Form S-1MEF APPLIED DNA SCIENCES

As filed with the Securities and Exchange Commission on August 4, 2022

Registration No. 333-

 

 

UNITED STATES

Securities and Exchange Commission

Washington, D.C. 20549

 

 

Form S-1

 

Registration Statement Under The Securities Act of 1933

 

 

Applied DNA Sciences, Inc.

(Exact name of Registrant as specified in its charter)

 

Delaware		7380		59-2262718
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(I.R.S. Employer Identification No.)

 

50 Health Sciences Drive

Stony Brook, New York 11790

(631) 240-8800

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

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

Chairman, Chief Executive Officer and President

Applied DNA Sciences, Inc.

50 Health Sciences Drive

Stony Brook, New York 11790

(631) 240-8801

(Name, address, including zip code, and telephone

number, including area code, of agent for service)

 

 

COPIES TO:

 

Merrill M. Kraines, Esq. Todd Kornfeld McDermott Will & Emery LLP One Vanderbilt Avenue New York, NY 10017-3852 212-547-5616

Robert F. Charron Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, NY 10105 212-370-1300

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box. x

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering x 333-266223

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering ¨

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

 

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 in Section 7(a)(2)(B) of the Securities Act. ¨

 

 

The Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) under the Securities Act of 1933, as amended.

 

 

 

EXPLANATORY NOTE

 

Applied DNA Sciences, Inc., a Delaware corporation (the “Company”), is filing this registration statement with the Securities and Exchange Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended. This registration statement relates to the public offering of securities contemplated by the registration statement on Form S-1, as amended (File No. 333-266223) (the “Prior Registration Statement”), which the Securities and Exchange Commission declared effective on August 4, 2022.

 

The Company is filing this registration statement for the sole purpose of registering the following additional securities of the Company: (i) shares of the Company’s common stock, par value $0.001 per share and accompanying Series A warrants to purchase shares of common stock (“Series A Warrants”) and accompanying Series B warrants to purchase shares of common stock (“Series B Warrants”; and, together with the Series A Warrants, the “Series Warrants”); (ii) the Company’s pre-funded warrants to purchase shares of common stock and accompanying Series Warrants; and (iii) shares of common stock underlying the pre-funded warrants and Series Warrants.

 

The proposed maximum aggregate offering price of the common stock and accompanying Series Warrants will be reduced on a dollar-for-dollar basis based on the offering price of any pre-funded warrants and accompanying Series Warrants issued in the offering, and the proposed maximum aggregate offering price of the pre-funded warrants and accompanying Series Warrants to be issued in the offering will be reduced on a dollar-for-dollar basis based on the offering price of any common stock and accompanying Series Warrants issued in the offering.

 

The additional securities that are being registered for sale have a proposed maximum offering price not to exceed $6,000,000 and are in an amount and at a price that together represent no more than 20% of the maximum aggregate offering price set forth in the Calculation of Registration Fee table contained in the Prior Registration Statement. The information set forth in the Prior Registration Statement, and all exhibits to the Prior Registration Statement, are hereby incorporated by reference into this registration statement. 

 

The required opinion and consents are listed on the exhibit index attached hereto and filed herewith.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant 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 August 4, 2022.

 

 

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

 

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

 

 

Signature	Title	Date
/s/ James A. Hayward	President, Chairman of the Board of Directors and Director	August 4, 2022
James A. Hayward	Chief Executive Officer (Principal Executive Officer)
/s/ Beth Jantzen	Chief Financial Officer	August 4, 2022
Beth M. Jantzen	(Principal Financial Officer and Principal Accounting Officer)
/s/ *	Director	August 4, 2022
John Bitzer, III
/s/ *	Director	August 4, 2022
Robert Catell
/s/ *	Director	August 4, 2022
Joseph D. Ceccoli
/s/ *	Director	August 4, 2022
Scott L. Anchin
/s/ *	Director	August 4, 2022
Yacov A. Shamash
/s/ *	Director	August 4, 2022
Sanford R. Simon
/s/ *	Director	August 4, 2022
Elizabeth M. Schmalz

 

 

*By:	/s/ Beth Jantzen
	Beth M. Jantzen
	Attorney-in-Fact

 

 

EXHIBIT INDEX

 

Exhibit Number		Description
5.1*		Opinion of McDermott Will & Emery LLP
23.1*		Consent of Marcum LLP.
23.2*		Consent of McDermott Will & Emery LLP (included in Exhibit 5.1).
24.1**		Power of Attorney (included as part of the signature page of the registration statement on Form S-1 (333-266223), initially filed by Applied DNA Sciences, Inc. with the Securities and Exchange Commission on July 19, 2022).
107		Filing Fee Table.

 

*	Filed herewith.
**	Previously filed.

 

 

EXHIBIT 5.1

 

 

 

August 4, 2022  

 

Applied DNA Sciences, Inc.

50 Health Sciences Drive

Stony Brook, NY 11790

 

Re:

Registration of Shares, Warrants and Warrant Shares

 

Ladies and Gentlemen:

 

Reference is made to the filing by Applied DNA Sciences, Inc., a Delaware corporation (the “Company”), with the United States Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), of the Company’s registration statement on Form S-1, filed on August 4, 2022 (the “Registration Statement”) pursuant to Rule 462(b) promulgated under the Securities Act.

 

We are rendering this opinion in connection with the filing by the Company with the SEC of the Registration Statement relating to the offering by the Company with respect to the sale of up to $2,000,000 of (i) shares of the common stock, par value $0.001 per share (the “Common Stock”) of the Company (the “Shares”), (ii) pre-funded warrants to purchase shares of Common Stock (the “Pre-Funded Warrants”) and (iii) the shares of Common Stock issuable from time to time upon exercise of the Pre-Funded Warrants (the “Pre-Funded Warrant Shares”), together with the accompanying (iv) Series A warrants to purchase shares of Common Stock (the “Series A Warrants”), (v) shares of Common Stock issuable from time to time upon exercise of the Series A Warrants (the “Series A Warrant Shares”), (vi) Series B warrants to purchase shares of Common Stock (the “Series B Warrants” and, together with the Series A Warrants, the “Warrants”) and (vii) shares of Common Stock issuable from time to time upon exercise of the Series B Warrants (the “Series B Warrant Shares” and, together with the Series A Warrant Shares, the “Warrant Shares”). The Registration Statement incorporates by reference the registration statement on Form S-1 (File No. 333-266223), which was declared effective by the Commission on August 4, 2022 (the “Prior Registration Statement”), including the prospectus which forms a part of the Prior Registration Statement (the “Prospectus”). The Shares, Pre-Funded Warrants, Pre-Funded Warrant Shares, Warrants and Warrant Shares are collectively referred to herein as the “Securities.” Some of the Securities are being sold pursuant to the terms of a securities purchase agreement (the “Securities Purchase Agreement”), to be entered into by the Company and H.C. Wainwright & Co., LLC and the remaining Securities are being offered to the public as set forth in the Prospectus.

 

We understand that the Shares, the Pre-Funded Warrant Shares to be issued upon the exercise of the Pre-Funded Warrants and the Warrant Shares to be issued upon the exercise of the Warrants are to be offered and sold in the manner set forth in the Prospectus. 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.

 

We have acted as your counsel in connection with the preparation of the Registration Statement. We are familiar with the proceedings taken by the board of directors of the Company (the “Board”) in connection with the authorization, issuance and sale of the Shares. We have examined all such documents as we considered necessary to enable us to render this opinion, including, but not limited to: (i) the Registration Statement and the Prior Registration Statement, (ii) the form of Series A Warrants, (iii) the form of Series B Warrants, (iv) the form of Pre-Funded Warrants, (v) the form of Securities Purchase Agreement, (vi) the Company’s certificate of incorporation, as amended to date, (vii) the Company’s amended and restated bylaws, as amended to date, (viii) certain resolutions of the Board and (ix) such other corporate records and instruments, and such laws and regulations as we have deemed necessary for purposes of rendering the opinions set forth herein.

 

 

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 and the authenticity of the originals of such certified, conformed, photostatic or facsimile copies. In addition, we have assumed that the Shares will be offered in the manner and on the terms identified or referred to in the Prospectus. 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 New York and the General Corporation Law of the State of Delaware.

 

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, we are of the opinion that:

 

(i)

The Shares have been duly authorized and, when issued and delivered by the Company in accordance with the Registration Statement and the Prospectus and upon receipt by the Company of the consideration therefor provided therein, will be validly issued, fully paid and non-assessable;

(ii)

The Pre-Funded Warrants have been duly authorized and, when duly executed and delivered by the Company in accordance with and in the manner described in the Registration Statement and the Prospectus and upon receipt by the Company of the consideration therefor provided therein, will constitute valid and binding agreements of the Company enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and similar laws affecting creditors’ rights generally and equitable principles of general applicability;

(iii)

The Pre-Funded Warrant Shares have been duly authorized and, when issued upon exercise of the Pre-Funded Warrants against payment therefor in accordance with the terms of the Pre-Funded Warrants, will be validly issued, fully paid and nonassessable;

(iv)

The Series A Warrants have been duly authorized and, when duly executed and delivered by the Company in accordance with and in the manner described in the Registration Statement and the Prospectus and upon receipt by the Company of the consideration therefor provided therein, will constitute valid and binding agreements of the Company enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and similar laws affecting creditors’ rights generally and equitable principles of general applicability;

(v)

The Series A Warrant Shares have been duly authorized and, when issued upon exercise of the Series A Warrants against payment therefor in accordance with the terms of the Series A Warrants, will be validly issued, fully paid and nonassessable;

(vi)

The Series B Warrants have been duly authorized and, when duly executed and delivered by the Company in accordance with and in the manner described in the Registration Statement and the Prospectus and upon receipt by the Company of the consideration therefor provided therein, will constitute valid and binding agreements of the Company enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and similar laws affecting creditors’ rights generally and equitable principles of general applicability; and

(vii)

The Series B Warrant Shares have been duly authorized and, when issued upon exercise of the Series B Warrants against payment therefor in accordance with the terms of the Series B Warrants, will be validly issued, fully paid and nonassessable.

 

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.

 

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. 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 or the rules and regulations of the SEC.

 

	Very truly yours,
	/s/ McDermott Will and Emery LLP
	McDermott Will and 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 23.1

 

Independent Registered Public Accounting Firm’s Consent

 

We hereby consent to the incorporation by reference in this Registration Statement of Applied DNA Sciences, Inc. (the “Company”) on Form S-1, pursuant to Rule 462(b) under Securities Act of 1933, as amended, of our report, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, dated December 9, 2021, with respect to our audits of the consolidated financial statements of Applied DNA Sciences, Inc. as of September 30, 2021 and 2020 and for each of the two years in the period ended September 30, 2021, which is incorporated by reference in Applied DNA Sciences, Inc.’s Form S-1 (Registration No. 333-266223) initially filed on July 19, 2022, as amended.

 

/s/ Marcum LLP

 

Melville, NY

August 4, 2022

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

Form S-1

(Form Type)

 

Applied DNA Sciences, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered and Carry Forward Securities

 

		Security Type		Security Class Title		Fee Calculation or Carry Forward Rule		Amount Registered		Proposed Maximum Offering Price Per Unit		Maximum Aggregate Offering Price(1)				Fee Rate				Amount of Registration Fee
Fees to Be Paid		Equity		Shares of common stock, par value $0.001 per share, and accompanying Series A and Series B Warrants (2)(3)		457(o)		—		—		$	2,000,000.00				0.0000927			$	185.40
Fees to Be Paid		Equity		Series A Warrants		457(g)		—		—			—				—				(4	)
Fees to Be Paid		Equity		Series B Warrants		457(g)		—		—			—				—				(4	)
Fees to Be Paid		Equity		Pre-Funded Warrants and accompanying Series A and Series B Warrants (3)		457(g)		—		—			—				—				(4	)
Fees to Be Paid		Equity		Shares of common stock, par value $0.001 per share, issuable upon exercise of Series A Warrants (2)		457(o)		—		—		$	2,000,000.00				0.0000927			$	185.40
Fees to Be Paid		Equity		Shares of common stock, par value $0.001 per share, issuable upon exercise of Series B Warrants (2)		457(o)		—		—		$	2,000,000.00				0.0000927			$	185.40
Fees to Be Paid		Equity		Shares of common stock, par value $0.001 per share, issuable upon exercise of Pre-Funded Warrants(2)(3)		457(o)		—		—			(3	)			0.0000927				(3	)
		Total Offering Amounts										$	6,000,000.00							$	556.20
		Total Fees Previously Paid																			—
		Total Fee Offsets																			—
		Net Fee Due																		$	556.20

 

(1)

Estimated solely for the purpose of calculating the amount of the registration fee in pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”). The registrant previously registered securities with a proposed maximum aggregate offering price not to exceed $30,000,000 on a registration statement on Form S-1, as amended (File No. 333-266223), which was declared effective by the Securities and Exchange Commission on August 4, 2022. In accordance with Rule 462(b) under the Securities Act, an additional amount of securities having a proposed maximum aggregate offering price of $6,000,000 is hereby registered.

 

(2)

Pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement shall also cover an indeterminate number of shares that may be issued and resold resulting from stock splits, stock dividends or similar transactions.

 

(3)

The proposed maximum aggregate offering price of the common stock will be reduced on a dollar-for-dollar basis based on the offering price of any pre-funded warrants issued in the offering, and the proposed maximum aggregate offering price of the pre-funded warrants to be issued in the offering will be reduced on a dollar-for-dollar basis based on the offering price of any common stock issued in the offering. Accordingly, the proposed maximum aggregate offering price of the common stock and pre-funded warrants (including the common stock issuable upon exercise of the pre-funded warrants), if any, is $6,000,000.00.

 

(4)

No separate registration fee is payable pursuant to Rule 457(g) under the Securities Act.

 

 

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