Filed Pursuant
to Rule 424(b)(5)
Registration No. 333-272267
PROSPECTUS SUPPLEMENT
(To prospectus dated June 6,
2023)
APPLIED DNA SCIENCES, INC.
Up to $6,397,939
Common Stock
We have entered into an Equity Distribution Agreement,
or the Equity Distribution Agreement, with Maxim Group LLC, or Maxim Group, relating to shares of our common stock offered by this prospectus
supplement and the accompanying prospectus. In accordance with the terms of the Equity Distribution Agreement, we may offer and sell shares
of our common stock, $0.001 par value per share, having an aggregate offering price of up to $6,397,939 from time to time through Maxim
Group acting as our agent. The offering of shares of our common stock pursuant to the Equity Distribution Agreement will terminate upon
the earlier of (i) November 7, 2024, (ii) the sale of all common stock provided for in this prospectus supplement, and (iii) the
termination of the Equity Distribution Agreement by written notice of us or Maxim Group.
Our common stock is listed on The Nasdaq Capital
Market under the symbol “APDN.” On November 3, 2023, the last reported sale price of our common stock on The Nasdaq Capital
Market was $0.83 per share.
Pursuant to General Instruction I.B.6 of Form S-3,
in no event will we sell our common stock in a public primary offering with a value exceeding more than one-third of the aggregate market
value of our voting and non-voting common equity held by non-affiliates in any 12-month period as long as the aggregate market value of
our outstanding voting and non-voting common equity held by non-affiliates is less than $75,000,000. Calculated in accordance with General
Instruction I.B.6 of Form S-3, the aggregate market value of our outstanding common stock held by non-affiliates, or the public float,
was approximately $19.2 million based upon 13,516,773 shares of our outstanding stock held by non-affiliates at the per share price of
$1.42 on September 15, 2023, which was the highest closing price within the last 60 days prior to the date of this filing. One-third of
our public float, calculated in accordance with General Instruction I.B.6 of Form S-3 as of November 3, 2023, is equal to $6,397,939. During
the 12 calendar months prior to and including the date of this prospectus supplement, we have not sold any securities pursuant to General
Instruction I.B.6 of Form S-3.
Sales of our common
stock, if any, under this prospectus supplement and the accompanying prospectus will be made in sales deemed to be an “at the market
offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act.
Maxim Group will act as a sales agent and will use commercially reasonable efforts to sell on our behalf all of the shares of common
stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between Maxim Group
and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Maxim Group will
be entitled to compensation at a fixed commission rate of 3% of the gross sales price per share sold. See “Plan of Distribution”
for additional information regarding compensation to be paid to Maxim Group. In connection with the sale of the common stock on our behalf,
Maxim Group will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Maxim
Group will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to
Maxim Group with respect to certain liabilities, including liabilities under the Securities Act and the Exchange Act of 1934, as amended,
or the Exchange Act.
Investing in our securities involves a high
degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” on page S-6
of this prospectus supplement, page 3 of the accompanying prospectus and under similar headings in the other documents that are
incorporated by reference in this prospectus supplement and the accompanying prospectus before purchasing any of the securities offered
by this prospectus.
Neither the
SEC nor any state securities commission has approved of anyone’s investment in these securities or determined if this prospectus
supplement or accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Maxim Group LLC
The date of this prospectus supplement is November 7,
2023
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
PROSPECTUS
ABOUT THIS PROSPECTUS
SUPPLEMENT
This document is
part of a “shelf” registration statement on Form S-3 (File No. 333-272267) that we filed with the SEC, and is in
two parts. The first part is this prospectus supplement, which describes the specific terms of offering of shares of our common stock
and also adds to and updates information contained in the accompanying prospectus and the documents incorporated by reference herein
and therein. The second part, the accompanying prospectus, provides more general information. Generally, when we refer to this prospectus,
we are referring to both parts of this document combined. To the extent there is a conflict between the information contained in this
prospectus supplement and the information contained in the accompanying prospectus or any document incorporated by reference therein
filed prior to the date of this prospectus supplement, you should rely on the information in this prospectus supplement; provided that
if any statement in one of these documents is inconsistent with a statement in another document having a later date — for example,
a document incorporated by reference in the accompanying prospectus — the statement in the document having the later date modifies
or supersedes the earlier statement.
We further note
that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated
by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating
risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such
representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and
covenants should not be relied on as accurately representing the current state of our affairs.
We have not, and
Maxim Group has not, authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus
supplement, the accompanying prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred
you. We take no responsibility for and can provide no assurance as to the reliability of, any other information that others may give
you. This prospectus supplement and the accompanying prospectus do not constitute an offer to sell, or a solicitation of an offer to
purchase, the securities offered by this prospectus supplement and the accompanying prospectus in any jurisdiction to or from any person
to whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. The information contained in
this prospectus supplement, the accompanying prospectus or any free writing prospectus, or incorporated by reference herein or therein
is accurate only as of the respective dates thereof, regardless of the time of delivery of this prospectus supplement and the accompanying
prospectus or of any sale of our shares of common stock. It is important for you to read and consider all information contained in this
prospectus supplement and the accompanying prospectus, including the documents incorporated by reference herein and therein, in making
your investment decision. You should also read and consider the information in the documents to which we have referred you in the sections
entitled “Where You Can Find More Information” and “Information Incorporated by Reference” in this prospectus
supplement and in the accompanying prospectus. You should rely only on the information contained or incorporated by reference in this
prospectus supplement.
We and Maxim Group
are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted.
The distribution of this prospectus supplement and the accompanying prospectus and the offering of the shares of our common stock in
certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus supplement
and the accompanying prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of
our common stock and the distribution of this prospectus supplement and the accompanying prospectus outside the United States. This prospectus
supplement and the accompanying prospectus do not constitute, and may not be used in connection with, an offer to sell, or a solicitation
of an offer to buy, any securities offered by this prospectus supplement and
the accompanying prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
In this prospectus
supplement, unless otherwise indicated, the “Registrant,” “our company,” “we,” “us” or
“our” refer to Applied DNA Sciences, Inc., a Delaware corporation and its consolidated subsidiaries.
Our trademarks
currently used in the United States include Applied DNA Sciences®, SigNature® molecular tags, SigNature® T molecular tags,
fiberTyping®, SigNify®, Beacon®, CertainT®, Linea™ DNA, Linea™ IVT, Linea™ COVID-19 Diagnostic Assay
Kit, safeCircleTM COVID-19 testing and TR8TM PGx pharmacogenetic testing. We do not intend our use or display
of other companies’ trade names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
All trademarks, service marks and trade names included or incorporated by reference in this prospectus supplement are the property of
the respective owners.
PROSPECTUS SUPPLEMENT
SUMMARY
This summary provides a general overview
of selected information and does not contain all of the information you should consider before buying our common stock. Therefore, you
should read the entire prospectus supplement, accompanying prospectus and any free writing prospectus that we have authorized for use
in connection with this offering carefully, including the information incorporated by reference herein and therein, before deciding to
invest in our common stock. Investors should carefully consider the information set forth under “Risk Factors” beginning
on page S-6 of this prospectus supplement and in the documents incorporated by reference into this prospectus supplement and accompanying
prospectus.
Applied DNA Sciences, Inc.
Introduction
We are a biotechnology
company developing and commercializing technologies to produce and detect deoxyribonucleic acid (“DNA”) and ribonucleic acid
(“RNA”). Using polymerase chain reaction (“PCR”) to enable the production and detection of DNA and RNA, we currently
operate in three primary business markets: (i) the enzymatic manufacture of synthetic DNA for use in the production of nucleic acid-based
therapeutics and, through our recent acquisition of Spindle Biotech, Inc. (“Spindle”), the development and sale of a
proprietary RNA polymerase (“RNAP”) for use in the production of mRNA therapeutics (“Therapeutic DNA Production
Services”); (ii) the detection of DNA and RNA in molecular diagnostics and genetic testing services (“MDx Testing Services”);
and (iii) the manufacture and detection of DNA for industrial supply chain security services (“DNA Tagging and Security Products
and Services”).
Our
current growth strategy is to primarily focus our resources on the further development, commercialization, and customer adoption of our
Therapeutic DNA Production Services, including the expansion of our contract development and manufacturing operation (“CDMO”)
for the manufacture of synthetic DNA for use in the production of nucleic acid-based therapies, and to further expand and commercialize
our MDx Testing Services through genetic testing.
We
will continue to update our business strategy and monitor the use of our resources regarding our various business markets. In addition,
we expect that based on available opportunities and our beliefs regarding future opportunities, we will continue to modify and refine
our business strategy.
Therapeutic
DNA Production Services
Through
our LineaRx, Inc. (“LRx”) subsidiary we are developing and commercializing our Linea DNA and Linea IVT platforms.
Linea
DNA Platform
Our
Linea DNA platform is our core enabling technology, and enables the rapid, efficient, and large-scale cell-free manufacture of high-fidelity
DNA sequences for use in the manufacturing of a broad range of nucleic acid-based therapeutics. The Linea DNA platform enzymatically
produces a linear form of DNA we call ‘LineaDNA’ that is an alternative to plasmid-based DNA manufacturing technologies that
have supplied the DNA used in biotherapeutics for the past 40 years.
As
of the third quarter of calendar year 2023, there were 3,866 gene, cell and RNA therapies in development from preclinical through pre-registration
stages, almost all of which use DNA in their manufacturing process. (Source: ASGCT Gene, Cell & RNA Therapy Landscape: Q3 2023
Quarterly Report). Due to what we believe are the Linea DNA platform’s numerous advantages over legacy nucleic acid-based therapeutic
manufacturing platforms, we believe this large number of therapies under development represents a substantial market opportunity for
the Linea DNA platform to supplant legacy manufacturing methods in the manufacture of nucleic acid-based therapies.
We believe our Linea
DNA platform holds several important advantages over existing cell-based plasmid DNA manufacturing platforms. Plasmid-based DNA manufacturing
is based on the complex, costly and time-consuming biological process of amplifying DNA in living bacterial cells. Once amplified, the
DNA must be separated from the living cells and other process contaminants via multiple rounds of purification, adding further complexity
and costs. Unlike plasmid-based DNA manufacturing, the Linea DNA platform does not require living cells and instead amplifies DNA via
the enzymatic process of PCR. The Linea DNA platform is simple and can rapidly produce very large quantities of DNA without the need for
complex purification steps.
We
believe the key advantages of the Linea DNA platform include:
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Speed – Production of Linea DNA can be measured in
terms of hours, not days and weeks as is the case with plasmid-based DNA manufacturing platforms. |
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● |
Scalability – Linea DNA production takes place on
efficient bench-top instruments, allowing for rapid scalability in a minimal footprint. |
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● |
Purity – DNA produced via PCR is pure, resulting
in only large quantities of only the target DNA sequence. Unwanted DNA sequences such as the plasmid backbone and antibiotic resistance
genes, inherent to plasmid DNA, are not present in Linea DNA. |
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● |
Simplicity – The production of Linea DNA is streamlined
relative to plasmid-based DNA production. Linea DNA requires only four primary ingredients, does not require living cells or complex
fermentation systems and does not require multiple rounds of purification. |
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● |
Flexibility – DNA produced via the Linea DNA platform
can be easily chemically modified to suit specific customer applications. In addition, the Linea DNA platform can produce a wide
range of complex DNA sequences that are difficult to produce via plasmid-based DNA production platforms. These complex sequences
include inverted terminal repeats (ITRs) and long homopolymers such as polyadenylation sequences (poly (A) tail) important for
gene therapy and messenger RNA (“mRNA”) therapies, respectively. |
Preclinical
studies conducted by the Company have shown that Linea DNA is substitutable for plasmid DNA in numerous nucleic acid-based therapies,
including:
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● |
DNA templates to produce RNA, including messenger RNA (“mRNA”)
therapeutics; and |
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adoptive cell therapy (CAR-T) manufacturing. |
Further,
we believe that Linea DNA is also substitutable for plasmid DNA in the following nucleic acid-based therapies:
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● |
viral vector manufacturing for in vivo and ex
vivo gene editing; |
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● |
clustered regularly interspaced short palindromic repeats
(“CRISPR”)-mediated gene therapy; and |
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● |
non-viral gene therapy. |
Linea
IVT Platform
The
number of mRNA therapies under development is growing at a rapid rate, thanks in part to the success of the mRNA COVID-19 vaccines. mRNA
therapeutics are produced via a process called in vitro transcription (“IVT”) that requires DNA as a starting material. As
of the 3rd quarter of calendar 2023, there were almost 400 mRNA therapies under development, with the large majority of these therapies
(68%) in the preclinical stage (Source: ASGCT Gene, Cell & RNA Therapy Landscape: Q3 2023 Quarterly Report). The Company believes
that the mRNA market is in a nascent stage that represents a large growth opportunity for the Company via the production of DNA IVT templates
to produce mRNA therapies.
In
August 2022, the Company launched DNA IVT templates manufactured via its Linea DNA platform and has since secured proof of concept
contracts with numerous mRNA manufacturing customers. In response to this demand, the continued growth of the mRNA therapeutic market,
and the unique abilities of the Linea DNA platform, the Company acquired Spindle in July 2023 to potentially increase its mRNA-related
total addressable market (“TAM”).
Through
our acquisition of Spindle, we recently launched our Linea IVT platform, which combines Spindle’s proprietary high-performance
RNA polymerase (“RNAP”), now marketed as Linea RNAP by the Company, with our enzymatically produced Linea DNA IVT templates.
We believe the Linea IVT platform enables our customers to make better mRNA, faster. Based on data generated by the Company, we believe
the integrated Linea IVT platform offers the following advantages over conventional mRNA production to therapy developers and manufacturers:
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● |
The prevention or reduction of double stranded RNA (“dsRNA”)
contamination resulting in higher target mRNA yields with the potential to reduce downstream processing steps. dsRNA is a problematic
immunogenic byproduct produced during conventional mRNA manufacture; |
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● |
delivery of IVT templates in as little as 14 days for milligram
scale and 30 days for gram scale; and |
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reduced
mRNA manufacturing complexities. |
According to the Company’s
internal modeling, the ability to sell both Linea DNA IVT templates and Linea RNAP under the Linea IVT platform potentially increases
the Company’s mRNA-related TAM by approximately 3x as compared to selling Linea DNA IVT templates alone, while also providing a
more competitive offering to the mRNA manufacturing market.
Manufacturing
Scale-up
The
Company plans to offer several quality grades of Linea DNA, each of which will have different permitted uses.
| Quality Grade |
Permitted Use |
Company Status |
| GLP |
Research and pre-clinical discovery |
Currently available |
| GMP (non-drug substance) |
DNA starting materials for the production of mRNA therapies |
Planned availability first half of CY2024 (1) |
| GMP |
DNA drug substance and/or drug product |
Planned availability first half of CY 2025 (1) |
(1) Dependent on the
availability of future financing.
The Company currently
manufactures Linea DNA pursuant to Good Laboratory Practices (“GLP”) and is creating a fit for purpose manufacturing facility
within our current Stony Brook, NY laboratory space capable of producing Linea DNA IVT templates under Good Manufacturing Practices (“GMP”)
suitable for use as a starting material for clinical and commercial mRNA therapeutics, with a planned completion date in the first half
of calendar year 2024. The Company also plans to offer Linea DNA materials manufactured under GMP suitable for use as a drug substance
and/or drug product, with availability expected during the first half of calendar year 2025. GMP is a quality standard used globally and
by the U.S. Food and Drug Administration (“FDA”) to ensure pharmaceutical quality. Drug substances are the pharmaceutically
active components of drug products.
Segment
Business Strategy
Our
business strategy for our Therapeutic DNA Production Services is to capitalize upon the rapid growth of mRNA therapies in the near term
via the availability of Linea DNA IVT templates manufactured under GMP, while at the same time laying the basis for additional clinical
and commercial applications of Linea DNA with the future availability of Linea DNA manufactured under GMP suitable for use as a drug substance
and/or drug product. Our current plan is: (i) through our Linea IVT platform and near term future GMP manufacturing capabilities
for IVT templates to secure commercial-scale supply contracts with clinical and commercial mRNA manufacturers for Linea DNA IVT templates
and/or Linea RNAP; (ii) to utilize our current GLP production capacity for non-IVT template applications to secure supply and/or
development contracts with pre-clinical therapy developers that use DNA in their therapy manufacturing, and (iii) upon our development
of a future Linea DNA production under GMP suitable for use as a drug substance and/or drug product, to convert existing and new Linea
DNA customers into large-scale supply contracts to supply Linea DNA for clinical and commercial use as a drug substance and/or drug
product in a wide range of nucleic acid therapies. Until we complete our GMP facility to produce DNA starting materials (DNA IVT templates)
for mRNA manufacturing, we will not be able to realize significant revenues from this business. We estimate the cost of creating
the fit-for-purpose manufacturing facility will be approximately $1.5 million. If we were to expand the facility to enable GMP production
of drug substances and/or drug products, the cost may be up to $7 million. We anticipate that the fit-for-purpose manufacturing facility
would be created within our existing laboratory space. We anticipate that a facility to enable GMP production of drug substances and/or
drug products would require us to acquire additional space.
In addition, we plan
to leverage our Therapeutic DNA Production Services and deep knowledge of PCR to develop and monetize, ourselves or with strategic partners,
one or more Linea DNA-based therapeutic or prophylactic vaccines for high-value veterinary health indications (collectively “Linea
DNA Vaccines”). We currently seek to commercialize our Linea DNA Vaccines in conjunction with lipid nanoparticle (“LNP”)
encapsulation to facilitate intramuscular (“IM”) administration. We have recently demonstrated in vitro and in
vivo (mice studies) expression of generic reporter proteins via Linea DNA encapsulated by LNPs. For the in vivo study,
successful expression of the LNP-encapsulated Linea DNA was administered and achieved via IM injection. We believe that our Linea DNA
Vaccines under development provide a substantial advantage over plasmid DNA-based vaccines for the veterinary health market.
MDx
Testing Services
Through
Applied DNA Clinical Labs, LLC (“ADCL”), our clinical laboratory subsidiary, we leverage our expertise in DNA detection via
PCR to provide and develop clinical molecular diagnostics and genetic (collectively “MDx”) testing services. ADCL is a New
York State Department of Health (“NYSDOH”) Clinical Laboratory Evaluation Program (“CLEP”) permitted, Clinical
Laboratory Improvement Amendments (“CLIA”)-certified laboratory which is currently permitted for virology. Permitting for
genetics (molecular) is currently pending with the NYSDOH. In providing MDx testing services, ADCL employs its own or third-party molecular
diagnostic tests.
We
have successfully validated our pharmacogenomics testing services (the “PGx Testing Services”). Our PGx Testing Services
will utilize a 120-target PGx panel test to evaluate the unique genotype of a specific patient to help guide individual drug therapy
decisions. Our PGx Testing Services are designed to interrogate DNA targets on over 33 genes and provide genotyping information relevant
to certain cardiac, mental health, oncology, and pain management drug therapies.
On March 22, 2023,
we submitted our validation package to the NYSDOH for our PGx Testing Services. On September 21, 2023, we received a first set of
comments from NYSDOH requesting additional data and clarifications. The Company is currently generating the additional data necessary
to respond to the NYSDOH comments and plans to respond within 30 days after the date of this prospectus supplement. Currently, timing
of any approval by NYSDOH for our PGx Testing Services is unclear. Recently published studies show that population-scale PGx enabled medication
management can significantly reduce overall population healthcare costs, reduce adverse drug events, and increase overall population wellbeing.
These benefits can result in significant cost savings to large entities and self-insured employers, the latter accounting for approximately
65% of all U.S. employers in 2022. If and when approved by NYSDOH, we plan to leverage our PGx Testing Services to provide PGx testing
services to large entities and self-insured employers.
Historically,
the majority of our revenue attributable to our MDx Testing Services has been derived from our safeCircle™ COVID-19 testing solutions,
for which testing demand has significantly dropped. While we continue to support several safeCircle customers, we are currently observing
a marked decrease in market demand for COVID-19 testing, resulting in significant reduced revenues. We expect future demand for COVID-19
testing to continue to be reduced, and we intend to pursue future COVID-19 testing opportunities on an opportunistic basis.
DNA Tagging
and Security Products and Services
By
leveraging our expertise in both the manufacture and detection of DNA via PCR, our DNA Tagging and Security Products and Services allow
our customers to use non-biologic DNA tags manufactured on our Linea DNA platform to mark objects in a unique manner and then identify
these objects by detecting the absence or presence of the DNA tag. The Company’s core DNA Tagging and Security Products and Services,
which are marketed collectively as a platform under the trademark CertainT®, include:
| |
● |
SigNature® Molecular Tags, which are short non-biologic
DNA taggants produced by the Company’s Linea DNA platform, provide a methodology to authenticate goods within large and complex
supply chains with a focus on cotton, nutraceuticals and other products. |
| |
● |
SigNify® portable DNA readers and SigNify consumable
reagent test kits provide definitive real-time authentication of the Company’s DNA tags in the field. |
| |
● |
fiberTyping®
and other product genotyping services use PCR-based DNA detection to determine a cotton species or cultivar, via a product’s
naturally occurring DNA sequence for the purposes of product provenance authentication. |
| |
● |
Isotopic analysis
testing services, provided in partnership with third-party labs, use cotton’s carbon, hydrogen and oxygen elements to indicate
origin of its fiber through finished goods. |
To
date, our largest commercial application for our DNA Tagging and Security Products and Services is in the tracking and provenance authentication
of cotton.
We
believe the Uyghur Forced Labor Prevention Act (“UFLPA”) signed into law on December 23, 2021 has increased interest
in our CertainT platform for DNA Tagging, fiberTyping and isotopic analysis services. The UFLPA establishes that any goods mined, produced,
or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region (“XUAR”) of the People’s Republic of China
are not entitled to entry to the United States. On June 17, 2022, the UFLPA additionally listed DNA tagging and isotopic analysis
as evidence that importers may use to potentially prove that a good did not originate in XUAR.
Our
business plan is to leverage growing consumer and governmental awareness for product traceability catalyzed by the UFLPA to expand our
existing partnerships and seek new partnerships for our DNA Tagging and Security Products and Services with a focus on cotton.
Company Information
We are a Delaware corporation, which
was initially formed in 1983 under the laws of the State of Florida as Datalink Systems, Inc. In 1998, we reincorporated in the
State of Nevada, and in 2002, we changed our name to our current name, Applied DNA Sciences, Inc. On December 17, 2008, we
reincorporated from the State of Nevada to the State of Delaware.
Our corporate headquarters are located
at the Long Island High Technology Incubator at Stony Brook University in Stony Brook, New York, where we have established laboratories
for the manufacture and detection of DNA to support our various business units. In addition, this location also houses our NYSDOH CLEP-permitted,
Clinical Laboratory Improvement Amendments (“CLIA”)-certified clinical laboratory where we perform MDx Testing Services.
The mailing address of our corporate headquarters is 50 Health Sciences Drive, Stony Brook, New York 11790, and our telephone number
is (631) 240-8800.
THE OFFERING
| Common Stock Offered by Us |
Shares of our common stock having an aggregate offering price of up to $6,397,939. |
| Common Stock Outstanding After This Offering |
Up to
21,366,880 shares, assuming the sale of up to 7,708,360 shares of our common stock at a price of $0.83 per share, which was the
closing price of our common stock on The Nasdaq Capital Market on November 3, 2023. The actual number of shares issued will
vary depending on the sales price under this offering. |
| Plan of Distribution |
“At the market offering” that may be made from time to time through our sales agent,
Maxim Group. See “Plan of Distribution” on page S-13. |
| Use of Proceeds |
We intend to use the net proceeds from this offering for the further
development of our Therapeutic DNA Production Services, including the establishment of a fit-for-purpose manufacturing capacity for
the production of GMP-grade DNA for use in non-drug substances, and MDx Testing Services, including providing enterprise-scale, genetic
testing as-a-service, as well as general corporate purposes, which may include research and development expenses, capital expenditures,
working capital and general and administrative expenses, and potential acquisitions of or investments in businesses, products and
technologies that complement our business, although we have no present commitments or agreements to make any such acquisitions or
investments as of the current date. Pending these uses, we intend to invest the funds in short-term, investment grade,
interest-bearing securities. See “Use of Proceeds” on page S-11. |
| Risk Factors |
You should read the “Risk Factors” section of this prospectus supplement, the accompanying
prospectus and in the documents incorporated by reference in this prospectus supplement for a discussion of factors to consider before
deciding to purchase shares of our common stock. |
| Symbol on The Nasdaq Capital Market |
“APDN” |
The number of shares of common stock to be outstanding
immediately after this offering is based on 13,658,520 shares of common stock outstanding as of November 3, 2023 and excludes:
| |
· |
|
2,195,790 shares of common stock issuable upon exercise of options outstanding as of November 3, 2023, with a weighted average exercise price of $9.41 per share; |
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· |
|
5,220,588 shares of common stock issuable upon exercise of warrants outstanding as of November 3, 2023, with a weighted average exercise price of $3.50 per share; |
| |
· |
|
1,336,693 shares of common stock reserved for future grant or issuance as of November 3, 2023, under our equity incentive plan; and |
| |
|
|
|
| |
· |
|
282,640 shares of common stock underlying restricted stock units as of November 3, 2023. |
Except as otherwise indicated, all information in this prospectus supplement
assumes no exercise of outstanding options and warrants.
RISK FACTORS
Investment in
our common stock involves a high degree of risk. In addition to the other information included or incorporated by reference in this prospectus
supplement and the accompanying prospectus, you should carefully consider the risks described below and in the section titled “Risk
Factors” in our Annual Report on Form 10-K for our most recent fiscal year filed with the SEC, subsequent Quarterly Reports
on Form 10-Q, any amendment or updates thereto reflected in subsequent filings with the SEC, and in other reports we file with the
SEC that are incorporated by reference herein, before making an investment decision. The following risks are presented as of the date
of this prospectus supplement and we expect that these will be updated from time to time in our periodic and current reports filed with
the SEC, which will be incorporated herein by reference. Please refer to these subsequent reports for additional information relating
to the risks associated with investing in our common stock.
The risks and
uncertainties described therein and below could materially adversely affect our business, operating results and financial condition,
as well as cause the value of our common stock to decline. You may lose all or part of your investment as a result. You should also refer
to the other information contained in this prospectus supplement and the accompanying prospectus, or incorporated by reference, including
our financial statements and the notes to those statements, and the information set forth under the caption “Special Note Regarding
Forward-Looking Statements.” Our actual results could differ materially from those anticipated in these forward-looking statements
as a result of certain factors, including the risks mentioned below. Forward-looking statements included in this prospectus supplement
are based on information available to us on the date hereof, and all forward-looking statements in documents incorporated by reference
are based on information available to us as of the date of such documents. We disclaim any intent to update any forward-looking statements.
The risks described below and contained in our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and in our other
periodic reports are not the only ones that we face. Additional risks not presently known to us or that we currently deem immaterial
may also adversely affect our business operations.
Risks Relating
to this Offering
Management
will have broad discretion as to the use of the proceeds from this offering, and we may use the proceeds in ways in which you and other
shareholders may disagree.
We have not designated
any amount of the net proceeds we will receive from this offering for any particular purpose. Accordingly, our management will have broad
discretion as to the application of such net proceeds and could use them for purposes other than those contemplated at the time of this
offering. Our shareholders may not agree with the manner in which our management chooses to allocate and spend such net proceeds. In
addition, such proceeds could be applied in ways that do not improve our operating results or increase the value of your investment.
Our failure to apply these funds effectively could have a material adverse effect on our business, delay the development and commercialization
of our products and cause the price of our common stock to decline.
You may experience
immediate and substantial dilution in the net tangible book value per share of the common stock you purchase.
The price per share of our common stock
being offered may be higher than the net tangible book value per share of our common stock outstanding prior to your purchase and in
such case, you will suffer immediate dilution based on the difference between the price you pay per share of our common stock and
our net tangible book value per share at the time of your purchase. As of June 30, 2023, our net tangible book value per share,
excluding all liability classified warrants was $0.93.
We will need
additional capital. If we are unable to raise sufficient capital, we will be forced to delay, reduce or eliminate product development
programs.
We will need to raise additional funds
in order to achieve our business goals, including the growth of our Therapeutic DNA Production Services. We will need to raise substantial
additional capital to complete the development and commercialization of our Linea DNA and Linea IVT platforms, as well as our veterinary
health product candidates, and depending on the availability of capital, may need to delay or cease development of some of our product
candidates. Even if we raise additional capital, we may elect to focus our efforts on one or more development programs and delay or cease
other development programs.
Until we can generate
sufficient revenue from our platforms and/or product candidates, if ever, we expect to finance future cash needs through public or private
equity offerings, debt financings, corporate collaborations and/or licensing arrangements. Additional funds may not be available when
we need them on terms that are acceptable, or at all. If adequate funds are not available, we may be required to delay, reduce the scope
of or eliminate one or more of our research or development programs.
Raising additional
funds by issuing securities or through licensing arrangements may cause dilution to stockholders, restrict our operations or require
us to relinquish proprietary rights.
To the extent that
we raise additional capital through the sale of equity or convertible debt securities, stockholders will be diluted, and the terms of
these new securities may include liquidation or other preferences that adversely affect the rights of common stockholders.
Debt financing,
if available at all, may involve agreements that include covenants limiting or restricting our ability to take specific actions, such
as incurring additional debt, making capital expenditures or declaring dividends. If we raise additional funds through collaborations,
strategic alliances or licensing arrangements with third parties, we may have to relinquish valuable rights to our technologies, product
candidates or future revenue streams or grant licenses on terms that are not favorable to us. We may also seek to access the public or
private capital markets whenever conditions are favorable, even if we do not have an immediate need for additional capital at that time.
There can be no assurance that we will be able to obtain additional funding if, and when necessary. If we are unable to obtain adequate
financing on a timely basis, we could be required to delay, curtail or eliminate one or more, or all, of our development programs or
grant rights to develop and market product candidates that we would otherwise prefer to develop and market ourselves.
You may experience
future dilution as a result of future equity offerings.
In order to raise
additional capital, in the future we expect to offer additional shares of our common stock or other securities convertible into or exchangeable
for our common stock. We cannot assure you that we will be able to sell shares or other securities in any other offering at a price per
share that is equal to or greater than the price per share paid by investors in this offering, and investors purchasing shares or other
securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares
of our common stock or other securities convertible into or exchangeable for our common stock in future transactions may be higher or
lower than the price per share in this offering. To the extent that outstanding options or warrants to purchase common stock are exercised,
investors purchasing our common stock in this offering may experience further dilution.
The common
stock offered hereby will be sold in “at the market offerings” and investors who buy shares at different times will likely
pay different prices.
Investors who purchase
shares in this offering at different times will likely pay different prices, and accordingly may experience different levels of dilution
and different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and
number of shares sold in this offering. In addition, subject to the final determination by our board of directors or any restrictions
we may place in any applicable placement notice, there is no minimum or maximum sales price for shares to be sold in this offering. Investors
may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower than the
prices they paid.
The actual
number of shares of common stock we may issue under the Equity Distribution Agreement and the aggregate proceeds resulting from those
sales, at any one time or in total, is uncertain.
Subject to certain
limitations in the Equity Distribution Agreement and compliance with applicable law, we have the discretion to deliver a placement notice
to Maxim Group at any time throughout the term of the Equity Distribution Agreement. The number of shares that are sold through Maxim
Group after delivering a placement notice will fluctuate based on a number of factors, including the market price of our common stock
during the sales period, the limits we set with Maxim Group in any applicable placement notice, and the demand for our common stock during
the sales period. Because the price of each share sold will fluctuate during the sales period, it is not currently possible to predict
the number of shares of common stock that will ultimately be issued by us under the Equity Distribution Agreement or aggregate proceeds
to be raised in connection with those sales.
Sales of
a significant number of shares of our common stock in the public markets, or the perception that such sales could occur, could depress
the market price of our common stock.
Sales of a significant
number of shares of our common stock in the public markets, or the perception that such sales could occur as a result of our utilization
of our shelf registration statement, the Equity Distribution Agreement or otherwise could depress the market price of our common stock
and impair our ability to raise capital through the sale of additional equity securities. We cannot predict the effect that future sales
of our common stock or the market perception that we are permitted to sell a significant number of our securities would have on the market
price of our common stock.
The closing price of our common stock is
currently below $1.00 per share, which may result in a deficiency notice from the Nasdaq Capital Market. If we are unable to cure such
deficiency, which may require a reverse stock split of our common stock, and satisfy the Nasdaq continued listing requirements, we could
be delisted from the Nasdaq Stock Market, which would negatively impact the market price and liquidity of our common stock.
The Nasdaq Stock Market LLC (“Nasdaq”)
Listing Rule 5550(a)(2) (the “Minimum Bid Price Requirement”) requires that the Company’s common stock maintain a closing
bid price for 30 consecutive business days of $1.00 per share. Failure to meet the Minimum Bid Price Requirement may result in a
deficiency notice from Nasdaq. If we are unable to resolve the deficiency within the time period permitted by Nasdaq, our common stock
may be delisted from Nasdaq. If our common stock is delisted by Nasdaq, our common stock may be eligible for quotation on an over-the-counter
quotation system or on the pink sheets, but will lack the market efficiencies associated with Nasdaq. Upon any such delisting, our common
stock would become subject to the regulations of the SEC relating to the market for penny stocks. A penny stock is any equity security
not traded on a national securities exchange that has a market price of less than $5.00 per share. The regulations applicable to penny
stocks may severely affect the market liquidity for our common stock and could limit the ability of stockholders to sell securities in
the secondary market. In such a case, an investor may find it more difficult to dispose of or obtain accurate quotations as to the market
value of our common stock, and there can be no assurance that our common stock will be eligible for trading or quotation on any alternative
exchanges or markets.
Delisting from Nasdaq could adversely affect our
ability to raise additional financing through public or private sales of equity securities, would significantly affect the ability of
investors to trade our securities and would negatively affect the value and liquidity of our common stock. Delisting could also have other
negative results, including the potential loss of confidence by employees and customers, the loss of institutional investor interest and
fewer business development opportunities.
If the FDA were to begin to enforce regulation
of laboratory-developed tests, we could incur substantial costs and delays associated with trying to obtain pre-market clearance or approval
and costs associated with complying with post-market requirements.
As laboratory-developed tests (“LDTs”), our MDx Testing
Services are currently subject to enforcement discretion by the FDA. On September 29, 2023, however, the FDA published a proposed
rule on LDTs, in which FDA proposes to end enforcement discretion for virtually all LDTs in five stages over a four-year period from
the date FDA publishes a final rule. In Phase 1 (effective one year post-finalization), labs would be required to comply with medical
device (adverse event) reporting and correction/removal reporting requirements. In Phase 2 (effective two years post-finalization),
labs would be required to comply with all other device requirements (e.g., registration/listing, labeling, investigational use),
except for quality systems and premarket review. In Phase 3 (effective three years post-finalization), labs would be required to
comply with quality systems requirements. In Phase 4 (effective three and a half years post-finalization, but not before October 1,
2027), labs would be required to comply with premarket review requirements for high-risk tests (i.e., tests subject to premarket
approval (PMA) requirement). Finally, in Phase 5 (effective four years post-finalization, but not before April 1, 2028), labs
would be required comply with premarket review requirements for moderate- and low-risk tests (i.e., tests subject to de
novo or 510(k) requirement). Unlike previous proposals, the proposed rule does not “grandfather”
existing tests. The content and timing of any final rule on LDTs is uncertain at this time.
Congress is also
working on legislative language that would clarify FDA’s authority with respect to LDTs. In this regard, most recently, the
“Verifying Accurate Leading-edge IVCT Development Act,” or VALID Act, was introduced in March 2020, then in June 2021,
Spring 2022, and March 2023. The bill proposes a risk-based approach that would subject many LDTs to FDA regulation by creating
a new in vitro clinical test, or IVCT, category of regulated products. As proposed, the bill would grandfather many existing LDTs from
the proposed premarket approval, quality systems, and labeling requirements, respectively, but would require such tests to comply with
other regulatory requirements (e.g., registration and listing, adverse event reporting). To market a high-risk IVCT, reasonable assurance
of analytical and clinical validity for the intended use would be needed to be established. Under VALID, a precertification process would
be established that would have allowed a laboratory to establish that the facilities, methods, and controls used in the development of
its IVCTs meet quality system requirements. If pre-certified, low-risk IVCTs, developed by the laboratory would not be subject to pre-market
review. The new regulatory framework would include quality control and post-market reporting requirements. The FDA would have the authority
to withdraw approvals for IVCTs for various reasons, including (for example) if there were a reasonable likelihood that the test would
cause death or serious adverse health consequences. However, we cannot predict if this (or any other bill) will be enacted in its current
(or any other) form and cannot quantify the effect of such proposals on our business.
There is substantial doubt relating to our ability to continue
as a going concern.
We have recurring net losses, which have
resulted in an accumulated deficit of $298,854,883 as of June 30, 2023. We have incurred a net loss of $3,114,195 for the
three-month period ended June 30, 2023. At June 30, 2023, we had cash and cash equivalents of $10,756,235. We have concluded that
these factors raise substantial doubt about our ability to continue as a going concern for one year from the issuance of the
financial statements. We will continue to seek to raise additional working capital through public equity, private equity or debt
financings. If we fail to raise additional working capital, or do so on commercially unfavorable terms, it would materially and
adversely affect our business, prospects, financial condition and results of operations, and we may be unable to continue as a going
concern. If we seek additional financing to fund our business activities in the future and there remains substantial doubt
about our ability to continue as a going concern, investors or other financing sources may be unwilling to provide additional
funding to us on commercially reasonable terms, if at all.
SPECIAL NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement and the accompanying
prospectus, including the documents incorporated by reference herein and therein, and any free writing prospectus that we have authorized
for use in connection with this offering, contain forward-looking statements concerning our business, operations and financial performance
and condition, as well as our plans, objectives and expectations for our business operations and financial performance and condition.
Any statements contained herein that are not statements of historical facts may be deemed to be forward-looking statements. In some cases,
you can identify forward-looking statements by terminology such as “can”, “may”, “could”, “should”,
“assume”, “forecasts”, “believe”, “designed to”, “will”, “expect”,
“plan”, “anticipate”, “estimate”, “potential”, “position”, “predicts”,
“strategy”, “guidance”, “intend”, “budget”, “seek”, “project”
or “continue”, or the negative thereof or other comparable terminology regarding beliefs, plans, expectations or intentions
regarding the future. You should read statements that contain these words carefully because they:
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discuss our future expectations; |
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contain projections of our future results of operations or of our financial
condition; and |
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state other “forward-looking” information. |
We believe it is
important to communicate our expectations. However, forward-looking statements are based on our current expectations, assumptions, estimates
and projections about our business and our industry and are subject to known and unknown risks, uncertainties and other factors. Accordingly,
our actual results and the timing of certain events may differ materially from those expressed or implied in such forward-looking statements
due to a variety of factors and risks, including, but not limited to, those set forth under “Risk Factors” in this prospectus
supplement and accompanying prospectus, including the documents incorporated herein by reference, and the following factors and risks:
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our expectations of future revenues, expenditures, capital or other
funding requirements; |
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the adequacy of our cash and working capital to fund present and planned
operations and growth; |
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the substantial doubt relating to our ability to continue as a going
concern; |
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our need for additional financing which may in turn require the issuance
of additional shares of common stock, preferred stock or other debt or equity securities (including convertible securities) which
would dilute the ownership held by stockholders; |
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our identification of material weakness in our internal control over
financial reporting; |
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our business strategy and the timing of our expansion plans; |
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demand for Therapeutic DNA Production Services; |
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demand for DNA Tagging Services; |
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demand for MDx Testing Services, including in light of significantly
decreasing demand for COVID testing services; |
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our expectations concerning existing or potential development and license
agreements for third-party collaborations or joint ventures; |
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regulatory approval and compliance for our Therapeutic DNA Production
Services; |
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whether we are able to achieve the benefits expected from the acquisition
of Spindle; |
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the effect of governmental regulations generally; |
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our expectations of when regulatory submissions may be filed or when
regulatory approvals may be received; |
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our expectations concerning product candidates for
our technologies; and |
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our expectations of when or if we will become profitable. |
Any or all of our
forward-looking statements may turn out to be wrong. They may be affected by inaccurate assumptions that we might make or by known or
unknown risks and uncertainties. Actual outcomes and results may differ materially from what is expressed or implied in our forward-looking
statements. Among the factors that could affect future results are:
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the inherent uncertainties of product development
based on our new and as yet not fully proven technologies; |
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the risks and uncertainties regarding the actual effect
on humans of seemingly safe and efficacious formulations and treatments when tested clinically; |
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the inherent uncertainties associated with clinical
trials of product candidates; |
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the inherent uncertainties associated with the process
of obtaining regulatory clearance or approval to market product candidates; |
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the inherent uncertainties associated with commercialization
of products that have received regulatory clearance or approval; |
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economic and industry conditions generally and in
our specific markets; |
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the volatility of, and decline in, our stock price;
and |
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our ability to obtain the necessary financing to fund
our operations and effect our strategic development plan. |
All forward-looking
statements and risk factors included in this prospectus supplement are made as of the date hereof, and all forward-looking statements
and risk factors included in the accompanying prospectus and documents incorporated by reference are made as of their original date,
in each case based on information available to us as of the date hereof, or in the case of the accompanying prospectus and documents
incorporated by reference, the original date of any such document, and we assume no obligations to update any forward-looking statement
or risk factor, unless we are required to do so by law. If we do update one or more forward-looking statements, no inference should be
drawn that we will make updates with respect to other forward-looking statements or that we will make any further updates to those forward-looking
statements at any future time.
Forward-looking
statements may include our plans and objectives for future operations, including plans and objectives relating to our products and our
future economic performance, projections, business strategy and timing and likelihood of success. Assumptions relating to the foregoing
involve judgments with respect to, among other things, future economic, competitive and market conditions, future business decisions,
demand for our products and services, and the time and money required to successfully complete development and commercialization of our
technologies, all of which are difficult or impossible to predict accurately and many of which are beyond our control.
Any of the assumptions
underlying the forward-looking statements contained in this prospectus supplement and accompanying prospectus and documents incorporated
by reference could prove inaccurate and, therefore, we cannot assure you that any of the results or events contemplated in any of such
forward-looking statements will be realized. Based on the significant uncertainties inherent in these forward-looking statements, the
inclusion of any such statement should not be regarded as a representation or as a guarantee by us that our objectives or plans will
be achieved, and we caution you against relying on any of the forward looking-statements contained herein.
USE OF PROCEEDS
We may issue
and sell shares of our common stock having aggregate sales proceeds of up to $6,397,939 from time to time under this prospectus
supplement and accompanying prospectus. The amount of proceeds from this offering will depend upon the number of shares of our
common stock sold and the market price at which they are sold and will be reduced by commissions and other expenses of this
offering. There can be no assurance that we will be able to sell any shares under or fully utilize the Equity Distribution Agreement
with Maxim Group as a source of financing. We intend to use the net proceeds from this offering for the further development of our
Therapeutic DNA Production Services, including the establishment of a fit-for-purpose manufacturing capacity for the production of
GMP-grade DNA for use in non-drug substances suitable for the use as IVT templates for the production of mRNA, and MDx Testing
Services, including providing enterprise-scale, genetic testing as-a-service, as well as general corporate purposes, which may
include research and development expenses, capital expenditures, working capital and general and administrative expenses, and
potential acquisitions of or investments in businesses, products and technologies that complement our business, although we have no
present commitments or agreements to make any such acquisitions or investments as of the current date. Pending these uses, we intend
to invest the funds in short-term, investment grade, interest-bearing securities.
We estimate the cost of creating the fit-for-purpose
manufacturing facility will be approximately $1.5 million. If we were to expand the facility to enable GMP production of drug substances
and/or drug products, the cost may be up to $7 million. We anticipate that the fit-for-purpose manufacturing facility would be created
within our existing laboratory space. We anticipate that a facility to enable GMP production of drug substances and/or drug products
would require us to acquire additional space.
The amounts and
timing of our actual expenditures will depend on numerous factors, including our development efforts with respect to our products and
services, as well as the amount of cash used in our operations. We therefore cannot estimate with certainty the amount of net proceeds
to be used for the purposes described above. We may find it necessary or advisable to use the net proceeds for other purposes, and we
will have broad discretion in the application of the net proceeds. Pending the uses described above, we plan to invest the net proceeds,
if any, from this offering in short-term investments.
DIVIDEND POLICY
We have never paid
cash dividends on our common stock and we do not anticipate paying cash dividends in the foreseeable future, but intend to retain our
capital resources for reinvestment in our business. Any future determination to pay cash dividends on our common stock will be at the
discretion of our board of directors and will be dependent upon our financial condition, results of operations, capital requirements
and other factors as the board of directors deems relevant.
PLAN OF DISTRIBUTION
Pursuant to the
Equity Distribution Agreement with Maxim Group, Maxim Group has agreed to act as exclusive sales agent in connection with this offering
of our common stock pursuant to this prospectus supplement and the accompanying prospectus. Maxim Group is not purchasing or selling
any of the shares of our common stock offered by this prospectus supplement, nor is it required to arrange the purchase or sale of any
specific number or dollar amount of shares of our common stock but have agreed to use their reasonable best efforts to arrange for the
sale of all of the shares of our common stock offered hereby.
Upon delivery of
a transaction notice and subject to the terms and conditions of the Equity Distribution Agreement, Maxim Group may sell shares of our
common stock by any method permitted by law deemed to be an “at-the-market” equity offering as defined in Rule 415
promulgated under the Securities Act, including sales made directly on or through the Nasdaq Capital Market, the existing trading market
for our common stock, sales made to or through a market maker other than on an exchange or otherwise, in negotiated transactions at market
prices prevailing at the time of sale or at prices related to such prevailing market prices, and/or any other method permitted by law,
including in privately negotiated transactions.
We will pay Maxim
Group in cash, upon each sale of shares of our common stock pursuant to the Equity Distribution Agreement, a commission equal to 3% of
the gross proceeds from each sale of shares of our common stock. Because there is no minimum offering amount required as a condition
to this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time.
In addition, we agreed to reimburse Maxim Group upon request for its costs and out-of-pocket expenses incurred in connection
with its services under this offering, including the fees and out-of-pocket expenses of its legal counsel, up to an aggregate
of $40,000. In addition, we agreed to pay Maxim Group $3,500 for its legal fees on each quarter for which a bringdown is required. We
shall bear and be responsible for all expenses that are customarily borne by issuers for transactions of the type set forth herein.
Settlement for
sales of shares of our common stock will occur on the second business day following the date on which any sales are made, or on some
other date that is agreed upon by Maxim Group and us in connection with a particular transaction, in return for payment of the net proceeds
to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement. Sales of shares of our common stock
as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust Company or by such other
means as we and Maxim Group may agree upon.
We have agreed
to provide indemnification and contribution to Maxim Group and specified persons against certain civil liabilities, including liabilities
under the Securities Act, and the Securities Exchange Act of 1934, as amended, or the Exchange Act, and to contribute to payments that
Maxim may be required to make in respect of such liabilities.
Maxim Group may
be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by them
and any profit realized on the resale of the shares sold by them while acting as principal might be deemed to be underwriting discounts
or commissions under the Securities Act. As an underwriter, Maxim Group would be required to comply with the requirements of the Securities
Act and the Exchange Act, including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and
Regulation M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of shares by the agent
acting as principal. Under these rules and regulations, Maxim Group:
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may not engage in any stabilization
activity in connection with our securities; and |
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may not bid for or purchase any
of our securities or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act,
until it has completed its participation in the distribution. |
The offering of shares of our common stock pursuant
to the Equity Distribution Agreement will terminate upon the earlier of (i) November 7, 2024, (ii) the sale of all common stock
provided for in this prospectus supplement, and (iii) the termination of the Equity Distribution Agreement by written notice of us
or Maxim Group.
Maxim Group and
its affiliates may in the future provide various investment banking, commercial banking and other financial services for us and our affiliates,
for which services they may in the future receive customary fees. To the extent required by Regulation M, Maxim Group will not engage
in any market making activities involving our shares of our common stock while the offering is ongoing under this prospectus.
This prospectus
supplement and the accompanying prospectus in electronic format may be made available on a website maintained by Maxim Group and Maxim
Group may distribute this prospectus supplement and the accompanying prospectus electronically.
The foregoing does
not purport to be a complete statement of the terms and conditions of the Equity Distribution Agreement. A copy of the Equity Distribution
Agreement is included as an exhibit to our Current Report on Form 8-K that will be filed with the SEC and incorporated by reference
into the registration statement of which this prospectus supplement and the accompanying base prospectus form a part. See “Information
Incorporated by Reference” and “Where You Can Find More Information.”
LEGAL MATTERS
The validity of
the issuance of the securities offered hereby will be passed upon by our counsel, McDermott Will and Emery LLP, New York, New York.
Maxim Group is being represented in connection with this offering by Harter Secrest & Emery LLP, Rochester, New York.
EXPERTS
Marcum LLP, independent
registered public accounting firm, has audited our consolidated financial statements included in our Annual
Report on Form 10-K for the year ended September 30, 2022, as set forth in their report, which is incorporated by reference
in the prospectus supplement. Our consolidated financial statements are incorporated by reference in reliance on Marcum LLP’s report,
given on their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We have filed with
the SEC a registration statement on Form S-3 (File No. 333-272267) under the Securities Act, of which this prospectus supplement
forms a part. The rules and regulations of the SEC allow us to omit from this prospectus supplement and the accompanying prospectus
certain information included in the registration statement. For further information about us and the securities we are offering under
this prospectus supplement and the accompanying prospectus, you should refer to the registration statement and the exhibits and schedules
filed with the registration statement. With respect to the statements contained in this prospectus supplement and the accompanying prospectus
regarding the contents of any agreement or any other document, in each instance, the statement is qualified in all respects by the complete
text of the agreement or document, a copy of which has been filed as an exhibit to the registration statement.
We file reports,
proxy statements and other information with the SEC under the Exchange Act. The SEC maintains an Internet website that contains reports,
proxy statements and other information about issuers, like us, that file electronically with the SEC. The address of that website is
www.sec.gov.
INFORMATION
INCORPORATED BY REFERENCE
We have elected
to incorporate certain information by reference into this prospectus. By incorporating by reference, we can disclose important information
to you by referring you to other documents we have filed or will file with the SEC. The information incorporated by reference is deemed
to be part of this prospectus, except for information incorporated by reference that is superseded by information contained in this prospectus.
This means that you must look at all of the SEC filings that we incorporate by reference to determine if any statements in the prospectus
or any document previously incorporated by reference have been modified or superseded. We incorporate by reference the documents listed
below and any future information filed (rather than furnished) with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act between the date of this prospectus and the termination of this offering, provided, however, that we are not incorporating
any information furnished under Item 2.02 or Item 7.01 of any current report on Form 8-K:
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Our Quarterly Reports on Form 10-Q for
the quarterly periods ended December 31, 2022, March 31, 2023, and June 30, 2023, filed with the SEC on February 9,
2023, May 11,
2023, and August 10,
2023, respectively; |
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Our Current Reports on Form 8-K filed
with the SEC on February 28,
2023, March 28, 2023,
May 5, 2023, July 13,
2023, August 1, 2023,
and September 20, 2023;
and |
You may obtain
copies of these documents on the website maintained by the SEC at http://www.sec.gov, or from us without charge (other than
exhibits to such documents, unless such exhibits are specifically incorporated by reference into such documents) by writing us at Corporate
Secretary, Applied DNA Sciences, Inc., 50 Health Sciences Drive, Stony Brook, New York 11790 or visiting our website at http://www.adnas.com.
Any statement contained in a document
incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for the purposes
of this prospectus to the extent that a statement contained herein, any prospectus supplement or in any other subsequently filed document
which also is or deemed to be incorporated by reference herein modifies or supersedes that statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
PROSPECTUS
$75,000,000
APPLIED DNA SCIENCES, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
We may offer and sell, from time to time in one or more offerings,
up to $75,000,000 of our common stock, preferred stock, debt securities, warrants and rights, or any combination of these securities,
and/or units consisting of one or more of these securities. We may also offer common stock or preferred stock upon conversion of debt
securities and common stock upon conversion of preferred stock. All of the securities listed above may be sold separately or as units
with other securities.
This prospectus describes some of the general terms that may apply
to these securities. When we decide to sell a particular class or series of securities, we will provide specific terms of the offered
securities in one or more prospectus supplements. We may also authorize one or more free writing prospectuses to be provided to you in
connection with these offerings.
The prospectus supplement, and any documents incorporated by reference,
may also add, update or change information contained in or incorporated by reference into this prospectus. However, no prospectus supplement
shall offer a security that is not registered and described in this prospectus at the time of its effectiveness. You should read this
prospectus and any prospectus supplement, as well as the documents incorporated by reference or deemed to be incorporated by reference
into this prospectus, and any free writing prospectus carefully before you invest. This prospectus may not be used to offer or sell our
securities unless accompanied by a prospectus supplement relating to the offered securities.
Our common stock is listed on The Nasdaq Capital Market under the symbol
“APDN.” Each prospectus supplement will contain information, where applicable, as to our listing on any securities exchange
of the securities covered by the prospectus supplement. The aggregate market value of our outstanding common stock held by non-affiliates
was $14,640,981 based on 12,908,520 shares of outstanding common stock, of which 177,232 shares are held by affiliates, and a price of
$1.15 per share, which was the last reported sale price of our common stock as quoted on The Nasdaq Capital Market on May 24, 2023. Pursuant
to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered in a public primary offering with a value exceeding
more than one-third of our public float (the market value of our common stock held by our non-affiliates) in any 12 calendar month period
so long as our public float remains below $75.0 million. We have not offered any securities pursuant to General Instruction I.B.6 of Form
S-3 during the prior 12 calendar month period that ends on and includes the date of this prospectus. As of May 24, 2023, one-third of
our public float is equal to approximately $4,880,000.
These securities may be sold by us directly to purchasers, through
dealers or agents, or to or through underwriters, or through a combination of these methods. See “Plan of Distribution” in
this prospectus. We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement.
If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered,
we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The net proceeds we expect to receive
from any such sale will also be included in a prospectus supplement.
An investment in our securities involves a high degree of risk.
See the sections entitled “Risk Factors” in our most recent Annual Report on Form 10-K, in any Quarterly Report on Form 10-Q
and in any Periodic Report on Form 8-K, as well as in any prospectus supplement or free writing prospectus related to these specific offerings.
We may amend or supplement this prospectus from time to time by filing
amendments or supplements as required or related free writing prospectuses. You should read the entire prospectus and any amendments or
supplements carefully before you make your investment decision.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is June 6, 2023
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with
the Securities and Exchange Commission (“SEC”) using a “shelf” registration process. Under this shelf registration
process, we may offer from time to time securities described in this prospectus having a maximum aggregate offering price of $75,000,000
in one or more offerings. Each time we offer securities, we will prepare and file with the SEC a prospectus supplement or information
that is incorporated by reference into this prospectus that describes the specific amounts, prices and terms of the securities we offer.
We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these
offerings and securities. The prospectus supplement also may add, update or change information contained in this prospectus or the documents
incorporated herein by reference. You should read carefully this prospectus, any applicable prospectus supplement and any related free
writing prospectus together with additional information described below under the caption “Where You Can Find More Information.”
This prospectus does not contain all the information provided in the
Registration Statement we filed with the SEC. For further information about us or our securities offered hereby, you should refer to that
Registration Statement, which you can obtain from the SEC as described below under “Where You Can Find More Information.”
You should rely only on the information contained or incorporated by
reference in this prospectus, any prospectus supplement and any related free writing prospectus. We have not authorized any other person
to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it.
This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities, in any jurisdiction where the
offer or sale is not permitted. You should assume that the information appearing in this prospectus, any prospectus supplement, any related
free writing prospectus as well as information we have previously filed with the SEC and incorporated by reference, is accurate as of
the date of those documents only. Our business, financial condition, results of operations and prospects may have changed since those
dates. This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate
by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly
available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information
and we have not independently verified this information. Although we are not aware of any misstatements regarding the market and industry
data presented in this prospectus and the documents incorporated herein by reference, these estimates involve risks and uncertainties
and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in
this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other
documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
We may sell securities through underwriters or dealers, through agents,
directly to purchasers or through any combination of these methods. We and our agents reserve the sole right to accept or reject in whole
or in part any proposed purchase of securities. The prospectus supplement, which we will prepare and file with the SEC each time we offer
securities, will set forth the names of any underwriters, agents or others involved in the sale of securities, and any applicable fee,
commission or discount arrangements with them. See “Plan of Distribution.”
In this prospectus, unless otherwise indicated, the “Registrant,”
“our company,” “we,” “us” or “our” refer to Applied DNA Sciences, Inc., a Delaware corporation
and its consolidated subsidiaries.
PROSPECTUS SUMMARY
This prospectus summary highlights certain information about our
company and other information contained elsewhere in this prospectus or in documents incorporated by reference. This summary does not
contain all of the information that you should consider before making an investment decision. You should carefully read the entire prospectus,
any prospectus supplement, including the section entitled “Risk Factors” and the documents incorporated by reference into
this prospectus, before making an investment decision.
THE OFFERING
This prospectus is part of a Registration Statement that we filed with
the SEC utilizing a shelf registration process. Under this shelf registration process, we may sell any combination of:
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common stock; |
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preferred stock; |
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debt securities, in one or more series; |
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warrants to purchase any of the securities listed above; |
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rights to purchase common stock, preferred stock or warrants; and/or |
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units consisting of one or more of the foregoing |
in one or more offerings up to a total dollar amount of $75,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the terms of that specific offering and include a discussion of any
risk factors or other special considerations that apply to those securities. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional
information described under the heading “Where You Can Find More Information.”
OUR COMPANY
Overview
We are a biotechnology
company developing and commercializing technologies to produce and detect DNA. Using the polymerase chain reaction (“PCR”)
to enable both the production and detection of DNA, we operate in three primary business markets: (i) the manufacture of synthetic DNA
for use in the manufacture of nucleic acid-based therapeutics (“Therapeutic DNA Production Services”); (ii) the detection
of DNA in molecular diagnostics and genetic testing services (“MDx Testing Services”); and (iii) the manufacture and detection
of DNA for industrial supply chain security services (“DNA Tagging and Security Products and Services”).
Our current growth strategy
is to primarily focus our resources on the further development, commercialization, and customer adoption of our Therapeutic DNA Production
Services, including the expansion of our contract development and manufacturing operation (“CDMO”) for the PCR-based manufacture
of synthetic DNA for use in the manufacturing of nucleic acid-based therapies and the development of our own DNA-based product candidates
in veterinary health.
Corporate History
We are a Delaware corporation,
which was initially formed in 1983 under the laws of the State of Florida as Datalink Systems, Inc. In 1998, we reincorporated in
the State of Nevada, and in 2002, we changed our name to our current name, Applied DNA Sciences, Inc. On December 17, 2008,
we reincorporated from the State of Nevada to the State of Delaware.
Our corporate headquarters
are located at the Long Island High Technology Incubator at Stony Brook University in Stony Brook, New York, where we have established
laboratories for the manufacture and detection of DNA to support our various business units. In addition, this location also houses our
New York State Department of Health (“NYSDOH”) Clinical Laboratory Evaluation Program (“CLEP”)-permitted, Clinical
Laboratory Improvement Amendments (“CLIA”)-certified clinical laboratory where we perform MDx Testing Services. The mailing
address of our corporate headquarters is 50 Health Sciences Drive, Stony Brook, New York 11790, and our telephone number is (631) 240-8800.
RISK FACTORS
Investing in our securities involves a high degree of risk. Prior to
making a decision about investing in our securities, you should carefully consider and evaluate the specific factors discussed under the
heading “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended September 30, 2022 filed on December 14, 2022, with the SEC, as amended, and any updates described in subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Periodic Reports on Form 8-K, all of which are incorporated herein by reference, and may be amended, supplemented or superseded from time
to time by other reports we file with the SEC in the future. The risks and uncertainties we have described are not the only risks that
we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations.
The occurrence of these known or unknown risks might cause you to lose all or part of your investment.
See also the statements contained under the heading “Forward-Looking
Statements.”
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein
contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities
Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are intended to
qualify for the “safe harbor” created by those sections. In addition, we may make forward-looking statements in other documents
filed with or furnished to the SEC, and our management and other representatives may make forward-looking statements orally or in writing
to analysts, investors, representatives of the media and others. These statements relate to future events or to our future operating or
financial performance and involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance
or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking
statements.
Forward-looking statements can generally be identified by the fact
that they do not relate strictly to historical or current facts and include, but are not limited to, statements using terminology such
as “can”, “may”, “could”, “should”, “assume”, “forecasts”, “believe”,
“designed to”, “will”, “expect”, “plan”, “anticipate”, “estimate”,
“potential”, “position”, “predicts”, “strategy”, “guidance”, “intend”,
“budget”, “seek”, “project” or “continue”, or the negative thereof or other comparable
terminology regarding beliefs, plans, expectations or intentions regarding the future. You should read statements that contain these words
carefully because they:
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discuss our future expectations; |
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contain projections of our future results of operations or of our financial condition; and |
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state other “forward-looking” information. |
We believe it is important to communicate our expectations. However,
forward-looking statements are based on our current expectations, assumptions, estimates and projections about our business and our industry
and are subject to known and unknown risks, uncertainties and other factors. Accordingly, our actual results and the timing of certain
events may differ materially from those expressed or implied in such forward-looking statements due to a variety of factors and risks,
including, but not limited to, those set forth under “Risk Factors” and “Our Company” set forth in this prospectus
and the documents incorporated herein by reference., and the following factors and risks:
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our expectations of future revenues, expenditures, capital or other funding requirements; |
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the adequacy of our cash and working capital to fund present and planned operations and growth; |
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our business strategy and the timing of our expansion plans; |
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demand for Therapeutic DNA Production Services; |
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demand for DNA Tagging Services; |
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demand for MDx Testing Services, including in light of significantly decreasing demand for COVID testing services; |
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our ability to develop our MDx Testing Services business; |
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our expectations concerning existing or potential development and license agreements for third-party collaborations or joint ventures; |
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regulatory approval and compliance for our Therapeutic DNA Production and MDx Testing Services; |
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the effect of governmental regulations generally; |
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our expectations of when regulatory submissions may be filed or when regulatory approvals may be received; |
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our expectations concerning product or service candidates for our technologies; and |
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our expectations of when or if we will become profitable. |
Any or all of our forward-looking statements may turn out
to be wrong. They may be affected by inaccurate assumptions that we might make or by known or unknown risks and uncertainties. Actual
outcomes and results may differ materially from what is expressed or implied in our forward-looking statements. Among the factors that
could affect future results are:
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the inherent uncertainties of product and/or service development based on our new and as yet not fully proven technologies; |
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the risks and uncertainties regarding the actual effect on humans and/or animals of seemingly safe and efficacious formulations and treatments when tested clinically; |
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the inherent uncertainties associated with clinical trials of product candidates; |
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the inherent uncertainties associated with the process of obtaining regulatory clearance or approval to market product candidates and/or testing services; |
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the inherent uncertainties associated with commercialization of products and/or services that have received regulatory clearance or approval; |
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economic and industry conditions generally and in our specific markets; |
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we may conduct a reverse stock split of our common stock to meet the requirements of Nasdaq, which may adversely impact the market price and liquidity of our common stock; |
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the volatility of, and decline in, our stock price; and |
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our ability to obtain the necessary financing to fund our operations and effect our strategic development plan. |
All forward-looking statements and risk factors included in this prospectus
are made as of the date hereof, and all forward-looking statements and risk factors included in documents incorporated herein by reference
are made as of their original date, in each case based on information available to us as of the date hereof, or in the case of documents
incorporated by reference, the original date of any such document, and we assume no obligations to update any forward-looking statement
or risk factor, unless we are required to do so by law. If we do update one or more forward-looking statements, no inference should be
drawn that we will make updates with respect to other forward-looking statements or that we will make any further updates to those forward-looking
statements at any future time.
Forward-looking statements may include our plans and objectives for
future operations, including plans and objectives relating to our products and our future economic performance, projections, business
strategy and timing and likelihood of success. Assumptions relating to the foregoing involve judgments with respect to, among other things,
future economic, competitive and market conditions, future business decisions, demand for our products and services, and the time and
money required to successfully complete development and commercialization of our technologies, all of which are difficult or impossible
to predict accurately and many of which are beyond our control.
Any of the assumptions underlying the forward-looking statements contained
in this prospectus could prove inaccurate and, therefore, we cannot assure you that any of the results or events contemplated in any of
such forward-looking statements will be realized. Based on the significant uncertainties inherent in these forward-looking statements,
the inclusion of any such statement should not be regarded as a representation or as a guarantee by us that our objectives or plans will
be achieved, and we caution you against relying on any of the forward looking-statements contained herein.
Our trademarks currently used in the United States include Applied
DNA Sciences®, SigNature® molecular tags, SigNature® T molecular tags, fiberTyping®, SigNify®, Beacon®, CertainT®,
LinearDNA™, Linea™ COVID-19 Diagnostic Assay Kit, safeCircleTM COVID-19 testing and TR8TM pharmacogenetic
testing. We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement
or sponsorship of us by, any other companies. All trademarks, service marks and trade names included or incorporated by reference in this
prospectus are the property of the respective owners.
USE OF PROCEEDS
Except as otherwise provided in the applicable prospectus supplement,
we intend to use the net proceeds from the sale of the securities covered by this prospectus for general corporate purposes, which may
include, but is not limited to, working capital, capital expenditures, business development and research and development expenditures
and acquisitions of new technologies or businesses. The precise amount, use and timing of the application of such proceeds will depend
upon our funding requirements and the availability and cost of other capital. Additional information on the use of net proceeds from an
offering of securities covered by this prospectus may be set forth in the prospectus supplement relating to the specific offering.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our common stock.
We do not anticipate paying any cash dividends to stockholders in the foreseeable future. In addition, any future determination to pay
cash dividends will be at the discretion of our board of directors and will be dependent upon our financial condition, results of operations,
capital requirements, and such other factors as our board of directors deem relevant.
DESCRIPTIONS OF THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together
with any applicable prospectus supplement, summarize all the material terms and provisions of the various types of securities that we
may offer. We will describe in the applicable prospectus supplement relating to a particular offering the specific terms of the securities
offered by that prospectus supplement. We will indicate in the applicable prospectus supplement if the terms of the securities differ
from the terms we have summarized below. We will also include in the prospectus supplement information, where applicable, regarding material
United States federal income tax considerations relating to the securities.
We may sell from time to time, in one or more offerings:
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shares of our common stock; |
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shares of our preferred stock; |
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debt securities; |
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warrants to purchase any of the securities listed above; |
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rights to purchase common stock, preferred stock or warrants; and/or |
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units consisting of one or more of the foregoing. |
This prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
Capital Stock
General
The following description of common stock and preferred stock, together
with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the
common stock and preferred stock that we may offer under this prospectus but is not complete. For the complete terms of our common stock
and preferred stock, please refer to our certificate of incorporation, as may be amended from time to time (the “Certificate of
Incorporation”), any certificates of designation for our preferred stock, that may be authorized from time to time, and our by-laws,
as amended from time to time (the “By-Laws”). The Delaware General Corporation Law (“DGCL”) may also affect the
terms of these securities. While the terms we have summarized below will apply generally to any future common stock or preferred stock
that we may offer, we will describe the specific terms of any series of these securities in more detail in the applicable prospectus supplement.
If we so indicate in a prospectus supplement, the terms of any common stock or preferred stock we offer under that prospectus supplement
may differ from the terms we describe below.
As of May 24, 2023, our authorized capital stock consists of 200,000,000
shares of common stock, par value $0.001 per share, of which 12,908,520 shares were issued and outstanding, and 10,000,000 shares of preferred
stock, par value $0.001 per share, of which no shares were issued and outstanding. The actual number of stockholders is greater than the
number of stockholders of record and includes stockholders who are beneficial owners but whose shares are held in street name by brokers
and other nominees. This number of holders of record also does not include stockholders whose shares may be held in trust by other entities.
In addition, as of May 24, 2023, there were issued and outstanding options to purchase 2,206,231 shares of our common stock, warrants
to purchase 7,295,588 shares of our common stock, 282,640 restricted stock units and 1,340,394 shares available for grant under our 2020
Equity Incentive Plan. The authorized and unissued shares of common stock and preferred stock are available for issuance without further
action by our stockholders, unless such action is required by applicable law or the rules of any stock exchange on which our securities
may be listed. Unless approval of our stockholders is so required, our board of directors will not seek stockholder approval for the issuance
and sale of our common stock.
Common Stock
Holders of our common stock are entitled to one vote for each share
issued and outstanding held on all matters to be voted upon by the stockholders. Our shares of common stock have no preemptive, conversion,
or redemption rights. The rights, preferences, and privileges of the holders of common stock are subject to, and may be adversely affected
by, the rights of the holders of shares of any series of preferred stock we may issue in the future. Upon the sale of substantially all
of our stock or assets or dissolution, liquidation or winding up, and after all liquidation preferences payable to any series of preferred
stock entitled thereto have been satisfied, our remaining assets shall be distributed to all holders of common stock and any similarly
situated stockholders who are not entitled to any liquidation preference or, if there be an insufficient amount to pay all such stockholders,
then ratably among such holders. All of our issued and outstanding shares of common stock are fully paid and non-assessable. The holders
of shares of our common stock will be entitled to such dividends and other distributions in cash, stock or property from our assets or
funds legally available for such purposes as may be declared from time to time by our board of directors.
The shares of common stock offered by this prospectus, when issued
and paid for, will also be fully paid and non-assessable.
Our common stock is listed on The Nasdaq Capital Market under the symbol
“APDN.” American Stock Transfer & Trust Company is the transfer agent and registrar for our common stock.
Preferred Stock
Our Certificate of Incorporation provides that our board of directors
may, by resolution, designate classes of preferred stock in the future. The designated series of preferred stock shall have such powers,
designations, preferences and relative, participation or optional or other special rights and qualifications, limitations or restrictions
as shall be expressed in the resolution adopted by the board of directors. Once designated by our board of directors, each series of preferred
stock will have specific financial and other terms described in the documents that govern the preferred stock, which include our Certificate
of Incorporation and any certificates of designation that our board of directors may adopt. Prior to the issuance of shares of each series
of preferred stock, the board of directors is required by the DGCL and our Certificate of Incorporation to adopt resolutions and file
a certificate of designation with the Secretary of State of the State of Delaware. The certificate of designation fixes for each class
or series the designations, powers, preferences, rights, qualifications, limitations and restrictions, including, but not limited to,
some or all of the following:
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the number of shares constituting that series and the distinctive designation of that series, which number may be increased or decreased (but not below the number of shares then outstanding) from time to time by action of the board of directors; |
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the dividend rate and the manner and frequency of payment of dividends on the shares of that series, whether dividends will be cumulative, and, if so, from which date; |
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whether that series will have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights; |
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whether that series will have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the board of directors may determine; |
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whether or not the shares of that series will be redeemable, and, if so, the terms and conditions of such redemption; |
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whether that series will have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund; |
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whether or not the shares of the series will have priority over or be on a parity with or be junior to the shares of any other series or class in any respect; |
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the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation, and the relative rights or priority, if any, of payment of shares of that series; and |
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any other relative rights, preferences and limitations of that series. |
Although our board of directors has no intention at the present time
of doing so, it could authorize the issuance of a series of preferred stock that could, depending on the terms of such series, impede
the completion of a merger, tender offer or other takeover attempt.
Possible Anti-Takeover Effects of Delaware Law and our Certificate
of Incorporation and By-Laws
Our Certificate of Incorporation and By-Laws contain provisions that
could make it more difficult to acquire control of our company by means of a tender offer, open market purchases, a proxy contest or otherwise.
A description of these provisions is set forth below.
Anti-Takeover Effects of Delaware Law
Companies incorporated in Delaware are subject to the provisions of
Section 203 of the DGCL unless the corporation has “opted out” of these provisions with an express provision in its original
certificate of incorporation or an express provision in its certificate of incorporation or by-laws resulting from a stockholders’
amendment approved by at least a majority of the outstanding voting shares. We have opted out of Section 203 with an express provision
in our Certificate of Incorporation. Therefore, the anti-takeover effects of Section 203 do not apply to us.
Generally, Section 203 prohibits a publicly-held Delaware corporation
from engaging in a “business combination” with an “interested stockholder” for a three-year period following the
time that this stockholder becomes an interested stockholder, unless the business combination is approved in a prescribed manner. A “business
combination” includes, among other things, a merger, asset or stock sale or other transaction resulting in a financial benefit to
the interested stockholder. An “interested stockholder” is a person who, together with affiliates and associates, owns, or
did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation’s voting
stock.
Under Section 203, a business combination between a corporation and
an interested stockholder is prohibited unless it satisfies one of the following conditions: before the stockholder became interested,
the board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested
stockholder; upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for
purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock
plans, in some instances; or at or after the time the stockholder became interested, the business combination was approved by the board
of directors of the corporation and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least
two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
Election and Removal of Directors
Directors will be elected by a plurality of the voting power of the
shares present in person or represented by proxy at the stockholders meeting and entitled to vote on the election of directors. Our Certificate
of Incorporation does not provide for a classified board of directors or for cumulative voting in the election of directors. Under Article
VIII of the Certificate of Incorporation and Section 3.13 of the By-Laws, directors may be removed by the stockholders of the Company
only for cause, and in such case only by the affirmative vote of the holders of at least a majority of the voting power of the issued
and outstanding shares of capital stock of the Company then entitled to vote in the election of directors. On December 21, 2015, the Court
of Chancery of the State of Delaware invalidated as a matter of law certain provisions of the certificate of incorporation and bylaws
of VAALCO Energy, Inc. (“VAALCO”), a Delaware corporation, that permitted the removal of VAALCO’s directors by
its stockholders only for cause. In In re VAALCO Energy, Inc. Stockholder Litigation, Consol. C.A. No. 11775-VCL (Del. Ch. Dec.
21, 2015), the Court ruled from the bench to hold that, in the absence of a classified board of directors or cumulative voting, VAALCO’s
“only for-cause” director removal provisions conflict with Section 141(k) of the DGCL and are therefore invalid. Because the
Company’s Certificate of Incorporation and By-Laws contain similar “only for-cause” director removal provisions and
the Company does not have a classified board of directors or cumulative voting, the Company will not attempt to enforce the foregoing
“only for-cause” director removal provision in light of the VAALCO decision.
Size of Board of Directors and Vacancies
The authorized number of directors may be determined by the board of
directors, provided the board shall consist of at least one (1) member. No decrease in the number of directors constituting the board
of directors shall shorten the term of any incumbent director.
Vacancies occurring on our board of directors for any reason and newly
created directorships resulting from an increase in the authorized number of directors may be filled only by a vote of a majority of the
remaining members of the board of directors, although less than a quorum, or by a sole remaining director, at any meeting of the board
of directors.
Amendment
The Certificate of Incorporation may be amended by approval of the
board of directors and vote of a majority of the outstanding stock entitled to vote (and vote of a majority of the outstanding stock of
each class entitled to vote as a class, if applicable) pursuant to the Sections 141 and 242 of the DGCL. The board of directors is authorized
to adopt, amend, alter or repeal the By-Laws by the affirmative vote of at least a majority of the board of directors then in office.
No amendment to the Certificate of Incorporation or the By-Laws may adversely affect any indemnification right or protection of any director,
officer, employee or other agent existing at the time of such amendment, repeal or adoption of an inconsistent provision for or in respect
of any act, omission or other matter occurring, or any action or proceeding accruing or arising prior to such amendment, repeal or adoption
of an inconsistent provision.
Authorized but Unissued Shares of Common Stock and of Preferred
Stock
We believe that the availability of the “Blank Check” preferred
stock under our Certificate of Incorporation provides us with flexibility in addressing corporate issues that may arise. The board of
directors has the power, subject to applicable law, to issue series of preferred stock that could, depending on the terms of the series,
impede the completion of a merger, tender offer or other takeover attempt that some, or a majority, of the stockholders might believe
to be in their best interests or in which stockholders might receive a premium for their stock over the then prevailing market price of
the stock. Our board of directors may issue preferred stock with voting rights or conversion rights that, if exercised, could adversely
affect the voting power of the holders of common stock.
The authorized shares of preferred stock, as well as shares of common
stock, will be available for issuance without further action by our stockholders, unless action is required by applicable law or the rules
of any stock exchange on which our securities may be listed. Having these authorized shares available for issuance allows us to issue
shares without the expense and delay of a special stockholders’ meeting. We may use additional shares for a variety of purposes,
including future public or private offerings to raise additional capital, to fund acquisitions and as employee compensation. The existence
of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to obtain control
of our company by means of a proxy contest, tender offer, merger or otherwise. The above provisions may deter a hostile takeover or delay
a change in control or management of our company.
Advance Notice Procedure
Our By-Laws provide an advance notice procedure for stockholders to
nominate director candidates for election or to bring business before an annual meeting of stockholders. Only persons nominated by, or
at the direction of, our board of directors or by a stockholder of record who has given proper and timely notice to our secretary prior
to the meeting at which such stockholder is entitled to vote and appears, will be eligible for election as a director. In addition, any
proposed business other than the nomination of persons for election to our board of directors must constitute a proper matter for stockholder
action pursuant to a proper notice of meeting delivered to us. For notice to be timely, it must generally be delivered to our secretary
not less than 90 nor more than 120 calendar days prior to the first anniversary of the previous year’s annual meeting (or if the
date of the annual meeting is more than 30 calendar days before or more than 60 calendar days after the anniversary date of the previous
year’s annual meeting, not earlier than the 120th calendar day prior to such meeting and not later than either the 90th calendar
day prior to such meeting or the 10th calendar day after public disclosure of the date of such meeting is first made by us). These advance
notice provisions may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed
or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise
attempt to obtain control of us.
Special Meetings of Stockholders
Our By-Laws provide that special meetings of stockholders may be called
only by the Chairman of the Board, the Chief Executive Officer, or the board of directors pursuant to a resolution adopted by a majority
of the board of directors.
Warrants
The following description, together with the additional information
we may include in any applicable prospectus supplement or free writing prospectus, summarizes the material terms and provisions of the
warrants that we may offer under this prospectus and any related warrant agreement and warrant certificate. While the terms summarized
below will apply generally to any warrants that we may offer, we will describe the specific terms of any series of warrants in more detail
in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any warrants offered under that prospectus
supplement may differ from the terms described below. Specific warrant agreements will contain additional important terms and provisions
and will be incorporated by reference as an exhibit to the Registration Statement which includes this prospectus.
General
We may issue warrants for the purchase of common stock, preferred stock
and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or
debt securities, and the warrants may be attached to or separate from these securities.
We will evidence each series of warrants by warrant certificates that
we may issue under a separate agreement. We may enter into a warrant agreement with a warrant agent. Each warrant agent may be a bank
or trust company that we select which has its principal office in the United States. We may also choose to act as our own warrant agent.
We will indicate the name and address of any such warrant agent in the applicable prospectus supplement relating to a particular series
of warrants.
We will describe in the applicable prospectus supplement the terms
of the series of warrants, including:
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the offering price and aggregate number of warrants offered; |
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
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if applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
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in the case of warrants to purchase common stock or preferred stock, the number or amount of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which and currency in which these shares may be purchased upon such exercise; |
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the manner of exercise of the warrants, including any cashless exercise rights; |
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the warrant agreement under which the warrants will be issued; |
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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anti-dilution provisions of the warrants, if any; |
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the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the dates on which the right to exercise the warrants will commence and expire or, if the warrants are not continuously exercisable during that period, the specific date or dates on which the warrants will be exercisable; |
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the manner in which the warrant agreement and warrants may be modified; |
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the identities of the warrant agent and any calculation or other agent for the warrants; |
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federal income tax consequences of holding or exercising the warrants; |
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the terms of the securities issuable upon exercise of the warrants; |
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any securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be listed or quoted; and |
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants, holders of warrants will not have
any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
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in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that
we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. Unless
we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to 5:00
P.M. eastern time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the
warrant certificate representing the warrants to be exercised together with specified information, and paying the required exercise price
by the methods provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate, and
in the applicable prospectus supplement, the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus
supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by
the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of warrants.
Enforceability of Rights by Holders of Warrants
Any warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank
or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in
case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings
at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the
holder of any other warrant, enforce by appropriate legal action the holder’s right to exercise, and receive the securities purchasable
upon exercise of, its warrants in accordance with their terms.
Warrant Agreement Will Not Be Qualified Under Trust Indenture Act
No warrant agreement will be qualified as an indenture, and no warrant
agent will be required to qualify as a trustee, under the Trust Indenture Act. Therefore, holders of warrants issued under a warrant agreement
will not have the protection of the Trust Indenture Act with respect to their warrants.
Governing Law
Each warrant agreement and any warrants issued under the warrant agreements
will be governed by New York law.
Calculation Agent
Any calculations relating to warrants may be made by a calculation
agent, an institution that we appoint as our agent for this purpose. The prospectus supplement for a particular warrant will name the
institution that we have appointed to act as the calculation agent for that warrant as of the original issue date for that warrant, if
any. We may appoint a different institution to serve as calculation agent from time to time after the original issue date without the
consent or notification of the holders. The calculation agent’s determination of any amount of money payable or securities deliverable
with respect to a warrant will be final and binding in the absence of manifest error.
Outstanding Warrants
As of May 24, 2023, we had outstanding 7,295,588 warrants to purchase
7,295,588 shares of our common stock at a weighted average exercise price of $3.65. Our Warrant Agent for registered warrants is American
Stock Transfer & Trust Company.
Transfer and Exchange
Each warrant will be represented by
either one or more global securities registered in the name of The Depository Trust Company (the “DTC” or the
“Depositary”) or a nominee of the Depositary (we will refer to any warrant represented by a global warrant as a
“book-entry warrant”), or a certificate issued in definitive registered form (we will refer to any warrant represented
by a certificated security as a “certificated warrant”) as set forth in the applicable prospectus supplement. Except as
set forth under the heading “Global Warrants and Book-Entry System” below, book-entry warrants will not be issuable in
certificated form.
Global Warrants and Book-Entry System.
Each global warrant representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered in
the name of the Depositary or a nominee of the Depositary. Please see the section entitled “Global Securities” for more information.
Debt Securities
The following description, together with the additional information
we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions of the
debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe
the specific terms of the series in a supplement to this prospectus. We will also indicate in the supplement to what extent the general
terms and provisions described in this prospectus apply to a particular series of debt securities. To the extent the information contained
in the prospectus supplement differs from this summary description, you should rely on the information in the prospectus supplement.
We may issue debt securities either separately, or together with, or
upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities may be our senior,
senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities
will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture between us and
a trustee named in the prospectus supplement. We have summarized select portions of the indenture below. The summary is not complete.
The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture for provisions
that may be important to you. In the summary below, we have included references to the section numbers of the indenture so that you can
easily locate these provisions. Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
General
The terms of each series of debt securities will be established by
or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution of our board
of directors, in an officer’s certificate or by a supplemental indenture. (Section 2.2) The particular terms of each series of debt
securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities under the indenture
that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. (Section 2.1) We will set
forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered,
the aggregate principal amount and the following terms of the debt securities, if applicable:
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the title and ranking of the debt securities (including the terms of any subordination provisions); |
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the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities; |
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any limit on the aggregate principal amount of the debt securities; |
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the date or dates on which the principal of a particular series of debt securities is payable; |
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date; |
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the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment), where the debt securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities may be delivered; |
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the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities; |
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and the terms and conditions upon which the debt securities of a particular series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
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the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations; |
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount; |
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the currency of denomination of the debt securities, which may be U.S. dollars or any foreign currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency; |
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the designation of the currency, currencies or currency units in which payment of principal of, and premium and interest on, the debt securities will be made; |
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if payments of principal of, or premium or interest on, the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined; |
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the manner in which the amounts of payment of principal of, and premium, if any, and interest on, the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index; |
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any provisions relating to any security provided for the debt securities; |
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any addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities; |
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any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities; |
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities; |
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the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion or exchange price and period, provisions as to whether conversion or exchange will be mandatory, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion or exchange; |
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any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities; and |
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whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if any, of such guarantees. (Section 2.2) |
We may issue debt securities that provide for an amount less than their
stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture.
We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these
debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities in
a foreign currency or currencies or a foreign currency unit or units, or if the principal of, and premium, if any, and interest on, any
series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with
information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue
of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global
securities registered in the name of the Depositary or a nominee of the Depositary (we will refer to any debt security represented by
a global debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer
to any debt security represented by a certificated security as a “certificated debt security”) as set forth in the applicable
prospectus supplement. Except as set forth under the heading “Global Debt Securities and Book-Entry System” below, book-entry
debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated
debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. (Section 2.4) No service charge
will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection with a transfer or exchange. (Section 2.7)
You may effect the transfer of certificated debt securities and the
right to receive the principal of, premium and interest on certificated debt securities only by surrendering the certificate representing
those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by
us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt
security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered in the name of
the Depositary or a nominee of the Depositary. Please see the section entitled “Global Securities” for more information.
Covenants
We will set forth in the applicable prospectus supplement any restrictive
covenants applicable to any issue of debt securities. (Article IV)
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement,
the debt securities will not contain any provisions that may afford holders of the debt securities protection in the event we have a change
in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) which could
adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer
or lease all or substantially all of our properties and assets to, any person (a “successor person”) unless:
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we are the surviving corporation or the successor person (if other than our company) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; |
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing; and |
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certain other conditions are met. |
Notwithstanding the above, any of our subsidiaries may consolidate
with, merge into or transfer all or part of its properties to us. (Section 5.1)
Events of Default
“Event of Default” means with respect to any series of
debt securities, any of the following:
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period); |
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default in the payment of principal of any debt security of that series at its maturity; |
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default in the performance or breach of any other covenant or warranty by us in the indenture or any debt security (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or our company and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture; |
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of our company; or |
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any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement. (Section 6.1) |
No Event of Default with respect to a particular series of debt securities
(except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of Default with respect to
any other series of debt securities. (Section 6.1) The occurrence of certain Events of Default or an acceleration under the indenture
may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of any Default or Event
of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe in reasonable
detail the status of such Default or Event of Default and what action we are taking or propose to take in respect thereof. (Section 6.1)
If an Event of Default with respect to debt securities of any series
at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the outstanding
debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable
immediately the principal of (or, if the debt securities of that series are discount securities, that portion of the principal amount
as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities of that series. In the
case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified
amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable
without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration
of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment of the money
due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series
may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if
any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. (Section 6.2) We refer you
to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating
to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee may refuse to perform any duty
or exercise any of its rights or powers under the indenture, unless the trustee receives indemnity satisfactory to it against any cost,
liability or expense that might be incurred by it in performing such duty or exercising such right or power. (Section 7.1(e)) Subject
to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising
any trust or power conferred on the trustee with respect to the debt securities of that series. (Section 6.12)
No holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for
any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and |
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the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. (Section 6.7) |
Notwithstanding any other provision in the indenture, the holder of
any debt security will have an absolute and unconditional right to receive payment of the principal of, and premium and any interest on,
that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment. (Section
6.8)
The indenture requires us, within 120 days after the end of our fiscal
year, to furnish to the trustee a statement as to compliance with the indenture. (Section 4.3) If a Default or Event of Default occurs
and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the trustee
shall mail to each holder of the securities of that series notice of a Default or Event of Default within 90 days after it occurs or,
if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default. The indenture provides that the
trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment on any
debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding
notice is in the interest of the holders of those debt securities. (Section 7.5)
Modification and Waiver
We and the trustee may modify, amend or supplement the indenture or
the debt securities of any series without the consent of any holder of any debt security:
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to cure any ambiguity, defect or inconsistency; |
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to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”; |
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to provide for uncertificated securities in addition to or in place of certificated securities; |
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to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
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to surrender any of our rights or powers under the indenture; |
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to add covenants or Events of Default for the benefit of the holders of debt securities of any series; |
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to comply with the applicable procedures of the applicable depositary; |
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to make any change that does not adversely affect the rights of any holder of debt securities; |
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture; |
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to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; or |
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act. (Section 9.1) |
We may also modify and amend the indenture with the consent of the
holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or
amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security then outstanding
if that amendment will:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security; |
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
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reduce the principal amount of discount securities payable upon acceleration of maturity; |
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waive a Default or Event of Default in the payment of the principal of, or premium or interest on, any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
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make the principal of, or premium or interest on, any debt security payable in currency other than that stated in the debt security; |
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, and premium and interest on, those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or |
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waive a redemption payment with respect to any debt security. (Section 9.3) |
Except for certain specified provisions, the holders of at least a
majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that
series waive our compliance with provisions of the indenture. (Section 9.2) The holders of a majority in principal amount of the outstanding
debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the
indenture with respect to that series and its consequences, except a default in the payment of the principal of, or any interest on, any
debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities
of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
(Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations in respect of the
debt securities of any series (subject to certain exceptions). We will be so discharged upon the deposit with the trustee, in trust, of
money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars,
government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal
in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and
interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on the stated maturity of those
payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered
to the trustee an opinion of counsel stating that we have received from, or there has been published by, the U.S. Internal Revenue Service
a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that series will not
recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject
to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit,
defeasance and discharge had not occurred. (Section 8.3)
Defeasance of Certain Covenants. The indenture provides that,
unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants that may be set forth in the applicable prospectus supplement; and |
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any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”). |
The conditions include:
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depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and |
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delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. (Section 8.4) |
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future directors, officers, employees
or securityholders, as such, will have any liability for any of our obligations under the debt securities or the indenture or for any
claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder waives and
releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities. However, this
waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such
a waiver is against public policy.
Governing Law
The indenture and the debt securities, including any claim or controversy
arising out of or relating to the indenture or the debt securities, will be governed by the laws of the State of New York.
The indenture will provide that we, the trustee and the holders of
the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities or the transactions
contemplated thereby.
The indenture will provide that any legal suit, action or proceeding
arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York,
and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that service of any process, summons,
notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth
in the indenture will be effective service of process for any suit, action or other proceeding brought in any such court. The indenture
will further provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably
and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and
irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an
inconvenient forum. (Section 10.10)
Outstanding Debt Securities
As of May 30, 2023, we had no outstanding debt securities.
Rights
We may issue rights to purchase common stock, preferred stock or warrants
that we may offer to our security holders in one or more series. The rights may or may not be transferable by the persons purchasing or
receiving the rights. In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or
more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining
unsubscribed for after such rights offering. Each series of rights will be issued under a separate rights agent agreement to be entered
into between us and a bank or trust company, as rights agent, that we will name in the applicable prospectus supplement. The rights agent
will act solely as our agent in connection with the rights and will not assume any obligation or relationship of agency or trust for or
with any holders of rights certificates or beneficial owners of rights. A copy of the form of rights agent or subscription agent agreement,
including the form of rights certificate representing a series of rights, will be filed with the SEC in connection with the offering of
a particular series of rights.
The prospectus supplement relating to any rights that we offer will
include specific terms relating to the offering, including, among other matters:
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the title of the rights; |
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the securities for which the rights are exercisable; |
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the date of determining the security holders entitled to the rights distribution; |
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the aggregate number of rights issued and the aggregate number of shares of common stock or preferred stock or warrants purchasable upon exercise of the rights; |
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the extent to which the rights are transferable; |
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the exercise price; |
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the rights; |
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the conditions to completion of the rights offering; |
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any applicable federal income tax considerations; |
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if applicable, the material terms of any standby underwriting or other purchase arrangement that we may enter into in connection with the rights offering; |
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the date on which the right to exercise the rights will commence and the date on which the rights will expire; and |
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any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights. |
Each right would entitle the holder of the rights to purchase for cash
the amount of shares of common stock or preferred stock or warrants at the exercise price set forth in the applicable prospectus supplement.
Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus
supplement. After the close of business on the expiration date, all unexercised rights will become void.
We may determine to offer any unsubscribed securities directly to persons
other than our security holders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant
to standby arrangements, as described in the applicable prospectus supplement.
Until a holder exercises the rights to purchase shares of our common
stock or preferred stock or warrants, the holder will not have any rights as a holder of shares of our common stock or preferred stock
or warrants, as the case may be, by virtue of ownership of the rights.
Units
We may issue units consisting of one or more of the other securities
described in this prospectus, in any prospectus supplement or a free writing prospectus in any combination. Each unit will be issued so
that the holder of the unit is also the holder, with the rights and obligations of a holder, of each security included in the unit. The
unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately,
at any time or at any time before a specified date or upon the occurrence of a specified event or occurrence.
The applicable prospectus supplement or free writing prospectus will
describe:
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the designation and 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; |
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any unit agreement under which the units will be issued; |
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
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whether the units will be issued in fully registered or global form. |
Global Securities
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus supplement
or free writing prospectus, the securities initially will be issued in book-entry form and represented by one or more global notes or
global securities (collectively, “global securities”). The global securities will be deposited with, or on behalf of,
DTC and registered in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing
securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary
to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the
successor depositary.
DTC has advised us that it is:
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a limited-purpose trust company organized under the New York Banking Law; |
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a “banking organization” within the meaning of the New York Banking Law; |
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a member of the Federal Reserve System; |
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a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
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a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. |
DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical movement of securities
certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters, banks, trust companies,
clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”).
DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are
registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to
others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship with a direct participant,
either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through
direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of the actual purchaser
of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants’ records.
Beneficial owners of securities will not receive written confirmation from DTC of their purchases. However, beneficial owners are expected
to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings, from the direct
or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished
by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing
their ownership interests in the global securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited
by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name
as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede
& Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial
owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are
credited, which may or may not be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf
of their customers.
So long as the securities are in book-entry form, you will receive
payments and may transfer securities only through the facilities of the depositary and its direct and indirect participants. We will maintain
an office or agency in the location specified in the prospectus supplement for the applicable securities, where notices and demands in
respect of the securities and the indenture may be delivered to us and where certificated securities may be surrendered for payment, registration
of transfer or exchange.
Conveyance of notices and other communications by DTC to direct participants,
by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed
by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities
of a particular series are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant
in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will consent
or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the
record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants to whose accounts
the securities of such series are credited on the record date, identified in a listing attached to the omnibus proxy.
So long as securities are in book-entry form, we will make payments
on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer of immediately available
funds. If securities are issued in definitive certificated form under the limited circumstances described below and unless if otherwise
provided in the description of the applicable securities herein or in the applicable prospectus supplement, we will have the option of
making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United
States designated in writing to the applicable trustee or other designated party at least 15 days before the applicable payment date by
the persons entitled to payment, unless a shorter period is satisfactory to the applicable trustee or other designated party.
Redemption proceeds, distributions and dividend payments on the securities
will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice
is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us on the
payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be
governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer
form or registered in “street name.” Those payments will be the responsibility of participants and not of DTC or us, subject
to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions and dividend payments
to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility; disbursement
of payments to direct participants is the responsibility of DTC; and disbursement of payments to the beneficial owners is the responsibility
of direct and indirect participants.
Except under the limited circumstances described below, purchasers
of securities will not be entitled to have securities registered in their names and will not receive physical delivery of securities.
Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities
and the indenture.
The laws of some jurisdictions may require that some purchasers of
securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge beneficial
interests in securities.
DTC may discontinue providing its services as securities depositary
with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor
depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular series of securities
generally will not receive certificates representing their ownership interests in those securities. However, if:
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DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing to be so registered, as the case may be; |
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we determine, in our sole discretion, not to have such securities represented by one or more global securities; or |
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an Event of Default has occurred and is continuing with respect to such series of securities, |
we will prepare and deliver certificates for such securities in exchange
for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the circumstances
described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that the
depositary directs. It is expected that these directions will be based upon directions received by the depositary from its participants
with respect to ownership of beneficial interests in the global securities.
PLAN OF DISTRIBUTION
We may sell the securities offered pursuant to this prospectus from
time to time in one or more transactions, including, without limitation:
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to or through underwriters; |
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through broker-dealers (acting as agent or principal); |
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through agents; |
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directly by us to one or more purchasers (including our affiliates and stockholders), through a specific bidding or auction process, a rights offering or otherwise; |
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through a combination of any such methods of sale; or |
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through any other methods described in a prospectus supplement. |
The distribution of securities may be effected, from time
to time, in one or more transactions, including:
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block transactions (which may involve crosses) and transactions on The Nasdaq Capital Market or any other organized market where the securities may be traded; |
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purchases by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement; |
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ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
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sales “at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; and |
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sales in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
The applicable prospectus supplement will describe the terms of the
offering of the securities, including:
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the name or names of any underwriters, if, and if required, any dealers or agents; |
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the purchase price of the securities and the proceeds we will receive from the sale; |
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any underwriting discounts and other items constituting underwriters’ compensation; |
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any discounts or concessions allowed or re-allowed or paid to dealers; and |
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any securities exchange or market on which the securities may be listed or traded. |
We may distribute the securities from time to time in one or more transactions
at:
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a fixed price or prices, which may be changed; |
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market prices prevailing at the time of sale; |
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prices related to such prevailing market prices; or |
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negotiated prices. |
Only underwriters named in the prospectus supplement are underwriters
of the securities offered by the prospectus supplement.
If underwriters are used in an offering, we will execute an underwriting
agreement with such underwriters and will specify the name of each underwriter and the terms of the transaction (including any underwriting
discounts and other terms constituting compensation of the underwriters and any dealers) in a prospectus supplement. The securities may
be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more investment
banking firms or others, as designated. If an underwriting syndicate is used, the managing underwriter(s) will be specified on the cover
of the prospectus supplement. If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their
own accounts and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or re-allowed
or paid to dealers may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters
to purchase the offered securities will be subject to conditions precedent, and the underwriters will be obligated to purchase all of
the offered securities, if any are purchased.
We may grant to the underwriters options to purchase additional securities
to cover over-allotments, if any, at the public offering price, with additional underwriting commissions or discounts, as may be set forth
in a related prospectus supplement. The terms of any over-allotment option will be set forth in the prospectus supplement for those securities.
If a dealer is used in the sale of the securities, we, or an underwriter,
will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be
determined by the dealer at the time of resale. To the extent required, we will set forth in the prospectus supplement, document incorporated
by reference or free writing prospectus, as applicable, the name of the dealer and the terms of the transactions.
We may sell the securities directly or through agents we designate
from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will
pay the agent in the prospectus supplement.
We may authorize agents or underwriters to solicit offers by institutional
investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and
the commissions we must pay for solicitation of these contracts in the prospectus supplement.
In connection with the sale of the securities, underwriters, dealers
or agents may receive compensation from us or from purchasers of the securities for whom they act as agents, in the form of discounts,
concessions or commissions. Underwriters may sell the securities to or through dealers, and those dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers for whom they may act as agents.
Underwriters, dealers and agents that participate in the distribution of the securities, and any institutional investors or others that
purchase securities directly for the purpose of resale or distribution, may be deemed to be underwriters, and any discounts or commissions
received by them from us and any profit on the resale of the common stock by them may be deemed to be underwriting discounts and commissions
under the Securities Act. No FINRA member firm may receive compensation in excess of that allowable under FINRA rules, including Rule
5110, in connection with the offering of the securities.
We may provide agents, underwriters and other purchasers with indemnification
against particular civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the
agents, underwriters or other purchasers may make with respect to such liabilities. Agents and underwriters may engage in transactions
with, or perform services for, us in the ordinary course of business.
To facilitate the public offering of a series of securities, persons
participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the market price of the securities.
This may include over-allotments or short sales of the securities, which involves the sale by persons participating in the offering of
more securities than have been sold to them by us. In addition, those persons may stabilize or maintain the price of the securities by
bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to underwriters
or dealers participating in any such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization
transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that
which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at any time. We make no representation
or prediction as to the direction or magnitude of any effect that the transactions described above, if implemented, may have on the price
of our securities.
Unless otherwise specified in the applicable prospectus supplement,
any common stock sold pursuant to a prospectus supplement will be eligible for trading as listed on The Nasdaq Capital Market. Any underwriters
to whom securities are sold by us for public offering and sale may make a market in the securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without notice.
In order to comply with the securities laws of some states, if applicable,
the securities offered pursuant to this prospectus will be sold in those states only through registered or licensed brokers or dealers.
In addition, in some states securities may not be sold unless they have been registered or qualified for sale in the applicable state
or an exemption from the registration or qualification requirement is available and complied with.
So long as the aggregate market value of our voting and non-voting
common equity held by non-affiliates is less than $75,000,000 and so long as required by the rules of the SEC, the amount of securities
we may offer hereunder will be limited such that the aggregate market value of securities sold by us during a period of 12 calendar months
cannot exceed one-third of the aggregate market value of the voting and non-voting common equity held by non-affiliates.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution.
LEGAL MATTERS
The validity of the issuance of the offered securities will be passed
upon for us by McDermott Will & Emery LLP, New York, New York.
EXPERTS
Marcum LLP, independent registered public accounting firm, has audited
our consolidated financial statements included in our Annual Report on Form 10-K for the year ended September 30, 2022, as set forth in
their report, which is incorporated by reference in the prospectus and elsewhere in this registration statement. Our consolidated financial
statements are incorporated by reference in reliance on Marcum LLP’s report, given on their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus and any subsequent prospectus supplements do not contain
all of the information in the Registration Statement. We have omitted from this prospectus some parts of the Registration Statement as
permitted by the rules and regulations of the SEC. Statements in this prospectus concerning any document we have filed as an exhibit to
the Registration Statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified in their entirety
by reference to these filings. In addition, we file annual, quarterly and current reports, proxy statements and other information with
the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information that registrants file
electronically with the SEC, including us. The SEC’s website can be found at http://www.sec.gov. In addition, we make available
on or through our website copies of these reports as soon as reasonably practicable after we electronically file or furnished them to
the SEC. Our website can be found at http:www.adnas.com. Our website is not a part of this prospectus.
INFORMATION INCORPORATED BY REFERENCE
We have elected to incorporate certain information by reference into
this prospectus. By incorporating by reference, we can disclose important information to you by referring you to other documents we have
filed or will file with the SEC. The information incorporated by reference is deemed to be part of this prospectus, except for information
incorporated by reference that is superseded by information contained in this prospectus. This means that you must look at all of the
SEC filings that we incorporate by reference to determine if any statements in the prospectus or any document previously incorporated
by reference have been modified or superseded. This prospectus incorporates by reference the documents set forth below that we have previously
filed with the SEC, except in each case the information contained in such document to the extent “furnished” and not “filed”:
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Our Annual Report on Form 10-K for the fiscal year ended September 30, 2022, filed with the SEC on December 14, 2022, as amended by Form 10-K/A filed with the SEC on January 27, 2023. |
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Our Quarterly Reports on Form 10-Q for the quarterly periods ended December 31, 2022 and March 31, 2023, filed with the SEC on February 9, 2023 and May 11, 2023, respectively. |
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Our Current Reports on Form 8-K filed with the SEC on February 28, 2023, March 28, 2023, and May 5, 2023. |
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The description of our capital stock contained in our registration statement on Form 8-A (File No. 001-36745) filed with the Commission on November 13, 2014, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
We also incorporate by reference all documents we file in the future
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the sale of all the securities
covered by this prospectus (including all such documents filed with the SEC after the date of the initial filing of the Registration Statement
that contains this prospectus and prior to effectiveness of the Registration Statement or after such effectiveness), except in each case
the information contained in such document to the extent “furnished” and not “filed.”
You may obtain copies of these documents on the website maintained
by the SEC at http://www.sec.gov, or from us without charge (other than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents) by writing us at Corporate Secretary, Applied DNA Sciences, Inc., 50 Health Sciences Drive,
Stony Brook, New York 11790 or visiting our website at http://www.adnas.com.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus shall be deemed to be modified or superseded for the purposes of this prospectus to the extent
that a statement contained herein, any prospectus supplement or in any other subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this prospectus.
APPLIED DNA SCIENCES, INC.
Common Stock
PROSPECTUS SUPPLEMENT
Maxim Group LLC
November 7,
2023
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