As filed with the Securities and Exchange Commission on
December 23, 2016
Registration No. 333-214602
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM
S-3/A
(Amendment
No. 1)
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRIDGELINE DIGITAL,
INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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52-2263942
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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80 Blanchard Road
Burlington, MA 01803
(781) 376-5555
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant’s Principal Executive
Offices)
Michael D. Prinn
Chief Financial Officer
Bridgeline Digital, Inc.
80 Blanchard Road
Burlington, MA 01803
(781) 376-5555
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copies to
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group, a Professional Corporation
600 West Broadway, Suite 700
San Diego, CA 92101
(619) 272-7050
Approximate date of
commencement of proposed sale to the public: From time to time after this registration
statement becomes effective, as determined by market conditions and
other factors.
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, 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, or a smaller
reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer
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☐
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Smaller reporting company
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☒
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to
be registered
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Amount to be Registered(1)
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Proposed Maximum Aggregate Offering Price Per Unit(2)
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Proposed Maximum Aggregate
Offering Price
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Amount of Registration
Fee
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Common Stock, par value $0.001 per
share (3)
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5,695,165
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$0.66
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$3,758,808.90
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$435.65
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(4)
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(1)
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In
accordance with Rule 416 under the Securities Act of 1933, as
amended (the “Securities
Act”), the common stock offered hereby shall also be
deemed to cover additional securities to be offered or issued to
prevent dilution resulting from stock splits, stock dividends or
similar transactions.
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(2)
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Estimated
solely for the purpose of determining the registration fee in
accordance with Rule 457(c) under the Securities Act based upon the
average of the high and low sales prices of the registrant’s
common stock as reported on the NASDAQ Capital Market on
December 19, 2016.
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(3)
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Represents
(i) 4,775,010 outstanding shares of common stock that
have been issued to certain selling stockholders and (ii)
920,155 shares of common stock that may be issued to
certain selling stockholders upon the exercise of outstanding
warrants.
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(4)
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$15.59 previously paid
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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 accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said section 8(a),
may determine.
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The information in this preliminary prospectus is not complete and
may be changed. The selling stockholders may not resell these
securities until the registration statement filed with the
Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities, nor is it a
solicitation of offers to buy these securities, in any state where
the offer or sale is not permitted.
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Subject to completion, dated
December 23, 2016
PRELIMINARY PROSPECTUS
5,695,165 Shares
COMMON STOCK
This prospectus relates to the possible resale of
up to 5,695,165 shares of our common stock, $0.001 par
value per share, which includes up to 920,155 shares
that may be issued upon the exercise of warrants, by the selling
stockholders identified in this prospectus or in supplements to
this prospectus. The shares and the warrants were issued to the
selling stockholders in connection with previously disclosed
private placement transactions, including the placement of common
stock and warrants disclosed on November 4, 2016. We are
registering the shares to provide the selling stockholders with
freely tradable securities. This prospectus does not necessarily
mean that the selling stockholders will offer or sell those shares.
Up to 4,824,330 shares may be sold from time to time
after the effectiveness of the registration statement, of which
this prospectus forms a part, and up to 870,835 shares may be sold
from time to time after May 9, 2017, which is the date certain
warrants become exercisable. See “Description of Private
Placements” under
“Prospectus
Summary” on page 1 below
for more information.
We will receive no proceeds from any sale by the
selling stockholders of the shares of our common stock covered by
this prospectus, but we have agreed to pay certain expenses
relating to the registration of such shares. The selling
stockholders may from time to time offer and resell, transfer or
otherwise dispose of any or all of the shares of our common stock
covered by this prospectus through underwriters or dealers,
directly to purchasers or through broker-dealers or agents. See
“Plan
of Distribution” on page
8 below for more information.
Our
common stock trades on the NASDAQ Capital Market under the symbol
“BLIN.” On December 22, 2016, the closing
price for our common stock, as reported on the NASDAQ Capital
Market, was $0.66 per share.
Investing in our securities involves certain risks. See
“Risk
Factors” on page 2 of
this prospectus and in any applicable prospectus supplement for
certain risks you should consider. You should read the entire
prospectus carefully before you make your investment
decision.
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
[ ],
2016
BRIDGELINE DIGITAL, INC.
TABLE OF CONTENTS
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PAGE
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1
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2
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9
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9
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9
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10
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_____________________________
This prospectus is part of a registration
statement on Form S-3 that we filed with the United States
Securities and Exchange Commission (the “SEC”). Under this registration statement, the
selling stockholders may offer and resell up to
5,695,165 shares of our common stock, which includes
920,155 shares that may be issued upon the exercise of
warrants, in one or more offerings. The exhibits to the
registration statement contain the full text of certain contracts
and other important documents we have summarized in this
prospectus. Since these summaries may not contain all the
information that you may find important in deciding whether to
purchase our common stock, you should review the full text of these
documents. The registration statement and the exhibits can be
obtained from the SEC as indicated under the sections entitled
“Incorporation of Certain
Information by Reference”
and “Where You Can Find More
Information.”
You
should rely only on the information provided or incorporated by
reference in this prospectus or any applicable prospectus
supplement. Neither we nor the selling stockholders have authorized
anyone to provide you with different or additional information.
Neither we nor the selling stockholders are making an offer to sell
our common stock in any jurisdiction where the offer or sale
thereof is not permitted. You should not assume that the
information appearing in this prospectus or any applicable
prospectus supplement or the documents incorporated by reference
herein or therein is accurate as of any date other than their
respective dates. Our business, financial condition, results of
operations and prospects may have changed since those dates. You
should read carefully the entirety of this prospectus and any
applicable prospectus supplement, as well as the documents
incorporated by reference in this prospectus and any applicable
prospectus supplement, before making an investment
decision.
In
this prospectus, unless otherwise specified or the context requires
otherwise, we use the terms “company,” “we,” “us” and “our” to refer to Bridgeline
Digital, Inc., a Delaware corporation.
PROSPECTUS SUMMARY
Our Company
Bridgeline
Digital, The Digital Engagement Company™, enables its
customers to maximize the performance of their –mission
critical websites, intranets and online stores. Our iAPPS®
platform deeply integrates Web Content Management, eCommerce,
eMarketing, Social Media management, and Web Analytics to help
marketers deliver online experiences that attract, engage and
convert their customers across all digital channels. Our iAPPS
platform combined with its digital services assists customers in
maximizing on-line revenue, improving customer service and loyalty,
enhancing employee knowledge, and reducing operational
costs. The iAPPSds (distributed subscription) product is a
platform that empowers franchise and large dealer networks with
state-of-the-art web engagement management while providing superior
oversight of corporate branding. iAPPSds deeply integrates content
management, eCommerce, eMarketing and web analytics and is a
self-service web platform that is offered to each authorized
franchise or dealer for a monthly subscription fee. Our iAPPSdsr
platform, released in 2015, targets the growing multi-unit
organizations with 10-500 locations providing them with powerful
web engagement tools while maintaining corporate brand control and
consistency.
The iAPPS Platform is an award-winning application
recognized around the globe. Our teams of Microsoft Gold©
certified developers have won over 100 industry related awards. In
2016, CIO Review
selected iAPPS as one of the 20 Most Promising Digital Marketing
Solution Providers. This followed accolades from the SIIA (Software and Information Industry
Association) which recognized iAPPS Content Manager with the 2015
SIIA CODiE Award for Best Web Content Management Platform. Also in
2015, EContent magazine named iAPPS Digital Engagement
Platform to its Trendsetting Products list. The list of 75 products
and platforms was compiled by EContent’s editorial staff, and
selections were based on each offering’s uniqueness and
importance to digital publishing, media, and marketing. Bridgeline
was also recognized in 2015 as a strong performer by Forrester
Research, Inc. in its independence report, “The Forrester
Wave ™: Through-Channel Marketing Automation Platforms, Q3
2015.” In recent years, iAPPS Content Manager and iAPPS
Commerce products were selected as finalists for the 2014, 2013,
and 2012 CODiE Awards for Best Content Management Solution and Best
Electronic Commerce Solution, globally. In 2015, the SIIA (Software
and Information Industry Association) awarded iAPPS Content Manager
the 2015 SIIA CODiE Award for Best Web Content Management Platform.
In 2014 and 2013, Bridgeline Digital won twenty-five Horizon
Interactive Awards for outstanding development of web applications
and websites. Also in 2013, the Web Marketing Association sponsored
Internet Advertising Competition honored Bridgeline Digital with
three awards for iAPPS customer websites and B2B Magazine selected
Bridgeline Digital as one of the Top Interactive Technology
companies in the United States. KMWorld Magazine Editors
selected Bridgeline Digital as one of the 100 Companies That Matter
in Knowledge Management and also selected iAPPS as a Trend Setting
Product in 2013.
The iAPPS platform is delivered through a
cloud-based SaaS (“Software as a
Service”) multi-tenant
business model, whose flexible architecture provides customers with
state of the art deployment providing maintenance, daily technical
operation and support; or via a traditional perpetual licensing
business model, in which the iAPPS software resides on a dedicated
server in either the customer’s facility or
Bridgeline’s co-managed hosting facility.
Bridgeline Digital was incorporated under the laws
of the State of Delaware on August 28, 2000. Our principal place of
business is 80 Blanchard Road, Burlington, MA 01803. Our telephone
number is (781) 376-5555. Our corporate website address is
http://www.bridgelinedigital.com. No portion of our website is
incorporated by reference into this prospectus. Our common stock,
par value $0.001 per share, is currently listed for quotation on
the NASDAQ Capital Market under the symbol
“BLIN.”
Description of Private Placements
November Private Placement
On November 3, 2016, we entered into Securities
Purchase Agreements (“Purchase
Agreements”) with certain
institutional and accredited investors (the
“Purchasers”) to sell an aggregate total of 1,741,670
shares of our common stock for $0.48 per share (the
“Purchaser Shares”) (the “November Private
Placement”). As additional consideration,
we issued to the Purchasers warrants to purchase an aggregate total
of 870,835 shares common stock (the “Purchaser Warrant
Shares”). Each Purchaser
Warrant expires five and one-half years from the date of issuance
and is exercisable for $0.70 per share beginning six-months from
the date of issuance, or May 9, 2017.
The Company and the Purchasers also entered into a
Registration Rights Agreement (the “Registration Rights
Agreement”), wherein the
Company agreed to file a registration statement to register the
Purchaser Shares and Purchaser Warrant Shares under the Securities
Act of 1933, as amended (the “Securities
Act”). The registration
statement, of which this prospectus forms a part, was filed with
the SEC to satisfy our obligations under the Registration Rights
Agreement.
Piggyback Registration Rights
Prior to the November Private Placement, we
completed several private placements of our securities, including
equity and debt issuances. As a part of these transactions, we
offered certain investors piggyback registration rights such that,
in the event we filed a registration statement to register our
securities under the Securities Act, the shares of common stock
issued or issuable to those investors would be eligible to also be
registered under the Securities Act. Accordingly, in addition to
the Purchaser Shares, a total of 5,695,165 shares are
included in the registration statement, of which this prospectus
forms a part, pursuant to these previously granted piggyback
registration rights. These shares include: (i)
3,033,341 shares of common stock issued on or about
July 15, 2016 and upon conversion of certain Subordinated
Convertible Promissory Notes, issued on or about May 11, 2016 (the
“Piggyback
Shares”) and (ii)
49,320 shares issuable upon exercise of warrants (the
“Piggyback
Warrants”) issued on or
about June 19, 2013 (the “Piggyback Warrant
Shares”).
We
completed the November Private Placement, as well as the issuances
of the Piggyback Shares and the Piggyback Warrants in reliance on
an exemption to registration afforded by Section 4(a)(2) of the
Securities Act and rules promulgated thereunder, including
Regulation D. Each of the selling stockholders has
represented that they qualify as an “accredited
investor” as defined in Rule 501(a) under the Securities
Act.
THE OFFERING
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Securities
Offered by the Selling Stockholders
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Up to
5,695,165 shares of common stock
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Common
Stock Outstanding
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20,783,747
shares (1)
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Terms
of the Offering
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The
selling stockholders may from time to time offer and resell,
transfer or otherwise dispose of any or all of the shares of our
common stock covered by this prospectus through underwriters or
dealers, directly to purchasers or through broker-dealers or
agents. See “Plan of
Distribution” on page 8 below for more
information.
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Use of
Proceeds
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We will
not receive any of the proceeds from the sale of the shares of
common stock being offered under this prospectus. We may
receive proceeds from the exercise of the Purchaser Warrants or the
Piggyback Warrants, and any such proceeds will be used primarily
for working capital and general corporate purposes. See
“Use of
Proceeds” on page 8 below for more
information.
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NASDAQ
Capital Market Symbol
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BLIN
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Risk
Factors
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You
should read the “Risk
Factors” section of this prospectus for a discussion
of factors to consider carefully before deciding to invest in
shares of our common stock.
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(1)
Based
upon the total number of issued and outstanding shares as of
December 19, 2016. Excludes the
920,155 shares of our common stock that may be issued
as Purchaser Warrant Shares and/or Piggyback Warrant Shares to the
selling stockholders.
RISK FACTORS
We
face a variety of significant and diverse risks, many of which are
inherent in our business. You should carefully consider the risks
described under the caption “Risk
Factors” in our most
recent Annual Report on Form 10-K, subsequent Quarterly Reports on
Form 10-Q and other filings we make with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange
Act”), incorporated by
reference herein, before making an investment decision. The
occurrence of any of those risks could materially and adversely
affect our business, prospects, financial condition, results of
operations, or cash flow. Other risks and uncertainties that we do
not now consider material or of which we are not now aware may
become important factors that affect us in the future. You
should carefully consider the risks and uncertainties described in
the documents incorporated by reference herein before deciding to
invest in our common stock.
DESCRIPTION OF COMMON
STOCK
The following summary description sets forth some
of the general terms and provisions of our common stock. Because
this is a summary description, it does not contain all of the
information that may be important to you. For a more detailed
description of our common stock, you should refer to the applicable
provisions of the General Corporation Law of the State of Delaware
(the “DGCL”) and our charter and bylaws as in effect
at the time of any offering. Copies of our Restated
Certificate of Incorporation, as amended, and our Amended and
Restated Bylaws are included as exhibits to the registration
statement of which this prospectus forms a
part.
General
Under our Amended and Restated Certificate of
Incorporation, as amended (our “Certificate of
Incorporation”), we are
authorized to issue 50,000,000 shares of our common stock, par
value $0.001 per share, and 1,000,000 shares of preferred stock,
par value $0.001 per share. As of December 19, 2016,
there were 20,783,747 shares of our common stock
issued and outstanding and 222,822 shares of our
preferred stock issued and
outstanding.
Voting
Rights. The holders of
common stock are entitled to one vote per share on all matters. The
common stock does not have cumulative voting rights, which means
that holders of the shares of common stock with a majority of the
votes to be cast for the election of directors can elect all
directors then being elected.
Dividends. Each share of common stock has an equal and
ratable right to receive dividends to be paid from our assets
legally available therefore when, as and if declared by our Board
of Directors. We do not anticipate paying cash dividends on the
common stock in the foreseeable future.
Liquidation. In
the event we dissolve, liquidate or wind up, the holders of common
stock are entitled to share equally and ratably in the assets
available for distribution after payments are made to our creditors
and to the holders of any
outstanding preferred stock we may designate and issue in the
future with liquidation preferences greater than those of the
common stock.
Other. The holders of shares of our common stock
have no preemptive, subscription or redemption rights and are not
liable for further call or assessment. All of the outstanding
shares of common stock are, and the shares of
common stock offered hereby will be, fully paid and
nonassessable.
Anti-Takeover Provisions of Delaware Law and Our Governing
Documents
Delaware Law
We are subject to Section 203 of the DGCL
(“Section 203”). In general, Section 203 prohibits a
publicly held Delaware corporation from engaging in “business
combination” transactions with any “interested
stockholder” for a period of three years following the time
that the stockholder became an interested stockholder,
unless:
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prior
to the time the stockholder became an interested stockholder,
either the applicable business combination or the transaction which
resulted in the stockholder becoming an interested stockholder is
approved by the corporation’s board of
directors;
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upon
consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for
purposes of determining the voting stock outstanding (but not the
voting stock owned by the interested stockholder) shares owned by
directors who are also officers of the corporation and shares owned
by employee stock plans in which the employee participants do not
have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer;
or
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at or
subsequent to the time that the stockholder became an interested
stockholder, the business combination is approved by the
corporation’s board of directors and authorized at an annual
or special meeting of stockholders by the affirmative vote of at
least 66 2⁄3%
of the outstanding voting stock which is not owned by the
interested stockholder.
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A
“business combination” is defined to include, in
general and subject to exceptions, a merger of the corporation with
the interested stockholder; a sale of 10% or more of the market
value of the corporation’s consolidated assets to the
interested stockholder; certain transactions that result in the
issuance of the corporation’s stock to the interested
stockholder; a transaction that has the effect of increasing the
proportionate share of the corporation’s stock owned by the
interested stockholder; and any receipt by the interested
stockholder of loans, guarantees or other financial benefits
provided by the corporation. An “interested
stockholder” is defined to include, in general and subject to
exceptions, a person that (1) owns 15% or more of the outstanding
voting stock of the corporation or (2) is an
“affiliate” or “associate” (as defined in
Section 203) of the corporation and was the owner of 15% or more of
the corporation’s outstanding voting stock at any time within
the prior three year period.
A
Delaware corporation may opt out of Section 203 with an express
provision in its original certificate of incorporation or by an
amendment to its certificate of incorporation or bylaws expressly
electing not to be governed by Section 203 and approved by a
majority of its outstanding voting shares. We have not opted out of
Section 203. As a result, Section 203 could delay, deter or prevent
a merger, change of control or other takeover of our company that
our stockholders might consider to be in their best interests,
including transactions that might result in a premium being paid
over the market price of our common stock, and may also limit the
price that investors are willing to pay in the future for our
common stock.
Undesignated Preferred Stock
The
ability to authorize undesignated preferred stock makes it possible
for our Board of Directors to issue one or more series of preferred
stock with voting or other rights or preferences. These and other
provisions may have the effect of deferring hostile takeovers or
delaying changes in control or management of our
company.
Requirements for Advance Notification of Stockholder Nominations
and Proposals
Our
bylaws establish advance notice procedures with respect to
stockholder proposals and the nomination of candidates for election
as directors, other than nominations made by or at the direction of
the Board of Directors or a committee of the Board of
Directors.
Stockholder Action by Written Consent; Special Meetings of
Stockholders
Our
stockholders may take action by written consent in lieu of a
meeting as provided in our bylaws. Our bylaws provide that certain
procedures, including notifying the Board of Directors and awaiting
a record date, must be followed for stockholders to act by written
consent. A special meeting of our stockholders may be called only
by our Board of Directors, the Chairman of the Board, or the
President. A special meeting may also be called at the request of
stockholders holding a majority of the aggregate number of shares
of capital stock of the Company issued and outstanding and entitled
to vote at that meeting (subject to certain timeliness and content
requirements of the demand).
Amendment of Certificate of Incorporation and Bylaws
Our charter may be amended by
the affirmative vote of a majority of the aggregate number of
shares of each class of our capital stock issued and outstanding
after a resolution of our Board of Directors declaring the
advisability of such amendment has been adopted in accordance with
Delaware law. Our bylaws may be amended by the affirmative vote of
a majority of the aggregate number of shares of each class of our
capital stock issued and outstanding (and entitled to vote on the
subject matter) present in person or represented by proxy at a
meeting of stockholders provided that notice thereof is stated in
the written notice of the meeting. Our bylaws may also be amended
by a majority of the Board of Directors in accordance with Delaware
law and our charter.
-4-
Table of Contents
SELLING
STOCKHOLDERS
The
“selling stockholders” named in this prospectus may
sell shares of our common stock registered pursuant to the
registration statement of which this prospectus forms a part. This
prospectus covers the resale of 5,695,165 shares of
common stock, including 1,741,670 Purchaser Shares, 870,835 shares
of common stock issuable as Purchaser Warrant Shares,
3,033,341 Piggyback Shares and 49,320
shares of common stock issuable as Piggyback Warrant Shares, by the
selling stockholders named in this prospectus. The selling
stockholders are not required to offer any of the shares of our
common stock covered by this prospectus for resale. Since the
selling stockholders may sell all, some or none of their shares,
and may or may not exercise any or all of the warrants, we cannot
estimate the aggregate number of shares that the selling
stockholders will offer pursuant to this prospectus or that the
selling stockholders will own upon completion of the offering to
which this prospectus relates.
Information
about additional selling stockholders may be set forth in a
pre-effective and/or post-effective amendment to the registration
statement of which this prospectus forms a part, a prospectus
supplement, or in filings that we make with the SEC under the
Exchange Act, which are incorporated by reference in this
prospectus.
The
following table sets forth information with respect to our common
stock beneficially owned by the selling stockholders as of
December 19, 2016:
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Name of Selling Stockholder
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Shares Beneficially Owned Prior to Resale
(1)
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Shares Offered for Resale
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Warrant Shares Offered for Resale
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Shares Beneficially Owned After the Resale
(2)
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Iroquois
Master Fund Ltd. (3)
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468,750
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468,750
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234,375
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*
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Iroquois
Capital Investment Group, Inc. (4)
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52,083
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52,083
|
26,042
|
-
|
*
|
|
CVI
Investments, Inc. (5)
|
300,000
|
300,000
|
150,000
|
-
|
*
|
|
Warberg
WF IV L.P. (6)
|
166,668
|
166,668
|
83,334
|
-
|
*
|
|
Dolphin
Offshore Partners, L.P. (7)
|
400,000
|
400,000
|
200,000
|
-
|
*
|
|
Alvin
Fund, LLC (8)
|
1,086,641
|
425,002
|
155,834
|
661,639
|
2.56%
|
|
John
C. Lipman (9)
|
62,500
|
62,500
|
31,250
|
-
|
*
|
|
Ann
B. Oldfather
|
73,575
|
66,667
|
-
|
6,908
|
*
|
|
Edgar
L. Parker
|
33,334
|
33,334
|
-
|
-
|
*
|
|
The
Bibicoff Family Trust DTD 5/16/00 (10)
|
240,241
|
233,333
|
-
|
6,908
|
*
|
|
H.
Philip Howe Trust UAD 11/15/02 (11)
|
20,000
|
20,000
|
-
|
-
|
*
|
|
William
Kyle Neely
|
80,720
|
60,000
|
-
|
20,720
|
*
|
|
Shadow
Capital LLC (12)
|
188,562
|
133,334
|
6,000
|
49,228
|
*
|
|
Murray
H. Gross
|
133,334
|
50,000
|
-
|
83,334
|
*
|
|
Robert
D. Vanroijen Jr. UA DTD 12-14-82 (13)
|
40,000
|
40,000
|
-
|
-
|
*
|
|
Robert D.
Vanroijen
|
1,000
|
-
|
1,000
|
-
|
*
|
|
Larry
S. Kaplan and Marla B. Kaplan JT/WROS
|
33,333
|
33,333
|
-
|
-
|
*
|
|
THE
SDM Irrevocable Trust FBO Andrew Seid UAD 11/05/04
(14)
|
35,221
|
26,667
|
-
|
8,554
|
*
|
|
THE
SDM Irrevocable Trust FBO Lauren Seid UAD 11/05/04
(15)
|
35,221
|
26,667
|
-
|
8,554
|
*
|
|
Paul
Seid (16)
|
393,213
|
233,334
|
3,320
|
49,905
|
*
|
|
AJ
Lamb, LLC (17)
|
53,320
|
50,000
|
3,320
|
-
|
*
|
|
Broms
Financial, LLC (18)
|
2,600
|
-
|
2,600
|
-
|
*
|
|
Kyle
G. Buchakjian
|
26,667
|
26,667
|
-
|
-
|
*
|
|
Nick
Rosser
|
133,334
|
133,334
|
-
|
-
|
*
|
|
Richard
Molinsky
|
42,000
|
40,000
|
2,000
|
-
|
*
|
|
Pamela
M. Walsh and Brian P. Walsh JT TEN
|
40,800
|
40,000
|
800
|
-
|
*
|
|
Norper
Investments
|
26,667
|
26,667
|
-
|
-
|
*
|
|
Samuel
E. Leonard Trust UAD 2/5/90 (19)
|
13,334
|
13,334
|
-
|
-
|
*
|
|
Richard
Buchakjian
|
33,334
|
33,334
|
-
|
-
|
*
|
|
Vahan
Buchakjian
|
26,667
|
26,667
|
-
|
-
|
*
|
|
John
Brannen
|
26,667
|
26,667
|
-
|
-
|
*
|
|
Peter
White
|
13,334
|
13,334
|
-
|
-
|
*
|
|
Brigitte
Ferrada-Stetson
|
50,000
|
50,000
|
-
|
-
|
*
|
|
George
J. White and Debra A. White JT TEN WROS
|
20,000
|
20,000
|
-
|
-
|
*
|
|
Allison
Bibicoff
|
83,334
|
83,334
|
-
|
-
|
*
|
|
Charles
Brand
|
144,731
|
133,334
|
-
|
11,397
|
*
|
|
Nuview
IRA Inc. FBO Michael Wilson
|
26,667
|
26,667
|
-
|
-
|
*
|
|
William
C. Steele Living Trust UAD 5/11/98 (20)
|
40,000
|
40,000
|
-
|
-
|
*
|
|
Paul
R. Winter
|
53,334
|
53,334
|
-
|
-
|
*
|
|
Merle
F. Stockley, Jr.
|
20,000
|
20,000
|
-
|
-
|
*
|
|
Robert
L. Debruyn Trust UAD 10/5/94 (21)
|
30,000
|
30,000
|
-
|
-
|
*
|
|
Tracey
H. Debruyn Trust UAD 10/5/94 (22)
|
30,000
|
30,000
|
-
|
-
|
*
|
|
Andrew
M. Schatz and Barbara F. Wolf JTWROS
|
100,000
|
100,000
|
-
|
-
|
*
|
|
Denis
Fortin
|
232,905
|
200,000
|
5,280
|
27,625
|
*
|
|
Susan
M. Allen Trust UAD 04/29/08 (23)
|
141,974
|
133,334
|
-
|
8,640
|
*
|
|
P.
Kenneth Nitz
|
66,667
|
66,667
|
-
|
-
|
*
|
|
Sandra
P. Nitz
|
66,667
|
66,667
|
-
|
-
|
*
|
|
David
A. Random
|
102,000
|
100,000
|
2,000
|
-
|
*
|
|
Stetson
Development LLC (24)
|
50,000
|
50,000
|
-
|
-
|
*
|
|
Glenn
R. Hubbard
|
119,999
|
119,999
|
-
|
-
|
*
|
|
Raymon
M. Beebe and Joan P. Beebe JT TEN
|
89,998
|
89,998
|
-
|
-
|
*
|
|
NuView
Inc. FBO Brigitte Ferrada IRA
|
50,000
|
50,000
|
-
|
-
|
*
|
|
NuView
Inc. FBO David Stetson IRA
|
50,000
|
50,000
|
-
|
-
|
*
|
|
Gary
Arnold and Patricia Arnold
|
2,000
|
-
|
2,000
|
-
|
*
|
|
Big
Red Investments (25)
|
1,000
|
-
|
1,000
|
-
|
*
|
|
Angus
Bruce and Lauralee Bruce
|
2,400
|
-
|
2,400
|
-
|
*
|
|
Phillip
L. Burnett and Allyson Burnett
|
400
|
-
|
400
|
-
|
*
|
|
Debruyn
Holdings Inc. (26)
|
600
|
-
|
600
|
-
|
*
|
|
Robert
L. Debruyn and Tracy H. Debruyn
|
600
|
-
|
600
|
-
|
*
|
|
Tracy
H. Debruyn and Robert L. Debruyn
|
600
|
-
|
600
|
-
|
*
|
|
Steven
Farber
|
400
|
-
|
400
|
-
|
*
|
|
Arthur
H. Finnel and Elsa V. Finnel
|
200
|
-
|
200
|
-
|
*
|
|
Gary
A. Hafner and Leeann Hafner
|
800
|
-
|
800
|
-
|
*
|
|
Samuel
E. Leonard
|
400
|
-
|
400
|
-
|
*
|
|
Andrew
K. Light
|
2,000
|
-
|
2,000
|
-
|
*
|
|
David
Moline
|
557
|
-
|
400
|
157
|
*
|
|
Dr.
Richard V. Nuttal and Annetta Mets Nuttall
|
400
|
-
|
400
|
-
|
*
|
|
Ronald
A. Rayson
|
400
|
-
|
400
|
-
|
*
|
|
Valdmar
Skov
|
400
|
-
|
400
|
-
|
*
|
|
|
|
4,775,010
|
920,155
|
|
|
-5-
Table of Contents
|
*
|
Represents
less than 1%
|
|
|
|
|
(1)
|
Based
on 20,783,747 shares of our common stock outstanding as of December
19, 2016. In addition, shares underlying warrants
exercisable within 60 days of December 19, 2016 are deemed
outstanding for the purpose of computing the percentage ownership
of the person or persons holding such warrants, but are not deemed
outstanding for computing the percentage ownership of other
persons. Shares issuable upon the Purchaser Warrants are
not deemed outstanding because selling stockholders do not have the
right to acquire beneficial ownership of the shares issuable upon
exercise of the warrants within 60 days of December 19,
2016. The warrants become exercisable on May 9,
2017.
|
|
|
|
|
(2)
|
Assumes
that the selling stockholders will sell all of the shares of common
stock saleable pursuant to this prospectus, including the shares of
common stock that may be issued upon the exercise of the Purchaser
Warrants or Piggyback Warrants, as applicable. Also assumes for
each selling stockholder, to the extent applicable, that (a) the
Purchaser Warrants were exercised despite the fact that they do not
become exercisable until May 9, 2017, (b) only such selling
stockholder’s warrants were exercised and (c) as a
consequence, the number of issued and outstanding shares has
increased by the number of such selling stockholder’s warrant
shares. The registration of these shares does not
necessarily mean that the selling stockholders will sell all or any
portion of the shares covered by this
prospectus.
|
|
|
|
|
|
Except
as otherwise indicated in the following footnotes, the selling
stockholder listed has voting and investment control over the
securities beneficially owned.
|
|
|
|
|
(3)
|
Warrant
shares offered for resale herein are issuable pursuant to Purchaser
Warrants, which do not become exercisable until May 9,
2017.
|
|
|
|
|
|
“Iroquois
Capital Management L.L.C. (“Iroquois Capital”) is the
investment manager of Iroquois Master Fund, Ltd.
(“IMF”).
Consequently, Iroquois Capital has voting as investment discretion
over securities held by IMF. As president of Iroquois Capital,
Richard Abbe makes voting and investment decisions on behalf of
Iroquois Capital in its capacity as investment manager of IMF. As a
result of the foregoing, Mr. Abbe may be deemed to have beneficial
ownership (as determined under Section 13(d) of the Act) to the
securities held by IMF.
|
|
|
|
|
(4)
|
Warrant
shares offered for resale herein are issuable pursuant to Purchaser
Warrants, which do not become exercisable until May 9,
2017.
|
|
|
|
|
|
Richard
Abbe, President of Iroquois Capital, has voting and investment
discretion over the securities identified
herein.
|
|
|
|
-6-
|
(5)
|
Warrant
shares offered for resale herein are issuable pursuant to Purchaser
Warrants, which do not become exercisable until May 9,
2017.
|
|
|
|
|
|
Heights
Capital Management, Inc., the authorized agent of CVI Investments,
Inc. (“CVI”),
has discretionary authority to vote and dispose of the shares held
by CVI and may be deemed to be the beneficial owner of these
shares, Martin Kobinger, in his capacity as Investment Manager of
Heights Capital Management, Inc., may also be deemed to have
investment discretion and voting power over the shares, CVI is
affiliated with one or more members of the Financial Industry
Regulatory Authority (“FINRA”), none of whom are
currently expected to participate in the sale pursuant to the
prospectus contained in the registration statement of shares
purchased by CVI in the November Private
Placement.
|
|
|
|
|
(6)
|
Warrant
shares offered for resale herein are issuable pursuant to Purchaser
Warrants, which do not become exercisable until May 9,
2017.
|
|
|
|
|
|
Daniel
I. Warsh, Manager of Warberg WF IV L.P., has voting and investment
discretion over the securities identified
herein.
|
|
|
|
|
(7)
|
Warrant
shares offered for resale herein are issuable pursuant to Purchaser
Warrants, which do not become exercisable until May 9,
2017.
|
|
|
|
|
|
Peter
E. Salas, General Partner of Dolphin Offshore Partners, L.P., has
voting and investment discretion over the securities identified
herein.
|
|
|
|
|
(8)
|
Warrant
shares offered for resale herein are issuable pursuant to Purchaser
Warrants, which do not become exercisable until May 9,
2017.
|
|
|
|
|
|
George
Melas-Kyriazi, Managing Partner of Alvin Fund, LLC, has voting and
investment discretion over the securities identified
herein.
|
|
|
|
|
(9)
|
Warrant
shares offered for resale herein are issuable pursuant to Purchaser
Warrants, which do not become exercisable until May 9,
2017.
|
|
|
|
|
(10)
|
Harvey
Bibicoff and Jacqueline Bibicoff, Trustees of the Bibicoff Family
Trust DTD 5/16/00, have voting and investment discretion over the
securities identified herein.
|
|
|
|
|
(11)
|
H.
Philip Howe and Margaret V. Howe, Trustees of the H. Philip Howe
Trust UAD 11/15/02, have voting and investment discretion over the
securities identified herein.
|
|
|
|
|
(12)
|
B.
Kent Garlinghouse, Manager of Shadow Capital LLC, has voting and
investment discretion over the securities identified
herein.
|
|
|
|
|
(13)
|
Robert
D. Vanroijen, Trustee of the Robert D. Vanroijen Jr. UA DTD
12-14-82, has voting and investment discretion over the securities
identified herein.
|
|
|
|
|
(14)
|
Paul
Seid, Trustee of the SDM Irrevocable Trust FBO Andrew Seid UAD
11/05/04, has voting and investment discretion over the securities
identified herein.
|
|
|
|
|
(15)
|
Paul
Seid, Trustee of the SDM Irrevocable Trust FBO Lauren Seid UAD
11/05/04, has voting and investment discretion over the securities
identified herein.
|
|
|
|
|
(16)
|
As
the Trustee for the SDM Irrevocable Trust FBO Andrew Seid UAD
11/05/04 and the SDM Irrevocable Trust FBO Lauren Seid UAD 11/05/04
and President of AJ Lamb, LLC, Mr. Seid may be deemed to be the
beneficial owner of the securities held by each
entity.
|
|
|
|
|
(17)
|
Paul
Seid, President of AJ Lamb, LLC, has voting and investment
discretion over the securities identified
herein.
|
|
|
|
|
(18)
|
Richard
Broms, President of Broms Financial, LLC, has voting and investment
discretion over the securities identified
herein.
|
|
|
|
|
(19)
|
Samuel
E. Leonard, Trustee of the Samuel E. Leonard Trust UAD 2/5/90, has
voting and investment discretion over the securities identified
herein.
|
|
|
|
|
(20)
|
William
C. Steele, Trustee of the William C. Steele Living Trust UAD
5/11/98, has voting and investment discretion over the securities
identified herein.
|
|
|
|
|
(21)
|
Robert
L. Debruyn and Tracey H. Debruyn, Trustees of the Robert L. Debruyn
Trust UAD 10/5/94, have voting and investment discretion over the
securities identified herein.
|
|
|
|
|
(22)
|
Robert
L. Debruyn and Tracey H. Debruyn, Trustees of the Tracey H. Debruyn
Trust UAD 10/5/94, have voting and investment discretion over the
securities identified herein.
|
|
|
|
|
(23)
|
Robert
W. Allen, Trustee of the Susan M. Allen Trust UAD 04/29/08, has
voting and investment discretion over the securities identified
herein.
|
|
|
|
|
(24)
|
David
Stetson, Member of Stetson Development LLC, has voting and
investment discretion over the securities identified
herein.
|
|
|
|
|
(25)
|
James
J. Martin, Manager of Bucknoletor Management, LLC, a general
partner of Big Red Investments, has voting and investment
discretion over the securities identified
herein.
|
|
|
|
|
(26)
|
Tracey
H. Debruyn, President of Debruyn Holdings, Inc., has voting and
investment discretion over the securities identified
herein.
|
-7-
USE OF PROCEEDS
All
of the shares of common stock offered by the selling stockholders
pursuant to this prospectus will be sold by the selling
stockholders for their respective accounts. We will not receive any
of the proceeds from these sales, if any. A portion of the shares
covered by this prospectus may be issued upon exercise of the
Purchaser Warrants and/or the Piggyback Warrants. Upon
any exercise of either the Purchaser Warrants or Piggyback
Warrants, the selling stockholder would pay us the exercise price
of the warrants. Any such proceeds would be used
primarily for working capital and general corporate
purposes. We will pay all of the fees and expenses
incurred by us in connection with this registration. We will not be
responsible for fees and expenses incurred by the selling
stockholders or any underwriting discounts or agent’s
commissions.
PLAN OF DISTRIBUTION
Each selling stockholder identified in the
preceding section (the “Selling
Stockholders”) of the
securities and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of
their securities covered hereby on the NASDAQ Capital Market or any
other stock exchange, market or trading facility on which the
securities are traded or in private transactions. These sales may
be at fixed or negotiated prices. A Selling Stockholder may use any
one or more of the following methods when selling
securities:
●
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
Stockholders 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.
The
Selling Stockholders may also sell securities under Rule 144 or any
other exemption from registration under the Securities Act, if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of securities, from
the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with FINRA
IM-2440.
In
connection with the sale of the securities or interests therein,
the Selling Stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. The Selling Stockholders may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. The Selling Stockholders
may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or
more derivative securities which require the delivery to such
broker-dealer or other financial institution of securities offered
by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act
in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the
resale of the securities purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
Each Selling Stockholder has informed the Company that it does not
have any written or oral agreement or understanding, directly or
indirectly, with any person to distribute the
securities.
The
Company is required to pay certain fees and expenses incurred by
the Company incident to the registration of the securities. The
Company has agreed to indemnify the Selling Stockholders against
certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i)
the date on which the securities may be resold by the Selling
Stockholders without registration and without regard to any volume
or manner-of-sale limitations by reason of Rule 144, without the
requirement for the Company to be in compliance with the current
public information under Rule 144 under the Securities Act or any
other rule of similar effect or (ii) all of the securities have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale securities covered hereby
may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied
with.
Under
applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the Selling Stockholders
or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or
prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).
LEGAL MATTERS
The
legality of the issuance of the shares of our common stock offered
hereby is being passed upon by Disclosure Law Group, a Professional
Corporation, of San Diego, California. If counsel for
any selling stockholder or underwriter passes on legal matters in
connection with an offering of the common stock described in this
prospectus, we will name that counsel in the prospectus supplement
to that offering.
EXPERTS
The consolidated
financial statements of Bridgeline Digital, Inc. as of and for the
years ended September 30, 2016 and 2015,
incorporated by reference into this prospectus from our Annual
Report on Form 10-K for the fiscal year ended September 30,
2016, filed with the SEC on December 19,
2016, have been audited by Marcum, LLP, an independent
registered accounting firm, to the extent and period set forth in
their report, and are incorporated herein by reference in reliance
on such report given upon the authority of said firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual,
quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we
file at the SEC’s public reference room at 100 F Street, NE,
Washington, D.C. 20549. You can request copies of these documents
by writing to the SEC and paying a fee for the copying cost. Please
call the SEC at 1-800-SEC-0330 for more information about the
operation of the public reference room. Our SEC filings are also
available, at no charge, to the public at the SEC’s web site
at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The
following documents filed by us with the SEC are incorporated by
reference in this prospectus:
|
●
|
Annual
Report on Form 10-K for the fiscal year ended September 30, 2016,
filed December 19, 2016;
|
|
●
|
Current
Report on Form 8-K, filed November 4, 2016; and
|
|
●
|
The
description of our common stock contained in the Registration
Statement on Form 8-A filed pursuant to Section 12(b) of the
Exchange Act on June 28, 2007, including any amendment or report
filed with the SEC for the purpose of updating this
description.
|
We
also incorporate by reference all documents we file pursuant to
Section 13(a), 13(c), 14 or 15 of the Exchange Act (other than any
portions of filings that are furnished rather than filed pursuant
to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the
date of the initial registration statement of which this prospectus
is a part and prior to effectiveness of such registration
statement. All documents we file in the future pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this prospectus and prior to the termination of the offering are
also incorporated by reference and are an important part of this
prospectus.
Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. You may request a
copy of these filings, excluding the exhibits to such filings which
we have not specifically incorporated by reference in such filings,
at no cost, by writing to or calling us at:
Bridgeline Digital, Inc.
Attn: Corporate Secretary
80 Blanchard Road
Burlington, MA
(781) 376-5555
This prospectus is part of a registration statement we filed
with the SEC. You should only rely on the information or
representations contained in this prospectus and any accompanying
prospectus supplement. We have not authorized anyone to provide
information other than that provided in this prospectus and any
accompanying prospectus supplement. We are not making an offer of
the securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any
accompanying prospectus supplement is accurate as of any date other
than the date on the front of the document.
PROSPECTUS
5,695,165 Shares
COMMON STOCK
[_____________], 2016
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
We
estimate that our expenses in connection with this registration
statement will be as follows:
|
Legal Fees and
Expenses*
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$25,000
|
|
Accounting Fees and
Expenses*
|
$10,000
|
|
Printing and
Miscellaneous Expenses*
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$5,000
|
|
|
|
|
Total
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$40,000
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* Estimated expenses
ITEM 15. INDEMNIFICATION OF OFFICERS AND
DIRECTORS
Our
certificate of incorporation and bylaws contain provisions relating
to the limitation of liability and indemnification of directors and
officers. Our certificate of incorporation provides that a director
will not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability:
●
for any breach of
the director’s duty of loyalty to us or our
stockholders;
●
for acts or
omissions not in good faith or that involve intentional misconduct
or a knowing violation of law;
●
under Section 174
of the Delaware General Corporation Law (the “DGCL”); or
●
for any
transaction from which the director derived any improper personal
benefit.
Our
certificate of incorporation also provides that if the DGCL is
amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of
our directors will be eliminated or limited to the fullest extent
permitted by the DGCL.
Our
bylaws provide that we will indemnify our directors and officers to
the fullest extent not prohibited by the DGCL; provided, however,
that we may limit the extent of such indemnification by individual
contracts with our directors and executive officers; and provided,
further, that we are not required to indemnify any director or
executive officer in connection with any proceeding (or part
thereof) initiated by such person or any proceeding by such person
against us or our directors, officers, employees or other agents
unless:
●
such
indemnification is expressly required to be made by
law;
●
the proceeding was
authorized by the Board of Directors; or
●
such
indemnification is provided by us, in our sole discretion, pursuant
to the powers vested in us under the DGCL.
Our
bylaws provide that we shall advance, prior to the final
disposition of any proceeding, promptly following request therefor,
all expenses by any director or executive officer in connection
with any such proceeding upon receipt of any undertaking by or on
behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to e
indemnified under Article XI of our bylaws or otherwise.
Notwithstanding the foregoing, unless otherwise determined, no
advance shall be made by us if a determination is reasonably and
promptly made by the board of directors by a majority vote of a
quorum of directors who were not parties to the proceeding, or if
such a quorum is not obtainable, or even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in
a written opinion, that the facts known to the decision-making
party at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to our
best interests.
Our
bylaws also authorize us to purchase insurance on behalf of any
person required or permitted to be indemnified pursuant to Article
XI of our bylaws.
Section
145(a) of the DGCL authorizes a corporation to indemnify any person
who was or is a party, or is threatened to be made a party, to a
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), by reason of
the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action,
suit or proceeding, if the person acted in good faith and in a
manner the person reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
the person’s conduct was unlawful.
Section
145(b) of the DGCL provides in relevant part that a corporation may
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
The
DGCL also provides that indemnification under Section 145(d) can
only be made upon a determination that indemnification of the
present or former director, officer or employee or agent is proper
in the circumstances because such person has met the applicable
standard of conduct set forth in Section 145(a) and
(b).
Section
145(g) of the DGCL also empowers a corporation to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under Section 145 of
the DGCL.
Section
102(b)(7) of the DGCL permits a corporation to provide for
eliminating or limiting the personal liability of one of its
directors for any monetary damages related to a breach of fiduciary
duty as a director, as long as the corporation does not eliminate
or limit the liability of a director for acts or omissions which
(1) which breached the director’s duty of loyalty to the
corporation or its stockholders, (2) which were not in good faith
or which involve intentional misconduct or knowing violation of
law, (3) under Section 174 of the DGCL; or (4) from which the
director derived an improper personal benefit.
We
have obtained directors’ and officers’ insurance to
cover our directors and officers for certain
liabilities.
ITEM 16. EXHIBITS
|
10.1
|
Securities Purchase
Agreement between Bridgeline Digital, Inc. and the investors named
therein, dated June 19, 2013 (incorporated by reference to Exhibit
10.1 to our Current Report on Form 8-K filed on June 24,
2013)
|
|
10.2
|
Form of Common
Stock Purchase Warrant issued to investors, dated June 19, 2013
(incorporated by reference to Exhibit 10.2 to our Current Report on
Form 8-K filed on June 24, 2013)
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5.1
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Opinion
re: Legality
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23.1
|
Consent
of Counsel (included in Exhibit 5.1)
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23.2
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Consent
of Independent Registered Public Accounting Firm –
Marcum, LLP
|
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24.1
|
Power
of Attorney (included on the signature page of the
Registration Statement on Form S-3, filed November 14,
2016)
|
ITEM 17. UNDERTAKINGS
The
undersigned registrant hereby undertakes:
(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 Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in
the effective registration statement.
(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 Commission 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:
(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 this
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 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 this
registration statement or made in any such document immediately
prior to such effective date.
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 Section 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) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar
as indemnification for liabilities arising under the Securities Act
of 1933, 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 Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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
Act and will be governed by the final adjudication of such
issue.
The
undersigned registrant hereby undertakes that:
(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 registrant
pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(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.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Burlington,
Massachusetts on December
23, 2016.
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BRIDGELINE DIGITAL,
INC.
|
|
|
|
|
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By: /s/
Roger Kahn
|
|
|
Roger
Kahn
|
|
|
President
and Chief Executive Officer
(Principal
Executive Officer)
|
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed
by the following persons in the capacities and on the dates
indicated.
|
Signature
|
Title
|
Date
|
|
|
|
|
|
|
|
|
|
/s/
*
|
President and Chief Executive
Officer
|
December 23,
2016
|
|
Roger Kahn
|
(Principal Executive
Officer)
|
|
|
|
|
|
|
/s/
*
|
Executive
Vice-President and
|
December 23,
2016
|
|
Michael Prinn
|
Chief Financial
Officer
|
|
|
|
|
|
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/s/
*
|
Director
|
December 23,
2016
|
|
Kenneth Galaznik
|
|
|
|
|
|
|
|
/s/ *
|
Director
|
December 23,
2016
|
|
Joni Kahn
|
|
|
|
|
|
|
|
/s/ *
|
Director
|
December
23, 2016
|
|
Scott Landers
|
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|
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|
|
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/s/ *
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Director
|
December
23, 2016
|
|
Michael Taglich
|
|
|
|
|
|
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/s/ *
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Director
|
December
23, 2016
|
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Robert Taglich
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* By: /s/ Roger
Kahn
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December
23, 2016
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Attorney-in-fact
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-15-