As filed with the Securities and Exchange Commission on September 2, 2020

Registration Statement No. 333-               

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 

FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 

Aditx Therapeutics, Inc.
(Exact name of registrant as specified in its charter)

 

Delaware   2834   82-3204328
(State or other jurisdiction of   (Primary Standard Industrial   (I.R.S. Employer
incorporation or organization)   Classification Code Number)   Identification Number)

 

Aditx Therapeutics, Inc.

11161 Anderson Street

Suite 105-10014

Loma Linda, CA 92354

(909) 488-0844
(Address and telephone number of registrant’s principal executive offices)

 

Amro Albanna

Aditx Therapeutics, Inc.

Chief Executive Officer

11161 Anderson Street

Suite 105-10014

Loma Linda, CA 92354

(909) 488-0844
(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:
 

Richard A. Friedman

Alexander T. Yarbrough
Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller Plaza
New York, NY 10112-0015
Telephone: (212) 653-8700

Facsimile: (212) 653-8701

 

Ralph V. De Martino

Cavas S. Pavri

Schiff Hardin LLP

901 K Street NW, Suite 700

Washington, DC 20001

Telephone: (202) 778-6400

Facsimile: (202) 778-6460

 

Approximate date of commencement of proposed sale to the public:

 

As soon as practicable after the effective date of this registration statement becomes effective.

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box:  ☒

 

If this Form is filed to register additional securities for a registration statement 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 registration statement.  ☒ File No. 333-248491

 

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 registration statement.  ☐

 

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

 

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 to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of each Class of Securities to be Registered  Maximum Aggregate Offering
Price(1) (2)
   Amount of Registration Fee 
Common stock, par value $0.001 per share  $1,840,000   $238.83 
Warrants to purchase common stock, par value $0.001 per share (3)          
Shares of common stock issuable upon exercise of the Series A-1 Warrants  $1,840,000   $238.83 
Shares of common stock issuable upon exercise of the Series B-1 Warrants  $1,840,000   $238.83 
Series A Convertible Preferred Stock, par value $0.001 per share (5)          
Shares of common stock underlying the Series A Convertible Preferred Stock          
Underwriter’s warrants (3)          
Common Stock underlying underwriter’s warrants (4)  $40,000   $5.19 
           
Total  $5,560,000   $721.68 

 

(1) Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended.
   
(2) Pursuant to Rule 416, the securities being registered hereunder include such indeterminate number of additional securities as may be issuable to prevent dilution resulting from stock splits, stock dividends or similar transactions.
   
(3) No separate registration fee is required pursuant to Rule 457(g) under the Securities Act.
   
(4) Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(g) under the Securities Act. We have calculated the proposed maximum aggregate offering price of the common stock underlying the underwriter’s warrants by assuming that such warrants are exercisable at a price per share equal to 125% of the public offering price of the common stock in the units sold in this offering.
   
(5) The maximum aggregate offering price of the common stock proposed to be sold in the offering will be reduced on a dollar-for-dollar basis based on the offering price of any Series A Convertible Preferred Stock offered and sold in the offering.

 

This Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) of the Securities Act.

 

 

 

 

 

 

EXPLANATORY NOTE AND INCORPORATION OF

CERTAIN INFORMATION BY REFERENCE

 

This Registration Statement (the “Registration Statement”) is being filed with the Securities and Exchange Commission (the “Commission”) with respect to the registration of additional units of securities (the “Units”), as well the securities underlying such Units, of Aditx Therapeutics, Inc. (the “Registrant”), pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”). This Registration Statement incorporates by reference the contents of, including any amendments and exhibits thereto, the Registration Statement on Form S-1 (File No. 333-248491) (the “Prior Registration Statement”), which the Commission declared effective on September 1, 2020. This Registration Statement is being filed solely for the purpose of (i) increasing the shares of common stock, par value $0.001 per share (“Common Stock”), underlying the Units to be offered in the public offering by $1,840,000, which includes shares of Common Stock that may be sold pursuant to the underwriters’ option to purchase additional shares of Common Stock; (ii) increasing the number of Series A-1 warrants (the “Series A-1 Warrants”) to purchase shares of our Common Stock underlying the Units to be offered in the public offering by $1,840,000, which includes Series A-1 Warrants that may be sold pursuant to the underwriters’ option to purchase additional Series A-1 Warrants; (iii) increasing the number of Series B-1 warrants (the “Series B-1 Warrants”) to purchase shares of our Common Stock underlying the Units to be offered in the public offering by $1,840,000, which includes Series B-1 Warrants that may be sold pursuant to the underwriters’ option to purchase Series B-1 Warrants; and (iv) increasing the number of Common Stock underlying Underwriters’ warrants to purchase shares of our Common Stock by $40,000.

 

The additional Securities that are being registered for sale are in an amount and at a price that together represent no more than 20% of the maximum aggregate offering price set forth in the Calculation of Registration Fee table contained in the Prior Registration Statement.

 

The required opinion and consents are listed on the Exhibit Index attached hereto and filed herewith.

 

 

 

 

EXHIBIT INDEX

 

Number

 

Description

   
5.1   Opinion of Sheppard, Mullin, Richter & Hampton LLP
   
23.1   Consent of dbbmckennon
   
23.2   Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.1)
   
24.1*   Power of Attorney

 

 

* Previously filed on the signature page to the Registrant’s Registration Statement on Form S-1 (File No. 333-248491), originally filed with the Securities and Exchange Commission on August 28, 2020 and incorporated by reference herein.

 

1

 

 


SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Loma Linda, State of California, on the 2nd day of September, 2020.

 

  Aditx Therapeutics, Inc.
   
  By: /s/ Amro Albanna 
    Name: Amro Albanna 
    Title:   Chief Executive Officer

   

Pursuant to the requirements of the Securities Act of 1933, the following persons in the capacities and on the dates indicated have signed this Registration Statement below.

 

Signature   Title   Date
         
/s/ Amro Albanna    Chief Executive Officer, President and Director   September 2, 2020
Amro Albanna   (Principal Executive Officer)    
         
*   Chief Financial Officer   September 2, 2020
Corinne Pankovcin   (Principal Financial and Accounting Officer)    
         
*   Director   September 2, 2020
Laura E. Anthony        
         
*   Director   September 2, 2020
Brian Brady        
         
*   Director   September 2, 2020
Namvar Kiaie        
         
*   Director   September 2, 2020
Jeffrey W. Runge, M.D.        
         
*   Chief Innovation Officer and Director   September 2, 2020
Shahrokh Shabahang        

 

* By:  /s/ Amro Albanna  
  Amro Albanna, Attorney-in-fact  

 

2

 

 

Exhibit 5.1

 

Sheppard, Mullin, Richter & Hampton LLP

30 Rockefeller Plaza 

New York, New York 10112-0015

212.653.8700 main 

212.653.8701 fax

www.sheppardmullin.com 

 

September 1, 2020

 

Aditx Therapeutics, Inc. 

11161 Anderson Street

Suite 105-10014

Loma Linda, CA 92354

 

  Re: Registration Statement on Form S-1

 

Ladies and Gentlemen:

 

This opinion is furnished to you in connection with a Registration Statement on Form S-1 (the “Registration Statement”), filed by Aditx Therapeutics, Inc., a Delaware corporation (the “Company”), with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the proposed offering (the “Offering”) of (A) $11,040,000 of units (the “Units”) of securities of the Company, with each Unit consisting of (a) one share of common stock, par value $0.001 per share, of the Company (“Common Stock”) (or, to each purchaser whose purchase of shares of Common Stock in such offering would otherwise result in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% of the Company’s outstanding Common Stock immediately following the consummation of such offering, a share of the Company’s Series A Preferred Stock (the “Preferred Stock”), in lieu of a share of Common Stock), (b) one Series A-1 warrant to purchase one share of Common Stock (the “Series A-1 Warrants”), and (c) one Series B-1 warrant to purchase one share of Common Stock (the “Series B-1 Warrants,” and collectively, with the Series A-1 Warrants, the “Warrants”)); and (B) $240,000 of underwriters’ warrants to purchase shares of Common Stock (and the shares of Common Stock that are issuable from time to time upon exercise of the Underwriters’ Warrants) (the “Underwriters’ Warrants”). Each share of Preferred Stock will be convertible into one share of Common Stock. The Common Stock, Preferred Stock, Warrants and Underwriters’ Warrants are referred to herein collectively as the “Securities.”

 

We are acting as special counsel for the Company in connection with the Registration Statement. We have examined the Registration Statement, including the exhibits filed therewith, and have also examined and relied upon minutes of meetings and resolutions of the board of directors of the Company (the “Board”) as provided to us by the Company, the certificate of incorporation and bylaws of the Company, each as restated and/or amended to date, and such other documents as we have deemed necessary for purposes of rendering the opinion hereinafter set forth.

 

In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents and the legal competence of all signatories to such documents. Other than our examination of the documents indicated above, we have made no other examination in connection with this opinion.

 

We express no opinion as to matters governed by any laws other than the Delaware General Corporation Law. No opinion is expressed herein with respect to the qualification of the Securities under the securities or blue sky laws of any state or any foreign jurisdiction.

 

-1-

 

 

Our opinions set forth below with respect to the validity or binding effect of any security or obligation may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, marshaling, moratorium or other similar laws affecting the enforcement generally of the rights and remedies of creditors and secured parties or the obligations of debtors, (ii) general principles of equity (whether considered in a proceeding in equity or at law), including but not limited to principles limiting the availability of specific performance or injunctive relief, and concepts of materiality, reasonableness, good faith and fair dealing, (iii) the possible unenforceability under certain circumstances of provisions providing for indemnification, contribution, exculpation, release or waiver that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, and (iv) the effect of course of dealing, course of performance, oral agreements or the like that would modify the terms of an agreement or the respective rights or obligations of the parties under an agreement.

 

Based upon and subject to the foregoing, we are of the opinion that:

 

I. the Securities have been duly authorized for issuance by all necessary corporate action by the Company;

 

II. the shares of Common Stock, when issued and sold as described in the Registration Statement, will be validly issued, fully paid and non-assessable;

 

III. the shares of Preferred Stock, if purchased in lieu of Common Stock, when issued and sold as described in the Registration Statement, will be validly issued, fully paid and non-assessable;

 

IV. provided that the Warrants and Underwriters’ Warrants have been duly executed and delivered by the Company and duly delivered to the purchasers or underwriters, such Warrants and Underwriters’ Warrants, when issued as contemplated in the Registration Statement, will be valid and binding obligations of the Company; and

 

V. the shares of Common Stock issuable pursuant to each of the Series A-1 Warrants, Series B-1 Warrants and Underwriter’s Warrants, upon payment to the Company of the required consideration, and when issued and sold by the Company and paid for in accordance with the terms of the Series A-1 Warrants, Series B-1 Warrants, or Underwriters’ Warrants, as applicable, and as described in the Registration Statement, will be validly issued, fully paid and non-assessable.

 

The opinion set forth herein is rendered as of the date hereof, and we assume no obligation to update such opinion to reflect any facts or circumstances which may hereafter come to our attention or any changes in the law which may hereafter occur (which may have retroactive effect).

 

We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

  Respectfully submitted,
   
  /s/ Sheppard, Mullin, Richter & Hampton LLP
  Sheppard, Mullin, Richter & Hampton LLP

 

-2-

 

 

Exhibit 23.1

  

Consent of Independent Registered Public Accounting Firm

 

We consent to the use, in this Registration Statement on Form S-1, of our report dated February 19, 2020, except for the effects of the reverse stock split discussed in Note 5 to the financial statements, as to which the date is June 22, 2020, related to the financial statements of Aditx Therapeutics, Inc. (the “Company”) as of December 31, 2019 and 2018, and for the years then ended, which includes an explanatory paragraph regarding the substantial doubt about the Company’s ability to continue as a going concern. We also consent to the reference to us in the “Experts” section of this Registration Statement.

 

/s/ dbbmckennon

 

Newport Beach, California

September 1, 2020