APPDW Applied DNA Sciences Inc (PK)

As filed with the Securities and Exchange Commission on September 30, 2024

 

Registration No. 333-  

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

Applied DNA Sciences, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware (State or other jurisdiction of incorporation or organization)	59-2262718 (I.R.S. Employer Identification No.)
50 Health Sciences Drive Stony Brook, New York (Address of Principal Executive Offices)	11790 (Zip Code)

 

Applied DNA Sciences, Inc. 2020 Equity Incentive Plan

(Full title of the plan)  

 

James A. Hayward, Ph.D., Sc.D.

Chief Executive Officer

Applied DNA Sciences, Inc.

50 Health Sciences Drive

Stony Brook, New York 11790

Telephone: (631) 240-8800 

(Name and address of agent for service)

 

Copies to:

 

Merrill M. Kraines, Esq.

Todd Kornfeld, Esq.

McDermott Will & Emery LLP

One Vanderbilt Avenue

New York, New York 10017-3852

Telephone: (212) 547-5616

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		¨	Accelerated filer		¨
Non-accelerated filer		x	Smaller reporting company		x
			Emerging growth company		¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨

 

 

 

EXPLANATORY NOTE

 

This Registration Statement relates to the registration of an additional 200,000 shares of common stock, $0.001 par value per share (the “Common Stock”) for future issuance pursuant to awards under the 2020 Equity Incentive Plan (the “2020 Plan”) of Applied DNA Sciences, Inc. (the “Company”). Such additional shares being registered are of the same class as other securities of the Company for which a Registration Statement on Form S-8 relating to the same employee benefit plan is effective. In accordance with General Instruction E to Form S-8, the contents of the Company’s previous Registration Statement on Form S-8 related to the 2020 Plan (Commission File No. 333-249365), filed on October 7, 2020 with the U.S. Securities and Exchange Commission (the “Commission”),  are incorporated herein by reference and made part of this Registration Statement, except as amended or otherwise modified or superseded hereby. Effective as of April 15, 2024, the date of the approval by the Company’s stockholders of the amendment of the 2020 Plan, the total number of shares of Common Stock that may be issued under the 2020 Plan has been increased to 267,355 shares of Common Stock from 67,355 shares of Common Stock. The total number of shares of Common Stock issuable under the 2020 Plan gives effect to the reverse stock split of the Company’s outstanding common stock at a ratio of one-for-twenty shares, which became effective as of 12:01 a.m. Eastern Time on Thursday, April 25, 2024.

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

 

The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Commission.

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 3.

Incorporation of Documents by Reference.

 

The Commission allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and later information filed with the Commission will update and supersede this information. We hereby incorporate by reference into this Registration Statement the following documents and information previously filed with the Commission:

 

	(i)	Our Annual Report on Form 10-K for the fiscal year September 30, 2023 filed with the Commission on December 7, 2023, as amended on January 26, 2024.
	(ii)	Our Quarterly Reports on Form 10-Q for the periods ended December 31, 2023, filed with the SEC on February 8, 2024, March 31, 2024, filed with the SEC on May 10, 2024, and June 30, 2024, filed with the SEC on August 8, 2024, respectively;
	(iii)	Our Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that are related to such items) filed with the Commission on  November 7, 2023, December 6, 2023, January 5, 2024, January 31, 2024, February 1, 2024, April 16, 2024, April 19, 2024,  April 22, 2024, as amended on April 23, 2024, May 1, 2024, May 10, 2024, May 16, 2024, May 29, 2024, June 18, 2024, June 28, 2024, July 15, 2024, August 2, 2024, August 8, 2024 and September 18, 2024; and
	(iv)	The description of our Common Stock contained in our registration statement on Form 8-A (File No. 001-36745) filed on November 13, 2014, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

 

In addition to the foregoing, all documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than, in each case, documents or information, including, without limitation, any applicable exhibits, deemed to have been “furnished” and not “filed” in accordance with the rules and regulations issued by the Commission), subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.

 

Any statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

 

ITEM 8.

Exhibits.

  

Exhibit No.		Exhibit Description
4.1+		Conformed version of Certificate of Incorporation of Applied DNA Sciences, Inc., as most recently amended by the Sixth Certificate of Amendment, effective Thursday, April 25, 2024 (incorporated by reference to Exhibit 3.1 of the registrant’s Form S-1, dated May 14, 2024, filed with the Commission on May 15, 2024)
4.2		By-Laws (incorporated by reference to Exhibit 3.2 of the registrant’s Current Report on Form 8-K dated January 13, 2009, filed with the Commission on January 16, 2009)
5.1*		Opinion of McDermott Will & Emery LLP
10.1		Conformed version of Applied DNA Sciences, Inc. 2020 Equity Incentive Plan, as most recently amended by the Amendment to the Applied DNA Sciences, Inc. 2020 Equity Incentive Plan, effective April 15, 2024 (incorporated by reference to Appendix C of the registrant’s Definitive Proxy Statement, filed with the Commission on March 14, 2024)
10.2		Applied DNA Sciences, Inc. 2020 Equity Incentive Plan Stock Option Grant Notice and Award Agreement (incorporated by reference to Exhibit 10.3 of the registrant’s Form S-8 filed on October 7, 2020)
23.1*		Consent of McDermott Will & Emery LLP (contained in Exhibit 5.1)
23.2*		Consent of Marcum LLP, independent registered public accounting firm
24.1*		Power of Attorney (included as part of signature page to this Registration Statement)
107*		Filing Fee Table

 

* Filed herewith.

+ This exhibit is being filed pursuant to Item 601(b)(3)(i) of Regulation S-K which requires a conformed version of the Company’s charter reflecting all amendments in one document. The exhibit reflects the Company’s Certificate of Incorporation, as previously amended, as most recently amended by the Sixth Certificate of Amendment, effective Thursday, April 25, 2024 incorporated by reference to Exhibit 3.1 of the Company’s Form S-1, filed with the SEC on May 15, 2024.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Stony Brook, State of New York, on September 30, 2024.

 

	APPLIED DNA SCIENCES, INC.
	By:	/s/ James A. Hayward
		James A. Hayward
		Chairman, President and Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below appoints Dr. James A. Hayward and Ms. Beth Jantzen, and each of them, any of whom may act without the joinder of the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any registration statement (including any amendment thereto) for this offering that is to be effective upon filing pursuant to Rule 462 under the Securities Act and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ James A. Hayward		Chief Executive Officer		September 30, 2024
James A. Hayward		(Principal Executive Officer), President, Chairman of the Board of Directors and Director
/s/ Beth Jantzen		Chief Financial Officer		September 30, 2024
Beth Jantzen		(Principal Financial and Accounting Officer)
/s/ Robert B. Catell		Director		September 30, 2024
Robert B. Catell
/s/ Joseph D. Ceccoli		Director		September 30, 2024
Joseph D. Ceccoli
/s/ Sanford R. Simon		Director		September 30, 2024
Sanford R. Simon
/s/ Yacov A. Shamash		Director		September 30, 2024
Yacov A. Shamash
/s/ Elizabeth Schmalz Shaheen		Director		September 30, 2024
Elizabeth Schmalz Shaheen

 

 

Exhibit 5.1

 

mwe.com

 

September 30, 2024

 

Applied DNA Sciences, Inc.

50 Health Sciences Drive

Stony Brook, NY 11790  

 

Ladies and Gentlemen:

 

Reference is made to the registration statement on Form S-8 (the “Registration Statement”) of Applied DNA Sciences, Inc., a Delaware corporation (the “Company”), filed on the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement covers 200,000 shares (“Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), that were added to the shares authorized for issuance under the Applied DNA Sciences, Inc. 2020 Equity Incentive Plan (the “2020 Equity Incentive Plan”). Such Shares may be issued from time to time in connection with, and pursuant to, the terms of the 2020 Equity Incentive Plan.

 

We have examined (i) the Registration Statement, including the exhibits thereto, (ii) that certain registration statement on Form S-8, Registration No. 333-249365, filed with the Commission on October 7, 2020, relating to the registration of shares of the Company’s Common Stock under the 2020 Equity Incentive Plan, (iii) the Certificate of Incorporation, as amended, of the Company (iv) the Bylaws of the Company, (v) the 2020 Equity Incentive Plan, (vi) resolutions adopted by the Company’s Board of Directors relating to the 2020 Equity Incentive Plan, (vii) the proposal adopted by the stockholders of the Company relating to the 2020 Equity Incentive Plan at the 2024 Special Meeting of Stockholders held on April 15, 2024, (viii) the Company’s Current Report on Form 8-K filed with the Commission on April 16, 2024, reporting the results of matters voted on by the Company’s stockholders at the 2024 Special Meeting of Stockholders and (ix) such other documents as we have deemed appropriate in rendering this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the authenticity of all documents submitted to us as copies of originals.

        

Based upon and subject to the foregoing, we are of the opinion that the Shares, when duly issued and paid for in accordance with the terms of the 2020 Equity Incentive Plan and any relevant award agreement, will be validly issued, fully paid and non-assessable.

 

This opinion is being furnished to the Company solely for submission to the Commission as an exhibit to the Registration Statement and, accordingly, may not be relied upon, quoted in any manner, or delivered to any other person or entity without, in each instance, our prior written consent.

 

We express no opinion herein as to the law of any state or jurisdiction other than the General Corporation Law of the State of Delaware, including statutory provisions and all applicable provisions of the Constitution of the State of Delaware and reported judicial decisions interpreting such laws of the State of Delaware and the federal laws of the United States of America.

 

We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

 

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ McDermott Will Emery LLP

 

One Vanderbilt Avenue New York NY 10017-3852 Tel +1 212 547 5400 Fax +1 212 547 5444 US practice conducted through McDermott Will Emery LLP.

 

 

 

Exhibit 23.2

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of Applied DNA Sciences, Inc. on Form S-8 of our report dated December 7, 2023, which includes an explanatory paragraph as to the company’s ability to continue as a going concern, with respect to our audits of the consolidated financial statements of Applied DNA Sciences, Inc. and Subsidiaries as of September 30, 2023 and 2022 and for each of the two years ended September 30, 2023 appearing in the Annual Report on Form 10-K of Applied DNA Sciences, Inc. for the year ended September 30, 2023.

 

/s/ Marcum llp

 

Marcum llp

Melville, NY

September 30, 2024

 

 

Exhibit 107

 

FEE TABLES FOR

FORM S-8

 

Calculation of Filing Fee Tables

 

Form S-8

(Form Type)

 

Applied DNA Sciences, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security  Type		Security Class Title		Fee Calculation Rule		Amount Registered (1)			Proposed Maximum Offering Price Per Share(2)			Maximum Aggregate Offering Price			Fee Rate		Amount of Registration Fee
Equity		Common Stock, par value $0.001 per share		Rule 457(c) and (h)		200,000	(3)		$	1.015		$	203,000		0.00014760		$	29.96
Total Offering Amounts												$	203,000				$	29.96
Total Fee Offsets																		-
Net Fee Due																	$	29.96

 

(1)	Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this registration statement (this “Registration Statement”) shall also cover any additional shares of Applied DNA Sciences, Inc.’s (the “Company”) common stock, $0.001 par value per share (the “Common Stock”) which become issuable under the Applied DNA Sciences, Inc. 2020 Equity Incentive Plan (the “2020 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of the Company.
(2)	Estimated in accordance with Rules 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee in respect of such 200,000 shares of Common Stock, based upon the average of the high and low prices of the Common Stock as reported on The Nasdaq Capital Market on September 25, 2024.
(3)	Represents shares of the Company’s Common Stock issuable under the 2020 Plan.

 

 

 

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