Form S-3MEF ICAD INC

 

As filed with the Securities and Exchange Commission on March 2, 2021

 

Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

iCAD, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware		02-0377419
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

 

98 Spit Brook Road, Suite 100

Nashua, NH 03062

(603) 882-5200

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

 

R. Scott Areglado, Chief Financial Officer

iCAD, Inc.

98 Spit Brook Road, Suite 100

Nashua, NH 03062

(603) 882-5200

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

With a copy to:

Jeffrey A. Baumel, Esq.

Dentons US LLP

1221 Avenue of the Americas

New York, NY 10020-1089

Telephone: (212) 768-6700

 

Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.

 

If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐

 

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 of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒

 

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. ☒ File No. 333-235887

 

If this form is a post-effective amendment filed pursuant to Rule 462(c) 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. ☐

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐

 

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	☐		Smaller reporting company	☒
			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. ☐

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered(1)		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Common Stock, $0.01 par value per share		—
Preferred Stock, $0.01 par value per share		—
Warrants to Purchase Shares of Common Stock or Shares of Preferred Stock		—
Subscription Rights to Purchase Shares of Common Stock or Shares of Preferred Stock		—
Units		—
Total:		$4,181,206(2)		$456.17(3)

(1)	The Registrant previously registered securities, including common stock, preferred stock, subscription rights, warrants and units comprised of same, with an aggregate offering price of $40,000,000 on a Registration Statement on Form S-3 (File No. 333-235887) filed by the Registrant on January 10, 2020 and declared effective by the Securities and Exchange Commission on January 31, 2020 (the “Registration Statement”). In accordance with Rule 462(b) under the Securities Act, an additional amount of securities, including common stock, preferred stock, subscription rights, warrants, and units comprised of same having a proposed maximum aggregate offering price of $4,181,206 is hereby registered, representing no more than 20% of the maximum aggregate offering price of securities available for issuance under the Registration Statement. In no event will the maximum aggregate offering price of all securities issued pursuant to this Registration Statement exceed that registered under such registration statements.
(2)	Consisting of some or all of the securities listed above, in any combination, including common stock, preferred stock, debt securities, warrants and units.
(3)	The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.

 

 

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

 

This registration statement is being filed to register an additional $4,181,206 of securities, including common stock, preferred stock, warrants, subscription rights, and units comprised of same, of iCAD, Inc., a Delaware corporation, pursuant to Rule 462(b) under the Securities Act of 1933, as amended and General Instruction IV of Form S-3 (the “Registration Statement”). This registration statement incorporates by reference the contents of the registrant’s registration statement on Form S-3 (File No. 333-235887), which was declared effective by the Commission on January 31, 2020 (the “Prior Registration Statement”), including all amendments and exhibits thereto and all information incorporated by reference therein, other than the exhibits filed herewith. The Company is filing this Registration Statement for the sole purpose of increasing the maximum aggregate offering amount of securities registered under the Prior Registration Statement by $4,181,206.

 

The required opinion and consent is listed on an Exhibit Index attached hereto and filed herewith.

 

EXHIBIT INDEX

 

Number		Exhibit Title
5.1		Opinion of Dentons US LLP
23.1		Consent of Independent Registered Public Accounting Firm
23.2		Consent of Dentons US LLP (included in Exhibit 5.1 hereto).
24.1		Power of Attorney.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in City of Nashua, State of New Hampshire on the 2nd day of March, 2021.

 

	iCAD, Inc.
	By:	/s/ R. Scott Areglado
		R. Scott Areglado Chief Financial Officer

 

Each person whose signature appears below constitutes and appoints and hereby authorizes each of Michael Klein and R. Scott Areglado, and each of them individually, as such person’s true and lawful attorney-in-fact, with full power of substitution or resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign on such person’s behalf, individually and in each capacity stated below, any and all amendments to this registration statement, and any subsequent registration statement filed by the registrant pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file or cause to be filed the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, and each of them, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

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/ Michael Klein Michael Klein		Chief Executive Officer and Director (Principal Executive Officer)		March 2, 2021
/s/ R. Scott Areglado R. Scott Areglado		Chief Financial Officer (Principal Financial and Accounting Officer)		March 2, 2021
/s/ Nathaniel Dalton Nathaniel Dalton		Director		March 2, 2021
/s/ Rakesh Patel Rakesh Patel, M.D.		Director		March 2, 2021
/s/ Andrew Sassine Andrew Sassine		Director		March 2, 2021
/s/ Susan Wood Susan Wood		Director		March 2, 2021

 

Exhibit 5.1

 

	Dentons US LLP 1221 Avenue of the Americas New York, NY 10020-1089 United States
	大成 Salans FMC SNR Denton McKenna Long dentons.com

 

March 2, 2021

 

iCAD, Inc.

98 Spit Brook Road, Suite 100 

Nashua, New Hampshire 03062

 

Re:	iCAD, Inc., Registration Statement on Form S-3

Ladies and Gentlemen:

 

We have acted as counsel to iCAD, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-3 (as amended or supplemented, the “Earlier Registration Statement”) and the Registration Statement filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended (the “Securities Act”) relating to such Earlier Registration Statement (the “462(b) Registration Statement,” and together with the Earlier Registration Statement, the “Registration Statement”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act, relating to the registration under the Securities Act and the proposed issuance and sale from time to time by the Company of up to an aggregate initial offering amount of $4,181,206 of the following securities (each a “Company Security” and collectively, or in any combination, the “Company Securities”):

 

(i) shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”);

 

(ii) one or more classes or series of shares of the Company’s preferred stock, par value $0.01 per share (the “Preferred Stock”);

 

(iii) warrants representing the rights to purchase shares of Common Stock or Preferred Stock (the “Warrants”);

 

(iv) subscription rights to purchase shares of Common Stock or shares of Preferred Stock (the “Rights”); and

 

(v) units comprised of one or more of the Company Securities in one or more series and in any combination (the “Units”).

 

This opinion letter is being furnished to the Company in accordance with the requirements of Item 601(b)(5) of Regulation S-K.

 

The Company Securities may be issued and sold by the Company from time to time on a delayed or continuous basis pursuant to applicable provisions of Rule 415 under the Securities Act, in amounts, at prices and on terms to be determined in light of market conditions at the time of sale, and as set forth in the Registration Statement, any amendment thereto, the prospectus contained therein (the “Base Prospectus”) and any supplements to the Prospectus (each, together with the Base Prospectus, a “Prospectus”). This opinion letter is limited to the laws, including the rules and regulations, as in effect on the date hereof. We are basing this opinion on our understanding that, prior to issuing any Company Securities in connection with the Registration Statement, the Company will advise us in writing of the terms thereof and other information material thereto, will afford us an opportunity to review the operative documents pursuant to which such Company Securities are to be issued (including the Registration Statement, the Prospectus and the applicable supplement to the Prospectus, as then in effect) and will file such supplement or amendment to this opinion letter (if any) as we may reasonably consider necessary or appropriate with respect to such Company Securities. However, we undertake no responsibility to monitor the Company’s future compliance with applicable laws, rules or regulations of the Commission or other governmental body.

 

 

The Company Securities are to be sold pursuant to a purchase, underwriting or similar agreement in substantially the form to be filed under a Current Report on Form 8-K. The Warrants will be issued under one or more warrant agreements (each, a “Warrant Agreement”). The Rights will be issued under one or more rights agreements (each, a “Rights Agreement”). The Units will be issued under one or more unit purchase agreements (each a “Unit Purchase Agreement”).

 

In connection with rendering this opinion, we have examined originals, certified copies or copies otherwise identified as being true copies of the following:

 

(a) the Registration Statement;

 

(b) the Certificate of Incorporation of the Company, as amended to date (the “Certificate of Incorporation”);

 

(c) the Bylaws of the Company, as amended to date (the “Bylaws”);

 

(d) corporate proceedings of the Company relating to its proposed issuance of the Company Securities; and

 

(e) such other instruments and documents as we have deemed relevant or necessary in connection with our opinions set forth herein.

 

In making the aforesaid examinations, we have assumed the genuineness and authenticity of all documents examined by us and all signatures therein and the conformity to originals of all copies of all documents examined by us. We have also assumed that the corporate records furnished to us by the Company include all corporate proceedings taken by it to date.

 

Based on and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that:

 

(1) With respect to shares of Common Stock, when all necessary corporate action of the Company has been taken to approve an issuance of shares of Common Stock, and certificates representing the shares of Common Stock have been duly executed, countersigned, registered and delivered (or non-certificated shares of Common Stock shall have been properly issued), either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board of Directors of the Company (the “Board of Directors”), upon payment of the consideration therefor (which consideration shall not be less than the par value of the Common Stock) provided for in such definitive purchase, underwriting or similar agreement, as applicable, or (ii) upon conversion, exchange or exercise of any other Company Security in accordance with the terms of such Company Security or the instrument governing such Company Security providing for the conversion, exchange or exercise as approved by the Board of Directors, for the consideration therefor set forth in the applicable agreement and approved by the Board of Directors, which consideration shall not be less than the par value of the Common Stock, such shares of Common Stock, including the shares of Common Stock that form a part of any Units, will be validly issued, fully paid and non-assessable.

 

(2) With respect to shares of any series of Preferred Stock, when all necessary corporate action of the Company has been taken to approve an issuance of shares of Preferred Stock and the terms of the shares of such series, including the adoption of a certificate of designation or amendment to the Certificate of Incorporation fixing and determining the terms of such Preferred Stock conforming to the Delaware General Corporation Law, the filing of a certificate or amendment, as applicable, with the Secretary of State of the State of Delaware, the payment in full of any filing fees attendant thereto, and the due reservation of any Common Stock and Preferred Stock for issuance, and certificates representing the shares of the series of Preferred Stock have been duly executed, countersigned, registered and delivered, either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board of Directors, upon payment of the consideration therefor (which consideration shall not be less than the par value of the Preferred Stock) provided for in such definitive purchase, underwriting or similar agreement, as applicable, or (ii) upon conversion, exchange or exercise of any other Company Security in accordance with the terms of such Company Security or the instrument governing such Company Security providing for the conversion, exchange or exercise as approved by the Board of Directors, for the consideration approved by the Board of Directors, which consideration shall not be less than the par value of the Preferred Stock, the shares of such series of Preferred Stock, including the shares of Preferred Stock that form a part of any Units, will be validly issued, fully paid and non-assessable.

 

 

(3) With respect to Warrants to be issued under a Warrant Agreement, when all necessary corporate action of the Company has been taken to approve the issuance and terms of such Warrants, the terms of the offering thereof and related matters, the Warrant Agreement has been duly executed and delivered by the Company, and such Warrants have been duly executed, issued and delivered in accordance with the terms of the Warrant Agreement and the applicable definitive purchase, underwriting or similar agreement approved by the Board of Directors, upon payment (or delivery) of the consideration therefor provided for therein, such Warrants, including the Warrants that form a part of any Units, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms

 

(4) With respect to Rights to be issued under a Rights Agreement, when all necessary action of the Company has been taken to approve the creation of and the issuance and terms of such Rights, the terms of the offering thereof and related matters, the Rights Agreement has been duly authorized, executed and delivered by the Company and such Rights have been duly executed, issued and delivered in accordance with the provision of the Rights Agreement and the applicable definitive purchase, underwriting or similar agreement approved by the Board of Directors, upon payment (or delivery) of the consideration therefor provided for therein, such Rights, including the Rights that form a part of any Units, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

 

(5) With respect to the Units, when all necessary corporate action of the Company has been taken to approve and establish the terms of the Units and to authorize and approve the issuance of the Company Securities comprising the Units, the terms of the offering and related matters, the Unit Purchase Agreement has been duly authorized, validly executed and delivered by the parties thereto, and the Units and/or the Company Securities comprising the Units have been duly executed and delivered in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the board of directors of the Company, upon payment of the consideration provided therefor in the definitive purchase, underwriting or similar agreement as applicable and approved by the Board of Directors, which consideration shall not be less than the aggregate par value of any Common Stock and/or Preferred Stock included in the Units, the Units will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms

 

Our opinions are subject to the effect of federal and state bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent conveyance and other laws relating to or affecting the rights of secured or unsecured creditors generally (or affecting the rights of only creditors of specific types of debtors), with respect to which we express no opinion.

 

Our opinions are subject to the effect of general principals of equity, whether applied by a court of law or equity, including, without limitation, concepts of materiality, good faith and fair dealing and upon the availability of injunctive relief or other equitable remedies, and the application of principles of equity (regardless of whether enforcement is considered in proceedings at law or in equity).

 

The Company has informed us that it intends to issue Company Securities from time to time on a delayed or continuous basis. The opinions set forth above are limited to applicable laws as in effect on the date hereof. Prior to issuing any Company Securities pursuant to the Registration Statement (i) the Company will advise us in writing of the terms thereof, and (ii) the Company will afford us an opportunity to review the documents pursuant to which such Company Securities are to be issued or sold (including the applicable offering documents), and the Company will file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate.

 

We express no opinion as to the laws of any jurisdiction other than (i) the corporate laws of the State of Delaware (including the Delaware General Corporation Law and applicable provisions of the Delaware constitution, but excluding local laws), (ii) with respect to opinion paragraphs 3 through 5, the laws of the State of New York, and (iii) the federal laws of the United States of America.

 

 

We hereby consent to the use of our opinion as herein set forth as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the prospectus forming a part of the Registration Statement. We do not, by giving such consent, admit that we are within the category of persons whose consent is required under Section 7 of the Act.

 

Very truly yours
/s/ Dentons US LLP
Dentons US LLP

 

 

 

Consent of Independent Registered Public Accounting Firm

 

iCAD, Inc.

Nashua, New Hampshire

 

We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our reports dated March 11, 2020, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of iCAD, Inc., which are incorporated by reference in in the Registration Statement on Form S-3 (No. 333-235887) incorporated by reference in this Registration Statement.

 

We also consent to the reference to us under the caption “Experts” in the Registration Statement on Form S-3 No. 333-235887 incorporated by reference in this Registration Statement

 

/s/ BDO USA, LLP

Boston, Massachusetts

 

March 2, 2021

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