As filed with the Securities and Exchange Commission on April 29, 2022
Registration No. 333-
Delaware | | | 31-1103425 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification No.) |
Large accelerated filer ☐ | | | Accelerated filer ☐ |
Non-accelerated filer ☒ | | | Smaller reporting company ☒ |
| | Emerging growth company ☐ |
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• | our plans to develop and commercialize IRX-2 and other product candidates, including the potential benefits thereof; |
• | our ongoing and future clinical trials for IRX-2, whether conducted by us or by any future collaborators, including the timing of initiation of these trials and of the anticipated results; |
• | our expectation of the opportunities to advance oncology, blood disorders and monogenic disease therapies using gene-editing and cell therapy technology through a license with Factor Bioscience Inc and through our acquisition of Novellus, Inc. and Novellus, Ltd. in July 2021, and our ability to take advantage thereof; |
• | our expectations regarding our ability to fund our operating expenses and capital expenditure requirements with our cash, cash equivalents and investments; |
• | our estimates regarding expenses, future revenue, capital requirements and needs for additional financing; |
• | the timing of and our ability to obtain and maintain marketing approvals for our product candidates; |
• | the rate and degree of market acceptance and clinical utility of any products for which we receive marketing approval; |
• | our commercialization, marketing and manufacturing capabilities and strategy; |
• | our intellectual property position and strategy; |
• | our ability to identify additional product candidates with significant commercial potential; |
• | our plans to enter into collaborations for the development and commercialization of product candidates; |
• | potential benefits of any future collaboration; |
• | developments relating to our competitors and our industry; |
• | the impact of government laws and regulations; |
• | the impact the coronavirus pandemic will have on the timing of our clinical development and operations; |
• | our ability to continue as a going concern; |
• | our ability to maintain our listing on The Nasdaq Global Market. |
• | the corporation has elected in its certificate of incorporation not to be governed by Section 203; |
• | the business combination or the transaction which resulted in the stockholder becoming an interested stockholder was approved by the board of directors of the corporation before the date of the business combination or the date such stockholder became an interested stockholder, as applicable; |
• | upon consummation of the transaction that made such stockholder an interested stockholder, the interested stockholder owned at least 85% of the “voting stock” (as defined in Section 203) of the corporation outstanding at the commencement of the transaction excluding voting stock owned by directors who are also officers or held in employee benefit plans in which the employees do not have a confidential right to tender stock held by the plan in a tender or exchange offer; or |
• | the business combination is approved by the board of directors and by the stockholders (acting at a meeting and not by written consent) by the affirmative vote of at least 66-2/3% of the outstanding voting stock which is not “owned” (as defined in Section 203) by the interested stockholder. |
Name and Selling Stockholder | | | Number of shares of Common Stock Owned Prior to Offering | | | Maximum Number of shares of Common Stock to be Sold Pursuant to this Prospectus | | | Number of shares of Common Stock Owned After Offering |
Armistice Capital Master Fund Ltd.(1) | | | 13,714,284 | | | 13,714,284 | | | — |
(1) | The amount includes (i) 5,500,000 shares of our common stock, (ii) 1,357,142 shares of our common stock issuable upon exercise of the Pre-Funded Warrants, and (iii) 6,857,142 shares of our common stock issuable upon the exercise of the Common Warrants, all of which are directly held by Armistice Capital Master Fund Ltd. (the “Master Fund”), a Cayman Islands exempted company, and may be deemed to be indirectly beneficially owned by Armistice Capital, LLC (“Armistice”), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. Armistice and Steven Boyd disclaim beneficial ownership of the reported securities except to the extent of their respective pecuniary interest therein. The Pre-Funded Warrants and Common Warrants are each subject to certain beneficial ownership limitations that prohibit the Master Fund from exercising any portion of them if, following such exercise, the Master Fund’s ownership of our common stock would exceed the relevant warrant’s ownership limitation. The address of the Master Fund is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022. |
• | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
• | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the 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; |
• | settlement of short sales; |
• | in transactions through broker-dealers that agree with the Selling Stockholder to sell a specified number of such securities at a stipulated price per security; |
• | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
• | a combination of any such methods of sale; or |
• | any other method permitted pursuant to applicable law. |
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on April 15, 2022; |
• | our Definitive Proxy Statement on Schedule 14A and Definitive Additional Proxy Soliciting Materials on Schedule A14A filed in connection with our 2022 Meeting of Stockholders; |
• | our Current Reports on Form 8-K, filed with the SEC on January 5, 2022, January 20, 2022, January 24, 2022, March 9, 2022 and April 19, 2022; and |
• | the Company’s Registration Statement on Form 8-A filed with the SEC on October 22, 2021, in which there is described the terms, rights and provisions applicable to the shares of the Company’s common stock, including any amendment or report filed for the purpose of updating such description, including the description of the common stock filed as Exhibit 4.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed on April 15, 2022. |
Item 14. | Other Expenses of Issuance and Distribution. |
Securities and Exchange Commission registration fee | | | $1,474.78 |
Accounting fees and expenses | | | $15,000 |
Legal fees and expenses | | | $40,000 |
Miscellaneous fees and expenses | | | $2,500 |
Total | | | $58,974.78 |
Item 15. | Indemnification of Directors and Officers. |
Item 16. | Exhibits and Financial Statements. |
Exhibit No. | | | Description |
2.1+ | | | Agreement and Plan of Merger and Reorganization, dated August 12, 2020, by and among NTN Buzztime, Inc., BIT Merger Sub, Inc. and Brooklyn ImmunoTherapeutics LLC (incorporated by reference to Exhibit 2.1 to the Company’s proxy statement/prospectus on Form S-4/A, filed with the SEC on January 20, 2021). |
2.2+ | | | Agreement and Plan of Acquisition, dated as of July 16, 2021, by and among Brooklyn ImmunoTherapeutics, Inc., Brooklyn Acquisition Sub, Inc., Novellus LLC, Novellus, Inc., and the Sellers’ Representative (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on July 19, 2021). |
| | Securities Purchase Agreement, dated as of March 6, 2022, by and between Brooklyn ImmunoTherapeutics, Inc. and the purchaser party thereto (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on March 9, 2022). | |
| | Registration Rights Agreement, dated as of March 6, 2022, by and between Brooklyn ImmunoTherapeutics, Inc. and the purchaser party thereto (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K, filed on March 9, 2022). | |
| | Form of Pre-Funded Warrant (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on March 9, 2022). | |
| | Form of Common Stock Warrant (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed on March 9, 2022). | |
| | Opinion of Greenberg Traurig, LLP. | |
| | Consent of Marcum LLP | |
| | Consent of Greenberg Traurig, LLP (Included in Exhibit 5.1). | |
| | Power of Attorney (included in the signature page to the Registration Statement). | |
| | Fee Table |
+ | Pursuant to Item 601(b)(2) of Regulation S-K, portions of this exhibit have been omitted because the Company customarily and actually treats the omitted portions as private or confidential, and such portions are not material and would likely cause competitive harm to the Company if publicly disclosed. The Company will supplementally provide a copy of an unredacted copy of this exhibit to the U.S. Securities and Exchange Commission or its staff upon request. |
Item 17. | Undertakings. |
(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, as amended; |
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. |
(2) | That, for the purpose of determining any liability under the Securities Act, 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: |
(A) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(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 being 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, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such |
i. | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
ii. | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
iii. | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
iv. | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement 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. |
(7) | Insofar as indemnification for liabilities arising under the Securities may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
| | BROOKLYN IMMUNOTHERAPEUTICS, INC. | |||||||
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| | By: | | | /s/ Howard J. Federoff | ||||
| | | | Name: | | | Howard J. Federoff | ||
| | | | Title: | | | Chief Executive Officer and President (Principal Executive Officer) |
Name | | | Title | | | Date |
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/s/ Howard J. Federoff | | | Chief Executive Officer, President and Member of the Board (Principal Executive Officer) | | | April 29, 2022 |
Howard J. Federoff | | |||||
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/s/ Sandra Gurrola | | | Vice President of Finance (Principal Financial and Accounting Officer) | | | April 29, 2022 |
Sandra Gurrola | | |||||
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/s/ Charles Cherington | | | Chairman of the Board | | | April 29, 2022 |
Charles Cherington | | |||||
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/s/ Dennis H. Langer | | | Director | | | April 29, 2022 |
Dennis H. Langer | | |||||
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/s/ Erich Mohr | | | Director | | | April 29, 2022 |
Erich Mohr | | |||||
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/s/ Heather B. Redman | | | Director | | | April 29, 2022 |
Heather B. Redman | | |||||
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/s/ Erin S. Enright | | | Director | | | April 29, 2022 |
Erin S. Enright | |
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