock, nor are they subjectto any redemption or sinking fund provisions.
Weare authorized to issue up to 5,000,000 shares of preferred stock. Our amended and restated certificate of incorporation authorizesthe board to issue these shares in one or more series, to determine the designations and the powers, preferences and relative, participating,optional or other special rights and the qualifications, limitations and restrictions thereof, including the dividend rights, conversionor exchange rights, voting rights (including the number of votes per share), redemption rights and terms, liquidation preferences, sinkingfund provisions and the number of shares constituting the series. Our Board of Directors could, without stockholder approval, issue preferredstock with voting and other rights that could adversely affect the voting power and other rights of the holders of common stock and whichcould have the effect of making it more difficult for a third party to acquire, or of discouraging a third party from attempting to acquire,a majority of our outstanding voting stock. We have no shares of preferred stock outstanding.
Asof June 5, 2023, we had outstanding:
|●||811,882 Common Stock Warrants, at a weighted-average exercise price of $3.24 per share.|
|●||2,484,000 Class A Warrants, at a weighted-average exercise price of $7.00 per share.|
|●||75,400 Class B Warrants, at a weighted-average exercise price of $10.00 per share.|
Optionsto Purchase our Common Stock
Asof June 5, 2023, options to purchase an aggregate of 717,168 shares of our common stock, at a weighted-average exercise price of $1.88per share, were outstanding.
UnvestedRestricted Stock Units
Asof June 5, 2023, 182,500 unvested restricted stock units were outstanding.
Anti-TakeoverEffects of Provisions of Our Certificate of Incorporation, Our Bylaws and Delaware Law
Someprovisions of Delaware law, our amended and restated certificate of incorporation and our amended and restated bylaws contain provisionsthat could make hostile takeovers, including the following transactions, more difficult: an acquisition of us by means of a tender offer;an acquisition of us by means of a proxy contest or otherwise; or the removal of our incumbent officers and directors. As a consequence,they may also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostiletakeover attempts. These provisions may also have the effect of preventing changes in the composition of our board and management. Itis possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwiseconsider to be in their best interest or in our best interests, including transactions which provide for payment of a premium over themarket price for our shares.
Theseprovisions, summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions arealso designed to encourage persons seeking to acquire control of us to first negotiate with our Board of Directors. We believe that thebenefits of the increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposalto acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals couldresult in an improvement of their terms.
Weare subject to Section 203 of the Delaware General Corporation Law, which prohibits persons deemed to be “interested stockholders”from engaging in a “business combination” with a publicly held Delaware corporation for three years following the date thesepersons become interested stockholders unless the business combination is, or the transaction in which the person became an interestedstockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an “interested stockholder”is a person who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholderstatus did own, 15% or more of a corporation’s voting stock. Generally, a “business combination” includes a merger,asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provisionmay have an anti-takeover effect with respect to transactions not approved in advance by the Board of Directors. A Delaware corporationmay “opt out” of these provisions with an express provision in its original certificate of incorporation or an express provisionin its certificate of incorporation or bylaws resulting from a stockholders’ amendment approved by at least a majority ofthe outstanding voting shares. We have not opted out of these provisions. As a result, mergers or other takeover or change in controlattempts of us may be discouraged or prevented.
Theability of our Board of Directors, without action by the stockholders, to issue undesignated shares of preferred stock with voting orother rights or preferences as designated by our Board of Directors could impede the success of any attempt to change control of us.These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or management of our company.
Ourauthorized but unissued shares of common stock will be available for future issuance without stockholder approval. These additional sharesmay be utilized for a variety of corporate purposes, including future public offerings to raise additional capital and corporate acquisitions.The existence of authorized but unissued shares of common stock could render more difficult or discourage an attempt to obtain controlof a majority of our common stock by means of a proxy contest, tender offer, merger or otherwise.
AdvanceNotice Requirements for Stockholder Proposals and Director Nominations
Ouramended and restated bylaws will provide advance notice procedures for stockholders seeking to bring business before our annual meetingof stockholders, or to nominate candidates for election as directors at any meeting of stockholders. Our amended and restated bylaws alsowill specify certain requirements regarding the form and content of a stockholder’s notice. These provisions may preclude our stockholdersfrom bringing matters before our annual meeting of stockholders or from making nominations for directors at our meetings of stockholders.
No CumulativeVoting; No Action Without a Meeting; Special Meeting of Stockholders
Stockholderswill not be permitted to cumulate their votes for the election of directors. In addition, stockholders will not be able to take actionby written consent and will only be able to take action at annual or special meetings of our stockholders. Furthermore, special meetingsof our stockholders may be called only by our Chief Executive Officer, our President or our Board of Directors.
Ouramended and restated certificate of incorporation will require, to the fullest extent permitted by law, subject to limited exceptions,that derivative actions brought in our name, actions against directors, officers and employees for breach of fiduciary duty and othersimilar actions may be brought only in the Court of Chancery in the State of Delaware and, if brought outside of Delaware, the stockholderbringing the suit will be deemed to have consented to service of process on such stockholder’s counsel in any action brought toenforce the exclusive forum provision. Any person or entity purchasing or otherwise acquiring any interest in shares of our capital stockshall be deemed to have notice of and consented to the forum provisions in our amended and restated certificate of incorporation.
Notwithstandingthe foregoing, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liabilitycreated by the Exchange Act or the rules and regulations thereunder. In addition, Section 22 of the Securities Act creates concurrentjurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or therules and regulations thereunder. As a result, the exclusive forum provision will provide that the Court of Chancery and the federaldistrict court for the District of Delaware will have concurrent jurisdiction over any action arising under the Securities Act or therules and regulations thereunder, and the exclusive forum provision will not apply to suits brought to enforce any duty or liabilitycreated by the Exchange Act or the rules and regulations thereunder or any other claim for which the federal courts have exclusive jurisdiction.To the extent the exclusive forum provision restricts the courts in which our stockholders may bring claims arising under the SecuritiesAct and the rules and regulations thereunder, there is uncertainty as to whether a court would enforce such provision. Investors cannotwaive compliance with the federal securities laws and the rules and regulations promulgated thereunder.
Althoughwe believe this provision benefits our company by providing increased consistency in the application of Delaware law in the types oflawsuits to which it applies, a court may determine that this provision is unenforceable, and to the extent it is enforceable, the provisionmay have the effect of discouraging lawsuits against our directors and officers and increasing the cost to stockholders of bringing suchlawsuits.
TransferAgent and Registrar
Thetransfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company, 17 Battery Place, New York, NewYork 10004.
Ourcommon stock is listed for trading on the Nasdaq Capital Market under the symbol “BJDX.”
DESCRIPTIONOF OUR DEPOSITARY SHARES
Wemay, at our option, elect to offer fractional shares of preferred stock, which we call depositary shares, rather than full shares ofpreferred stock. If we do, we will issue to the public receipts, called depositary receipts, for depositary shares, each of which willrepresent a fraction, to be described in the applicable prospectus supplement, of a share of a particular series of preferred stock.Unless otherwise provided in the prospectus supplement, each owner of a depositary share will be entitled, in proportion to the applicablefractional interest in a share of preferred stock represented by the depositary share, to all the rights and preferences of the preferredstock represented by the depositary share. Those rights include dividend, voting, redemption, conversion and liquidation rights.
Theshares of preferred stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositaryunder a deposit agreement between us, the depositary and the holders of the depositary receipts. The depositary will be the transferagent, registrar and dividend disbursing agent for the depositary shares.
Thedepositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Holders of depositary receipts agreeto be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying certaincharges.
Thesummary of terms of the depositary shares contained in this prospectus is not a complete description of the terms of the depository shares.You should refer to the form of the deposit agreement, our amended and restated certificate of incorporation and the certificate of designationfor the applicable series of preferred stock that are, or will be, filed with the SEC.
Dividendsand Other Distributions
Thedepositary will distribute all cash dividends or other cash distributions, if any, received in respect of the preferred stock underlyingthe depositary shares to the record holders of depositary shares in proportion to the numbers of depositary shares owned by those holderson the relevant record date. The relevant record date for depositary shares will be the same date as the record date for the underlyingpreferred stock.
Ifthere is a distribution other than in cash, the depositary will distribute property (including securities) received by it to the recordholders of depositary shares, unless the depositary determines that it is not feasible to make the distribution. If this occurs, thedepositary may, with our approval, adopt another method for the distribution, including selling the property and distributing the netproceeds from the sale to the holders.
Ifa series of preferred stock underlying the depositary shares has a liquidation preference, in the event of the voluntary or involuntaryliquidation, dissolution or winding up of us, holders of depositary shares will be entitled to receive the fraction of the liquidationpreference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.
Unlessthe related depositary shares have been previously called for redemption, upon surrender of the depositary receipts at the office ofthe depositary, the holder of the depositary shares will be entitled to delivery, at the office of the depositary to or upon his or herorder, of the number of whole shares of the preferred stock and any money or other property represented by the depositary shares. Ifthe depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representingthe number of whole shares of preferred stock to be withdrawn, the depositary will deliver to the holder at the same time a new depositaryreceipt evidencing the excess number of depositary shares. In no event will the depositary deliver fractional shares of preferred stockupon surrender of depositary receipts. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositagreement or receive depositary receipts evidencing depositary shares therefor.
Redemptionof Depositary Shares
Wheneverwe redeem shares of preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of depositaryshares representing shares of the preferred stock so redeemed, so long as we have paid in full to the depositary the redemption priceof the preferred stock to be redeemed plus an amount equal to any accumulated and unpaid dividends on the preferred stock to the datefixed for redemption. The redemption price per depositary share will be equal to the redemption price and any other amounts per sharepayable on the preferred stock multiplied by the fraction of a share of preferred stock represented by one depositary share. If lessthan all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata or by anyother equitable method as may be determined by the depositary.
Afterthe date fixed for redemption, depositary shares called for redemption will no longer be deemed to be outstanding and all rights of theholders of depositary shares will cease, except the right to receive the monies payable upon redemption and any money or other propertyto which the holders of the depositary shares were entitled upon redemption upon surrender to the depositary of the depositary receiptsevidencing the depositary shares.
Votingthe Preferred Stock
Uponreceipt of notice of any meeting at which the holders of the preferred stock are entitled to vote, the depositary will mail the informationcontained in the notice of meeting to the record holders of the depositary receipts relating to that preferred stock. The record datefor the depositary receipts relating to the preferred stock will be the same date as the record date for the preferred stock. Each recordholder of the depositary shares on the record date will be entitled to instruct the depositary as to the exercise of the voting rightspertaining to the number of shares of preferred stock represented by that holder’s depositary shares. The depositary will endeavor,insofar as practicable, to vote the number of shares of preferred stock represented by the depositary shares in accordance with thoseinstructions, and we will agree to take all action that may be deemed necessary by the depositary in order to enable the depositary todo so. The depositary will not vote any shares of preferred stock except to the extent it receives specific instructions from the holdersof depositary shares representing that number of shares of preferred stock.
Wewill pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We willpay charges of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock.Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and such other charges (including thosein connection with the receipt and distribution of dividends, the sale or exercise of rights, the withdrawal of the preferred stock andthe transferring, splitting or grouping of depositary receipts) as are expressly provided in the deposit agreement to be for their accounts.If these charges have not been paid by the holders of depositary receipts, the depositary may refuse to transfer depositary shares, withholddividends and distributions and sell the depositary shares evidenced by the depositary receipt. A discussion of material U.S. federalincome tax considerations will be set forth in the applicable prospectus supplement.
Amendmentand Termination of the Deposit Agreement
Theform of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be amended by agreement betweenus and the depositary. However, any amendment that materially and adversely alters the rights of the holders of depositary shares, otherthan fee changes, will not be effective unless the amendment has been approved by the holders of a majority of the outstanding depositaryshares. The deposit agreement may be terminated by the depositary or us only if:
|●||all outstanding depositary shares have been redeemed; or|
|●||there has been a final distribution of the preferred stock in connection with our dissolution and such distribution has been made to all the holders of depositary shares.|
Resignationand Removal of Depositary
Thedepositary may resign at any time by delivering to us notice of its election to do so, and we may remove the depositary at any time.Any resignation or removal of the depositary will take effect upon our appointment of a successor depositary and its acceptance of suchappointment. The successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and mustbe a bank or trust company having its principal office in the United States and having the requisite combined capital and surplus asset forth in the applicable agreement.
Thedepositary will forward to holders of depositary receipts all notices, reports and other communications, including proxy solicitationmaterials received from us, that are delivered to the depositary and that we are required to furnish to the holders of the preferredstock. In addition, the depositary will make available for inspection by holders of depositary receipts at the principal office of thedepositary, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the depositaryas the holder of preferred stock.
Neitherwe nor the depositary will be liable if either we or it is prevented or delayed by law or any circumstance beyond its control in performingits obligations. Our obligations and those of the depositary will be limited to performance in good faith of our and their duties thereunder.We and the depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferredstock unless satisfactory indemnity is furnished. We and the depositary may rely upon written advice of counsel or accountants, on informationprovided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competentto give such information and on documents believed to be genuine and to have been signed or presented by the proper party or parties.
Wemay issue warrants to purchase common stock, preferred stock, depositary shares or debt securities. We may offer warrants separatelyor together with one or more additional warrants, common stock, preferred stock, depositary shares or debt securities, or any combinationof those securities in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit,the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit priorto the expiration date of the warrants. The applicable prospectus supplement will also describe the following terms of any warrants:
|●||the specific designation and aggregate number of, and the offering price at which we will issue, the warrants;|
|●||the currency or currency units in which the offering price, if any, and the exercise price are payable;|
|●||the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;|
|●||whether the warrants are to be sold separately or with other securities as parts of units;|
|●||whether the warrants will be issued in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit;|
|●||any applicable material U.S. federal income tax considerations;|
|●||the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;|
|●||the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;|
|●||the designation and terms of any equity securities purchasable upon exercise of the warrants;|
|●||the designation, aggregate principal amount, currency and terms of any debt securities that may be purchased upon exercise of the warrants;|
|●||if applicable, the designation and terms of the preferred stock or depositary shares with which the warrants are issued and the number of warrants issued with each security;|
|●||if applicable, the date from and after which any warrants issued as part of a unit and the related debt securities, preferred stock, depositary shares or common stock will be separately transferable;|
|●||the number of shares of common stock, preferred stock or depositary shares purchasable upon exercise of a warrant and the price at which those shares may be purchased;|
|●||if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;|
|●||information with respect to book-entry procedures, if any;|
|●||the anti-dilution provisions of, and other provisions for changes to or adjustment in the exercise price of, the warrants, if any;|
|●||any redemption or call provisions; and|
|●||any additional terms of the warrants, including terms, procedures and limitations relating to the exchange or exercise of the warrants.|
Thissection describes the general terms of the rights that we may offer and sell by this prospectus. This prospectus and any accompanyingprospectus supplement or free writing prospectus will contain the material terms and conditions for each right. The accompanying prospectussupplement or free writing prospectus may add, update or change the terms and conditions of the rights as described in this prospectus.
Theparticular terms of each issue of rights, the rights agreement relating to the rights and the rights certificates representing rightswill be described in the applicable prospectus supplement or free writing prospectus, including, as applicable:
|●||the title of the rights;|
|●||the date of determining the stockholders entitled to the rights distribution;|
|●||the title, aggregate number of shares of common stock or preferred stock purchasable upon exercise of the rights;|
|●||the exercise price;|
|●||the aggregate number of rights issued;|
|●||the date, if any, on and after which the rights will be separately transferable;|
|●||the date on which the right to exercise the rights will commence and the date on which the right will expire;|
|●||any applicable material U.S. federal income tax considerations; and|
|●||any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the rights.|
Thefollowing, together with the additional information we may include in the applicable prospectus supplement or free writing prospectus,summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms summarized below willapply generally to any units we may offer, we will describe the particular terms of any series of units in more detail in the applicableprospectus supplement or free writing prospectus.
Wemay, from time to time, issue units comprised of one or more of the other securities that may be offered under this prospectus, in anycombination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus,the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unitis issued may provide that the securities included in the unit may not be held or transferred separately at any time, or at any timebefore a specified date.
Wewill describe in the applicable prospectus supplement or free writing prospectus the terms of the series of units, including:
|●||the material terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;|
|●||the rights and obligations of the unit agent, if any;|
|●||any material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;|
|●||any applicable material U.S. federal income tax considerations; and|
|●||any material provisions of the governing unit agreement that differ from those described above.|
Wemay issue units in such amounts and in numerous distinct series as we determine.
Eachdebt security, depositary share, warrant, unit and security right may be represented either by a certificate issued in definitive formto a particular investor or by one or more global securities representing the entire issuance of securities. Unless the applicable prospectussupplement provides otherwise, certificated securities in definitive form and global securities will be issued in registered form. Definitivesecurities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receivepayments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar,paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, depositaryshares, warrants, rights or units represented by these global securities. The depositary maintains a computerized system that will reflecteach investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank,trust company or other representative, as we explain more fully below.
Wemay issue the debt securities, depositary shares, warrants, rights or units in the form of one or more fully registered global securitiesthat will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the nameof that depositary or nominee. In those cases, one or more global securities will be issued in a denomination or aggregate denominationsequal to the portion of the aggregate principal or face amount of the securities to be represented by global securities. Unless and untilit is exchanged in whole for securities in definitive registered form, a global security may not be transferred except as a whole byand among the depositary for the global security, the nominees of the depositary or any successors of the depositary or those nominees.
Ifnot described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a global securitywill be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply toall depositary arrangements.
Ownershipof beneficial interests in a global security will be limited to persons, called participants, that have accounts with the depositaryor persons that may hold interests through participants. Upon the issuance of a global security, the depositary will credit, on its book-entryregistration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficiallyowned by the participants. Any underwriters, agents or dealers participating in the distribution of the securities will designate theaccounts to be credited. Ownership of beneficial interests in a global security will be shown on, and the transfer of ownership interestswill be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records ofparticipants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasersof securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledgebeneficial interests in global securities.
Solong as the depositary, or its nominee, is the registered owner of a global security, that depositary or its nominee, as the case maybe, will be considered the sole owner or holder of the securities represented by the global security for all purposes under the applicableindenture, deposit agreement, warrant agreement, rights agreement or unit agreement. Except as described below, owners of beneficialinterests in a global security will not be entitled to have the securities represented by the global security registered in their names,will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the ownersor holders of the securities under the applicable indenture, deposit agreement, warrant agreement, rights agreement or unit agreement.Accordingly, each person owning a beneficial interest in a global security must rely on the procedures of the depositary for that globalsecurity and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, toexercise any rights of a holder under the applicable indenture, deposit agreement, warrant agreement, right agreement or unit agreement.We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest ina global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, depositagreement, warrant agreement, rights agreement or unit agreement, the depositary for the global security would authorize the participantsholding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owningthrough them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal,premium, if any, and interest payments on debt securities, and any payments to holders with respect to depositary shares, warrants orunits, represented by a global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee,as the case may be, as the registered owner of the global security. None of us, or any trustee, warrant agent, unit agent or other agentof ours, or any agent of any trustee, warrant agent or unit agent will have any responsibility or liability for any aspect of the recordsrelating to payments made on account of beneficial ownership interests in the global security or for maintaining, supervising or reviewingany records relating to those beneficial ownership interests.
Weexpect that the depositary for any of the securities represented by a global security, upon receipt of any payment to holders of principal,premium, interest or other distribution of underlying securities or other property on that registered global security, will immediatelycredit participants’ accounts in amounts proportionate to their respective beneficial interests in that global security as shownon the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a global securityheld through participants will be governed by standing customer instructions and customary practices, as is now the case with the securitiesheld for the accounts of customers or registered in “street name,” and will be the responsibility of those participants.
Ifthe depositary for any of the securities represented by a global security is at any time unwilling or unable to continue as depositaryor ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency underthe Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the global securitythat had been held by the depositary. Any securities issued in definitive form in exchange for a global security will be registered inthe name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs.It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants withrespect to ownership of beneficial interests in the global security that had been held by the depositary.
Wemay sell the securities being offered by this prospectus separately or together:
|●||directly to purchasers;|
|●||to or through underwriters;|
|●||through a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the transaction; or|
|●||through a combination of any of these methods of sale.|
Inaddition, we may issue the securities being offered by this prospectus as a dividend or distribution toour existing security holders. This prospectus may be used in connection with any offering of our securities through any of these methodsor other methods described in the applicable prospectus supplement or free writing prospectus.
Wemay directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplementrelating to such offering, name any agent that could be viewed as an underwriter under the Securities Act, and describe any commissionsthat we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicableprospectus supplement, on a firm commitment basis.
Wemay effect the distribution of the securities from time to time in one or more transactions:
|●||at a fixed price, or prices, which may be changed from time to time;|
|●||at market prices prevailing at the time of sale;|
|●||at prices related to such prevailing market prices; or|
|●||at negotiated prices.|
Forexample, we may engage in at-the-market offerings into an existing trading market in accordance with Rule 415(a)(4) under the SecuritiesAct. We may also sell securities through a rights offering, forward contracts or similar arrangements.
Exceptas described in a prospectus supplement or a free writing prospectus, the securities issued and sold under this prospectus will haveno established trading market, other than our common stock, which is listed on the Nasdaq Capital Market. Except as described in a prospectussupplement or a free writing prospectus, any shares of our common stock sold pursuant to this prospectus will be eligible for listingand trading on the Nasdaq Capital Market, subject to official notice of issuance. Any underwriters to whom securities are sold by usfor public offering and sale may make a market in the securities, but the underwriters will not be obligated to do so and may discontinueany market making at any time without notice. The securities, other than our common stock, may or may not be listed on a national securitiesexchange or other trading market.
Wewill set forth in a prospectus supplement or free writing prospectus:
|●||the terms of any underwriting or other agreement that we reach relating to sales under this prospectus;|
|●||the method of distribution of the securities;|
|●||the names of any agents, underwriters or dealers, including any managing underwriters, used in the offering of securities;|
|●||the terms of any direct sales, including the terms of any bidding or auction process, or the terms of any other transactions;|
|●||the compensation payable to agents, underwriters and dealers, which may be in the form of discounts, concessions or commissions;|
|●||any activities that may be undertaken by agents, underwriters and dealers to stabilize, maintain or otherwise affect the price of the securities; and|
|●||any indemnification and contribution obligations owing to agents, underwriters and dealers.|
Ifany agents, underwriters or dealers are utilized in the sale of the securities in respect of which this prospectus is delivered, we willenter into an underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectussupplement relating to such offering the names of the underwriters, agents or dealers and the terms of the related agreement with them.
Ifwe sell directly to institutional investors or others, they may be deemed to be underwriters within the meaning of the Securities Actwith respect to any resale of the securities. Unless otherwise indicated in a prospectus supplement or free writing prospectus, if wesell through an agent, such agent will be acting on a best efforts basis for the period of its appointment. Any agent may be deemed tobe an “underwriter” of the securities as that term is defined in the Securities Act. If a dealer is used in the sale of thesecurities, we or an underwriter will sell securities to the dealer, as principal. The dealer may resell the securities to the publicat varying prices to be determined by the dealer at the time of resale.
Remarketingfirms, agents, underwriters, dealers and other persons may be entitled under agreements which they may enter into with us to indemnificationby us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactionswith or perform services for us in the ordinary course of business.
Wemay authorize agents, underwriters and dealers to solicit offers by certain institutional investors to purchase offered securities undercontracts providing for payment and delivery on a future date specified in a prospectus supplement or free writing prospectus. The prospectussupplement or free writing prospectus will also describe the public offering price for the securities and the commission payable forsolicitation of these delayed delivery contracts. Delayed delivery contracts will contain definite fixed price and quantity terms. Theobligations of a purchase under these delayed delivery contracts will be subject to only two conditions:
|●||that the institution’s purchase of the securities at the time of delivery of the securities is not prohibited under the law of any jurisdiction to which the institution is subject; and|
|●||if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts.|
Tothe extent permitted by and in accordance with Regulation M under the Exchange Act, in connection with an offering an underwriter mayengage in over-allotments, stabilizing transactions, short covering transactions and penalty bids. Over-allotments involve sales in excessof the offering size, which creates a short position. Stabilizing transactions permit bids to purchase the underlying security so longas the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the openmarket after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concessionfrom a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Thoseactivities may cause the price of the securities to be higher than it would be otherwise. If commenced, the underwriters may discontinueany of the activities at any time.
Tothe extent permitted by and in accordance with Regulation M under the Exchange Act, any underwriters who are qualified market makerson Nasdaq may engage in passive market making transactions in the securities on Nasdaq during the business day prior to the pricing ofan offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume andprice limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a pricenot in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’sbid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Thespecific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement orfree writing prospectus.
UnderRule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the partiesto any such trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for your securitiesmay be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to tradesecurities on any date prior to the second business day before the original issue date for your securities, you will be required, byvirtue of the fact that your securities initially are expected to settle more than two scheduled business days after the trade date foryour securities, to make alternative settlement arrangements to prevent a failed settlement.
Incompliance with the guidelines of the Financial Industry Regulatory Authority, or FINRA, the aggregate maximum discount, commission oragency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer willnot exceed 8% of the proceeds from any offering pursuant to this prospectus and any applicable prospectus supplement.
Theunderwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business forwhich they receive compensation.
Nosecurities may be sold under this prospectus without delivery, in paper format or in electronic format, or both, of the applicable prospectussupplement or free writing prospectus describing the method and terms of the offering.
Thevalidity of any securities offered by this prospectus will be passed upon for us by Hogan Lovells US LLP, Washington, D.C. As appropriate,legal counsel representing the underwriters, dealers or agents will be named in the accompanying prospectus supplement and may opineto certain legal matters.
Theconsolidated financial statements as of December 31, 2022 and 2021 and for the years then ended incorporated by reference in thisprospectus have been so incorporated in reliance on the report of Wolf & Company, P.C., an independent registered public accountingfirm, as stated in their report appearing elsewhere herein, and upon their authority as experts in accounting and auditing.
The SEC permits us to “incorporate by reference”the information contained in documents we have filed with the SEC, which means that we can disclose important information to you by referringyou to those documents rather than by including them in this prospectus. Information that is incorporated by reference is considered tobe part of this prospectus and you should read it with the same care that you read this prospectus. We have filed with the SEC, and incorporateby reference in this prospectus:
|●||our Annual Report on Form 10-K for the year ended December 31, 2022 (filed with the SEC on March 20, 2023), as amended by Amendment No. 1 thereto (filed with the SEC on May 1, 2023);|
|●||our Quarterly Report on Form 10-Q for the quarter ended March 31, 2023 (filed with the SEC on May 11, 2023);|
|●||our Current Reports on Form 8-K filed with the SEC on January 27, 2023, April 27, 2023 and May 19, 2023;|
|●||The description of our common stock, par value $0.0001 per share contained in its Registration Statement on Form 8-A, dated and filed with the SEC on November 5, 2021, as amended by the description of our common stock contained in Exhibit 4.6 to our Annual Report on Form 10-K for the year ended December 31, 2022, including all amendments and reports updating that description.|
We are not, however, incorporating, in each case,any documents or information that we are deemed to furnish and not file in accordance with SEC rules.
Anystatement contained in any document incorporated by reference herein will be deemed to be modified or superseded for purposes of thisprospectus to the extent that a statement contained in this prospectus or any prospectus supplement modifies or supersedes such statement.Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Allreports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to thetermination of this offering, including all such documents we may file with the SEC after the date of the initial registration statementand prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, theSEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filingof such reports and documents.
Wewill provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oralrequest, a copy of any or all documents that are incorporated by reference into this prospectus, but not delivered with the prospectus,other than exhibits to such documents unless such exhibits are specifically incorporated by reference into the documents that this prospectusincorporates. You should direct oral or written requests by one of the following methods. Attention: Investor Relations, Bluejay Diagnostics,Inc., 360 Massachusetts Avenue, Suite 203, Acton, MA, 01720, (844) 327-7078. You may also access these documents, free of charge on theSEC’s website at www.sec.gov or on the “Investors” page of our website at www.bluejaydx.com. The information foundon our website, or that may be accessed by links on our website, is not part of this prospectus. We have included our website addresssolely as an inactive textual reference. Investors should not rely on any such information in deciding whether to purchase our commonstock.
WHEREYOU CAN FIND MORE INFORMATION
Wefile annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet websiteat http://www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers that file electronicallywith the SEC. Our reports on Forms 10-K, 10-Q and 8-K, and amendments to those reports, are also available for download, free of charge,as soon as reasonably practicable after these reports are filed with, or furnished to, the SEC, at our website at www.bluejaydx.com.Information contained on or accessible through our website is not a part of this prospectus or any prospectus supplement, and the inclusionof our website address in this prospectus is an inactive textual reference only.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate (except in thecase of the registration fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution of theoffered securities registered hereby, other than underwriting discounts and commissions, if any, incurred in connection with the saleof the offered securities. All such amounts will be borne by Bluejay Diagnostics, Inc.
|Amount to be paid|
|SEC registration fee||$||2,755|
|FINRA filing fees||$||4,250|
|Accounting fees and expenses||$||(1||)|
|Legal fees and expenses||$||(1||)|
|(1)||These fees are calculated based on the securities offeredand the number of issuances and accordingly cannot be estimated at this time.|
Item 15. Indemnification of Directors and Officers.
Pursuant to Section 145 of the DGCL, a corporationshall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completedaction, suit or proceeding, whether civil, criminal, administrative or investigative (other than a derivative action by or in the rightof such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or servingat the request of such corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise, againstexpenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connectionwith such action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in or notopposed to the best interests of such corporation, and, with respect to any criminal action or proceeding, had no reasonable cause tobelieve his or her conduct was unlawful.
The DGCL also permits indemnification by a corporationunder similar circumstances for expenses (including attorneys’ fees) actually and reasonably incurred by such persons in connectionwith the defense or settlement of a derivative action or suit, except that no indemnification shall be made in respect of any claim, issueor matter as to which such person shall have been adjudged to be liable to such corporation unless the Delaware Court of Chancery or thecourt in which such action or suit was brought shall determine upon application that such person is fairly and reasonably entitled toindemnity for such expenses which such court shall deem proper.
To the extent a present or former director orofficer is successful in the defense of such an action, suit or proceeding referenced above, or in defense of any claim, issue or mattertherein, a corporation is required by the DGCL to indemnify such person for actual and reasonable expenses incurred in connection therewith.Expenses (including attorneys’ fees) incurred by such persons in defending any action, suit or proceeding may be paid in advanceof the final disposition of such action, suit or proceeding upon in the case of a current officer or director, receipt of an undertakingby or on behalf of such person to repay such amount if it is ultimately determined that such person is not entitled to be so indemnified.
The DGCL provides that the indemnification describedabove shall not be deemed exclusive of other indemnification that may be granted by a corporation pursuant to its bylaws, disinteresteddirectors’ vote, stockholders’ vote and agreement or otherwise.
Section 102(b)(7) of the DGCL enables a corporation,in its certificate of incorporation or an amendment thereto, to eliminate or limit the personal liability of a director to the corporationor its stockholders for monetary damages for violations of the directors’ fiduciary duty, except (i) for any breach of the director’sduty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconductor a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment ofdividends or unlawful stock purchases or redemptions) or (iv) for any transaction from which a director derived an improper personal benefit.The Company’s amended and restated certificate of incorporation provides for such limitations on liability for its directors.
The DGCL also provides corporations with the powerto purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of such corporation, oris or was serving at the request of such corporation in a similar capacity for another corporation, partnership, joint venture, trustor other enterprise, against any liability asserted against him or her in any such capacity or arising out of his or her status as such,whether or not the corporation would have the power to indemnify him or her against such liability as described above. The Company hasobtained liability insurance for its directors and officers. Such insurance would be available to its directors and officers in accordancewith its terms.
The Company’s amended and restated certificateof incorporation requires the Company to indemnify and hold harmless, to the fullest extent permitted by applicable law as it presentlyexists or may hereafter be amended, any person (a “covered person”) who was or is made or is threatened to be made a partyor is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative orinvestigative (a “proceeding”) by reason of the fact that he or she is or was a director, officer or member of a committeeof the Company, or, while a director or officer of the Company, is or was serving at the request of the Company as a director or officer,employee or agent of another corporation, partnership, joint venture, trust or other enterprise or non-profit entity, including servicewith respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees), judgment,fines and amounts paid in settlement actually and reasonably incurred by such covered person in connection with a proceeding.
In addition, under the Company’s amendedand restated certificate of incorporation, in certain circumstances, the Company shall pay the expenses (including attorneys’ fees)incurred by a covered person in defending a proceeding in advance of the final disposition of such proceeding; provided, however, thatthe Company shall not be required to advance any expenses to a person against whom the Company directly brings an action, suit or proceedingalleging that such person (1) committed an act or omission not in good faith or (2) committed an act of intentional misconduct or a knowingviolation of law. Additionally, an advancement of expenses incurred by a covered person shall be made only upon delivery to the Companyof an undertaking, by or on behalf of such covered person, to repay all amounts so advanced if it shall ultimately be determined by finaljudicial decision from which there is no further right to appeal or otherwise in accordance with Delaware law that such covered personis not entitled to be indemnified for such expenses.
Item 16. Exhibits.
|*||To be filed, if necessary, as an exhibit to a post-effective amendment to this registration statementor as an exhibit to a Current Report on Form 8-K to be filed by the registrant in connection with a specific offering, and incorporatedherein by reference..|
|**||To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939and Rule 5b-3 thereunder.|
Item 17. Undertakings.
(a) Theundersigned registrant hereby undertakes:
(1) Tofile, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|(i)||To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;|
|(ii)||To reflect in the prospectus any facts or events arising after the effective date of the registrationstatement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental changeset forth in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securitiesoffered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low orhigh end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price setforth in the “Calculation of Registration Fee” table in the effective registration statement; and|
|(iii)||To include any material information with respect to the plan of distribution not previously disclosedin the registration statement or any material change to such information in the registration statement;|
provided, however, that paragraphs (i),(ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is containedin reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporatedby reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of theregistration statement.
(2) That,for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to bea new 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.
(3) Toremove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the terminationof the offering.
(5) That,for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
|(i)||Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registrationstatement as of the date the filed prospectus was deemed part of and included in the registration statement; and|
|(ii)||Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registrationstatement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providingthe information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statementas of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securitiesin the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is atthat date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securitiesin the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to bethe initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is partof the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement orprospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effectivedate, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statementor made in any such document immediately prior to such effective date; or|
(6) That,for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of thesecurities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to thisregistration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offeredor sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaserand will be considered to offer or sell such securities to such purchaser:
|(i)||Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering requiredto be filed pursuant to Rule 424;|
|(ii)||Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrantor used or referred to by the undersigned registrant;|
|(iii)||The portion of any other free writing prospectus relating to the offering containing material informationabout the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and|
|(iv)||Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.|
(b) The undersignedregistrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’sannual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’sannual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall bedeemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that timeshall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnificationfor liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrantpursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and ExchangeCommission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that aclaim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its 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 Act and will be governed by the final adjudication of such issue.
(d) Ifand when applicable, the undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibilityof the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribedby the SEC under Section 305(b)(2) of the Act.
Pursuant to the requirements of the Securities Actof 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorizedin the City of Acton, State of Massachusetts, on June 5, 2023.
|BLUEJAY DIAGNOSTICS, INC.|
|President and Chief Executive Officer|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each personwhose signature appears below hereby constitutes and appoints Indranil “Neil” Dey and Kenneth Fisher, and each of them, hisor her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his orher name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this RegistrationStatement, and any registration statement relating to the offering covered by this Registration Statement and filed pursuant to Rule 462(b)under the Securities Act of 1933, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securitiesand Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and performeach and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could doin person, hereby ratifying and confirming all that each of said attorneys in fact and agents or their substitute or substitutes may lawfullydo or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Actof 1933, this Registration Statement has been signed by the following persons in their capacities and on the dates indicated.
|/s/ Neil Dey||President, Chief Executive Officer and Director (Principal Executive Officer)||June 5, 2023|
|/s/ Kenneth Fisher||Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)||June 5, 2023|
|/s/ Douglas Wurth||Chairman of the Board||June 5, 2023|
|/s/ Svetlana Dey||Director||June 5, 2023|
|/s/ Donald R. Chase||Director||June 5, 2023|
|Donald R. Chase|
|/s/ Fred S. Zeidman||Director||June 5, 2023|
|Fred S. Zeidman|
|/s/ Gary Gemignani||Director||June 5, 2023|