Form 8-K APPLIED DNA SCIENCES For: Dec 21

December 21, 2017 6:02 AM

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

   

 

  

FORM 8-K 

 

 

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of The Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): December 21, 2017 (December 21, 2017)

 

 

 

  

Applied DNA Sciences, Inc.

(Exact name of registrant as specified in its charter) 

 

 

 

Delaware 001-36745 59-2262718
(State or other jurisdiction (Commission File Number) (IRS Employer Identification No.)
of incorporation)  

 

 

50 Health Sciences Drive

Stony Brook, New York 11790

(Address, including zip code, of Principal Executive Offices)

 

(631) 240-8800

(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name or former address, if changed since last report)

  

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

¨ 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 13(a) of the Exchange Act. ¨ 

 

 

 

 

 

Item 8.01 Other Events

 

As previously disclosed in its Current Report on Form 8-K filed on December 20, 2017, Applied DNA Sciences, Inc. (the “Company”, “we” or “us”) announced a registered direct public offering of 2,735,000 shares (the “Shares”) of our common stock, par value $0.001 (the “Common Stock”), and warrants to purchase 2,735,000 shares of our Common Stock (the “Purchase Warrants”) (the “Registered Direct Offering”). Each Share will be sold with a Purchase Warrant to purchase one share of Common Stock at a combined purchase price of $1.75 per share of Common Stock and accompanying Purchase Warrant. A copy of the legal opinion of Pepper Hamilton LLP relating to the legality of the issuance and sale of the shares of Common Stock and Purchase Warrants in the Registered Direct Offering is filed herewith as Exhibit 5.1.

 

The closing of the Registered Direct Offering is expected to take place on December 22, 2017, subject to customary closing conditions.

 

Forward Looking Statements

 

This Current Report on Form 8-K contains forward-looking statements. Forward-looking statements include, but are not limited to, statements that express the Company’s intentions, beliefs, expectations, strategies, predictions or any other statements related to the Company’s future activities, or future events or conditions. These statements are based on current expectations, estimates and projections about the Company’s business based, in part, on assumptions made by management. These statements are not guarantees of future performances and involve risks, uncertainties and assumptions that are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in the forward-looking statements due to numerous factors, including those risks discussed in the Company’s Annual Report on Form 10-K, the Company’s shelf registration statement on Form S-3, the prospectus supplement relating to the Registered Direct Offering and in other documents that the Company files from time to time with the U.S. Securities and Exchange Commission. Any forward-looking statements speak only as of the date on which they are made, and the Company does not undertake any obligation to update any forward-looking statement to reflect events or circumstances after the date of this report, except as required by law.

 

Item 9.01. Financial Statements and Exhibits

 

(d) Exhibits

 

Exhibit

Number

Description
   
5.1 Opinion of Pepper Hamilton LLP
   
23.1 Consent of Pepper Hamilton LLP (included in Exhibit 5.1)

 

 

 

 

 

 

signatureS

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

  Applied DNA Sciences, Inc.  
       
       
Date: December 21, 2017 By: /s/ James A. Hayward  
  Name: James A. Hayward  
  Title: Chief Executive Officer  

 

 

 

 

 

EXHIBIT INDEX

 

Exhibit

Number

Description
   
5.1 Opinion of Pepper Hamilton LLP
   
23.1 Consent of Pepper Hamilton LLP (included in Exhibit 5.1)

 

 

 

 

 

Exhibit 5.1

 

  

 

The New York Times Building

37th Floor

620 Eighth Avenue

New York, NY 10018-1405

212.808.2700

Fax 212.286.9806

 

December 21, 2017

 

Applied DNA Sciences, Inc.
50 Health Sciences Drive
Stony Brook, New York 11790

 

Re:   Public Offering

 

 

Ladies and Gentlemen:

 

Reference is made to the Registration Statement on Form S-3 (Registration No. 333-218158) (the “Registration Statement”), filed by Applied DNA Sciences, Inc., a Delaware corporation (the “Company”), with the U.S. Securities and Exchange Commission (the “Commission”) and with an effectiveness date of May 26, 2017. We are rendering this opinion in connection with the prospectus supplement (the “Prospectus Supplement”), filed with the Commission on December 21, 2017 relating to the offering by the Company of 2,735,000 shares of the Company’s common stock, par value $.001 per share (the “Common Stock” and such shares of Common Stock, the “Shares”), and warrants to purchase 2,735,000 shares of Common Stock (the “Warrants” and such shares of Common Stock underlying the Warrants, the “Warrant Shares”), which Shares, Warrants and Warrant Shares are covered by the Registration Statement. We understand that the Shares, the Warrants and the Warrant Shares are to be offered and sold in the manner set forth in the Prospectus Supplement pursuant to a Securities Purchase Agreement entered into by the Company with the purchasers named in the signature pages thereto (the “Securities Purchase Agreement”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K in connection with the Registration Statement. Capitalized terms used but not defined herein shall have the meanings given to them in the Securities Purchase Agreement.

 

We have acted as your counsel in connection with the preparation of the Prospectus Supplement. We are familiar with the proceedings taken by the Board of Directors and Pricing Committee thereof of the Company (the “Board of Directors”) in connection with the authorization, issuance and sale of the Shares, the Warrants and the Warrant Shares. We have examined all such documents as we considered necessary to enable us to render this opinion, including, but not limited to, the Registration Statement, the prospectus included in the Registration Statement, the Prospectus Supplement, the Securities Purchase Agreement, the Company’s certificate of incorporation, as amended, the Company’s amended and restated bylaws, certain resolutions of the Board of Directors and Pricing Committee thereof, corporate records and instruments, and such laws and regulations as we have deemed necessary for purposes of rendering the opinions set forth herein.

 

  Philadelphia Boston Washington, D.C. Los Angeles New York Pittsburgh  
  Detroit Berwyn Harrisburg Orange County Princeton Silicon Valley Wilmington  


www.pepperlaw.com

 

 

 

 

Applied DNA Sciences, Inc.

December 21, 2017

Page 2

 

 

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies, the authenticity of all documents submitted to us as certified, conformed, photostatic or facsimile copies, the authenticity of the originals of such certified, conformed, photostatic or facsimile copies and that the Shares, the Warrants and the Warrant Shares will be issued against payment of valid consideration under applicable law. In addition, we have assumed that the Shares, the Warrants and the Warrant Shares will be offered in the manner and on the terms identified or referred to in the Prospectus Supplement. As to any facts material to the opinions expressed herein, which were not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others.

 

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

 

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, we are of the opinion that (1) the Shares have been duly authorized and, when issued and delivered by the Company in accordance with the terms of the Securities Purchase Agreement and upon receipt by the Company of the consideration therefor provided therein, will be validly issued, fully paid and non-assessable; (2) the Warrants have been duly authorized and, when executed, registered and delivered and paid for in the manner contemplated by the Securities Purchase Agreement, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms; and (3) the Warrant Shares have been duly authorized and, upon issuance, delivery and payment therefore upon valid exercise of the Warrants in accordance with the terms of the Warrants, will be validly issued, fully paid and non-assessable.

 

 

 

 

 

Applied DNA Sciences, Inc.

December 21, 2017

Page 3

 

The opinion above with respect to the Warrants is subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and remedies of creditors’ generally, including without limitation the effect of statutory or other laws regarding fraudulent transfers or preferential transfers, and (ii) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law.

 

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 a part of the Registration Statement and to the reference of our firm under the caption “Legal Matters” in the Prospectus Supplement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission.

 

  Very truly yours,
   
  /s/ Pepper Hamilton LLP  
   
  Pepper Hamilton LLP

 

 

 

 

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