As filed with the Securities and Exchange Commission on August 13, 2021.
Registration No. 333-224184
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1 to
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AquaBounty Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 04-3156167 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
Two Mill & Main Place, Suite 395
Maynard, Massachusetts 01754
(978) 648-6000
(Address, including zip code, and telephone number, including area code, of principal executive offices)
David A. Frank
Chief Financial Officer
AquaBounty Technologies, Inc.
Two Mill & Main Place, Suite 395
Maynard, Massachusetts 01754
(978) 648-6000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Jocelyn A. Arel, Esq. Michael J. Minahan, Esq. Goodwin Procter LLP 100 Northern Ave. Boston, Massachusetts 02210 (617) 570-1000 | Angela M. Olsen, Esq. General Counsel and Corporate Secretary AquaBounty Technologies, Inc. Two Mill & Main Place, Suite 395 Maynard, Massachusetts 01754 (978) 648-6000 |
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 (the “Securities Act”), 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.
☐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 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount To Be Registered(1) | Proposed Maximum Offering Price per Unit or Share(1)(2) | Proposed Maximum Aggregate Offering Price(1)(2) | Amount of Registration Fee | |
Common Stock, $0.001 par value per share | — | — | — | — | |
Preferred Stock, $0.01 par value per share | — | — | — | — | |
Warrants | — | — | — | — | |
Units | — | — | — | — | |
Total Offering(3) | $100,000,000 | — | $100,000,000 | $12,450 | (4) |
Common Stock, $0.001 par value per share, issuable upon exercise of outstanding warrants(5) | 4,246,153 | — | — | — | |
Total Registration Fee | $100,000,000 | $12,450 | (6) |
| ||||||||
Title of Each Class of Securities to be Registered | Amount to b Registered(1) | Proposed Maximum Offering Price per Security(2) | Proposed Maximum Aggregate Offering Price(1)(2) | Amount of Registration Fee | ||||
Common Stock, $0.001 par value per share | 18,219,824 | $4.93 | $89,823,732.32 | $9,799.77(3) | ||||
| ||||||||
|
(1) | |
Represents shares offered by the Selling Shareholders. Pursuant to Rule |
(2) | Pursuant to |
(3) | |
Previously paid. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in order to satisfy the requirementsaccordance with Section 8(a) of the Securities Act andof 1933, as amended, or until the rules and regulations thereunder forRegistration Statement shall become effective on such date as the Commission acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
AquaBounty Technologies, Inc. is filing this offering andpre-effective amendment to the offeringRegistration Statement on Form S-3 (File No. 333-258561) in order to update the section entitled “Incorporation of Certain Information by Reference” in Part I of the Warrant Shares registered on the Prior Registration Statement. The prospectus in this registration statement is a new registration statement with respect to the offer and sale of the Shelf Securities and the Warrant Shares.
The information in this prospectus is not complete and may be changed. These securitiesSecurities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell andnor does it is not seekingseek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated August 13, 2021
PROSPECTUS
18,219,824 Shares
Common Stock
Offered by the Selling Shareholders
This prospectus relates solely to the proposed resale or other disposition, from time to time, in one or more series or issuances and on terms that we will determine at the time of the offering, any combination of the securities described in this prospectus, up to an aggregate amount of $100,000,000.
We will provide specific terms of any offering in a supplement to this prospectus. Any prospectus supplement may also add, update, or change information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement as well as the documents incorporated or deemed to be incorporated by reference in this prospectus before you purchase any of the securities offered hereby.
The Selling Shareholders may sell any, all or none of the securities may be offered by this prospectus and sold in the same offeringwe do not know when or in separate offerings;what amount the Selling Shareholders may sell their Shares hereunder following the effective date of the registration statement of which this prospectus forms a part. The Selling Shareholders from time to time may offer and sell the shares held by them on any national securities exchange or through underwriters, dealers,quotation service on which the securities maybe listed or quoted at the time of sale, on the over-the-counter market, in one or more transactions otherwise than on these exchanges or systems, such as privately negotiated transactions, or using a combination of these methods, and agents;at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or directly to purchasers.at negotiated prices, as described in more detail in this prospectus. The names of any underwriters, dealers, or agents involved in the sale of our securities, their compensation, and any over-allotment options held by them will be described in the applicable prospectus supplement. See the section titled “Plan of Distribution.”
We will not receive any proceeds from the sale of the shares by the Selling Shareholders.
Our common stock is listed on theThe Nasdaq Capital Market under the symbol “AQB.” As ofOn August 2, 2021, the date of this prospectus, the aggregate market value of our outstanding voting and nonvoting common equity held by non-affiliates of the Company (
We are an “emerging growth company” as that term is used in the Jumpstart our Business Startups Act of 2012 and, as such, have elected to avail ourselves of certain reduced public company reporting requirements for this prospectus and future filings.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading “Risk Factors”“Risk Factors” contained in this prospectus beginning on page 57 and any applicable prospectus supplement and under similar headings in the other documents that are incorporated by reference into this prospectus.
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 April 23, 2018., 2021.
Page PagePART I1 2 4 6 7 8 9 15 17 19 19 20 PART II21
This prospectus is part of a registration statement on Form S-3 that we filed with the United States Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Under this shelf registration process, wethe Selling Shareholders may, at any time and from time to time, offer and sell any combination of the securitiesshares described in this prospectus in one or more offerings up to a total amount of $100,000,000. This prospectus also relates to the issuance of up to 4,246,153 Warrant Shares upon exercise of certain of the Outstanding Warrants. The Outstanding Warrants and the Warrant Shares were registered under the Prior Registration Statement.
This prospectus provides you with a general description of the Warrant Shares and securitiesshares the Selling Shareholders we may offer. Each time wethe Selling Shareholders sell securities,our shares using this prospectus, to the extent necessary, we will provide a prospectus supplement that will contain specific information about the terms of that offering, including the number of shares being offered, the manner of distribution, the identity of any underwriters or other counterparties and other specific terms related to the offering. The prospectus supplement may also add to, update, or change information contained in the prospectus and, accordingly, to the extent inconsistent, information in this prospectus is superseded by the information in the prospectus supplement.
The prospectus supplement to be attached to the front of this prospectus may describe, as applicable: the terms of the securities offered; the initial public offering price; the price paid for the securities; net proceeds; and the other specific terms related to the offering of the securities.
You should only rely on the information contained or incorporated by reference in this prospectus and any prospectus supplement or free writing prospectus relating to a particular offering. No person has been authorized to give any information or make any representations in connection with this offering other than those contained or incorporated by reference in this prospectus, any accompanying prospectus supplement, and any related free writing prospectus in connection with the offering described herein and therein, and, if given or made, such information or representations must not be relied upon as having been authorized by us. If anyone provides you with different, additional or inconsistent information, you should not rely on it. We do not take responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. Neither this prospectus nor any prospectus supplement nor any related free writing prospectus shall constitute an offer to sell or a solicitation of an offer to buy offered securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation. This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits.
You should read the entire prospectus and any prospectus supplement and any related free writing prospectus, as well as the documents incorporated by reference into this prospectus, any prospectus supplement, or any related free writing prospectus, before making an investment decision. Neither the delivery of this prospectus, any prospectus supplement, or any free writing prospectus nor any sale made hereunder shall under any circumstances imply that the information contained or incorporated by reference herein or in any prospectus supplement or free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus supplement or free writing prospectus, as applicable. You should assume that the information appearing in this prospectus, any prospectus supplement, or any document incorporated by reference is accurate only as of the date of the applicable documents,their respective dates, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any sale of securities. Our business, financial condition, results of operations, and prospects may have changed materially since that date.
Unless otherwise specified or the context requires otherwise:
This prospectus, each prospectus supplement and the information incorporated by reference in this prospectus and each prospectus supplement contain forward-looking statements within the meaning of Section 27A of the In some cases, you can identify forward-looking statements In particular, forward-looking statementsfederal securities laws, whichSecurities Act and Section 21E of the Exchange Act, that are based on our management’s belief and assumptions and on information currently available to our management. Although we believe that the expectations reflected in these forward-looking statements involve substantial risks and uncertainties. Forward-lookingare reasonable, these statements generally relate to future events or our future financial or operating performance. performance, and involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements.because they contain wordsby terminology such as “may”, “will”, “should”, “expects”, “plans”, “anticipates”, “could”, “intends”, “target”, “projects”, “contemplates”, “believes”, “estimates”, “predicts”, “potential” or “continue”“may,” “will,” “should,” “expects,” “intends,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “continue,” “could,” “intends,” “target,” “projects,” “contemplates,” or the negative of these wordsterms or other similar termscomparable terminology. These statements are only predictions. You should not place undue reliance on forward-looking statements because they involve known and unknown risks, uncertainties and other factors, which are, in some cases, beyond our control and which could materially affect our results. Factors that may cause actual results to differ materially from current expectations include, among other things, those listed in the section entitled “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, and our subsequent Quarterly Reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, and under the heading “Risk Factors” in this prospectus. If one or expressionsmore of these risks or uncertainties occur, or if our underlying assumptions prove to be incorrect, actual events or results may vary significantly from those implied or projected by the forward-looking statements. No forward-looking statement is a guarantee of future performance. You should read this prospectus and the documents that concernwe reference herein and have filed as exhibits to the registration statement, of which this prospectus is part, completely and with the understanding that our expectations, strategy, plansactual future results may be materially different from any future results expressed or intentions. Forward-lookingimplied by these forward-looking statements. contained in this prospectus and in the documents that we reference herein include but are not limited to, statements about:
the anticipated benefits and characteristics of our AquAdvantagegenetically engineered (“GE”) Atlantic Salmon product;
the implementation and likelihood of achieving the business plan, future revenue, and operating results;
our plans for (including without limitation, projected costs, locations and third-party involvement) and the timing of the development of new farms and the output of those farms;
developments concerning our research projects;
our expectations regarding our ability to successfully enter new markets or develop additional products;
our competitive position and developments and projections relating to our competitors and our industry;
expectations regarding anticipated operating results;
our cash position and ability to raise additional capital to finance our activities;
the impact of the evolving COVID-19 pandemic (the “COVID-19 pandemic”) on our business, operations and financial results, any of which could be significantly impaired by the COVID-19 pandemic;
our ability to protect our intellectual property and other proprietary rights and technologies;
the impact of and our ability to adapt to changes in laws or regulations and policies;
the ability to secure any necessary regulatory approvals to commercialize any products;
the rate and degree of market acceptance of any products developed through the application of genetic engineering,bioengineering, including genetically modifiedbioengineered fish;
our ability to retain and recruit key personnel;
the success of any of our future acquisitions or investments;
our expectations regarding the time during which we will be an emerging growth company under the JOBS Act;Jumpstart Our Business Startups Act (the “JOBS Act”);
our estimates regarding expenses, future revenue, capital requirements, and needs for additional financing.financing; and
other risks and uncertainties referenced under “Risk Factors” below and in this prospectus, any applicable prospectus supplement or the informationand any documents incorporated by reference herein orand therein.
Forward-looking statements contained in this prospectus and any prospectus supplement primarilyor in the documents that we reference herein represent our views only as of the respective dates on our current expectations and projections about futurewhich such statements were made. We anticipate that subsequent events and trends thatdevelopments may cause our views to change. However, while we believe may affect our business, financial condition, results of operations and prospects. The outcome of the events described inelect to update these forward-looking statements is subjectat some point in the future, we have no current intention of doing so except to risks, uncertainties andthe extent required by applicable law. Therefore, these forward-looking statements do not represent our views as of any date other factors described in “Risk Factors” and elsewhere in this prospectus, any prospectus supplement anythan the information incorporated by reference herein or therein. Moreover, we operate in a very competitive and rapidly changing environment. New risks and uncertainties emerge from time to time, and it is not possible for us to predict all risks and uncertainties that could have an impactdate on the forward-looking statements.which they were made.
This summary highlights selected information Overview AquaBounty Our GE Atlantic salmon is based upon proprietary salmon genetics and We We currently have two salmon farms in production – a 1,200 metric ton facility in Indiana and a 250 metric ton demonstration facility on Prince Edward Island. Our plans include the construction of a Our strategy is to continually strengthen our core capabilities, scale our business and pursue growth opportunities. We have incurred significant losses since our inception. We expect to continue to incur significant losses for the foreseeable future, and we may never achieve or maintain profitability. For the fiscal years ended December 31, 2020, 2019, and 2018, we experienced net losses of $16.2 million, $13.2 million, and $10.4 million, respectively. We were formed under the laws of the State of Delaware on December 17, 1991. Our principal executive offices are located at 2 Mill & Main Place, Suite 395, Maynard, Massachusetts 01754. Our telephone number is (978) 648-6000. On January 19, 2017, Implications of We that is presented in greater detailcontained elsewhere or incorporated by reference in this prospectus. This summary does not contain all of the information that you should consider before investing in our securities. You should carefully read thisthe entire prospectus and any applicable prospectus supplement carefully, including each ofthe “Risk Factors” contained in this prospectus, any applicable prospectus supplement, and the documents incorporated herein or therein by reference herein and therein and the financial statements incorporated by reference in this prospectus supplement and the accompanying prospectus, before making an investment decision.Our Company Technologies, Inc. is a biotechnology company focused on enhancing productivityleader in the fast-growingfield of land-based aquaculture market.and the use of technology for improving its productivity and sustainability. Our objective is to ensure the availability of high-quality seafood to meet global consumer demand, while addressing critical production constraints in the most popular farmed species. We use genetic modificationare committed to feeding the world efficiently, sustainably and other molecular biologic techniquesprofitably. Aquaculture is the farming of aquatic organisms such as fish, shellfish, crustaceans, and aquatic plants. It involves cultivating freshwater or saltwater species under controlled conditions, as an alternative to improve the qualitycommercial harvesting of wild species of aquatic organisms. According to the Food and yieldAgriculture Organization of fish stocksthe United Nations (“FAO”), aquaculture was a $250 billion industry in 2018, and helpwe are targeting the aquaculture industry meet growing consumer demand. Since 2008, we have been focused on the regulatory approval$17 billion salmon farming segment of our first product, AquAdvantage® Salmon, which features accelerated growth during its early development stagesthat industry.improved feed conversion rates. These qualities reduce both farming time from the 28grows to 36 months forharvest size faster than conventional Atlantic salmon. Our salmon to 18 to 20 monthswas approved for production, sale, and consumption in the amount of feed required to produce a harvest. InUnited States on November 19, 2015 we received approval fromby the U.S. Food and Drug Administration (“FDA”). This was followed by an approval from Health Canada for the production, sale, and consumption of AquAdvantage Salmonour GE Atlantic salmon in the United States, and, inCanada on May 2016,19, 2016. On May 6, 2021, we received approval from Health Canada, the department of the government of Canada with responsibility for national public health,Brazil’s National Biosafety Technical Commission for the production, sale and consumption of AquAdvantage Salmon as a novel foodour GE Atlantic salmon in Brazil. Consequently, we have received approvals for our product from what we believe are three of the most respected and feed in Canada. Although genetically modified crops have been accepted by consumersrigorous regulatory agencies in the United States and South America for some time, AquAdvantage Salmon is the first genetically modified animal to be approved for human consumption. world.intend to deploy AquAdvantage Salmonfarm our GE Atlantic salmon in land-based, contained, freshwaterrecirculating aquaculture systems (“RAS”), which would allow inland fish farms to be established close to major demand centers in a profitable and environmentally sustainable manner. Environmental benefits wouldWe believe that our 25 years of experience growing salmon in land-based farms, coupled with the unique genetics of our faster-growing GE Atlantic salmon, provides us with a competitive advantage and an opportunity to establish multiple salmon farms throughout North America and the world.lower carbon footprint due to local production, reduced impact on the environment compared to conventional sea-cage production, reduced exposure of the fish to the environmental toxins found in marine environments, and minimized reliance on chemotherapeutics due to reduced exposure to disease and parasites. The technology underlying AquAdvantage Salmon offers the potential to reintroduce salmon aquaculturenew 10,000 metric ton farm in the Midwest United States which imported more than $3.1 billion ofduring the next eighteen months and an additional three to four new 10,000 metric ton farms in North America at sites close to consumer consumption over the next seven-to-ten years. We are also pursuing regulatory approval for our GE Atlantic salmon in China and Israel, with the goal of entering those markets with local partners in the form of joint ventures or licensing arrangements. Additionally, we plan to utilize our expertise in biotechnology and RAS operations to enter complimentary areas of the aquaculture industry.according toour common stock began trading on The Nasdaq Capital Market under the U.S. Departmentsymbol “AQB.”Commerce.arequalify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act. We will remainAs an emerging growth company, untilwe may take advantage of specified reduced disclosure and other requirements that are otherwise applicable generally to public companies. We would cease to be an emerging growth company on the earlierdate that is the earliest of (1) the last day of the fiscal year 2023, (2)(i) the last day of the fiscal year in which we have total annual gross revenuerevenues of at least $1.07 billion (3)or more; (ii) the last day of our fiscal year following the fifth
anniversary of the date of the completion of our initial public offering; (iii) the date on which we have issued more than $1.0 billion in nonconvertible debt during the previous three years; or the last day of the fiscal year in which we are deemed to be a large accelerated filer (thisunder the rules of the SEC, which means the market value of our common stock that is held by non-affiliates exceeds $700 million as of the endprior June 30th.
We are also a “smaller reporting company” as defined in the Exchange Act. We may continue to be a smaller reporting company even after we are no longer an emerging growth company. We may take advantage of certain of the second quarter ofscaled disclosures available to smaller reporting companies until the fiscal year following the determination that fiscal year), or (4) the date on which we have issuedour voting and non-voting common stock held by non-affiliates is more than $1.07 billion in non-convertible debt securities$250 million measured on the last business day of our second fiscal quarter and our annual revenues are more than $100 million during the prior three-year period.
Although we are still evaluating the JOBS Act, we currently intend to take advantage of some, but not all, of the commercial viabilityreduced regulatory and reporting requirements that will be available to us so long as we qualify as an “emerging growth company” and “smaller reporting company.” We have elected to avail ourselves of a group of proteins commonly known as antifreeze proteins (AFPs). The Parent changed its name to Aqua Bounty Farms, Inc. in March 2000this exemption and, to AquaBounty Technologies, Inc. in June 2004. AQUA Bounty Canada Inc. (the “Canadian Subsidiary”), a wholly owned subsidiary of the Parent, was incorporated in January 1994 in Canada for the purpose of establishing a biotechnology laboratory to conduct research and development programs relatedtherefore, we are not subject to the Parent’s technologiessame new or revised accounting standards as other public companies that are not emerging growth companies or smaller reporting companies. As a result, changes in rules of U.S. generally accepted accounting principles or their interpretation, the adoption of new guidance or the application of existing guidance to changes in our business could significantly affect our financial position and to commercialize the Parent’s products. AquaBounty Panama, S. de R.L. was incorporated in May 2008 in Panama for the purpose of conducting commercial trials of the Parent’s products and is jointly owned by the Parent and the Canadian Subsidiary. AquaBounty Farms, Inc. (the “US Subsidiary”), a wholly owned subsidiary of the Parent, was incorporated in December 2014 in the State of Delaware for the purpose of conducting field trials and commercializing the Parent’s products in the United States. AquaBounty Brasil Participacoes Ltda. was incorporated in May 2015 in Brazil for the purpose of conducting field trials and commercializing the Parent’s products and is jointly owned by the Parent and the US Subsidiary. AquaBounty Farms Indiana LLC, a wholly owned subsidiary of the US Subsidiary, was formed in June 2017 in the State of Delaware for the purpose of operating its aquaculture facility in Albany, Indiana. The Parent consolidates the financial results of its directoperations. In addition, our independent registered public accounting firm will not be required to provide an attestation report on the effectiveness of our internal control over financial reporting so long as we qualify as an “emerging growth company,” which may increase the risk that material weaknesses or significant deficiencies in our internal control over financial reporting go undetected. Likewise, so long as we qualify as a “smaller reporting company” or an “emerging growth company,” we may elect not to provide you with certain information, including certain financial information and indirect subsidiaries.
Common stock offered for the Selling Shareholders: 18,219,824 shares. Use of proceeds: We will not receive any proceeds from the sale of our common stock by the Selling Shareholders pursuant to this prospectus. See “Use of Proceeds” and “Selling Shareholders.” Plan of Distribution: The Selling Shareholders may sell all or a portion of the shares of common stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. Registration of the common stock covered by this prospectus does not mean, however, that such shares necessarily will be offered or sold. See “Plan of Distribution.” Risk factors: Investing in our common stock involves significant risks. See “Risk Factors” on page 12 of this prospectus and under similar headings in the documents incorporated by reference into this prospectus for a discussion of the factors you should carefully consider before deciding to invest in our common stock. The Nasdaq Capital Market symbol: “AQB”
An investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable to an investment in our securities. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed in the section titled “Risk Factors” in the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties, and assumptions discussed under “Part I – I—Item 1A – 1A—Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2017,2020, and “Part II – II—Item 1A – 1A—Risk Factors” in our Quarterly Reports on Form 10-Q, all of which are incorporated herein by reference, as they may be amended, supplemented, or superseded from time to time by other reports we file with the SEC in the future and any prospectus supplement related to a particular offering. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations.
We are registering the RATIOUSE OF EARNINGS TO FIXED CHARGES AND PREFERENCE SECURITY DIVIDENDSThe following table sets forth our ratio of earnings to fixed charges and preference security dividends forPROCEEDSperiods shown. You should read this table in conjunction with the consolidated financial statements and notes incorporated by reference in this prospectus. See Exhibit 12.1 hereto for additional details regarding the computation of the ratio of earnings to fixed charges and preference security dividends. Our net losses were insufficient to cover fixed charges in each of the periods presented. Becauseresale of these deficiencies,shares of common stock by the ratio information isSelling Shareholders. We are not applicable for such periods.$ in millions Year Ended December 31, 2017 2016 2015 2014 2013 Ratio of earnings to fixed charges and preference security dividends — — — — — Deficiency of earnings available to cover fixed charges and preferred stock dividends $ (9.2 ) $ (8.1 ) $ (7.0 ) $ (7.1 ) $ (4.7 ) For purposes of computing the ratio of earnings to combined fixed charges and preferred stock dividends, earnings consist of net loss plus fixed charges. Combined fixed charges and preferred stock dividends consist of interest expense, an estimate of interest within rent expense, and preferred stock dividends.As of the date ofselling any securities under this prospectus we have not previously paid dividends on any shares of preferred stock, and consequently, our ratio of earnings to preferred share dividends and ratio of earnings to fixed charges would be identical.USE OF PROCEEDSUnless otherwise indicated in the prospectus supplement, we will use the netnot receive any proceeds from the sale of securities by us offered by this prospectus for general corporate purposes, which may include working capital, capital expenditures, and other corporate expenses. The timing and amount of our actual expenditures will be based on many factors, including cash flows from operations and the anticipated growth of our business. As a result, unless otherwise indicated in the prospectus supplement, our management will have broad discretion to allocate the net proceeds of the offerings. Pending their ultimate use, we intend to invest the net proceeds in short-term, investment-grade, interest-bearing instruments.PLAN OF DISTRIBUTIONThis prospectus relates to the possible offer and sale by us, from time to time, in one or more series or issuances and on terms that we will determine at the time of the offering, of any combination of the securities described in this prospectus, up to an aggregate amount of $100,000,000.We may sell the securities offered through this prospectus (1) to or through underwriters or dealers, (2) directly to purchasers, including our affiliates, (3) through agents, or (4) through a combination of any these methods. We may use any one or more of the following methods when selling shares:on the Nasdaq Capital Market or any other national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;in the over-the-counter market;in transactions otherwise than on these exchanges or systems or in the over-the-counter market;through the writing of options, whether such options are listed on an options exchange or otherwise;through ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;through block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;directly to one or more purchasers;through agents;through purchases by a broker-dealer as principal and resale by the broker-dealer for its account;through one or more underwriters on a firm commitment or best-efforts basis;in an exchange distribution in accordance with the rules of the applicable exchange;in privately negotiated transactions;through loans or pledges of our common stock to a broker-dealer who may sell shares of our common stock so loaned or, upon a default, may sell or otherwise transfer the pledged stock;a combination of any such methods of sale; andany other method permitted pursuant to applicable law. securities may be distributed at a fixed price or prices, which may be changed; market prices prevailing at the time of sale; prices related to the prevailing market prices; or negotiated prices. The prospectus supplement will include, to the extent required, the following information:the terms of the offering;the names of any underwriters or agents;the name or names of any managing underwriter or underwriters;the purchase price of the securities;the net proceeds from the sale of the securities;any delayed delivery arrangements;any underwriting discounts, commissions, and other items constituting underwriters’ compensation;any initial public offering price;any discounts or concessions allowed or reallowed or paid to dealers; andany commissions paid to agents.We may issue to the holders of our common stock on a pro rata basis, for no consideration, subscription rights to purchase shares of our common stock or preferred stock. These subscription rights may or may not be transferableoffered by stockholders. The applicablethis prospectus supplement will describe the specific terms of any offering of our common or preferred stock through the issuance of subscription rights, including the terms of the subscription rights offering; the terms, procedures, and limitations relating to the exchange and exercise of the subscription rights; and, if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of common or preferred stock through the issuance of subscription rights. Pursuant to a requirement by the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum commission or discount to be received by any FINRA member or independent broker-dealer may not be greater than 8% of the maximum gross proceeds of the securities that may be sold under this prospectus.Selling Shareholders.
General The following description summarizes the most important terms of our capital stock. We adopted our Charter in connection with the registration of our common stock on the Nasdaq stock market, and this description summarizes the provisions included in such document, as well as those contained in our Amended and Restated Bylaws (our “Bylaws”). Because it is only a summary, it does not contain all the information that may be important to you. For a complete description of the matters set forth in this “Description of Capital Stock,” you should refer to our Charter and Bylaws, which have been filed with the SEC and are incorporated by reference into the registration statement of which this prospectus is a part, and to the applicable provisions of Delaware law. Our authorized capital stock consists of As of Common Stock Dividend Rights Subject to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of our common stock are entitled to receive dividends out of funds legally available if our board of directors, in its discretion, determines to issue dividends and then only at the times and in the amounts that our board of directors may determine. Voting Rights Holders of shares of our common stock are entitled to one vote for each share held of record on all matters submitted to a vote of Our Third Amended and Restated Certificate of Incorporation provides that all stockholder actions are required to be taken by a vote of the stockholders at an annual or special meeting; that stockholders may not take any action by written consent in lieu of a meeting; that only the chairman of our Board of Directors, our chief executive officer, or a majority of the authorized number of directors may call special meetings of stockholders; and that only those matters set forth in the notice of the special meeting may be considered or No Preemptive or Similar Rights Our common stock is not entitled to preemptive rights, and is not subject to conversion, redemption, or sinking fund provisions. Right to Receive Liquidation Distributions If we become subject to a liquidation, dissolution, or winding-up, the assets legally available for distribution to our stockholders would be distributable ratably among the holders of our common stock and any participating preferred stock outstanding at that time, subject to prior satisfaction of all outstanding debt and liabilities and the preferential rights of and the payment of liquidation preferences, if any, on any outstanding shares of preferred stock.200,000,00080,000,000 shares of common stock, $0.001 par value per share, and 40,000,0005,000,000 shares of undesignated preferred stock, $0.01 par value per share. At our annual meeting of stockholders to be held on May 1, 2018, we will be seeking stockholder approval of an amendment to our Charter to implement a reduction in the number of shares of authorized common stock from 200,000,000 shares to 50,000,000 and in the number of shares of undesignated preferred stock from 40,000,000 to 5,000,000.April 20, 2018,June 30, 2021, there were 12,680,53371,025,738 shares of our common stock outstanding, held by 344303 stockholders of record, and no shares of our preferred stock outstanding. Included in the outstanding shares of our common stock are 12,84470,163 shares of restricted stock that are subject to vesting requirements. Our board of directors is authorized, without stockholder approval except as required by the listing standards of theThe Nasdaq Capital Market, to issue additional shares of our capital stock.stockholders. Our Charter doesshareholders. A majority of the votes cast at a meeting of the shareholders by the holders of shares entitled to vote is required for any action by the shareholders except (a) as otherwise provided by law or the Third Amended and Restated Certificate of Incorporation and (b) that directors are to be elected by a plurality of the votes cast at elections. Holders of shares of our common stock do not provide forhave cumulative voting forrights in the election of directors.foracted upon at a classified boardspecial meeting of directors.
Fully Paid and Non-Assessable
All of the outstanding shares of our common stock are, and the shares of our common stock to be issued by us pursuant to this offering will be, fully paid and non-assessable.
Preferred Stock
Our Board is authorized, subject to limitations prescribed by Delaware law, to issue preferred stock in one or more series; to establish from time to time the number of shares to be included in each series; and to fix the designation, powers, preferences, and rights of the shares of each series and any of its qualifications, limitations, or restrictions, in each case without further vote or action by our stockholders. Our board of directors can also increase or decrease the number of shares of any series of preferred stock, but not below the number of shares of that series then outstanding, without any further vote or action by our stockholders. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring, or preventing a change in control of our company and might adversely affect the market price of our common stock and the voting and other rights of the holders of our common stock. We have no current plan to issue any shares of preferred stock.
We will fix the rights, preferences, and privileges of the preferred stock of each such series, as well as any qualifications, limitations, or restrictions thereon, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of
the title and stated value;
the number of shares we are offering;
the liquidation preference per share;
the purchase price;
the dividend rate, period, payment date, and method of calculation for dividends;
whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
the procedures for any auction and remarketing, if any;
the provisions for a sinking fund, if any;
the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights;
any listing of the preferred stock on any securities exchange or market;
voting rights, if any, of the preferred stock;
preemptive rights, if any;
restrictions on transfer, sale, or other assignment, if any;
whether interests in the preferred stock will be represented by depositary shares;
a discussion of any materialcertain United States federal income tax considerations applicable to the preferred stock;
the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve, or wind up our affairs;
any limitations on the issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve, or wind up our affairs; and
any other specific terms, preferences, rights, or limitations of, or restrictions on, the preferred stock.
The General Corporation Law of the State of Delaware, the state of our incorporation, provides that the holders of preferred stock will have the right to vote separately as a class (or, in some cases, as a series) on an amendment to our Charter if the amendment would change the par value; the number of authorized shares of the class; or the powers, preferences, or special rights of the class or series so as to adversely affect the class or series, as the case may be. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring, or preventing a change in our control and may adversely affect the market price of the common stock and the voting and other rights of the holders of common stock. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock.
Outstanding Warrants
As of April 20, 2018,June 30, 2021, we had warrants outstanding and exercisable for 4,164,172418,441 shares of our common stock (defined above as the(the “Outstanding Warrants”). Below is a summary of the Outstanding Warrants.
The material terms and provisions of the Outstanding Warrants issued pursuant to the Prior Registration Statement are summarized below. The following description is subject to, and qualified in its entirety by, the form of Common Stock Purchase Warrant, which was filed as an exhibit to our registration statement on Form S-1 that was filedAmendment No. 2 to the Prior Registration Statement on January 9, 2018. You should review a copy of the form of Common Stock Purchase Warrant for a complete description of the terms and conditions applicable to the Outstanding Warrants. The offering and sale of the Outstanding Warrants, and the shares of common stock underlying the Outstanding Warrants, were registered under the Prior Registration Statement.
Term
The Outstanding Warrants are exercisable upon issuance and for five years from the date of issuance but not thereafter.
Exercise Price
The exercise price of the Outstanding Warrants is $3.25 per share. The exercise price and number of shares of our common stock issuable upon the exercise of the Outstanding Warrants are subject to adjustment in the event of any stock dividend, stock split, reverse stock split, recapitalization, reorganization, or similar transaction. The exercise price can also be lowered by us for any period of time, with the prior written consent of the holders of a majority in interest of the Outstanding Warrants then outstanding, unless prohibited by the listing rules of the exchange on which our common stock is listed.
Exercisability
The Outstanding Warrants are immediately exercisable upon issuance and are exercisable at any time during the term of the Outstanding Warrants. The Outstanding Warrants are exercisable, at the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for the number of shares of our common stock purchased upon such exercise.
No Fractional Shares
No fractional shares or scrip representing fractional shares shall be issued upon the exercise of any of the Outstanding Warrants. As to any fraction of a share that the holder would otherwise be entitled to purchase upon such exercise, we shall, at our election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the exercise price of the Outstanding Warrants or round up to the next whole share.
Transferability
Subject to applicable laws, any Outstanding Warrant may be transferred at the option of the holder thereof upon surrender of that Outstanding Warrant to us, together with the appropriate instruments of transfer, provided that we may require an opinion of counsel in connection with certain transfers.
Authorized Shares
During the period the Outstanding Warrants are outstanding, we will reserve from our authorized and unissued common stock a sufficient number of shares to provide for the issuance of shares of common stock underlying the Outstanding Warrants upon the exercise of the Outstanding Warrants.
Fundamental Transactions
In the event of any fundamental transaction, as described in the Outstanding Warrants, which include, generally, any merger with or into another entity, sale of all or substantially all of our assets, tender offer or exchange offer, or reclassification of our common stock, then, upon any subsequent exercise of aan Outstanding Warrant, the holder shall have the right to receive as alternative consideration, for each share of our common stock that would have been issuable upon such exercise immediately prior to the occurrence of such fundamental transaction, the number of shares of common stock of the successor or acquiring corporation or of us, if we are the surviving corporation, and any additional consideration receivable upon or as a result of such transaction by a holder of the number of shares of our common stock for which the Outstanding Warrant is exercisable immediately prior to such event. Any successor to us or surviving entity is obligated to assume the obligations under the Outstanding Warrants. In the event of certain fundamental transactions, the Company shall, at each Outstanding Warrant holder’s option, purchase such holder’s Outstanding Warrant by paying an amount in cash equal to the Black Scholes value of the remaining unexercised portion of such Outstanding Warrant.
Right as a Stockholder
Except as otherwise provided in the Outstanding Warrants or by virtue of a holder’s ownership of shares of our common stock, the holders of the Outstanding Warrants do not have the rights or privileges of holders of our common stock, including any voting rights, until they exercise their Outstanding Warrants.
Waiver and Amendments
The terms of any Outstanding Warrant, other than a lowering of the exercise price as described above, may be amended or waived with our written consent and the written consent of the holder of such Outstanding Warrant.
Beneficial Ownership Limitation
Subject to limited exceptions, a holder of an Outstanding Warrant will not have the right to exercise any portion thereof if the holder (together with such holder’s affiliates, and any persons acting as a group together with such holder or any of such holder’s affiliates) would beneficially own a number of shares of our common stock in excess of 4.99% (or, at the election of the holder, 9.99%) of the shares of our common stock then outstanding immediately after giving effect to such exercise (the “Beneficial Ownership Limitation”); provided, however, that upon notice to us, the holder may increase or decrease the Beneficial Ownership Limitation; and, provided further, that in no event shall the Beneficial Ownership Limitation exceed 9.99% and in no event shall any increase in the Beneficial Ownership Limitation be effective until 61 days following notice of such increase from the holder to us.
Registration Rights
Other than those rights set forth in the Letter Agreement between the Company, TS Aquaculture LLC and the Selling Shareholders dated July 31, 2021, which is described below under the heading “Selling Shareholders – Letter Agreement”, there are no rights with regard to registration under the Securities Act of 1933 of our common stock or preferred stock.
Anti-Takeover Provisions
The provisions of Delaware law, our Charter, and our Bylaws, which are summarized below, may have the effect of delaying, deferring, or discouraging another person from acquiring control of our company. They are also designed, in part, to encourage persons seeking to acquire control of us to negotiate first with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the disadvantages of discouraging a proposal to acquire us because negotiation of these proposals could result in an improvement of their terms.
Delaware Law
We are governed by the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a public Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination” includes mergers, asset sales, or other transactions resulting in a financial benefit to the stockholder. An “interested stockholder” is a person who, together with affiliates and associates, owns, or within three years did own, 15% or more of the corporation’s outstanding voting stock. These provisions may have the effect of delaying, deferring, or preventing a change in our control.
Third Amended and Restated Certificate of Incorporation and Amended and Restated BylawBylaws Provisions
Our Charter and our Bylaws include a number of provisions that could deter hostile takeovers or delay or prevent changes in control of our board of directors or management team, including the following:
• | Board of Directors Vacancies. Our Charter and Bylaws authorize only our board of directors to fill vacant directorships, including newly created seats. In addition, the number of directors constituting our board of directors will be permitted to be set only by a resolution adopted by a majority vote of our entire board of directors. These provisions would prevent a stockholder from increasing the size of our board of directors and then gaining control of our board of directors by filling the resulting vacancies with its own nominees. This makes it more difficult to change the composition of our board of directors and promotes continuity of management. |
• | Stockholder Action; Special Meeting of Stockholders. Our Charter provides that our stockholders may not take action by written consent, but may only take action at annual or special meetings of our stockholders. As a result, a holder controlling a majority of our capital stock would not be able to amend our Bylaws or remove directors without holding a meeting of our stockholders called in accordance with our Bylaws. Our Bylaws further provide that special meetings of our stockholders may be called only by the Chairman of our board of directors or our Chief Executive Officer, thus prohibiting a stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force consideration of a proposal or for stockholders controlling a majority of our capital stock to take any action, including the removal of directors. |
• | Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our Bylaws provide advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. Our Bylaws also specify certain requirements regarding the form and content of a stockholder’s notice. These provisions might preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders if the proper procedures are not followed. We expect that these provisions may also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our company. |
• | No Cumulative Voting. The Delaware General Corporation Law provides that stockholders are not entitled to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our Charter does not provide for cumulative voting. |
• | Removal of Directors. Our Charter provides that stockholders may remove directors for cause only by affirmative vote of a majority of the voting power of the outstanding voting stock and without cause only by affirmative vote of two-thirds of the voting power of our then-outstanding voting stock. |
• | Amendment of Charter or Bylaw Provisions. Any amendment of the above provisions in our Charter or Bylaws would require approval by holders of at least two-thirds of the voting power of our then-outstanding voting stock. |
• | Issuance of Undesignated Preferred Stock. Our board of directors has the authority, without further action by the stockholders, to issue up to 5,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock would enable our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest, or other means. |
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Listing
Our common stock is listed on theThe Nasdaq Capital Market under the symbol “AQB.”
This prospectus relates to the We will To our knowledge, the Selling Shareholders have not had any position with, held any office of, or had any other material relationship with us during the past three years, except as described (i) in this prospectus, including in the footnotes to the table below and under “—Letter Agreement” below, (ii) in our Annual Report on Form 10-K for the year ended December 31, 2020 filed with the SEC on March 9, 2021, which information is incorporated herein by reference, (iii) in our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 21, 2021, including the Relationship Agreement to which we and TS AquaCulture LLC are party and certain director designation rights of TS AquaCulture, described therein under “Related-Party Transactions, Policies and The following table sets forth the The Shares may be Name R.J. Kirk Declaration of Trust (2) Alana D. Kirk (2) JPK 2008, LLC (2) MGK 2008, LLC (2) ZSK 2008, LLC (2) JPK 2009, LLC (2) MGK 2009, LLC (2) ZSK 2009, LLC (2) ADC 2010, LLC (2) MGK 2011, LLC (2) JPK 2012, LLC (2) Kellie L Banks (2009) Long Term Trust (2) Sunset 2020, LLC (2) Kapital Joe, LLC (2) Lotus Capital (2000) Company, Inc. (2) Third Security Staff 2001 LLC (2) Third Security Senior Staff 2006 LLC (2) Third Security Staff 2006 LLC (2) Third Security Incentive 2006 LLC (2) Third Security Senior Staff 2007 LLC (2) Third Security Staff 2007 LLC (2) Third Security Incentive 2007 LLC (2) Third Security Senior Staff 2008 LLC (2) Third Security Staff 2009 LLC (2) Third Security Incentive 2009 LLC (2) Third Security Staff 2010 LLC (2) Third Security Incentive 2010 LLC (2) Represents beneficial ownership of less than 1% of our outstanding common stock. This table is based upon information supplied by the Selling Shareholders, which information may not be accurate as of the date hereof. We have determined beneficial ownership in accordance with the rules of the SEC. Applicable percentages for the Common Stock are based on the 71,025,738 shares of Common Stock outstanding on June 30, 2021.DESCRIPTION OF THE WARRANTSGeneralWe may issue warrants forSELLING SHAREHOLDERSpurchase of our preferred stock, common stock, or any combination thereof. Warrants may be issued independently or together with our preferred stock or common stock and may be attachedpossible resale from time to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection withtime by the warrants. The warrant agent will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. This summary of certain provisions of the warrants is not complete. For the terms of a particular series of warrants, you shouldstockholders named herein, who we refer to in this prospectus as the prospectus supplement for that series“Selling Shareholders,” of warrants and the warrant agreement for that particular series.Equity WarrantsThe prospectus supplement relatingup to a particular seriesan aggregate maximum amount of warrants to purchase18,219,824 shares of our common stock in one or preferred stockmore offerings, subject to market conditions and prices, liquidity objectives and other investment considerations.describenot receive any proceeds from the terms of the warrants, including the following:the title of the warrants;the offering price for the warrants, if any;the aggregate number of warrants;the designation and termsresale of the common stock by the Selling Shareholders. We are registering the above-referenced Shares to permit the Selling Shareholders and their pledgees, donees, transferees, or preferred stockother successors-in interest that may be purchased upon exercisereceive their shares after the date of this prospectus to resell or otherwise dispose of the warrants;if applicable,shares in the manner contemplated under “Plan of Distribution” herein. The Selling Shareholders are under no obligation to resell all or any portion of such Shares, nor are the Selling Shareholders obligated to resell any Shares immediately, under this prospectus.termsProcedures” and “Board Composition; Director Designation Rights,” which information is incorporated herein by reference and (iv) in the other documents incorporated herein by reference. This prospectus has been filed pursuant to approval from the disinterested and independent members of the securitiesAudit Committee of our Board of Directors, in compliance with whichour policies and procedures on related-party transactionswarrants are issued andinformation about the number of warrants issued with each security;if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;preferredsold by the Selling Shareholders. The percentages of shares owned are based on 71,025,738 shares of our common stock thatoutstanding as of June 30, 2021.purchased upon exercisesold by the Selling Shareholders, by those persons or entities to whom they transfer, donate, devise, pledge or distribute their Shares or by other successors in interest. The information regarding shares beneficially owned after this offering assumes the sale of a warrantall Shares offered by each of the Selling Shareholders. The Selling Shareholders are under no obligation to resell all or any portion of such Shares, nor are the Selling Shareholders obligated to resell any Shares immediately, under this prospectus. The Selling Shareholders may sell less than all of the Shares listed in the table. In addition, the Shares listed below may be sold pursuant to this prospectus or in privately negotiated transactions. Accordingly, we cannot estimate the number of Shares the Selling Shareholders will sell under this prospectus Beneficial Ownership Prior to
the Date of this Prospectus Beneficial Ownership Assuming the Sale of All
Shares registered pursuant to this Prospectus Number of
Shares Percent of Outstanding Common Stock Number of
Shares Percent of Outstanding
Common Stock 6,707,938 9.444 % — * 2,159 * — * 394,081 * — * 394,793 * — * 396,062 * — * 1,130,803 1.592 % — * 1,162,189 1.636 % — * 77,032 * — * 3,199 * — * 352,733 * — * 628,993 — * 75,004 — * 6,038,838 8.502 % — * 99,537 * — * 20 * — * 4,659 * — * 1,770 * — * 885 * — * 295 * — * 74,765 * — * 37,383 * — * 12,461 * — * 44,543 * — * 20,712 * — * 10,358 * — * 23,831 * — * 11,917 * — * * (1)
(2) | Randal J. Kirk exercises voting and dispositive control over these shares of Common Stock other than the shares owned by Alana Kirk. Further, Ms. Kirk, a member of the Company’s Board of Directors, is married to Mr. Kirk and has reported that she beneficially owns 2,159 shares of our common stock in her own name, which is less than one percent of our outstanding shares. Based on these holdings, Mr. Kirk, Third Security’s Chairman and Senior Managing Director, and Ms. Kirk have each reported control over approximately 25.7% of our outstanding shares. Mr. and Ms. Kirk each disclaim beneficial ownership of the shares owned directly by the other, and Ms. Kirk disclaims beneficial ownership of the shares deemed beneficially owned by Mr. Kirk, other than those that she owns directly. In addition, Mr. Kirk disclaims beneficial ownership of shares owned by the Selling Shareholders other than Ms. Kirk except to the extent of any pecuniary interest therein. |
Letter Agreement
We, TS Aquaculture LLC and the exercise priceSelling Shareholders are party to a Letter Agreement dated as of July 31, 2021 that requires that we file a registration statement to register the shares of Common Stock held by the Selling Shareholders and keep it effective for a period of not less than 24 months. TS Aquaculture LLC agreed to pay all expenses incurred in connection with such registration statements. We and TS Aquaculture LLC also agreed to modify the warrants;
We are registering the shares of common stock of AquaBounty, Inc., par value $0.001 per share, or the Common Stock, which we refer to herein as Shares, issued to the Selling Shareholders to permit the resale of these Shares by the holders of the Shares from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the Selling Shareholders of the Shares. The Selling Shareholders will bear all fees and expenses incident to our agreement to register the Shares.
The Selling Shareholders may sell all or a portion of the Shares beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the Shares are sold through underwriters or broker-dealers, the Selling Shareholders will be responsible for underwriting discounts or commissions or agent’s commissions. The Shares may be sold on any national securities exchange or quotation service on which the right to exercisesecurities may be listed or quoted at the warrants shall commencetime of sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and expire;
an underwritten offering;
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of securities describedthe block as principal to facilitate the transaction;
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
an exchange distribution in accordance with the rules of the applicable exchange;
privately negotiated transactions;
broker-dealers may agree with the Selling Shareholders to sell a specified number of such shares at a stipulated price per share; and
a combination of any such methods of sale.
The Selling Shareholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, as amended, or the Securities Act, as permitted by that rule, or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by the Selling Shareholders may arrange for other broker-dealers to participate in any combination. Each unitsales. If the Selling Shareholders effect such transactions by selling Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the Selling Shareholders or commissions from purchasers of the Shares for whom they may act as agent or to whom they may sell as principal. Such commissions will be issued so thatin amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the holdercase of an agency transaction will not be in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.01.
The Selling Shareholders may transfer and donate the Shares in other circumstances in which case the transferees or donees, pledgees will be the selling beneficial owners for purposes of this prospectus.
Any broker-dealer or agents participating in the distribution of the unitShares may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act in connection with such sales. In such event, any commissions paid, or any discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.
Each Selling Shareholder has informed the Company that it is alsonot a registered broker-dealer and does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the holderShares. Upon the Company being notified in writing by a Selling Shareholder that any material arrangement has been entered into with a broker-dealer for the sale of Common Stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The units may be issued under unit agreements to be entered into between us and a unit agent, as detailed in the prospectus supplement relating to the units being offered. The prospectus supplement will describe:
Under the securities laws of some U.S. states, the Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some U.S. states the Shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any prospectus supplement are summariesSelling Shareholder will sell any or all of the materialShares registered pursuant to the shelf registration statement, of which this prospectus forms a part.
Each Selling Shareholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, to the extent applicable, agreements. These descriptions do not restate those agreements in their entirety and may not contain all the information that you may find useful. We urge you to read the applicable agreements because they, and not the summaries, define your rights as holdersRegulation M of the units. For more information, please reviewExchange Act, which may limit the formstiming of purchases and sales of any of the relevant agreements, whichShares by the Selling Shareholder and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the Shares to engage in market-making activities with respect to the Shares. All of the foregoing may affect the marketability of the Shares and the ability of any person or entity to engage in market-making activities with respect to the Shares.
The Selling Shareholders will be filedpay all of the expenses incurred in connection with the SEC promptly afterregistration of the offeringShares, including, without limitation, Securities and Exchange Commission filing fees and expenses of unitscompliance with state securities or “blue sky” laws, all underwriting discounts and will be available as describedselling commissions, if any, and any legal or other expenses incurred by us or them in connection with the section titled “Where You Can Find More Information.”registration and offer and sale of the Shares.
Goodwin Procter LLP, Boston, Massachusetts, will pass upon the validity of the securities being offered by this prospectus. The financial statements of the Company, incorporated in this prospectus by reference from the Company’s Annual ReportReports on Form 10-K as of and for the yearyears ended December 31, 2017,2020 and 2019, have been audited by Wolf & Company, P.C., an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The SEC allows us to “incorporate by reference” information in this prospectus that we have filedfile with it. Thisit, which means that we can disclose important information to you by referring you to another document already on file withthose documents instead of having to repeat the SEC.information in this prospectus. The information containedincorporated by reference is an important part of this prospectus. To the extent that any statement that we make in this prospectus updates and supersedesis inconsistent with the statements made in the applicable prospectus supplement or the information incorporated by reference, herein to the extent therestatements made in this prospectus are any inconsistencies.
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 9, 2021, and our definitive proxy statement on Schedule 14A (with respect to those portions specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 31, 2020), which was filed with the SEC on April 21, 2021; |
• | our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2021 and for the quarter ended June 30, 2021, filed with the SEC on May 4, 2021 and August 4, 2021; |
• | our Current Reports on Form 8-K filed with the SEC on February 5, 2021, February 8, 2021, March 2, 2021, March 9, 2021, May 4, 2021, May 10, 2021, May 28, 2021, July 7, 2021, July 29, 2021 and August 4, 2021 (except that, with respect to each of the foregoing Current Reports, any portions thereof which are furnished and not filed shall not be deemed incorporated by reference into this prospectus supplement); and |
• | the description of our common stock contained in Exhibit 4.3 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 9, 2021 (including any further amendment or reports filed with the SEC for the purpose of updating such description). |
Pursuant to Rule 412 under the Securities Act, any statement contained in a document incorporated or portion thereof,deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent disclosurethat a statement contained in this prospectus or any other subsequently filed document that is furnished anddeemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not filed):
We will provide without charge to each person, including any beneficial owners,owner, to whom athis prospectus is delivered, upon written or oral request, of any such person, a copy of the reports andany or all documents that have beenare incorporated by reference into this prospectus, at no cost. Anybut not delivered with the prospectus, other than exhibits to such requestdocuments unless such exhibits are specifically incorporated by reference into the documents that this prospectus incorporates. You should be directed to:
We file annual, quarterly, and other reports, proxy statements, and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the SEC pursuant to Sections 13(a) or 15(d) of the Exchange Act can also be accessed free of charge through the Internet. These filings will be available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
We have filed with the SEC a registration statement on Form S-3 under the Securities Act of 1933 relating to the offering of these securities. This prospectus omits some information set forth in the registration statement in accordance with SEC rules and regulations. The registration statement, including the attached exhibits, contains additional relevant information about us and our consolidated subsidiaries and the securities. Thissecurities we are offering. Statements in this prospectus does not contain all of the information set forth in the registration statement. You can obtain a copy ofconcerning any document we filed as an exhibit to the registration statement at prescribed rates, fromor that we otherwise filed with the SEC at the address listed above. are not intended to be comprehensive and are qualified by reference to these filings.
The registration statement and the documents referred to above under “Incorporation of Certain Information by Reference” are also available on our Internet website, www.aquabounty.com. We have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of this prospectus.
18,219,824 Shares
Common Stock
Offered by the Selling Shareholders
PROSPECTUS
The date of this prospectus is August 13, 2021
PART II – II—Information Not Required in the Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated costs and expenses (other than the actual registration fee), other than underwriting discounts and commissions, payable by the registrantRegistrant in connection with the sale of the securities being registered:
Securities and Exchange Commission registration fee | $ | 12,450 | |||
Accounting fees and expenses | * | ||||
Legal fees and expenses | * | ||||
Printing and miscellaneous expenses | * | ||||
Transfer agent fees and expenses | * | ||||
Total | $ | * |
Securities and Exchange Commission registration fee | $ | 9,799.77 | ||
FINRA filing fee | * | |||
Accounting fees and expenses | * | |||
Legal fees and expenses | * | |||
Printing and miscellaneous expenses | * | |||
Transfer agent fees and expenses | * | |||
|
| |||
Total | $ | * | ||
|
|
* | To be provided by amendment or as an exhibit to a filing with the SEC under Sections 13(a), 13(c), or 15(d) of the Securities Exchange Act of 1934, as amended. |
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors, and other corporate agents.
Our Charter contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for the following:
any breach of their duty of loyalty to our company or our stockholders;
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or
any transaction from which they derived an improper personal benefit.
Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission, or claim that occurred or arose prior to that amendment or repeal. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of our directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
In addition, our Bylaws provide that we will indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or was one of our directors or officers or is or was serving at our request as a director or officer of another corporation, partnership, joint venture, trust, or other enterprise. Our Bylaws provide that we may indemnify to the fullest extent permitted by law any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or was one of our employees or agents or is or was serving at our request as an employee or agent of another corporation, partnership, joint venture, trust, or other enterprise. Our Bylaws provide that we must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to very limited exceptions.
The limitation of liability and indemnification provisions that are included in our Charter and Bylaws may discourage stockholders from bringing a lawsuit against our directors and executive officers for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against our directors and executive officers, even though an action, if successful, might benefit us and other stockholders. Further, a stockholder’s
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investment may be harmed to the extent that we pay the costs of settlement and damage awards against directors and executive officers as required by these indemnification provisions. At present, we are not aware of any pending litigation or proceeding involving any person who is or was one of our directors, officers, employees, or other agents or is or was serving at our request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, for which indemnification is sought, and we are not aware of any threatened litigation that may result in claims for indemnification.
We have obtained insurance policies under which, subject to the limitations of the policies, coverage is provided to our directors and executive officers against loss arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or executive officer, including claims relating to public securities matters, and to us with respect to payments that may be made by us to these directors and executive officers pursuant to our indemnification obligations or otherwise as a matter of law.
Any underwriting agreement filed as Exhibit 1.1 to this registration statement may provide for indemnification by the underwriters of the registrantRegistrant and its officers and directors for certain liabilities arising under the Securities Act and otherwise.
See also the undertakings set out in response to Item 17 herein.
Item 16. Exhibits
The following exhibits are filed herewith and as part of this registration statement.
EXHIBIT INDEX
Exhibit Number | Exhibit Title | |
3.1(1) | ||
3.2(2) | ||
3.3(3) | ||
3.4(4) | Certificate of Amendment of Third Amended and Restated Certificate of Incorporation of the Registrant | |
3.5(1) | Amended and Restated Bylaws of the | |
4.1(1) | ||
5.1 | ||
10.1(5) | ||
23.1 | ||
23.2 | ||
Power of |
(1) | Incorporated by reference to the exhibits to the |
(2) | Incorporated by reference to |
(3) | Incorporated by reference to |
(4) | Incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed November 19, 2020. |
(5) | Incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed August 4, 2021. |
* | Previously filed. |
Item 17. Undertakings
(a) | The undersigned Registrant hereby undertakes: |
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(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | If the |
(A) | Each prospectus filed by the |
(B) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, |
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(ii) | If the |
(5) | That, for the purpose of determining liability of the |
(i) | Any preliminary prospectus or prospectus of the undersigned |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned |
(iv) | Any other communication that is an offer in the offering made by the undersigned |
(b) | The undersigned |
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the |
(d) | The undersigned |
(1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the |
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(2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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Pursuant to the requirements of the Securities Act of 1933, as amended, the SignaturesregistrantRegistrant 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 amendment no. 1 to the registration statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Maynard, Commonwealth of Massachusetts, on the 23rd6th day of April, 2018.
AQUABOUNTY TECHNOLOGIES, INC. | ||
By: | /s/ David A. Frank | |
David A. Frank | ||
Chief |
Pursuant to the requirements of the Securities Act of 1933, as amended, this amendment no. 1 to the registration statement on Form S-3 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||
* Sylvia Wulf | President, Chief Executive Officer and Director (Principal Executive Officer) | August 13, 2021 | ||||
/s/ David A. Frank David A. Frank | Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) | August 13, 2021 | ||||
* Richard J. | Chairman of the Board, Director | August 13, 2021 | ||||
* Theodore J. Fisher | Director | August 13, 2021 | ||||
* Ricardo J. Alvarez | Director | August 13, 2021 | ||||
* Alana D. Kirk | Director | August 13, 2021 |
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* Christine St.Clare | Director | August 13, 2021 | ||
* Rick | Director | August 13, 2021 | ||
* James C. Turk Jr. | Director | August 13, 2021 | ||
* Gail Sharps Myers | Director | August 13, 2021 |
/s/ David A. Frank | |||||
David A. Frank | |||||
Attorney-in-Fact |
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