As filed with the Securities and Exchange
Commission on April 24, 2015
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
Nxt-ID, Inc.
(Exact name of registrant as specified
in its charter)
Delaware |
|
46-0678374 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
288 Christian Street
Oxford, CT 06478
(203) 266-2103
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
National Corporate Research, Ltd.
615 South DuPont Highway
Dover, DE 19901
(800) 483-1140
(Name, address including
zip code, and telephone number, including area code, of agent for service)
With copies to:
David E. Danovitch, Esq.
Zachary D. Blumenthal, Esq.
Nakia Elliott, Esq.
Robinson Brog Leinwand Greene Genovese &
Gluck P.C.
875 Third Avenue, 9th Floor
New York, NY 10022
Tel: (212) 603-6300
Fax: (212) 956-2164
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
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. þ
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. o
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. o
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. o
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):
Large accelerated filer |
o |
Accelerated filer |
o |
Non-accelerated filer (Do not check if smaller reporting company) |
o |
Smaller reporting company |
þ |
CALCULATION
OF REGISTRATION FEE
Title of Each Class of Securities to be Registered (1) | |
Proposed
Maximum Aggregate Offering Price(2) | | |
Amount
of Registration Fee(3) | |
Common Stock, $0.0001 par value per share | |
| — | | |
| — | |
Preferred Stock, $0.0001 par value per share | |
| — | | |
| — | |
Debt Securities | |
| — | | |
| — | |
Warrants | |
| — | | |
| — | |
Rights | |
| — | | |
| — | |
Units(4) | |
| — | | |
| — | |
Total | |
$ | 25,000,000 | | |
$ | 2,905 | |
(1) |
There are being registered under this registration statement such indeterminate number of shares of common stock and preferred stock, debt securities, warrants, rights and/or units as may be sold by the registrant from time to time, which together shall have an aggregate offering price not to exceed $25,000,000. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional number of securities as may be offered or issued from time to time upon stock splits, stock dividends, recapitalizations or similar transactions. Pursuant to Rule 457(j) of the Securities Act, this includes such indeterminate number of securities that may be issuable, as applicable, upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including under any applicable anti-dilution provisions. No additional consideration will be received for such securities and, therefore, no registration fee is required pursuant to Rule 457(i) under the Securities Act. |
|
|
(2) |
Certain information as to each class of securities being registered under this registration statement is not required to be included in accordance with General Instruction II.D. of Form S-3 under the Securities Act. |
|
|
(3) |
Calculated pursuant to Rule 457(o) under the Securities Act based on the proposed maximum aggregate offering price of all securities listed. |
|
|
(4) |
Each unit will represent an interest in two or more
other securities, which may or may not be separable from one another. |
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 that specifically states that this registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act or until this registration statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The information in
this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED APRIL 24, 2015
PROSPECTUS
$25,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
Nxt-ID, Inc.
We may offer and sell, from time to
time in one or more offerings, any combination of common stock, preferred stock, debt securities, warrants, rights or units
having an aggregate offering price not exceeding $25,000,000. The preferred stock, debt securities, warrants, rights, and units
may be exercisable or exchangeable for common stock or preferred stock or other securities of ours.
This prospectus provides a general description
of the securities we may offer. We will provide specific terms of the offerings of our securities in one or more supplements to
this prospectus. The prospectus supplement may also add, update or change information in this prospectus. You should
read this prospectus and any prospectus supplement, as well as the documents incorporated by reference or deemed to be incorporated
by reference into this prospectus, carefully before you invest in any of our securities.
This prospectus may not be used to
offer or sell our securities unless accompanied by a prospectus supplement relating to the offered securities.
These securities may be sold directly
by us, through dealers or agents designated from time to time, to or through underwriters, dealers or through a combination of
these methods on a continuous or delayed basis. For additional information on the methods of sale, see the section entitled
“Plan of Distribution” in this prospectus. We will also describe the plan of distribution for any particular
offering of our securities in a prospectus supplement. If any agents, underwriters or dealers are involved in the sale of any
securities in respect of which this prospectus is being delivered, we will disclose their names and the nature of our arrangements
with them in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from
any such sale will also be included in a prospectus supplement.
Our common stock and warrants
are currently traded on the NASDAQ Capital Market under the symbols “NXTD” and “NXTDW”, respectively.
On April 20, 2015, the last reported sale price of our common stock and warrants as reported on the NASDAQ Capital Market
was $2.70 per share and $1.12, respectively.
The aggregate market value of our outstanding
common stock held by non-affiliates is $20,298,349 based on 25,203,338 shares of outstanding common stock, of which 7,517,907 are
held by non-affiliates, and a per share price of $2.70 based on the closing sale price of our common stock on April 20, 2015.
Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell our common stock in a public primary offering with
a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains below $75,000,000.
We have not offered any securities pursuant to General Instruction I.B.6. of Form S-3 during the prior 12 calendar month period
that ends on and includes the date of this prospectus.
We are an “emerging growth company”
as the term is used in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”) and, as such, have elected
to comply with certain reduced public company reporting requirements for this and future filings.
Investing in our securities
involves risks. You should carefully review the risks described under the heading “Risk Factors” beginning
on page 7 and in the documents which are incorporated by reference herein and contained in the applicable prospectus
supplement before you invest in our securities.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is April
, 2015.
TABLE OF CONTENTS
|
Page
|
ABOUT THIS PROSPECTUS |
3 |
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS |
4 |
PROSPECTUS SUMMARY |
5 |
RISK FACTORS |
7 |
USE OF PROCEEDS |
9 |
THE SECURITIES WE MAY OFFER |
10 |
DESCRIPTION OF CAPITAL STOCK |
11 |
DESCRIPTION OF DEBT SECURITIES |
15 |
DESCRIPTION OF WARRANTS |
18 |
DESCRIPTION OF RIGHTS |
20 |
DESCRIPTION OF UNITS |
21 |
PLAN OF DISTRIBUTION |
23 |
LEGAL MATTERS |
26 |
EXPERTS |
26 |
WHERE YOU CAN FIND MORE INFORMATION |
26 |
INCORPORATION OF DOCUMENTS BY REFERENCE |
27 |
You should rely only on the information
contained in this prospectus and the accompanying prospectus supplement or incorporated by reference in these documents. No dealer,
salesperson or other person is authorized to give any information or to represent anything not contained or incorporated by reference
in this prospectus or the accompanying prospectus supplement. If anyone provides you with different, inconsistent or unauthorized
information or representations, you must not rely on them. This prospectus and the accompanying prospectus supplement are an offer
to sell only the securities offered by these documents, but only under circumstances and in jurisdictions where it is lawful to
do so. The information contained in this prospectus or any prospectus supplement is current only as of the date on the front of
those documents.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration
process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus in one
or more offerings from time to time having an aggregate offering price of up to $25,000,000. This prospectus provides you with
a general description of the securities we may offer. Each time we offer securities, we will provide you with a prospectus supplement
that describes the specific amounts, prices and terms of the securities we offer. The prospectus supplement also may add, update
or change information contained in this prospectus. You should read carefully both this prospectus, including the section entitled
“Risk Factors,” and any prospectus supplement, together with the additional information described below under the headings
“Where You Can Find More Information” and “Incorporation of Documents by Reference.”
In addition, this prospectus does not
contain all the information provided in the registration statement we filed with the SEC. For further information, we refer you
to the registration statement, including its exhibits. The registration statement can be read on the SEC website or at the SEC
offices mentioned below under the heading “Where You Can Find More Information.” Statements contained in this prospectus
and any prospectus supplement about the provisions or contents of any agreement or other document are not necessarily complete.
If the SEC’s rules and regulations require that an agreement or document be filed as an exhibit to the registration statement,
please see that agreement or document for a complete description of such matters.
You should rely only on the information
contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized any other person
to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely
on it. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities in any jurisdiction
where the offer or sale is not permitted. You should assume that the information appearing in this prospectus or any prospectus
supplement, as well as information we have previously filed with the SEC and incorporated by reference, is accurate as of the date
on the front of those documents only. Our business, financial condition, results of operations and prospects may have changed since
those dates. This prospectus may not be used to consummate a sale of our securities unless it is accompanied by a prospectus supplement.
In this prospectus, we refer to Nxt-ID,
Inc. as “we,” “us,” “our,” and the “Company” unless we specifically state otherwise
or the context indicates otherwise.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus, the applicable prospectus
supplement and the information incorporated by reference in this prospectus contain various forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities
and Exchange Act of 1934, as amended (the “Exchange Act”), which represent our expectations or beliefs concerning future
events. Forward-looking statements include statements that are predictive in nature, which depend upon or refer to future events
or conditions, and/or which include words such as “believes,” “plans,” “intends,” “anticipates,”
“estimates,” “expects,” “may,” “will” or similar expressions. In addition, any
statements concerning future financial performance, ongoing strategies or prospects, and possible future actions, which may be
provided by our management, are also forward-looking statements. Forward-looking statements are based on current expectations and
projections about future events and are subject to risks, uncertainties, and assumptions about our company, economic and market
factors, and the industry in which we do business, among other things. These statements are not guarantees of future performance,
and we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future
events, or otherwise, except as required by law. Actual events and results may differ materially from those expressed or forecasted
in forward-looking statements due to a number of factors. Factors that could cause our actual performance, future results and actions
to differ materially from any forward-looking statements include, but are not limited to, those discussed under the heading “Risk
Factors” in any of our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. The
forward-looking statements in this prospectus, the applicable prospectus supplement and the information incorporated by reference
in this prospectus represent our views as of the date such statements are made. These forward-looking statements should not be
relied upon as representing our views as of any date subsequent to the date such statements are made.
PROSPECTUS SUMMARY
This summary highlights selected
information contained elsewhere in this prospectus or in documents incorporated herein by reference. This summary does not contain
all the information that you should consider before investing in our securities. You should carefully read the entire prospectus,
including “Risk Factors,” our consolidated financial statements and the information incorporated by reference herein,
before making an investment decision
Our Company
We are an early stage technology company that
is focused on products, solutions, and services that have a need for biometric secure access control. We have three distinct lines
of business that we are currently pursuing: mobile commerce (“m-commerce”); law enforcement and biometric access control
applications. Our initial efforts have primarily focused on the development of our secure products for the growing m-commerce market,
most immediately, a secure mobile electronic smart wallet. Wocket™ is a smart wallet, the next evolution in smart devices
following the smart phone and smart watch, designed to protect your identity and replace all the cards in your wallet, with no
smart phone required. Wocket™ works anywhere credit cards are accepted and only works with your biometric stamp of approval.
Credit, debit, ATM, loyalty, gift, ID, membership, insurance, ticket, emergency, medical, business, contacts, coupon, and virtually
any card can be protected on Wocket™. More than 10,000 cards, records, coupons, etc. and 100 voice commands can also be stored
on Wocket™.
Wocket™ prototype
Our plan also anticipates that we will use
our core biometric facial and voice recognition algorithms to develop security applications (both cloud based and locally hosted)
that can be used for corporations (industrial uses such as enterprise computer networks) as well as individuals (consumer uses
such as smart phones, tablets or personal computers). Finally, our plan calls for a suite of high level security products and facial
recognition applications that can be utilized by law enforcement, the defense industry, and the U.S. Department of Homeland Security.
We believe that our MobileBioTM
products, together with our biometric security solutions, will provide distinct advantages within these markets by improving mobile
security. Currently most mobile devices continue to be protected simply by PIN numbers. This security methodology is easily duplicated
on another device, and can be easily spoofed or hacked. Our biometric security paradigm is Dynamic Pairing Codes (DPC). DPC is
a new, proprietary method to secure users, devices, accounts, locations and servers over any communication media by sharing key
identifiers, including biometric-enabled identifiers, between end-points by passing dynamic pairing codes (random numbers) between
end-points to establish sessions and/or transactions without exposing identifiers or keys. The recent high-level breaches of personal
credit card data raise serious concerns among consumers about the safety of their money. These consumers are also resistant to
letting technology companies learn even more about their personal purchasing habits.
We also plan to service the access control
and law enforcement facial recognition markets with our existing 3D facial recognition technology products beginning with U.S.
federal and state governmental agencies. These products, whose underlying technologies have been licensed by us, provide customers
with the capability to enroll subjects in a 3D database and use that database for verification of identities. During 2012, we acquired
100% of the membership interests in an entity affiliated with our founders as a means toward advancing our business plan.
Securities We May Offer
The descriptions of the securities contained
in this prospectus, together with the applicable prospectus supplements, summarize all the material terms and provisions of the
various types of securities that we may offer. We will describe in the applicable prospectus supplement relating to any securities
the particular terms of the securities offered by that prospectus supplement. If we indicate in the applicable prospectus supplement,
the terms of the securities may differ from the terms we have summarized below. We will also include information in the prospectus
supplement, where applicable, about material United States federal income tax considerations relating to the securities, and the
securities exchange, if any, on which the securities will be listed.
We may sell from time to time, in one
or more offerings:
| ● | Common
Stock; |
| ● | Preferred
Stock; |
| ● | Debt
Securities; |
| ● | Warrants; |
| ● | Rights;
and/or |
| ● | Units. |
The aggregate offering price of the
securities offered pursuant to this prospectus may not exceed $25,000,000. This prospectus may not be used to consummate a sale
of securities unless it is accompanied by a prospectus supplement.
Corporate Information
The Company is a Delaware corporation formed
on February 8, 2012. We were initially known as Trylon Governmental Systems, Inc. We changed our name to Nxt-ID, Inc. on June 25,
2012 to reflect our primary focus on our growing biometric identification, m-commerce and secure mobile platforms.
We are an “emerging growth company”
as defined in the Jumpstart Our Business Startups Act of 2012, or JOBS Act. We will remain an emerging growth company for up to
five years, or until the earliest of (i) the last day of the first fiscal year in which our annual gross revenue exceeds $1 billion,
(ii) the date that we become a ‘‘large accelerated filer’’ as defined in Rule 12b-2 under the Exchange
Act, which would occur if the market value of our common stock that is held by non-affiliates exceeds $700 million as of the last
business day of our most recently completed second fiscal quarter or (iii) the date on which we have issued more than $1 billion
in non-convertible debt during the preceding three-year period. Pursuant to Section 107 of the JOBS Act, we have elected to utilize
the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting
standards.
Where You Can Find Us
Our principal executive offices are located
at 288 Christian Street, Oxford, CT 06478, and our telephone number is (203) 266-2103. Our website address is www.nxt-id.com.
The information contained therein or connected thereto shall not be deemed to be incorporated into this prospectus or the registration
statement of which it forms a part. The information on our website is not part of this prospectus.
RISK FACTORS
Investing in our
securities involves a high degree of risk. You should carefully consider the risks and uncertainties described under the
heading “Risk Factors” in our most recent Annual Report on Form 10-K on file with the SEC and any of our other
filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, which are incorporated by reference
in this prospectus and any prospectus supplement, and the additional risks and uncertainties described below before
purchasing our securities. The risks and uncertainties we have described are not the only ones facing our company. If any of
these risks actually occur, our business, financial condition or results of operations would likely suffer. In that case, the
trading price of our common stock could fall, and you may lose all or part of your investment. Additional risks
and uncertainties not presently known to us or that we currently deem immaterial may also affect our business operations.
Before making an investment decision, you should carefully consider these risks as well as the other information we include
or incorporate by reference in this prospectus and any prospectus supplement.
Risks Related to Our Securities and this Offering
An active, liquid trading market
for our common stock may not develop, which may cause our common stock to trade at a discount from the initial offering price and
make it difficult for you to sell the common stock you purchase.
Our common stock is currently listed
on the NASDAQ Capital Market. However, there can be no assurance that there will be an active market for our common stock either
now or in the future. If an active and liquid trading market does not develop or if developed cannot be sustained, you may have
difficulty selling any of our common stock that you purchase. The market price of our common stock may decline below the initial
offering price, and you may not be able to sell your shares of our common stock at or above the price you paid, or at all.
If and when a larger trading market
for our common stock develops, the market price of our common stock is still likely to be highly volatile and subject to wide fluctuations,
and you may be unable to resell your shares at or above the price at which you acquired them.
The market price of our common stock
is likely to be highly volatile and could be subject to wide fluctuations in response to a number of factors that are beyond our
control, including, but not limited to:
|
● |
Variations in our revenues and operating expenses; |
|
● |
Actual or anticipated changes in the estimates of our operating results or changes in stock market analyst recommendations regarding our common stock, other comparable companies or our industry generally; |
|
● |
Market conditions in our industry, the industries of our customers and the economy as a whole; |
|
● |
Actual or expected changes in our growth rates or our competitors’ growth rates; |
|
● |
Developments in the financial markets and worldwide or regional economies; |
|
● |
Announcements of innovations or new products or services by us or our competitors; |
|
● |
Announcements by the government relating to regulations that govern our industry; |
|
● |
Sales of our common stock or other securities by us or in the open market; and |
|
● |
Changes in the market valuations of other comparable companies. |
In addition, if the market for technology
stocks or the stock market in general experiences loss of investor confidence, the trading price of our common stock could decline
for reasons unrelated to our business, financial condition or operating results. The trading price of our shares might also decline
in reaction to events that affect other companies in our industry, even if these events do not directly affect us. Each of these
factors, among others, could harm the value of your investment in our common stock. In the past, following periods of volatility
in the market, securities class-action litigation has often been instituted against companies. Such litigation, if instituted against
us, could result in substantial costs and diversion of management’s attention and resources, which could materially and adversely
affect our business, operating results and financial condition.
We may not be able to access the
equity or credit markets.
We face the risk that we may not be
able to access various capital sources including investors, lenders, or suppliers. Failure to access the equity or credit markets
from any of these sources could have a material adverse effect on the Company’s business, financial condition, results of
operations, and future prospects.
Persistent global economic trends
could adversely affect our business, liquidity and financial results.
Although improving, persistent global
economic conditions, particularly the scarcity of capital available to smaller businesses, could adversely affect us, primarily
through limiting our access to capital and disrupting our customers’ businesses. In addition, continuation or worsening
of general market conditions in economies important to our businesses may adversely affect our customers’ level of spending
and ability to obtain financing, leading to us being unable to generate the levels of sales that we require. Current and
continued disruption of financial markets could have a material adverse effect on the Company’s business, financial condition,
results of operations and future prospects.
We may seek or need to raise additional
funds. Our ability to obtain financing for general corporate and commercial purposes or acquisitions depends on operating and financial
performance, and is also subject to prevailing economic conditions and to financial, business and other factors beyond our control.
The global credit markets and the financial services industry have been experiencing a period of unprecedented turmoil characterized
by the bankruptcy, failure or sale of various financial institutions. An unprecedented level of intervention from the U.S. and
other governments has been seen. As a result of such disruption, our ability to raise capital may be severely restricted and the
cost of raising capital through such markets or privately may increase significantly at a time when we would like, or need, to
raise capital. Either of these events could have an impact on our flexibility to fund our business operations, make capital expenditures,
pursue additional expansion or acquisition opportunities, or make discretionary use of cash and could adversely impact our financial
results.
Although recent trends point to continuing
improvements, there is still lingering volatility and uncertainty. A change or disruption in the global financial markets for any
reason may cause consumers, businesses and governments to defer purchases in response to tighter credit, decreased cash availability
and declining consumer confidence. Accordingly, demand for our products could decrease and differ materially from their current
expectations. Further, some of our customers may require substantial financing in order to fund their operations and make purchases
from us. The inability of these customers to obtain sufficient credit to finance purchases of our products and meet their payment
obligations to us or possible insolvencies of our customers could result in decreased customer demand, an impaired ability for
us to collect on outstanding accounts receivable, significant delays in accounts receivable payments, and significant write-offs
of accounts receivable, each of which could adversely impact our financial results.
If securities or industry analysts do
not publish or cease publishing research or reports about us, our business or our market, or if they change their recommendations
regarding our common stock adversely, our common stock price and trading volume could decline, which may also negatively impact
the price of our preferred stock.
The trading market for our shares of common
stock will be influenced by the research and reports that industry or securities analysts may publish about us, our business, our
market or our competitors. If any of the analysts who may cover us change their recommendation regarding our common stock adversely,
or provide more favorable relative recommendations about our competitors, our share price would likely decline. If any analyst
who may cover us were to cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in
the financial markets, which in turn could cause our common stock price or trading volume to decline, and negatively impact the
price of our preferred stock.
USE OF PROCEEDS
Except as otherwise provided in the
applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities offered by this prospectus
for general corporate purposes, which may include, among other things, working capital, capital expenditures, product development,
marketing activities, acquisitions of new technologies and investments, repayment of debt and repurchases and redemptions of securities.
The intended application of proceeds
from the sale of any particular offering of securities using this prospectus will be described in the accompanying prospectus supplement
relating to such offering. The precise amount and timing of the application of these proceeds will depend on our funding requirements
and the availability and costs of other funds. Accordingly, we will retain broad discretion over the use of such proceeds. Pending
use of the net proceeds, we intend to invest the net proceeds in short-term, investment-grade, interest-bearing instruments.
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained
in this prospectus, together with the applicable prospectus supplements, summarize all the material terms and provisions of the
various types of securities that we may offer. We will describe in the applicable prospectus supplement relating to any securities
the particular terms of the securities offered by that prospectus supplement. If we indicate in the applicable prospectus supplement,
the terms of the securities may differ from the terms we have summarized below. We will also include in the prospectus supplement
information, where applicable, about material United States federal income tax considerations relating to the securities, and the
securities exchange, if any, on which the securities will be listed.
We may sell from time to time, in one
or more offerings:
| ● | Shares
of our common stock; |
| ● | Shares
of our preferred stock; |
| ● | Debt
securities; |
| ● | Warrants
to purchase shares of our common stock, preferred stock, or debt securities; |
| ● | Rights
to purchase shares of our common stock, preferred stock, or other securities; and/or |
| ● | Units
consisting of any of the securities listed above. |
The terms of any securities we offer
will be determined at the time of sale. We may issue securities that are exchangeable or exercisable for common stock or any of
the other securities that may be sold under this prospectus. When particular securities are offered, a supplement to this prospectus
will be filed with the SEC, which will describe the terms of the offering and sale of such securities.
DESCRIPTION OF CAPITAL STOCK
General
The following description of our capital
stock, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms
and provisions of the capital stock that we may offer under this prospectus, but is not complete. For the complete terms of our
capital stock, please refer to our certificate of incorporation, as amended from time to time, any certificate of designation for
our preferred stock, and our bylaws, as amended from time to time. The Delaware General Corporation Law (the “DGCL”)
may also affect the terms of our capital stock.
Authorized Capital Stock
The Company is authorized to issue 110,000,000
shares of its capital stock, consisting of (a) 100,000,000 shares of common stock, par value $0.0001 per share, and (b) 10,000,000
shares of “blank check” preferred stock, par value $0.0001 per share. As of April 20, 2015, 25,203,338 shares of our
common stock were issued and outstanding. We did not have any shares of our preferred stock issued or outstanding as of April
20, 2015.
Common Stock
Each share of common stock entitles the holder
to one vote, either in person or by proxy, at meetings of stockholders. The holders are not permitted to vote their shares of common
stock cumulatively. Accordingly, the holders of our common stock who hold, in the aggregate, more than fifty percent (50%) of the
total voting rights can elect all of our directors and, in such event, the holders of the remaining minority shares of common stock
will not be able to elect any of such directors. The vote of the holders of a majority of the issued and outstanding shares of
common stock entitled to vote thereon is sufficient to authorize, affirm, ratify or consent to such act or action, except as otherwise
provided by law.
Holders of common stock are entitled to receive
ratably such dividends, if any, as may be declared by our board of directors out of funds legally available. We have not paid any
dividends since our inception, and we presently anticipate that all earnings, if any, will be retained for development of our business.
Any future disposition of dividends will be at the discretion of our board of directors and will depend upon, among other things,
our future earnings, operating and financial condition, capital requirements, and other factors.
Holders of our common stock have no preemptive
rights or other subscription rights, conversion rights, redemption or sinking fund provisions. Upon our liquidation, dissolution
or winding up, the holders of our common stock will be entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities. There are no provisions in our certificate of incorporation
or our by-laws that would prevent or delay change in our control.
Preferred Stock
We are authorized to issue up to 10,000,000
shares of “blank check” preferred stock, par value $0.0001 per share, none of which is presently issued or outstanding.
Our board of directors is authorized to issue such shares of preferred stock with designations, rights and preferences as it may
determine from time to time. Accordingly, our board of directors is empowered, without stockholder approval, to issue shares of
preferred stock with dividend, liquidation, conversion, or other rights that could adversely affect the rights of the holders of
our common stock. Once designated by our board of directors, each series of preferred stock will have specific financial and other
terms that will be described in a prospectus supplement. We will also file with the SEC a certificate of designation designating
the rights and preferences of the preferred stock prior to any issuance of preferred stock, and you should read such certificate
of designation for provisions that may be important to you.
Dividends
Since inception we have not paid any dividends
on our common stock. We currently do not anticipate paying any cash dividends in the foreseeable future on our common stock. Although
we intend to retain our earnings, if any, to finance the exploration and growth of our business, our board of directors will have
the discretion to declare and pay dividends in the future. Payment of dividends in the future will depend upon our earnings, capital
requirements, and other factors, which our board of directors may deem relevant.
Warrants
As of April 20, 2015, we had warrants to purchase
3,479,776 shares of our common stock at a weighted average exercise price of $2.84 outstanding. The exercise price of the warrants
is subject to adjustment upon certain events, such as stock splits, combinations, dividends, distributions, reclassifications,
mergers or other corporate change and dilutive issuances.
Options and Other Stock Awards
On January 4, 2013, the Company’s
stockholders authorized the Company’s 2013 Long-Term Stock Incentive Plan (the “Plan”). The maximum
aggregate number of shares of common stock that may be issued under the Plan, including stock options, stock awards and stock
appreciation rights, is limited to 10% of the shares of common stock outstanding on the first trading day of any fiscal year,
less shares or awards previously issued under the Plan, or 2,183,506 for fiscal year 2015. Currently, we have not issued any
stock options under the Plan. As of April 20, 2015, we have issued 357,985 shares of common stock under the Plan.
Registration Rights
None.
Anti-Takeover Effects of Provisions of the DGCL and our
Certificate of Incorporation and Bylaws
Provisions of the DGCL and our certificate
of incorporation and bylaws could make it more difficult to acquire us by means of a tender offer, a proxy contest or otherwise,
or to remove incumbent officers and directors. These provisions, summarized below, are expected to discourage certain types of
coercive takeover practices and takeover bids that our board of directors may consider inadequate and to encourage persons seeking
to acquire control of us to first negotiate with our board of directors. We believe that the benefits of increased protection of
our ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the
disadvantages of discouraging takeover or acquisition proposals because, among other things, negotiation of these proposals could
result in improved terms for our stockholders.
Delaware Anti-Takeover Statute.
We are subject to the provisions of Section 203 of the DGCL, an anti-takeover law. Subject to exceptions, the statute prohibits
a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder”
for a period of three (3) years after the date of the transaction in which the person became an interested stockholder, unless:
| ● | Prior
to such date, the board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an interested
stockholder; |
| ● | 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 number of shares outstanding, those shares owned:
(1) by persons who are directors and also officers; and (2) by employee stock plans in which 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 |
| ● | On or after
such date, the business combination is approved by the board of directors and authorized at an annual
or special meeting of stockholders and not by written consent, by the affirmative vote of at least 66
2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
For purposes of Section 203, a “business
combination” includes a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder,
with an “interested stockholder” being defined as a person who, together with affiliates and associates, owns, or within
three (3) years prior to the date of determination whether the person is an “interested stockholder,” did own, 15%
or more of the corporation’s voting stock.
Amendments to Our Certificate of
Incorporation. Under the DGCL, the affirmative vote of a majority of the outstanding shares entitled to vote thereon and
a majority of the outstanding stock of each class entitled to vote thereon is required to amend a corporation’s certificate
of incorporation. Under the DGCL, the holders of the outstanding shares of a class of our capital stock shall be entitled to vote
as a class upon a proposed amendment, whether or not entitled to vote thereon by the certificate of incorporation, if the amendment
would:
|
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Increase
or decrease the aggregate number of authorized shares of such class; |
|
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Increase
or decrease the par value of the shares of such class; or |
|
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Alter
or change the powers, preferences or special rights of the shares of such class so as to affect them adversely. |
If any proposed amendment would alter
or change the powers, preferences or special rights of one or more series of any class of our capital stock so as to affect them
adversely, but shall not so affect the entire class, then only the shares of the series so affected by the amendment shall be considered
a separate class for the purposes of this provision.
Vacancies in the Board of Directors. Our
bylaws provide that, subject to limitations, any vacancy occurring in our board of directors for any reason may be filled by a
majority of the remaining members of our board of directors then in office, even if such majority is less than a quorum. Each director
so elected shall hold office until the expiration of the term of the other directors. Each such directors shall hold office until
his or her successor is elected and qualified, or until the earlier of his or her death, resignation or removal.
Special Meetings of Stockholders. Under
our bylaws, special meetings of stockholders may be called at any time by our President whenever so directed in writing by a majority
of the entire board of directors. Special meetings can also be called whenever one-third of the number of shares of our capital
stock entitled to vote at such meeting shall, in writing, request one. Under the DGCL, written notice of any special meeting must
be given not less than ten (10) nor more than sixty (60) days before the date of the special meeting to each stockholder entitled
to vote at such meeting.
No Cumulative Voting. The
DGCL provides that stockholders are denied the right to cumulate votes in the election of directors unless our certificate of incorporation
provides otherwise. Our amended and restated certificate of incorporation does not provide for cumulative voting.
Limitation on Directors’ Liability; Indemnification
The DGCL authorizes Delaware corporations
to limit or eliminate the personal liability of their directors to them and their stockholders for monetary damages for breach
of a director’s fiduciary duty of care. The duty of care requires that, when acting on behalf of the corporation, directors
must exercise an informed business judgment based on all material information reasonably available to them. Absent the limitations
the DGCL authorizes, directors of Delaware corporations are accountable to those corporations and their stockholders for monetary
damages for conduct constituting gross negligence in the exercise of their duty of care. The DGCL enables Delaware corporations
to limit available relief to equitable remedies such as injunction or rescission. Our certificate of incorporation limits the liability
of our directors to us and our stockholders to the fullest extent Delaware law permits. Specifically, no director will be personally
liable for monetary damages for any breach of the director’s fiduciary duty as a director, except for liability:
|
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For any breach of the director’s duty of loyalty to us or our stockholders; |
|
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For acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
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For unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; and |
|
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For
any transaction from which the director derived an improper personal benefit. |
This provision could have the effect
of reducing the likelihood of derivative litigation against our directors and may discourage or deter our stockholders or management
from bringing a lawsuit against our directors for breach of their duty of care, even though such an action, if successful, might
otherwise have benefited us and our stockholders. Our bylaws provide indemnification to our officers and directors and other specified
persons with respect to their conduct in various capacities.
We maintain a general liability insurance policy
that covers liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in their
capacities as directors or officers.
Insofar as the foregoing provisions
permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have
been informed that in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
Listing
Our common stock and warrants are quoted
on the NASDAQ Capital Market under the symbols “NXTD” and “NXTDW”, respectively.
Transfer Agent and Registrar
The Transfer Agent and Registrar for our common stock is
VStock Transfer, LLC. The transfer agent’s address is 18 Lafayette Place, Woodmere, NY 11598, and its telephone number is
(212) 828-8436.
DESCRIPTION OF DEBT SECURITIES
We may offer debt securities
which may be senior, subordinated or junior subordinated and may be convertible. We may offer general debt obligations, which
may be secured or unsecured, senior or subordinated and convertible into shares of our common stock. In this prospectus, we
refer to the senior debt securities and the subordinated debt securities together as the “debt securities.” We
may issue debt securities under a note purchase agreement or under an indenture to be entered between us and a trustee. We
will file the form of debt security and form of note purchase agreement for debt securities or form of indenture for debt
securities with the SEC. The indentures do not limit the amount of securities that may
be issued under it and provides that debt securities may be issued in one or more series. The senior debt securities will
have the same rank as all of our other indebtedness that is not subordinated. The subordinated debt securities will be
subordinated to our senior debt on terms set forth in the applicable prospectus supplement. In addition, the subordinated
debt securities will be effectively subordinated to creditors and preferred stockholders of our subsidiaries. Our board of
directors will determine the terms of each series of debt securities being offered. This prospectus contains only general
terms and provisions of the debt securities. The applicable prospectus supplement will describe the particular terms of the
debt securities offered thereby. You should read any prospectus supplement and any free writing prospectus that we may
authorize to be provided to you related to the series of debt securities being offered, as well as the complete note
agreements and/or indentures that contain the terms of the debt securities.
If we decide to issue debt securities pursuant
to an indenture to be entered into between us and a trustee, we will issue the debt securities offered by this prospectus and any
accompanying prospectus supplement under an indenture to be entered into between us and the trustee identified in the applicable
prospectus supplement. The terms of the debt securities will include those stated in the indenture and those made part of the indenture
by reference to the Trust Indenture Act of 1939, as in effect on the date of the indenture. The indenture will be subject to and
governed by the terms of the Trust Indenture Act of 1939. If we offer debt securities under this prospectus, we will file the form
of indenture with the SEC.
The following description briefly sets forth
certain general terms and provisions of the debt securities that we may offer. The particular terms of the debt securities offered
by any prospectus supplement and the extent, if any, to which these general provisions may apply to the debt securities, will be
described in the related prospectus supplement. Accordingly, for a description of the terms of a particular issue of debt securities,
reference must be made to both the related prospectus supplement and to the following description. Where any provision in an accompanying
prospectus supplement is inconsistent with any provision in this summary, the prospectus supplement will control.
Debt Securities
The aggregate principal amount of debt securities
that may be issued either pursuant to a note purchase agreement or under an indenture is unlimited. The debt securities may be
issued in one or more series as may be authorized from time to time pursuant to a supplemental indenture entered into between us
and the trustee or an order delivered by us to the trustee. For each series of debt securities we offer, a prospectus supplement
accompanying this prospectus will describe the following terms and conditions of the series of debt securities that we are offering,
to the extent applicable:
| ● | Title and aggregate principal amount; |
| ● | Whether the debt securities will be senior, subordinated or junior subordinated; |
| ● | Applicable subordination provisions, if any; |
| ● | Provisions regarding whether the debt securities will be convertible or exchangeable into other
securities or property of the Company or any other person; |
| ● | Percentage or percentages of principal amount at which the debt securities will be issued; |
| ● | Maturity date(s); |
| ● | Interest rate(s) or the method for determining the interest rate(s); |
| ● | Whether interest on the debt securities will be payable in cash or additional debt securities of
the same series; |
| | |
| ● | Dates on which interest will accrue or the method for determining dates on which interest will
accrue and dates on which interest will be payable; |
| ● | Whether the amount of payment of principal of, premium, if any, or interest on the debt securities
may be determined with reference to an index, formula or other method; |
| ● | Redemption, repurchase or early repayment provisions, including our obligation or right to redeem,
purchase or repay debt securities under a sinking fund, amortization or analogous provision; |
| ● | If other than the debt securities' principal amount, the portion of the principal amount of the
debt securities that will be payable upon declaration of acceleration of the maturity; |
| ● | Authorized denominations; |
| ● | Form; |
| ● | Amount of discount or premium, if any, with which the debt securities will be issued, including
whether the debt securities will be issued as "original issue discount" securities; |
| ● | The place or places where the principal of, premium, if any, and interest on the debt securities
will be payable; |
| ● | Where the debt securities may be presented for registration of transfer, exchange or conversion; |
| ● | The place or places where notices and demands to or upon the Company in respect of the debt securities
may be made; |
| ● | Whether the debt securities will be issued in whole or in part in the form of one or more global
securities; |
| ● | If the debt securities will be issued in whole or in part in the form of a book-entry security,
the depository or its nominee with respect to the debt securities and the circumstances under which the book-entry security may
be registered for transfer or exchange or authenticated and delivered in the name of a person other than the depository or its
nominee; |
| ● | Whether a temporary security is to be issued with respect to such series and whether any interest
payable prior to the issuance of definitive securities of the series will be credited to the account of the persons entitled thereto; |
| ● | The terms upon which beneficial interests in a temporary global security may be exchanged in whole
or in part for beneficial interests in a definitive global security or for individual definitive securities; |
| ● | The guarantors, if any, of the debt securities, and the extent of the guarantees and any additions
or changes to permit or facilitate guarantees of such debt securities; |
| ● | Any covenants applicable to the particular debt securities being issued; |
| ● | Any defaults and events of default applicable to the debt securities, including the remedies available
in connection therewith; |
| ● | Currency, currencies or currency units in which the purchase price for, the principal of and any
premium and any interest on, such debt securities will be payable; |
| ● | Time period within which, the manner in which and the terms and conditions upon which the Company
or the purchaser of the debt securities can select the payment currency; |
| ● | Securities exchange(s) on which the debt securities will be listed, if any; |
| ● | Whether any underwriter(s) will act as market maker(s) for the debt securities; |
| ● | Extent to which a secondary market for the debt securities is expected to develop; |
| ● | Provisions relating to defeasance; |
| ● | Provisions relating to satisfaction and discharge of the indenture; |
| ● | Any restrictions or conditions on the transferability of the debt securities; |
| ● | Provisions relating to the modification of the indenture both with and without the consent of holders
of debt securities issued under the indenture; |
| ● | Any addition or change in the provisions related to compensation and reimbursement of the trustee; |
| ● | Provisions, if any, granting special rights to holders upon the occurrence of specified events; |
| ● | Whether the debt securities will be secured or unsecured, and, if secured, the terms upon which
the debt securities will be secured and any other additions or changes relating to such security; and |
| ● | Any other terms of the debt securities that are not inconsistent with the provisions of the Trust
Indenture Act (but may modify, amend, supplement or delete any of the terms of the indenture with respect to such series of debt
securities). |
General
One or more series of debt securities may be
sold as "original issue discount" securities. These debt securities would be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market rates. One or
more series of debt securities may be variable rate debt securities that may be exchanged for fixed rate debt securities.
United States federal income tax consequences
and special considerations, if any, applicable to any such series will be described in the applicable prospectus supplement.
Debt securities may be issued where the amount
of principal and/or interest payable is determined by reference to one or more currency exchange rates, commodity prices, equity
indices or other factors. Holders of such debt securities may receive a principal amount or a payment of interest that is greater
than or less than the amount of principal or interest otherwise payable on such dates, depending upon the value of the applicable
currencies, commodities, equity indices or other factors. Information as to the methods for determining the amount of principal
or interest, if any, payable on any date, the currencies, commodities, equity indices or other factors to which the amount payable
on such date is linked and certain additional United States federal income tax considerations will be set forth in the applicable
prospectus supplement.
The term "debt securities" includes
debt securities denominated in U.S. dollars or, if specified in the applicable prospectus supplement, in any other freely transferable
currency or units based on or relating to foreign currencies.
Subject to the limitations provided in any
indenture and in a prospectus supplement, debt securities that are issued in registered form may be transferred or exchanged at
the principal corporate trust office of the trustee, without the payment of any service charge, other than any tax or other governmental
charge payable in connection therewith.
Governing Law
All debt securities, including debt securities
issued pursuant to an indenture, shall be construed in accordance with and governed by the laws of the state of New York. To the
extent we issue securities pursuant to an indenture, such indenture will be governed by the laws of the state of New York.
DESCRIPTION OF WARRANTS
The following description, together
with the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the
terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series
of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any
warrants offered under that prospectus supplement may differ from the terms described below. If there are differences between that
prospectus supplement and this prospectus, the prospectus supplement will control. Thus, the statements we make in this section
may not apply to a particular series of warrants. Specific warrant agreements will contain additional important terms and
provisions and will be incorporated by reference as an exhibit to the registration statement which includes this prospectus.
General
We may issue warrants for the purchase
of common stock, preferred stock, and/or debt securities in one or more series. We may issue warrants independently or together
with common stock, preferred stock, and/or debt securities, and the warrants may be attached to or separate from these securities.
We will issue warrants under one or
more warrant agreements between us and a warrant agent that we will name in the prospectus supplement. We will file the form of
warrant agreement and form of warrant certificate with the SEC, and you should read the form of warrant agreement and form of warrant
certificate for provisions that may be important to you.
We will describe in the applicable prospectus supplement
the terms of the series of warrants, including:
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The offering price and aggregate number of warrants offered; |
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The currency for which the warrants may be purchased; |
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If applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
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If applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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In the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
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The warrant agreement under which the warrants will be issued; |
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The effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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Anti-dilution provisions of the warrants, if any; |
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The terms of any rights to redeem or call the warrants; |
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Any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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The dates on which the right to exercise the warrants will commence and expire or, if the warrants are not continuously exercisable during that period, the specific date or dates on which the warrants will be exercisable; |
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The manner in which the warrant agreement and warrants may be modified; |
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The identities of the warrant agent and any calculation or other agent for the warrants; |
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Federal income tax consequences of holding or exercising the warrants; |
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The terms of the securities issuable upon exercise of the warrants; |
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Any securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be listed; and |
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Any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Exercise of Warrants
Each warrant will entitle the holder
to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the
applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants
may exercise the warrants at any time up to 5:00 p.m. eastern time on the expiration date that we set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise
the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement.
We will set forth on the reverse side of the warrant certificate, and in the applicable prospectus supplement, the information
that the holder of the warrant will be required to deliver to the warrant agent.
Until the warrant is properly exercised,
no holder of any warrant will be entitled to any rights of a holder of the securities purchasable upon exercise of the warrant.
Upon receipt of the required payment
and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other
office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise.
If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate
for the remaining amount of warrants.
Modifications
We may amend the warrant agreements
and the warrant certificates without the consent of the holders of the warrants to cure any ambiguity, to cure, correct or supplement
any defective or inconsistent provision, or in any other manner that will not adversely affect the interests of the holders of
the warrants. We may also modify or amend certain other terms of the warrant agreements and the warrant certificates with the written
consent of the holders of not less than a majority of the then outstanding warrants.
Enforceability of Rights by Holders
of Warrants
Any warrant agent will act solely as
our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any
holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent
will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant certificate,
including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal
action its right to exercise, and receive the securities purchasable upon exercise of, its warrants in accordance with their terms.
DESCRIPTION OF RIGHTS
We may issue rights to purchase shares
of our common stock, preferred stock, debt securities, or other securities. These rights may be issued independently or together
with any other security offered hereby and may or may not be transferable by the holder receiving the rights in such offering.
The applicable prospectus supplement may add, update or change the terms and conditions of the rights as described in this prospectus.
The applicable prospectus supplement
will describe the specific terms of any offering of rights for which this prospectus is being delivered, including the following:
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The price, if any, per right; |
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The exercise price payable for common stock, preferred stock, or other securities upon the exercise of the rights; |
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The number of rights issued or to be issued to each holder; |
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The number and terms of common stock, preferred stock, or other securities which may be purchased per right; |
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The extent to which the rights are transferable; |
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Any other terms of the rights, including the terms, procedures and limitations relating to the exchange and exercise of the rights; |
|
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The date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall expire; |
|
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The extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; and |
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If applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of such rights. |
Holders may exercise rights as described
in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed
at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon
as practicable, forward the applicable securities purchased upon exercise of the rights. If less than all of the rights issued
in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to
or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements
with one or more underwriters or other purchasers, pursuant to which the underwriters or other purchasers may be required to purchase
any securities remaining unsubscribed for after such offering, as described in the applicable prospectus supplement.
The description in the applicable prospectus
supplement of any rights that we may offer will not necessarily be complete and will be qualified in its entirety by reference
to the applicable rights certificate, which will be filed with the SEC.
DESCRIPTION OF UNITS
We may issue units comprised of one
or more of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of
the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations
of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We may evidence units by unit certificates
that we issue under a separate unit agreement. We may issue the units under a unit agreement between us and one or more unit agents.
If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in connection with the
units and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial
owners of units. We will indicate the name and address and other information regarding the unit agent in the applicable prospectus
supplement relating to a particular series of units if we elect to use a unit agent.
We will describe in the applicable prospectus
supplement the terms of the series of units being offered, including:
| ● | The designation and terms of the units and of the securities comprising the units, including whether
and under what circumstances those securities may be held or transferred separately; |
| ● | Any unit agreement under which the units will be issued and any provisions of the unit agreement
that differ from those described herein; |
| ● | Any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the
securities comprising the units; and |
| ● | Whether the units will be issued in fully registered or global form. |
The other provisions regarding our common
stock, preferred stock, debt securities, warrants and rights as described in this prospectus will apply to each unit to the extent
such unit consists of shares of our common stock, preferred stock, debt securities, warrants and/or rights.
GLOBAL SECURITIES
We may issue some or all of our securities
of any series as global securities. We will register each global security in the name of a depositary identified in the applicable
prospectus supplement. The global securities will be deposited with a depositary or nominee or custodian for the depositary and
will bear a legend regarding restrictions on exchanges and registration of transfer as discussed below and any other matters to
be provided pursuant to the indenture.
As long as the depositary or its nominee is
the registered holder of a global security, that person will be considered the sole owner and holder of the global security and
the securities represented by it for all purposes under the securities and the indenture. Except in limited circumstances, owners
of a beneficial interest in a global security:
|
● |
Will not be entitled to have the global security or any securities represented by it registered in their names; |
|
● |
Will
not receive or be entitled to receive physical delivery of certificated securities in exchange for the global security; and |
|
● |
Will
not be considered to be the owners or holders of the global security or any securities represented by it for any purposes under
the securities or the indenture. |
We will make all payments of principal and
any premium and interest on a global security to the depositary or its nominee as the holder of the global security. The laws of
some jurisdictions require that certain purchasers of securities take physical delivery of securities in definitive form. These
laws may impair the ability to transfer beneficial interests in a global security.
Ownership of beneficial interests in a global
security will be limited to institutions having accounts with the depositary or its nominee, called “participants”
for purposes of this discussion, and to persons that hold beneficial interests through participants. When a global security is
issued, the depositary will credit on its book-entry, registration and transfer system the principal amounts of securities represented
by the global security to the accounts of its participants. Ownership of beneficial interests in a global security will be shown
only on, and the transfer of those ownership interests will be effected only through, records maintained by:
|
● |
The
depositary, with respect to participants’ interests; or |
|
● |
Any participant, with respect to interests of persons held by the participants on their behalf. |
Payments by participants to owners of beneficial
interests held through the participants will be the responsibility of the participants. The depositary may from time to time adopt
various policies and procedures governing payments, transfers, exchanges and other matters relating to beneficial interests in
a global security. None of the following will have any responsibility or liability for any aspect of the depositary’s or
any participant’s records relating to, or for payments made on account of, beneficial interests in a global security, or
for maintaining, supervising or reviewing any records relating to those beneficial interests:
|
● |
Us or our affiliates; |
|
● |
The trustee under
any indenture; or |
|
● |
Any agent of any
of the above. |
PLAN
OF DISTRIBUTION
We
may sell the securities being offered pursuant to this prospectus from time to time in one or more transactions, including, without
limitation:
|
● |
Through
underwriters or dealers; |
|
● |
Through
agents; |
|
● |
Directly
to purchasers; |
|
● |
In
“at the market” offerings within the meaning of Rule 415(a)(4) of the Securities Act to or through a market maker
or into an existing trading market on an exchange or otherwise; |
|
● |
Through
a combination of any of these methods; or |
|
● |
Through
any other method permitted by applicable law and described in a prospectus supplement. |
The
applicable prospectus supplement will describe the terms of the offering of the securities, including:
|
● |
The
name or names of any underwriters, if any, and if required, any dealers or agents; |
|
● |
The
purchase price of the securities and the proceeds we will receive from the sale; |
|
● |
Any
underwriting discounts and other items constituting underwriters’ compensation; |
|
● |
Any
commissions paid to agents; |
|
● |
Any
discounts or concessions allowed or reallowed or paid to dealers; |
|
● |
Any
delayed delivery arrangements; |
|
● |
Any
additional risk factors applicable to the securities that we propose to sell; and |
|
● |
Any
securities exchange or market on which the securities may be listed. |
We
may sell the securities from time to time in one or more transactions at:
|
● |
A
fixed price or prices, which may be changed; |
|
● |
Market
prices prevailing at the time of sale; |
|
● |
Prices
related to such prevailing market prices; or |
Sale
through Underwriters or Dealers
If
underwriters are used in the sale, the underwriters may resell the securities from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may
offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly
by one or more firms acting as underwriters. Unless we inform you otherwise in the applicable prospectus supplement, the obligations
of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to
purchase all of the offered securities if they purchase any of them. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
We
will describe the name or names of any underwriters, dealers or agents and the purchase price of the securities in a prospectus
supplement relating to the securities.
In
connection with the sale of the securities, underwriters may receive compensation from us or from purchasers of the securities,
for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and these dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agents, which is not expected to exceed that customary in the
types of transactions involved. Underwriters, dealers and agents that participate in the distribution of the securities may be
deemed to be underwriters, and any discounts or commissions they receive from us and any profit on the resale of the securities
they realize may be deemed to be underwriting discounts and commissions under the Securities Act. The prospectus supplement will
identify any underwriter or agent and will describe any compensation they receive from us.
Underwriters
could make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an
“at-the-market” offering, sales made directly on the NASDAQ Capital Market, or such other exchange or automated quotation
system on which our securities trade, or sales made to or through a market maker other than on an exchange. The name of any such
underwriter or agent involved in the offer and sale of our securities, the amounts underwritten, and the nature of its obligations
to take our securities will be described in the applicable prospectus supplement.
Unless
otherwise specified in the prospectus supplement, each series of the securities will be a new issue with no established trading
market, other than our common stock, which is currently listed on the NASDAQ Capital Market. We may elect to list any of the securities
on an exchange, but are not obligated to do so. It is possible that one or more underwriters may make a market in a series of
the securities, but underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
Therefore, we can give no assurance about the liquidity of or the trading market for any of the securities.
In
compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum aggregate discounts,
commissions, agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent
broker-dealer will not exceed 8% of the aggregate offering price of the securities offered pursuant to this prospectus and any
applicable prospectus supplement.
To
facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which
involve the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these
persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment
option, if any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing
securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the
offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise
prevail in the open market. These transactions may be discontinued at any time.
From
time to time, we or our affiliates may engage in transactions with these underwriters, dealers and agents in the ordinary course
of business. Underwriters have from time to time in the past provided, and may from time to time in the future provide, investment
banking services to us for which they have in the past received, and may in the future receive, customary fees.
Direct
Sales and Sales through Agents
We
may sell the securities directly. In this case, no underwriters or agents would be involved. We may also sell the securities through
agents designated by us from time to time. In the applicable prospectus supplement, we will name any agent involved in the offer,
sale or resale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise
in the applicable prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the
period of its appointment.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning
of the Securities Act with respect to any sale of those securities. We will describe the terms of any sales of these securities
in the applicable prospectus supplement.
Remarketing
Arrangements
Securities
may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms,
acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its
agreements, if any, with us and its compensation will be described in the applicable prospectus supplement.
Delayed
Delivery Contracts
If
we so indicate in the applicable prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. Institutions
with which we may make these delayed delivery contracts include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others. These contracts would provide for payment and delivery
on a specified date in the future. The contracts would be subject only to those conditions described in the applicable prospectus
supplement. The obligations of any purchaser under any such delayed delivery contract will be subject to the condition that the
purchase of the securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the purchaser
is subject. The underwriters and other agents will not have any responsibility with regard to the validity or performance of these
delayed delivery contracts. The applicable prospectus supplement will describe the commission payable for solicitation of those
contracts.
General
Information
We
may have agreements with the underwriters, dealers, agents and remarketing firms to indemnify them against certain civil liabilities,
including liabilities under the Securities Act, or to contribute with respect to payments that the underwriters, dealers, agents
or remarketing firms may be required to make. Underwriters, dealers, agents and remarketing firms may be customers of, engage
in transactions with or perform services for us in the ordinary course of their businesses.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Robinson Brog Leinwand Greene Genovese
& Gluck P.C., New York, New York.
EXPERTS
The consolidated financial statements of Nxt-ID,
Inc. as of December 31, 2014 and for the year then ended, have been incorporated by reference herein in reliance upon the
report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of
said firm as experts in auditing and accounting. The report contains an explanatory paragraph that states
that the Company has incurred recurring losses from operations that raise substantial doubt about its ability to continue as a
going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that
uncertainty.
Our
audited consolidated financial statements as of December 31, 2013 and for the year then ended have been incorporated in
reliance on the report, which includes an explanatory paragraph as to the Company’s ability to continue as a going
concern, of Marcum LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the
SEC’s rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain
all the information that is included in the registration statement. You will find additional information about us in the
registration statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents are
not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise
filed with the SEC for a more complete understanding of the document or matter.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read, without charge,
and copy the documents we file at the SEC’s public reference room at 100 F Street, NE, Room 1580, Washington, DC 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 further information on the public reference room. Our SEC filings are also available to the public at no cost
from the SEC’s website at www.sec.gov. Our corporate website is www.nxt-id.com. The information on our corporate
website is not incorporated by reference in this prospectus or any prospectus supplement and you should not consider it a part
of this prospectus or any accompanying prospectus supplement.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC permits us to “incorporate by reference” into this prospectus the information contained in documents we file with
the SEC, which means that we can disclose important information to you by referring you to those documents. Information that is
incorporated by reference is considered to be part of this prospectus and you should read it with the same care that you read
this prospectus. Information that we file later with the SEC will automatically update and supersede the information that is either
contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date
those documents are filed. We have filed with the SEC and incorporate by reference in this prospectus, except as superseded, supplemented
or modified by this prospectus, the documents listed below:
| ● | Annual
Report on Form 10-K for the year ended December 31, 2014, filed with the SEC on
March 6, 2015; |
| ● | Current
Report on Form 8-K, filed with the SEC on April 24, 2015; and |
| ● | Registration
Statement on Form 8-A, filed with the SEC on September 9, 2014, including any amendments
or reports filed for the purpose of updating the description of our common stock therein |
We
also incorporate by reference all additional documents that we file with the SEC under the terms of Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act until the offering is completed, including those documents that are filed after the initial filing
date of the registration statement of which this prospectus is a part and prior to effectiveness of the registration statement.
We are not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not file under
Item 2.02 or Item 7.01 of any Current Report on Form 8-K in accordance with SEC rules.
We
will provide to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of any or
all information that we have incorporated by reference into this prospectus. You may request, and we will provide you with, a
copy of these filings, at no cost, by calling us at (203) 266-2103 or by writing to us at the following address:
Nxt-ID,
Inc.
288
Christian Street
Oxford,
CT 06478
Attn.:
Corporate Secretary
$25,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Rights
Units
Nxt-ID,
Inc.
PROSPECTUS
The
date of this prospectus is April , 2015.
PART
II INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being
registered hereby, other than underwriting discounts and commissions, all of which shall be borne by the registrant. All
of such fees and expenses, except for the SEC registration fee, are estimated:
SEC
registration fee |
|
$ |
2,905 |
|
FINRA
filing fee |
|
|
|
* |
NASDAQ
listing fee |
|
|
|
* |
Transfer
Agent and Registrar fees and expenses |
|
|
|
* |
Legal
fees and expenses |
|
|
|
* |
Printing
fees and expenses |
|
|
|
* |
Accounting
fees and expenses |
|
|
|
* |
Miscellaneous
fees and expenses |
|
|
|
* |
Total |
|
$ |
2,905 |
|
*
These fees and expenses depend on the securities offered and the number of issuances and, accordingly, cannot be estimated
at this time. An estimate of the aggregate expenses in connection with the sale and distribution of the securities being offered
will be included in the applicable prospectus supplement.
Item 15.
Indemnification of Officers and Directors.
Section
102(b)(7) of the Delaware General Corporation Law (the “DGCL”) allows a corporation to provide in its certificate
of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except where the directors breached the duty of loyalty, failed to act in
good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our certificate of incorporation
provides for this limitation of liability.
Section
145 of the DGCL provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director,
employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer employee
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s
best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was
illegal. A Delaware corporation may indemnify any persons who are, or were, a party to any threatened, pending or completed action
or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted
in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, provided
that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable
to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him against the expenses which such officer or directors has actually and reasonably
incurred. Our bylaws provide indemnification to our officers and directors and other specified persons with respect to their conduct
in various capacities.
Section
145 further authorizes 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 or enterprise, against any liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section
145.
The
indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter
acquire under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased
to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such
person.
We
maintain a general liability insurance policy that covers liabilities of directors and officers of our corporation arising out
of claims based on acts or omissions in their capacities as directors or officers.
Item 16.
Exhibits.
The list
of exhibits in the Exhibit Index to this registration statement is incorporated herein by reference.
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,
as amended; |
| (ii) | To
reflect in the prospectus any facts or events arising after the effective date of this
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 this
registration statement. Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of the 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 Securities and Exchange Commission 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 this registration statement or any material change to such information in
this registration statement; |
provided,
however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above 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 Securities
and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, that are incorporated by reference in this registration statement or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of this registration statement;
| (2) | That,
for the purpose of determining any liability under the Securities Act of 1933, as amended,
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, as amended,
to any purchaser: |
| (i) | Each
prospectus filed by the registrant pursuant to Rule 424 (b)(3) shall be deemed to be
part of this registration statement as of the date the filed prospectus was deemed part
of and included in this registration statement; and |
| (ii) | 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, as amended, shall be deemed
to be part of and included in the registration statement as of the earlier of the date
such 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 of
1933, as amended, 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 purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities
to such purchaser: |
| (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) | That,
for purposes of determining any liability under the Securities Act of 1933, as amended,
each filing of the registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended (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, as amended) 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) | To
supplement the prospectus, after the expiration of the subscription period, to set forth
the results of the subscription offer, the transactions by the underwriters during the
subscription period, the amount of unsubscribed securities to be purchased by the underwriters,
and the terms of any subsequent reoffering thereof. If any public offering by the underwriters
is to be made on terms differing from those set forth on the cover page of the prospectus,
a post-effective amendment will be filed to set forth the terms of such offering; |
| (8) | To
file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the Trust Indenture Act; and |
| (9) | Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended,
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 Securities Act of 1933, as amended, 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 of 1933, as amended, and will be governed by the final adjudication
of such issue. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Oxford, in the state of Connecticut, on April 24, 2015.
|
Nxt-ID,
INC. |
|
|
|
|
By: |
/s/
Gino M. Pereira |
|
|
Gino
M. Pereira |
|
|
Chief
Executive Officer and Director |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Gino M. Pereira, his true and
lawful attorney-in-fact and agent with full power of substitution and re-substitution, for him/her and in his name, place and
stead, in any and all capacities to sign any or all amendments (including, without limitation, post-effective amendments) to this
registration statement, any related registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and
any or all pre- or post-effective amendments thereto, and to file the same, with all exhibits thereto, and all other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as
fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that said attorney-in-fact
and agent, or any substitute or substitutes for him, may lawfully do or cause to be done by virtue hereof. 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/ GINO
M. PEREIRA
Gino
M. Pereira |
|
Chief
Executive Officer and Director
(Principal
Executive Officer)
|
|
April
24, 2015 |
/s/
VINCENT S. MICELI
Vincent
S. Miceli |
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer) |
|
April
24, 2015 |
|
|
/s/ MAJOR
GENERAL DAVID R. GUST, USA, Ret.
Major
General David R. Gust, USA, Ret. |
|
Director
|
|
April
24, 2015 |
|
|
|
/s/ MICHAEL
J. D’ALMADA-REMEDIOS, PHD.
Michael
J. D’Almada-Remedios, PhD |
|
Director |
|
April
24, 2015 |
|
|
|
/s/ DANIEL
P. SHARKEY
Daniel
P. Sharkey |
|
Director |
|
April
24, 2015 |
EXHIBIT
INDEX
Exhibit
Number | |
Description
of Document |
| |
|
1.1* | |
Form
of Underwriting Agreement |
| |
|
3.1 | |
Certificate of
Incorporation (1) |
| |
|
3.2 | |
Bylaws (1) |
| |
|
4.1 | |
Specimen
Common Stock Certificate (2) |
| |
|
4.2 | |
Form
of Warrant Agreement and Form of Warrant (1) |
| |
|
4.3 | |
Form
of Warrant for January 2014 Offering (3) |
| |
|
4.4 | |
Form of
Agent Warrant for January 2014 Offering (3) |
| |
|
4.5 | |
Form of
Warrant for June 2014 and August 2014 Offering (4) |
| |
|
4.6 | |
Form
of Warrant Agreement for September 2014 Offering (5) |
| |
|
4.7 | |
Form
of Warrant for September 2014 Offering (5) |
| |
|
4.8 | |
Form
of Secured Convertible Note for April 2015 Offering (6) |
| |
|
4.9 | |
Form
of Class A Common Stock Warrant for April 2015 Offering (6) |
| |
|
4.10 | |
Form
of Class B Common Stock Warrant for April 2015 Offering (6) |
| |
|
4.11* | |
Form
of Preferred Stock Certificate |
| |
|
4.12* | |
Form
of Debt Security |
| |
|
4.13* | |
Form of Note Purchase Agreement for Debt Securities |
| |
|
4.14* | |
Form
of Indenture for Debt Securities |
| |
|
4.15* | |
Form
of Warrant Agreement |
| |
|
4.16* | |
Form
of Warrant Certificate |
| |
|
4.17* | |
Form
of Rights Agreement |
| |
|
4.18* | |
Form
of Rights Certificate |
| |
|
4.19* | |
Form
of Unit Agreement |
| |
|
4.20* | |
Form
of Unit Certificate |
| |
|
5.1** | |
Opinion
of Robinson Brog Leinwand Greene Genovese & Gluck P.C. |
| |
|
23.1** | |
Consent
of Robinson Brog Leinwand Greene Genovese & Gluck P.C. (included in Exhibit 5.1) |
| |
|
23.2** | |
Consent
of KPMG LLP |
| |
|
23.3** | |
Consent
of Marcum LLP |
| |
|
24.1 | |
Power
of Attorney (included on signature pages to the registration statement) |
|
* |
To
the extent applicable, to be filed by an amendment or as an exhibit to a document filed under the Securities Exchange Act
of 1934, as amended, and incorporated by reference herein. |
| (1) | Filed
as an Exhibit to the Company’s Registration Statement on Form S-1 (File No. 333-186311)
with the SEC on January 31, 2013. |
| (2) | Filed
as an Exhibit to Amendment No 3.to the Company’s Registration Statement on Form
S-1 (File No. 333-186331) with the SEC on April 11, 2013 |
| (3) | Filed
as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on January
17, 2014. |
| (4) | Filed
as an Exhibit to the Company’s Registration Statement on Form S-1 (File No. 333-197845)
with the SEC on August 5, 2014. |
| (5) | Filed
as an Exhibit to Amendment No. 1 to the Company’s Registration Statement on Form
S-1 (File No. 333-197845) with the SEC on August 14, 2014. |
| (6) | Filed
as an Exhibit to the Company’s Current Report on Form 8-K with the SEC on April
24, 2015. |
35
Exhibit 5.1
ROBINSON BROG LEINWAND GREENE GENOVESE
& GLUCK P.C.
875 THIRD AVENUE
NEW YORK, NEW YORK 10022-0123
(212) 603-6300
FAX (212) 956-2164
April 24, 2015
Nxt-ID, Inc.
288 Christian Street
Oxford, CT 06478
Ladies and Gentlemen:
We have acted as
counsel to Nxt-ID, Inc., a Delaware corporation (the “Company”), in connection with a Registration
Statement on Form S-3 (the “Registration Statement”) filed on April 24, 2015 by the Company under
the Securities Act of 1933, as amended (the “Securities Act”). The Company has provided us with a prospectus
(the “Prospectus”) which forms part of the Registration Statement. The Prospectus may be amended from
time to time in connection with one or more post-effective amendments to the Registration Statement, and the Prospectus provides
that it will be supplemented in the future by one or more prospectus supplements (each, a “Prospectus Supplement”).
The Registration Statement, as amended from time to time, including the Prospectus as supplemented from time to time by one or
more Prospectus Supplements, will provide for the registration by the Company of:
|
a) |
shares of common stock, par value $0.0001, per share, of the Company (the “Common Stock”); |
|
b) |
shares of preferred stock, par value $0.0001, per share, of the Company (the “Preferred Stock”); |
|
c) |
debt securities, which may be offered as senior, subordinated or junior subordinated and may be convertible (the “Debt Securities”), which may be issued pursuant to a note purchase agreement or an indenture to be dated on or about the date of the first issuance of Debt Securities thereunder, by and between a trustee to be selected by the Company (the “Trustee”) and the Company, in the form filed as an exhibit to a post-effective amendment or a Prospectus Supplement, as such note purchase agreement may be supplemented from time to time (the “Note Purchase Agreement”) or as such indenture may be supplemented from time to time (the “Indenture”). |
|
d) |
warrants to purchase the Common Stock and Preferred Stock in one or more series together with other securities or separately (the “Warrants”), which may be issued under warrant agreements, to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and between a warrant agent to be selected by the Company (the “Warrant Agent”) and the Company, in the forms to filed as exhibits to a post-effective amendment or in a Prospectus Supplement (each, a “Warrant Agreement”); |
|
f) |
rights to purchase shares of Common Stock or Preferred Stock (the “Rights”), which such rights may be offered separately or together with one or more additional rights, preferred stock, common stock, warrants or any combination of those securities in the form of units; and |
|
g) |
units comprised of one or more of the other securities described above (the “Units”). |
The Common Stock,
the Preferred Stock, the Debt Securities, the Warrants, the Rights, and the Units are collectively referred to herein as the “Securities.”
The Securities are being registered for offering and sale from time to time pursuant to Rule 415 under the Securities Act.
The aggregate public offering price of the Securities being registered will be $25,000,000.
In connection with
this opinion, we have examined and relied upon originals, or copies certified to our satisfaction, of such records, documents,
certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render
the opinion expressed below. As to certain factual matters, we have relied upon a certificate of an officer of the Company and
have not independently sought to verify such matters.
In rendering this
opinion, we have assumed the genuineness and authenticity of all signatures on original documents; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness
and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where
authorization, execution and delivery are prerequisites to the effectiveness of such documents.
With respect to our
opinion as to the Common Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common
Stock are authorized and available for issuance and that the consideration for the issuance and sale of the Common Stock (or Preferred
Stock or Debt Securities convertible into, or Warrants exercisable for, Common Stock) is in an amount that is not less than the
par value of the Common Stock. With respect to our opinion as to the Preferred Stock, we have assumed that, at the time of issuance
and sale, a sufficient number of shares of Preferred Stock are authorized, designated and available for issuance and that the consideration
for the issuance and sale of the Preferred Stock (or Debt Securities convertible into, or Warrants exercisable for, Preferred Stock)
is in an amount that is not less than the par value of the Preferred Stock. We have also assumed that any Warrants offered
under the Registration Statement, and the related Warrant Agreement, will be executed in the forms filed as exhibits to a prospectus
supplement. We have also assumed that (i) with respect to Securities being issued upon conversion of any convertible Preferred
Stock, the applicable convertible Preferred Stock will be duly authorized, validly issued, fully paid and nonassessable, and (ii) with
respect to any Securities being issued upon conversion of any Debt Securities or upon exercise of any Warrants, the applicable
convertible Debt Securities or Warrants will be valid and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations
on availability of equitable relief, including specific performance.
With respect to our
opinion as to the Rights and the Units, we have assumed, that at the time of issuance and sale, there are a sufficient number of
Securities available for issuance and that the consideration for the issuance of the particular Securities underlying the sale
of the Rights or Units is in an amount that is not less than the par value of such underlying Securities.
Our opinion herein
is expressed solely with respect to the federal laws of the United States and the General Corporation Law of the State of Delaware.
Our opinion is based on these laws as in effect on the date hereof. We express no opinion as to whether the laws of any other jurisdiction
are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state law, rule or
regulation relating to securities, or to the sale or issuance thereof.
On the basis of the
foregoing and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that:
1. With
respect to the Common Stock offered under the Registration Statement, provided that (i) the Registration Statement and any
required post-effective amendment thereto have all become effective under the Securities Act and the Prospectus and any and all
Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the
issuance of the Common Stock has been duly authorized by all necessary corporate action on the part of the Company; (iii) the
issuance and sale of the Common Stock do not violate any applicable law, are in conformity with the Company’s then operative
certificate of incorporation (the “Certificate of Incorporation”) and amended and restated bylaws (the
“Bylaws”), do not result in a default under or breach of any agreement or instrument binding upon the
Company and comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company; and (iv) the certificates for the Common Stock have been duly executed by the Company, countersigned by
the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Common Stock, when
issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and
in accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, will be
duly authorized, validly issued, fully paid and nonassessable.
2. With
respect to the Preferred Stock offered under the Registration Statement, provided that (i) the Registration Statement and
any required post-effective amendment thereto have all become effective under the Securities Act and the Prospectus and any and
all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the
terms and issuance of the Preferred Stock have been duly authorized by all necessary corporate action on the part of the Company;
(iii) the terms of the shares of Preferred Stock and their issuance and sale do not violate any applicable law, are in conformity
with the Certificate of Incorporation and Bylaws, do not result in a default under or breach of any agreement or instrument binding
upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company; and (iv) the certificates for the Preferred Stock have been duly executed by the Company, countersigned
by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Preferred Stock,
when issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and
in accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, will be
duly authorized, validly issued, fully paid and nonassessable.
3. With
respect to any series of the Debt Securities issued under the Note Purchase Agreement or Indenture, and offered under the Registration
Statement, provided that (i) the Registration Statement and any required post-effective amendment thereto have all become
effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s) required by applicable laws
have been delivered and filed as required by such laws; (ii) the Note Purchase Agreement or Indenture has been duly authorized
by the Company and the Trustee by all necessary corporate action; (iii) the Note Purchase Agreement or Indenture in substantially
the form filed as an exhibit to post-effective amendment or a Prospectus Supplement, has been duly executed and delivered by the
Company and the Trustee; (iv) the issuance and terms of the Debt Securities have been duly authorized by the Company by all
necessary corporate action; (v) the terms of the Debt Securities and of their issuance and sale have been duly established
in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Company, so as to be in conformity with the Certificate of Incorporation and Bylaws, and so as to
comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and
(vi) the Debt Securities have been duly executed and delivered by the Company and authenticated by the Trustee pursuant to
the Note Purchase Agreement or the Indenture and delivered against payment therefor, then the Debt Securities, when issued and
sold in accordance with the Note Purchase Agreement or the Indenture and a duly authorized, executed and delivered purchase, underwriting
or similar agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations
on availability of equitable relief, including specific performance.
4. With
respect to the Warrants to be issued under the Warrant Agreements and offered under the Registration Statement, provided that (i) the
Registration Statement and any required post-effective amendment thereto have all become effective under the Securities Act and
the Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required
by such laws; (ii) any applicable Warrant Agreement has been duly authorized by the Company and the Warrant Agent by all necessary
corporate action; (iii) any applicable Warrant Agreement has been duly executed and delivered by the Company and the Warrant
Agent and the terms of the Warrant Agreement have been established in accordance with applicable law; (iv) the issuance and
terms of the Warrants have been duly authorized by the Company by all necessary corporate action; (v) the terms of the Warrants
and of their issuance and sale have been duly established in conformity with any applicable Warrant Agreement and as described
in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), so as not to violate any applicable law
or result in a default under or breach of any agreement or instrument binding upon the Company, so as to be in conformity with
the Certificate of Incorporation and Bylaws, and so as to comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company; and (vi) the Warrants have been duly executed and delivered by the Company and
authenticated by the Warrant Agent pursuant to any applicable Warrant Agreement and delivered against payment therefor, then the
Warrants, when issued and sold in accordance with the applicable Warrant Agreement and a duly authorized, executed and delivered
purchase, underwriting or similar agreement, will be valid and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity
principles and to limitations on availability of equitable relief, including specific performance.
5. With
respect to the Rights offered under the Registration Statement, provided that (i) the Registration Statement and any required
post-effective amendment thereto have all become effective under the Securities Act and the Prospectus and any and all Prospectus
Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the terms and
issuance of the Rights have been duly authorized by all necessary corporate action on the part of the Company; (iii) the terms
of the Rights and their issuance and sale do not violate any applicable law, are in conformity with the Certificate of Incorporation
and Bylaws, do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with
any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (iv) the
issuance and terms of the Rights have been duly authorized by the Company by all necessary corporate action; (v) the terms
of the Rights and of their issuance and sale have been duly established in conformity with the applicable agreement(s) so as not
to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, so
as to be in conformity with the Certificate of Incorporation and Bylaws, and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company; and (vi) the Rights have been duly executed
and delivered by the Company and delivered against payment therefor, then the Rights, when issued and sold in accordance with the
applicable agreement and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be valid and
legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting
creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including
specific performance.
6. With
respect to the Units offered under the Registration Statement, provided that (i) the Registration Statement and any required
post-effective amendment thereto have all become effective under the Securities Act and the Prospectus and any and all Prospectus
Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the terms and
issuance of the Units have been duly authorized by all necessary corporate action on the part of the Company; (iii) the terms
of Units and their issuance and sale do not violate any applicable law, are in conformity with the Certificate of Incorporation
and Bylaws, do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with
any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (iv) the
issuance and terms of the Units have been duly authorized by the Company by all necessary corporate action; (v) the terms
of the Units and of their issuance and sale have been duly established in conformity with the applicable agreement(s) so as not
to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, so
as to be in conformity with the Certificate of Incorporation and Bylaws, and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company; and (vi) the Units have been duly executed
and delivered by the Company and delivered against payment therefor, then the Units, when issued and sold in accordance with the
applicable agreement(s) and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be valid
and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting
creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including
specific performance.
We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption “Legal Matters”
in the Prospectus which forms part of the Registration Statement. This opinion is expressed as of the date hereof, and we disclaim
any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in
applicable law.
|
Sincerely, |
|
|
|
/s/ Robinson Brog Leinwand Greene Genovese & Gluck P.C. |
|
Robinson Brog Leinwand Greene Genovese & Gluck P.C. |
5
Exhibit 23.2
Consent of Independent Registered
Public Accounting Firm
The Board of Directors
Nxt-ID, Inc.:
We consent to the use of our report dated March 6, 2015
with respect to the consolidated balance sheet of Nxt-ID, Inc. and subsidiary as of December 31, 2014 and the related consolidated
statements of operations, changes in stockholders’ deficiency, and cash flows for the year then ended, incorporated herein
by reference, and to the reference to our firm under the heading “Experts” in the Registration Statement on Form S-3.
Our report dated March 6, 2015 contains an explanatory paragraph
that states that the Company has incurred recurring losses from operations that raise substantial doubt about its ability to continue
as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of
that uncertainty.
/s/ KPMG LLP
Stamford, CT
April 24, 2015
Exhibit 23.3
Independent
Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference
in this Registration Statement of Nxt-ID, Inc. (the “Company”) on Form S-3 of our report, which includes an explanatory
paragraph as to the Company’s ability to continue as a going concern, dated February 24, 2014 with respect to our audit of
the consolidated financial statements of the Company as of December 31, 2013 and for the year then ended appearing in the Annual
Report on Form 10-K of the Company for the year ended December 31, 2014. We also consent to the reference to our firm under the
heading “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ Marcum llp
Marcum llp
New York, NY
April 24, 2015
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