Registration
No. __________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
INTELLICHECK
MOBILISA, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
|
11-3234779
|
(State
or other jurisdiction of
incorporation or organization)
|
|
(I.R.S.
Employer
Identification Number)
|
100
Jericho Quadrangle, Suite 202
Jericho,
NY 11753
(516)
992-1900
(
Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices
)
William
H. Roof
Chief
Executive Officer
Intellicheck
Mobilisa, Inc.
100
Jericho Quadrangle, Suite 202
Jericho,
NY 11753
(516)
992-1900
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Christopher
H. Cunningham
K&L
Gates LLP
925
Fourth Avenue
Seattle,
WA 98104
(206)
370-6367
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement,
as determined by the registrant.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. [ ]
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. [ ]
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional class of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large accelerated filer [ ]
|
Accelerated
filer [ ]
|
Non-accelerated
filer [ ]
|
Smaller
reporting company [X]
|
|
|
(Do not check if a smaller reporting
company)
|
|
CALCULATION
OF REGISTRATION FEE
Title
of Each Class of
Securities to be
Registered
|
|
Amount
to
be
Registered
|
|
|
Proposed
Maximum
Offering
Price Per
Share
|
|
|
Proposed
Maximum
Aggregate
Offering
Price
|
|
|
Amount
of
Registration
Fee
|
|
|
Primary Offering:
|
|
|
—
|
|
|
|
—
|
|
|
$
|
25,000,000
|
(1)
|
|
$
|
—
|
(2)
|
|
Common Stock
|
|
|
—
|
(3)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Preferred Stock
|
|
|
—
|
(4)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Warrants
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Units
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Total
|
|
|
—
|
|
|
|
—
|
|
|
$
|
25,000,000
|
|
|
$
|
2,898
|
|
|
(1)
|
An
indeterminate number of shares of Common Stock are registered for issuance by the registrant as may from time to time be issued
hereunder at indeterminate prices, provided that the aggregate offering price of the Common Stock offered by the registrant
hereunder will no exceed $25,000,000.
|
|
|
|
|
(2)
|
Calculated
pursuant to Rule 457(o) under the Securities Act.
|
|
|
|
|
(3)
|
Includes
an indeterminate number of shares of the registrant’s Common Stock, issuable upon conversion of the Preferred Stock,
Warrants, and/or Units registered hereby. Such shares of Common Stock issuable upon conversion of the Preferred Stock, Warrants,
and/or Units will be issued for no additional consideration and therefore no registration fee is required pursuant to Rule
457(i) of the Securities Act.
|
|
|
|
|
(4)
|
Includes
an indeterminate number of shares of the registrant’s Preferred Stock, issuable upon conversion of Warrants or Units
registered hereby. Such shares of Preferred Stock issuable upon conversion of the Warrants or Units will be issued for no
additional consideration and therefore no registration fee is required pursuant to Rule 457(i) of the Securities Act.
|
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 of 1933, as amended, 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, and the stockholders identified in this prospectus,
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
state where the offer or sale is not permitted.
|
SUBJECT
TO COMPLETION, DATED OCTOBER 21, 2016
PROSPECTUS
INTELLICHECK
MOBILISA INC.
$25,000,000
of
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
UNITS
We
may offer and sell from time to time our common stock, preferred stock, warrants, and units. The aggregate initial offering price
of all securities sold by Intellicheck Mobilisa, Inc. will not exceed $25,000,000.
This
prospectus describes the general terms of these securities and the general manner in which we will offer these securities. The
specific terms of any securities we offer will be included in a supplement to this prospectus. The prospectus supplement will
also describe the specific manner in which we will offer the securities. Any prospectus supplement may also add, update or change
information contained in this prospectus. You should read this prospectus and the accompanying prospectus supplement, as well
as the documents incorporated by reference or deemed to be incorporated by reference into this prospectus and any prospectus supplement,
carefully before you make your investment decision.
Our
common stock is traded on the NYSE MKT LLC under the symbol “IDN.” On October 17, 2016, the last sale price of our
common stock was $1.64. On such date, the aggregate market value of our outstanding common stock held by non-affiliates was approximately
$11,675,705 based upon approximately 10,565,553 shares of our outstanding stock, of which approximately 7,119,332 shares were
held by non-affiliates. 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. Pursuant to the registration statement filed on Form S-3/A on July 31, 2013 and declared effective
on August 6, 2013, we sold 1,200,000 shares of common stock and warrants to purchase 623,320 shares of common stock for an aggregate
offering price of $2,100,000 on June 16, 2016 (the “June 2016 Shares and Warrants”). As of the date of this prospectus,
we have done no offerings of securities pursuant to General Instruction I.B.6. of Form S-3 during the 12 calendar month period
that ends on and includes the date of this prospectus other than the June 2016 Shares and Warrants.
See
“Risk Factors” beginning on page 5 of this prospectus, together with risk factors contained in any applicable prospectus
supplement, for factors you should consider before buying any of our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
We
may offer these securities for sale directly to investors or through underwriters, dealers or agents. We will set forth the names
of any underwriters, dealers or agents and their compensation in the accompanying prospectus supplement.
The
date of this Prospectus is October 21, 2016.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
Unless
the context requires otherwise or unless otherwise noted, all references in this prospectus or any prospectus supplement to “Intellicheck
Mobilisa” and to the “company,” “we,” “us” or “our” are to Intellicheck
Mobilisa, Inc. and its subsidiaries.
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as
the “SEC,” using a “shelf” registration process. Under this shelf registration process, Intellicheck Mobilisa,
Inc. may, from time to time, offer and sell any combination of the securities described in this prospectus in one or more offerings
up to an aggregate initial offering price of $25,000,000. This prospectus provides you with a general description of the securities
that may be offered. Each time securities are offered, we will provide one or more prospectus supplements that will contain specific
information about the terms of that offering. A prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information described
under the heading “Where You Can Find More Information” below.
You
should rely only on the information included or incorporated by reference in this prospectus and the applicable prospectus supplement.
We have not authorized anyone else to provide you with different information. We are not making an offer to sell in any
jurisdiction in which the offer is not permitted. You should not assume that the information in the prospectus, any prospectus
supplement or any other document incorporated by reference in this prospectus is accurate as of any date other than the dates
of those documents.
FORWARD-LOOKING
STATEMENTS
This
prospectus, including the documents that we incorporate by reference, contains 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 Exchange
Act of 1934, as amended (the “Exchange Act”). The words “anticipate,” “believe,” “ensure,”
“expect,” “if,” “intend,” “estimate,” “probable,” “project,”
“forecasts,” “predict,” “outlook,” “aim,” “will,” “could,”
“should,” “would,” “may,” “likely” and similar expressions, and the negative thereof,
are intended to identify forward-looking statements. Our forward-looking statements are based on assumptions that we believe to
be reasonable but that may not prove to be accurate. The statements do not include the potential impact of future transactions,
such as an acquisition, disposition, merger, joint venture or other transaction that could occur. We undertake no obligation to
publicly update or revise any forward-looking statement.
All
of our forward-looking information is subject to risks and uncertainties that could cause actual results to differ materially
from the results expected. Although it is not possible to identify all factors, these risks and uncertainties include the risk
factors and the timing of any of those risk factors described in our annual report on Form 10-K for the year ended December 31,
2015. These documents are available through our web site or through the SEC’s Electronic Data Gathering and Analysis Retrieval
System at http://www.sec.gov.
OVERVIEW
OF OUR BUSINESS
We
were originally incorporated in the state of New York in 1994 as Intelli-Check, Inc. In August 1999, we reincorporated in Delaware.
On March 14, 2008, our corporation was renamed Intelli-Check - Mobilisa, Inc. after the consummation of the merger with Mobilisa,
Inc. (“Mobilisa”) (references to “Intelli-Check” in this annual report refer to the Company prior to the
merger with Mobilisa). At the closing of the merger, our headquarters were moved to Mobilisa’s offices in Port Townsend,
Washington. On October 27, 2009, we made a further change in our name to Intellicheck Mobilisa, Inc. (“Intellicheck Mobilisa,”
“we,” “our,” “us,” or “the Company”). On August 31, 2009, the Company acquired
100% of the common stock of Positive Access Corporation (“Positive Access”), a developer of driver license reading
technology. The acquisition of Positive Access expanded the Company’s technology portfolio and related product offerings
and allowed the Company to reach a larger number of customers through Positive Access’s extensive distribution network.
On October 27, 2015 we announced that our headquarters have been relocated to its Jericho, New York facility.
We
are a leading technology solutions company that is engaged in developing, integrating and marketing threat identification, identity
authentication, verification and validation technology solutions making it possible for customers to enhance the safety and awareness
of their facilities and people, improve customer service, and achieve increased operational efficiencies to address a variety
of challenges that include retail fraud prevention, age-restricted product sales compliance, law enforcement increased situational
awareness and threat identification and prevention, and mobile and handheld access control and security for the government, military
and commercial markets. Among Intellicheck’s products are Retail ID™ and Retail ID Mobile™, the industry leading
solution for preventing fraud in the retail industry that provides added value in increasing customer loyalty program and credit
card application conversions; while delivering enhanced customer service; Age ID™, a smartphone or tablet-based solution
that can also be integrated in point of sale systems which provides instant identification verification and authentication solutions
for applications that include the prevention of the sale of age-restricted products to minors; Law ID™, a flexible solution
for mobile devices including smartphones and tablets that is used by law enforcement officers to identify and mitigate threats;
and Defense ID®, a mobile and fixed infrastructure solution for threat identification, identity authentication and access
control to military bases and other government facilities, and Guest ID™, which makes hotel check-in faster, easier and
more accurate by instantly authenticating an individual’s ID, and automatically populating registration forms. We continue
to develop and release innovative products based upon our rich patent portfolio consisting of over 25 patents.
We
plan to expand our business in the near term by pursuing a research and development strategy designed to move our technologies
into new product markets that are expected to benefit from enhanced safety, regulatory compliance and fraud prevention. For example,
we anticipate extending our technologies into the healthcare and first responder spaces and to online applications to provide
enhanced safety, regulatory compliance and fraud prevention for the billions of transactions that occur there each day.
As
a complement to these new offerings, we are also developing a data analytics platform to analyze the data we capture and to provide
meaningful data, trend and predictive analysis to a variety of customers in the commercial and government spaces.
We
sold our wireless enterprise assets on August 31, 2015 in order to focus the company resources on our core identity authentication
business.
We
plan to leverage our IP in the new markets we are targeting to strengthen our competitive position.
Our
primary businesses include Identity Systems products, which include commercial applications of identity card reading and verification
and government sales of defense security and identity card applications.
Our
technologies address problems such as:
|
|
●
|
Commercial
Fraud and Risk Management
– which may lead to economic losses to merchants from check cashing, debit and credit
card, as well as other types of fraud such as identity theft that principally use fraudulent identification cards as proof
of identity;
|
|
|
|
|
|
|
●
|
Instant Credit
Card Approval –
retail stores use our technology to scan a driver license at a kiosk or at the Point Of Sale (POS)
and send the information to a credit card underwriter to get instant approval for a loyalty-branded credit card. This technique
protects consumer data and is significantly more likely to result in a completed transaction compared to in-store personnel
asking customers to fill out a paper form;
|
|
|
|
|
|
|
●
|
Unauthorized
Access
– our systems and software are designed to increase security and deter terrorism at airports, shipping ports,
rail and bus terminals, military installations, high profile buildings and infrastructure where security is a concern;
|
|
|
|
|
|
|
●
|
I
nefficiencies
Associated With Manual Data Entry
– by reading encoded data contained in the bar code and magnetic stripe of an
identification card with a quick swipe or scan of the card, where permitted by law, customers are capable of accurately and
instantaneously inputting information into forms, applications and the like without the errors associated with manual data
entry.
|
Our
principal executive office is located at 100 Jericho Quadrangle, Suite 202, Jericho, NY 11753, and our telephone number is (516)
992-1900.
RISK
FACTORS
We
have incurred principally losses since inception and losses may continue, which could result in a decline in the value of our
securities and a loss of your investment.
We
sustained net losses of $5,333,951 and $7,644,230 for the fiscal years ended December 31, 2015 and 2014, respectively, and $3,918,607
for the six months ending June 30, 2016, and our accumulated deficit was $102,552,352. Since we expect to incur additional expenditures
in line with the sales growth of our business, we may not achieve operating profits in the near future. This could lead to a decline
in the value of our securities.
Our
proprietary software relies on reference data provided by government and quasi-government agencies. If these governmental and
quasi-government agencies were to stop sharing data with us, the utility of our proprietary software would be diminished in those
jurisdictions and our business would be damaged.
Currently,
the fifty states, ten Canadian provinces and the District of Columbia, which in most instances conform to the guidelines established
by certain organizations responsible for implementing industry standards, cooperate with us by providing sample identification
cards so that we may modify all of our hardware and software products to read and analyze the encoded information found on such
jurisdiction’s identification cards. In the event that one or more of these jurisdictions do not continue to provide this
reference data, the utility of our proprietary software may be diminished in those jurisdictions.
Our
business strategy exposes us to long sales and implementation cycles for our products.
Our
target customers in the commercial fraud protection, access control and age verification industry sectors include large retailers
and government agencies, which typically require longer sales and implementation cycles for our products than do our potential
customer base solely interested in age verification, such as restaurant, bar and convenience store operators. The longer sales
and implementation cycles for larger retail companies continue to have an adverse impact on the timing of realizing our revenues.
In addition, budgetary constraints and potential economic slowdowns may also continue to delay purchasing decisions by these prospective
customers. These initiatives have costs associated with them, and we cannot assure you that they ultimately will prove successful,
or result in, an increase to our revenues or profitability.
In
addition, the loss or significant reduction in government spending by government entities could materially limit our ability to
obtain government contracts. These limitations, if significant, could also have a material adverse effect on our business, financial
condition and results of operations. In addition, we will need to develop additional strategic relationships with large government
contractors in order to successfully compete for government contracts. Should we lose or fail to develop these strategic relationships
we may not be able to implement our business strategy.
The
industry for our systems and software is evolving and its growth is uncertain.
Demand
and industry acceptance for recently introduced and existing systems, and software and sales from such systems and software, are
subject to a high level of uncertainty and risk. With changing administration in government, changes in government budgets, and
slowly evolving government standards on use of identity products, the government sector is slowly developing. The commercial sector
has the ability to develop faster than the government sector, but it is also subject to a higher level of uncertainty because
of potential uncertainty in the continued financial health of our commercial customers, as well as long sales cycles. Our business
may suffer if the industry develops more slowly than anticipated and does not sustain industry acceptance.
Failure
to manage our operations if they expand could impair our future growth.
If
we are able to expand our operations, particularly through multiple sales to large retailers and government agencies in the document
verification industry, the expansion will place significant strain on our management, financial controls, operating systems, personnel
and other resources. Our ability to manage future growth, should it occur, will depend to a large extent upon several factors,
including our ability to do the following:
|
|
●
|
build
and train our sales force;
|
|
|
|
|
|
|
●
|
establish and maintain
relationships with distributors;
|
|
|
|
|
|
|
●
|
develop customer
support systems;
|
|
|
|
|
|
|
●
|
develop expanded
internal management and financial controls adequate to keep pace with growth in personnel and sales, if they occur; and
|
|
|
|
|
|
|
●
|
manage the use of
third-party manufacturers and suppliers.
|
If
we are able to grow our business but do not manage our growth successfully, we may experience increased operating expenses, loss
of customers, distributors or suppliers and declining or slowed growth of revenues.
We
are subject to risks associated with product failure and technological flaws.
Products
as complex as those offered by us may contain undetected errors or result in failures when first introduced or when new versions
are released. Despite vigorous product testing efforts and testing by current and potential customers, it is possible that errors
will be found in a new product or enhancement after commencement of commercial shipments. The occurrence of product defects or
errors could result in adverse publicity, delay in product introduction, diversion of resources to remedy defects, loss of, or
a delay in industry acceptance, claims by customers against us, or could cause us to incur additional costs, any of which could
adversely affect our business.
Failure
to protect our proprietary technology may impair our competitive position.
We
continue to allocate significant resources to developing new and innovative technologies that are utilized in our products and
systems. Because our continued success depends on, to a significant degree, our ability to offer products providing superior functionality
and performance over those offered by our competitors, we consider the protection of our technology from unauthorized use to be
fundamental to our success. This is done by processes aimed at identifying and seeking appropriate protection for newly-developed
intellectual property, including patents, trade secrets, copyrights and trademarks, as well as policies aimed at identifying unauthorized
use of such property. These processes include:
|
|
●
|
contractual
arrangements providing for nondisclosure of proprietary information;
|
|
|
|
|
|
|
●
|
maintaining and
enforcing issued patents and filing patent applications on innovative solutions to commercially important problems;
|
|
|
|
|
|
|
●
|
protecting trade
secrets;
|
|
|
|
|
|
|
●
|
protecting copyrights
and trademarks by registration and other appropriate means;
|
|
|
|
|
|
|
●
|
establishing internal
processes for identifying and appropriately protecting new and innovative technologies; and
|
|
|
|
|
|
|
●
|
establishing practices
for identifying unauthorized use of intellectual property.
|
We
are currently involved in two lawsuits as a plaintiff in order to enforce our patent rights. Litigation can be very costly and
divert management’s attention. An adverse outcome in any litigation may have a severe negative effect on our financial results.
To determine the priority of inventions, we may have to participate in interference proceedings declared by the U.S. Patent and
Trademark Office or oppositions in foreign patent and trademark offices, which could result in substantial cost and limitations
on the scope or validity of our patents or trademarks.
Additionally,
third parties, including our competitors or licensees, may seek to have our patents reviewed by the Patent Trial and Appeal Board
of the United States Patent and Trademark Office in a post grant proceeding, such as post grant review or an inter parties review.
Such proceedings, if instituted could cancel our patents or narrow the scope of our patent claims. We cannot predict the effect
that such proceedings, if instituted, may have on our business or revenue received from licensing our patents.
In
addition, foreign laws treat the protection of proprietary rights differently from laws in the United States. The failure of foreign
laws or judicial systems to adequately protect our proprietary rights or intellectual property, including intellectual property
developed on our behalf by foreign contractors or subcontractors, may have a material adverse effect on our business, operations
and financial results.
If
our future products incorporate technologies that infringe the proprietary rights of third parties, and we do not secure licenses
from them, we could be liable for substantial damages.
We
are not aware that our current products infringe the intellectual property rights of any third parties. We also are not aware
of any third party intellectual property rights that may hamper our ability to provide future products and services. However,
we recognize that the development of our services or products may require that we acquire intellectual property licenses from
third parties so as to avoid infringement of those parties’ intellectual property rights. These licenses may not be available
at all or may only be available on terms that are not commercially reasonable. If third parties make infringement claims against
us whether or not they are upheld, such claims could:
|
|
●
|
consume
substantial time and financial resources;
|
|
|
|
|
|
|
●
|
divert the attention
of management from growing our business and managing operations; and
|
|
|
|
|
|
|
●
|
disrupt product
sales and shipments.
|
If
any third party prevails in an action against us for infringement of its proprietary rights, we could be required to pay damages
and either enter into costly licensing arrangements or redesign our products so as to exclude any infringing use. As a result,
we would incur substantial costs, delays in product development, sales and shipments, and our revenues may decline substantially.
Additionally, we may not be able to achieve the minimum necessary growth for our continued success.
Failure
to attract and retain management and other personnel may damage our operations and financial results and cause our stock price
to decline.
We
depend to a significant degree on the skills, experience and efforts of our executive officers and other key management, technical,
finance, sales and other personnel. Our failure to attract, integrate, motivate and retain existing or additional personnel could
disrupt or otherwise harm our operations and financial results. We do not carry key man life insurance policies covering any employees.
The loss of services of certain of our key employees, an inability to attract or retain qualified personnel in the future, or
delays in hiring additional personnel could delay the development of our business and could cause our stock price to decline.
Our
share price may be volatile and could decline substantially
The
market price of our common stock, like the price of shares of technology companies generally, has been and may continue to be
volatile. From January 1, 2002 to October 17, 2016, the closing price of our common stock has varied from a high of $140.00 to
a low of $0.82 per share, as reported on the NYSE MKT. Many factors may cause the market price for our common stock to decline,
including:
|
|
●
|
shortfalls
in revenues, cash flows or continued losses from operations;
|
|
|
|
|
|
|
●
|
delays in development
or roll-out of any of our products;
|
|
|
|
|
|
|
●
|
announcements by
one or more competitors of new product acquisitions or technological innovations; and
|
|
|
|
|
|
|
●
|
unfavorable outcomes
from outstanding litigation.
|
In
addition, the stock market experiences extreme fluctuations in price and volume that particularly affect the market price of shares
of emerging technology companies, such as ours. These price and volume fluctuations are often unrelated or disproportionate to
the operating performance of the affected companies. Because of this volatility, we may fail to meet the expectations of our stockholders
or of securities analysts and our stock price could decline as a result. Declines in our stock price for any reason, as well as
broad-based market fluctuations or fluctuations related to our financial results or other developments, may adversely affect your
ability to sell your shares at a price equal to or above the price at which you purchased them. Decreases in the price of our
common stock may also lead to de-listing of our common stock.
We
incur significant accounting and other control costs that impact our financial condition.
As
a publicly traded corporation, we incur certain costs to comply with regulatory requirements. If regulatory requirements were
to become more stringent or if controls thought to be effective later fail, we may be forced to make additional expenditures,
the amounts of which could be material. Some of our competitors are privately owned, so their accounting and control costs could
create a competitive advantage over us. Should our sales decline or if we are unsuccessful at increasing prices to cover higher
expenditures for internal controls and audits, our costs associated with regulatory compliance will rise as a percentage of sales.
Securing
government contracts typically involves a lengthy competitive bidding process. Often, unsuccessful bidders have the ability to
challenge contract awards. Such challenges may increase costs, result in delays and risk the loss of the contract by the winning
bidder. Protests or other delays related to material government contracts that may be awarded to us could result in revenue volatility.
State and local government agency contracts may depend on the availability of matching funds from federal, state or local entities.
State and local government agencies are subject to political, budgetary, purchasing and delivery constraints that may result in
irregular revenue and operating results. Revenue volatility makes management of our business difficult. Outright loss of any material
government contract through the protest process or otherwise, could significantly reduce our revenues.
We
could be adversely affected by a negative audit by the U.S. government.
We,
like other government contractors, are subject to various routine audits, reviews and investigations by U.S. government agencies,
including the Defense Contract Audit Agency and various agency inspectors. These agencies review a contractor’s performance
under its contracts, cost structure and compliance with applicable laws, regulations, and standards. Any costs found to be misclassified
may be subject to repayment. If an audit or investigation uncovers improper or illegal activities, we may be subject to civil
or criminal penalties and administrative sanctions, including termination of contracts, forfeiture of profits, suspension of payments,
fines, and suspension or prohibition from doing business with the U.S. government.
Our
business strategy exposes us to long sales and implementation cycles for our products.
Historically,
some of our primary target customers have been government agencies and branches of the U.S. military, both of which require long
sales and implementation cycles for products, which may result in a long period of time prior to revenue realization. The loss
or significant reduction in government spending could limit our ability to obtain government contracts. These limitations, if
significant, could significantly reduce our revenues. We will need to develop additional strategic relationships with large government
contractors in order to successfully compete for government contracts. Should we lose or fail to develop these strategic relationships,
we may not be able to implement our business strategy.
We
cannot be certain that our backlog estimates will result in actual revenues in any particular fiscal period because our clients
may modify or terminate projects or may decide not to exercise contract options.
Our
backlog represents sales value of firm orders for products and services not yet delivered and, for long-term, executed contractual
arrangements (contracts, subcontract and customer commitments), the estimated future sales value of product shipments, transactions
processed and services to be provided over the term of the contractual arrangements, including anticipated renewal options. For
contracts with indefinite quantities, our backlog is estimated based on current activity levels. Our backlog includes estimates
of revenues, the receipt of which require future government appropriations, depend on option exercise by clients or are subject
to contract modification or termination. At June 30, 2016, our backlog approximated $124,000. These estimates are based on our
experience under such contracts and similar contracts, and we believe that such estimates are reasonable. If we do not realize
a substantial amount of our backlog, as we presently anticipate, our operations could be harmed and future revenues could be significantly
reduced.
Long
lead times for the components used in certain products creates uncertainty in our supply chain and may prevent us from making
required deliveries to our customers on time.
We
rely exclusively on commercial off-the-shelf technology in manufacturing our products. The lead-time for ordering certain components
used in our products and for the production of products can be lengthy. As a result, we must, from time to time, order products
based on forecasted demand. If demand for products lags significantly behind forecasts, we may purchase more product than we can
sell. Conversely, if demand exceeds forecasts, we may not have enough products to meet our obligations to our customers.
We
obtain certain hardware and services, as well as some software applications, from a limited group of suppliers, and our reliance
on these suppliers involves significant risks, including reduced control over quality and delivery schedules.
Any
financial instability of our suppliers could result in having to find new suppliers. We may experience significant delays in manufacturing
and deliveries of products and services to customers if we lose our sources or if supplies and services delivered from these sources
are delayed. As a result, we may be required to incur additional development, manufacturing and other costs to establish alternative
supply sources. It may take several months to locate alternative suppliers, if required. We cannot predict whether we will be
able to obtain replacement hardware within the required time frames at affordable costs, or at all. Any delays resulting from
suppliers failing to deliver hardware or delays in obtaining alternative hardware, in sufficient quantities and of sufficient
quality, or any significant increase in the cost of hardware from existing or alternative suppliers could result in delays on
the shipment of product which, in turn, could result in the loss of customers we may not be able to successfully complete.
Our
Defense ID
®
system relies on access to databases run by various government agencies. If these governmental
agencies were to stop sharing data with us, the utility of the Defense ID system would be diminished and business would be damaged.
Currently,
our Defense ID
®
system accesses over 100 separate databases run by various government and law enforcement agencies.
We cannot be assured that each of these agencies will continue to cooperate with us. In the event that one or more of these agencies
does not continue to provide access to these databases, the utility of the Defense ID
®
system may be diminished
and, as a result, our sales could suffer.
Our
Defense ID
®
system requires permission from each branch of the U.S. military in the form of an Authority
to Operate (ATO). If an existing ATO is revoked, we would risk losing our ability to install our Defense ID
®
system at military bases.
We
cannot be assured that these permissions will be renewed, and it is possible that they could be revoked. If one or more of these
permissions is revoked or not renewed, then the sector for the Defense ID
®
system would be reduced and, as a result,
our sales could suffer.
Our
Defense ID
®
system manages private personal information and information related to sensitive government functions
and a breach of the security systems protecting such information may result in a loss of suppliers or customers or result in litigation.
The
protective security measures designed to protect sensitive information and contained in our products may not prevent all security
breaches. Failure to prevent security breaches may disrupt our business, damage our reputation and expose us to litigation and
liability. A party who is able to circumvent protective security measures used in these systems could misappropriate sensitive
information or cause interruptions or otherwise damage our products, services and reputation as well as the property and privacy
of customers. If unintended parties obtain sensitive data and information, or create bugs or viruses or otherwise sabotage the
functionality of our products, we may receive negative publicity, incur liability to our customers or lose the confidence of our
customers, any of which may cause the termination or modification of contracts. Further, our existing insurance coverage may be
insufficient to cover losses and liabilities that may result from such events.
In
addition, we may be required to expend significant capital and other resources to protect against the threat of security breaches
or to alleviate problems caused by the occurrence of any such breaches. However, protective or remedial measures may not be available
at a reasonable price or at all, or may not be entirely effective if commenced.
Future
government regulation restricting the capture of information electronically stored on identification cards could adversely affect
our business.
The
Defense ID
®
system is designed to read, verify and capture information from identification cards. Currently, some
jurisdictions have restrictions on what can be done with this information. Because issues of personal privacy continue to be a
major topic of public policy debate, it is possible that, in the future, these or other jurisdictions may introduce similar or
additional restrictions on capturing this information. Therefore, the implementation of unfavorable regulations or unfavorable
interpretations of existing regulations by courts or regulatory bodies could require us to incur significant compliance costs,
cause the development of the affected industry sectors to become impractical and reduce our revenues and potential revenues.
We
are subject to risks associated with product failure and technological flaws.
Our
products are complex and may contain undetected errors or result in failures when first introduced or when new versions are released.
Despite vigorous product testing efforts and testing by current and potential customers, it is possible that errors will be found
in a new product or enhancement after commercial shipments have commenced. The occurrence of product defects or errors could result
in negative publicity, delays in product introduction and the diversion of resources to remedy defects and loss of or delay in
industry acceptance or claims by customers against us and could cause us to incur additional costs, any one of which could adversely
affect our business. Because of the risk of undetected error, we may be compelled to accept liability provisions that vary from
our preferred contracting model in certain critical transactions. There is a risk that in certain contracts and circumstances
we may not be successful in adequately minimizing product and related liabilities or that the protections negotiated will not
ultimately be deemed enforceable.
We
carry product liability insurance, but existing coverage may not be adequate to cover potential claims. The failure of our products
to perform as promised could result in increased costs, lower margins, liquidated damage payment obligations and harm to our reputation.
We
may not be able to keep up with rapid technological change.
The
sectors for all of our products are characterized by rapid technological advancements. Significant technological change could
render existing technology obsolete. If we are unable to successfully respond to these developments, or do not respond in a cost-effective
manner, our business, financial condition and results of operations will be materially adversely affected.
Future
capital requirements may require incurring debt or dilution of existing stockholders.
Acquisition
and development opportunities and other contingencies may arise, which could require us to raise additional capital or incur debt.
If we raise additional capital through the sale of equity, including preferred stock, or convertible debt securities, the percentage
ownership of our then existing stockholders will be diluted.
Because
we do not intend to pay dividends on our Common Stock, stockholders will benefit from an investment in our stock only if it appreciates
in value.
We
have never declared or paid any cash dividends on our shares of stock. We currently intend to retain all future earnings, if any,
for use in the operations and expansion of the business. As a result, we do not anticipate paying cash dividends in the foreseeable
future. Any future determination as to the declaration and payment of cash dividends will be at the discretion of our Board of
Directors and will depend on factors the Board of Directors deems relevant, including among others, our results of operations,
financial condition and cash requirements, business prospects, and the terms of our credit facilities and other financing arrangements.
Accordingly, realization of a gain on stockholders’ investments will depend on the appreciation of the price of our stock.
There is no guarantee that our stock will appreciate in value.
You
should carefully consider the factors contained in our annual report on Form 10-K for fiscal year ended December 31, 2015 under
the heading “Risk Factors” beginning on page 17 of our 10-K. You should also consider similar information contained
in any annual report on Form 10-K, quarterly report on Form 10-Q, and any other document filed by us with the SEC after the date
of this prospectus before deciding to invest in our securities. If applicable, we will include in any prospectus supplement a
description of those significant factors that could make the offering described therein speculative or risky.
USE
OF PROCEEDS
Unless
specified otherwise in the applicable prospectus supplement, we expect to use the net proceeds we receive from the sale of the
securities offered by this prospectus and the accompanying prospectus supplement for general corporate purposes, which may include,
among other things:
|
|
●
|
repayment
of debt;
|
|
|
|
|
|
|
●
|
capital expenditures;
|
|
|
|
|
|
|
●
|
working capital,
including the purchase of hardware in connection with our fulfillment of customer orders;
|
|
|
|
|
|
|
●
|
acquisitions; and
|
|
|
|
|
|
|
●
|
repurchases and
redemptions of securities.
|
The
precise amount and timing of the application of such proceeds will depend upon our funding requirements and the availability and
cost of other capital. Pending any specific application, we may initially invest funds in short-term marketable securities or
apply them to the reduction of short-term indebtedness.
DESCRIPTION
OF CAPITAL STOCK
We
are a Delaware corporation. The rights of our stockholders are governed by the Delaware General Corporation Law, or the DGCL,
and our amended certificate of incorporation and our amended and restated bylaws. The following summary of some of the material
terms, rights and preferences of our capital stock is not complete. You should read our amended certificate of incorporation,
which we refer to as our certificate of incorporation, and our amended and restated bylaws, which we refer to as our bylaws, for
more complete information. In addition, you should be aware that the summary below does not give full effect to the terms of the
provisions of statutory or common law which may affect your rights as a stockholder.
Common
Stock
We
may offer shares of Intellicheck Mobilisa’s common stock from time to time. Pursuant to our certificate of incorporation,
we have the authority to issue 40,000,000 shares of common stock, $0.001 par value. As of October 17, 2016, we had 10,565,553
shares of common stock outstanding. As of October 17, 2016, there were approximately 53 holders of record of our common stock.
Common
stockholders are entitled to one vote for each share held on all matters submitted to them. The common stock does not have cumulative
voting rights, meaning that the holders of a majority of the shares of common stock voting for the election of directors can elect
all the directors if they choose to do so.
Each
share of common stock is entitled to participate equally in dividends as and when declared by our board of directors. The payment
of dividends on our common stock may be limited by obligations we may have to holders of any preferred stock.
If
we liquidate or dissolve our business, the holders of common stock will share ratably in the distribution of assets available
for distribution to stockholders after creditors are paid and preferred stockholders, if any, receive their distributions. The
shares of common stock have no preemptive rights and are not convertible, redeemable or assessable or entitled to the benefits
of any sinking fund.
All
issued and outstanding shares of common stock are fully paid and nonassessable. Any shares of common stock we offer under this
prospectus will be fully paid and nonassessable.
Preferred
Stock
We
may offer shares of our preferred stock from time to time, in one or more series. Pursuant to our certificate of incorporation,
we have the authority to issue 1,000,000 shares of preferred stock, $0.01 par value, of which 30,000 have been designated 8% Convertible
preferred stock. As of October 17, 2016, we had no shares of preferred stock outstanding. Our board of directors may, without
action by stockholders, issue one or more series of preferred stock. The board may determine for each series the number of shares,
designation, relative voting rights, dividend rates, liquidation and other rights, preferences and limitations. The issuance of
preferred stock could adversely affect the voting power of holders of common stock and reduce the likelihood that common stockholders
will receive dividend payments and payments upon liquidation. The issuance could decrease the market price of our common stock.
The issuance of preferred stock also could delay, deter or prevent a change of control of Intellicheck Mobilisa.
We
have summarized material provisions of the preferred stock in this section. This summary is not complete. We will file a form
of certificate of designation designating the rights and preferences of the preferred stock with the SEC prior to any issuance
of preferred stock, and you should read such certificate of designation for provisions that may be important to you.
The
certificate of designation and prospectus supplement relating to any series of preferred stock we are offering will include specific
terms relating to the offering. These terms will include some or all of the following:
|
|
●
|
the
title of the preferred stock;
|
|
|
|
|
|
|
●
|
the maximum number
of shares of the series;
|
|
|
|
|
|
|
●
|
the dividend rate
or the method of calculating and paying the dividend, the date from which dividends will accrue and whether dividends will
be cumulative;
|
|
|
|
|
|
|
●
|
any liquidation
preference;
|
|
|
|
|
|
|
●
|
any optional redemption
provisions;
|
|
|
|
|
|
|
●
|
any sinking fund
or other provisions that would obligate us to redeem or purchase the preferred stock;
|
|
|
|
|
|
|
●
|
any terms for the
conversion or exchange of the preferred stock for other securities of us or any other entity;
|
|
|
|
|
|
|
●
|
any voting rights;
and
|
|
|
|
|
|
|
●
|
any other preferences
and relative, participating, optional or other special rights or any qualifications, limitations or restrictions on the rights
of the shares.
|
Any
shares of preferred stock we issue will be fully paid and nonassessable.
Delaware
Anti-Takeover Law and Certain Charter and Bylaw Provisions
Our
certificate of incorporation, bylaws and the DGCL contain certain provisions that could discourage potential takeover attempts
and make it more difficult for our stockholders to change management or receive a premium for their shares.
Delaware
law.
We
are subject to Section 203 of the DGCL, an anti-takeover law. In general, the statute prohibits a publicly held Delaware corporation
from engaging in a business combination with an “interested stockholder” for a period of three years after the date
of the transaction in which the person became an interested stockholder. A “business combination” includes a merger,
sale of 10% or more of our assets and certain other transactions resulting in a financial benefit to the stockholder. For purposes
of Section 203, an “interested stockholder” is defined to include any person that is:
|
|
●
|
the
owner of 15% or more of the outstanding voting stock of the corporation;
|
|
|
|
|
|
|
●
|
an affiliate or
associate of the corporation and was the owner of 15% or more of the corporation’s voting stock outstanding, at any
time within three years immediately before the relevant date; and
|
|
|
|
|
|
|
●
|
an affiliate or
associate of the persons described in the foregoing bullet points.
|
However,
the above provisions of Section 203 do not apply if:
|
|
●
|
our
board approves the transaction that made the stockholder an interested stockholder before the date of that transaction;
|
|
|
|
|
|
|
●
|
after the completion
of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned at least 85%
of our voting stock outstanding at the time the transaction commenced, excluding shares owned by our officers and directors;
or
|
|
|
|
|
|
|
●
|
on or subsequent
to the date of the transaction, the business combinations approved by our board and authorized at a meeting of our stockholders
by an affirmative vote of at least two-thirds of the outstanding voting stock not owned by the interested stockholder.
|
Stockholders
may, by adopting an amendment to the corporation’s certificate of incorporation or bylaws, elect for the corporation not
to be governed by Section 203, effective 12 months after adoption. Neither our certificate of incorporation nor our bylaws exempts
us from the restrictions imposed under Section 203. It is anticipated that the provisions of Section 203 may encourage companies
interested in acquiring us to negotiate in advance with our board.
Stockholder
Proposals and Director Nominations.
Our
stockholders can submit stockholder proposals and nominate candidates for our board of directors if the stockholders follow advance
notice procedures described in our bylaws.
To
nominate directors, stockholders must submit a written notice at least 120 days before the first anniversary of the date of our
proxy statement for the previous year’s annual stockholders’ meeting. The notice must include the name and address
of the stockholder, the class and number of shares owned by the stockholder, information about the nominee required by the SEC
and the written consent of the nominee to serve as a director. Our board of directors may require the nominee to furnish the same
information as is required in the stockholders’ notice that pertains to the nominee.
Stockholder
proposals must be submitted at least 120 days before the first anniversary of the date of our proxy statement for the previous
year’s annual stockholders’ meeting. The notice must include a description of the proposal, the reasons for bringing
the proposal before the meeting, the name and address of the stockholder, the class and number of shares owned by the stockholder
and any material interest of the stockholder in the proposal.
In
each case, if we did not hold an annual meeting in the previous year or if we have changed the date of the annual meeting by more
than 30 days from the date contemplated in the previous year’s proxy statement, stockholders must submit the notice within
a reasonable time before we begin to print and send our proxy materials.
Director
nominations and stockholder proposals that are late or that do not include all required information may be rejected. This could
prevent stockholders from bringing certain matters before an annual meeting, including making nominations for directors.
Limitation
of Liability; Indemnification
Our
certificate of incorporation contains certain provisions permitted under the DGCL relating to the liability of directors. These
provisions eliminate a director’s personal liability for monetary damages resulting from a breach of fiduciary duty, except
that a director will be personally liable:
|
|
●
|
for
any breach of the director’s duty of loyalty to us or our stockholders;
|
|
|
|
|
|
|
●
|
for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law;
|
|
|
|
|
|
|
●
|
under Section 174
of the DGCL relating to unlawful stock repurchases or dividends; and
|
|
|
|
|
|
|
●
|
for any transaction
from which the director derives an improper personal benefit.
|
These
provisions do not limit or eliminate our rights or those of any stockholder to seek non-monetary relief, such as an injunction
or rescission, in the event of a breach of a director’s fiduciary duty. These provisions will not alter a director’s
liability under federal securities laws.
Stock
Exchange
Our
common stock is listed on the NYSE MKT LLC under the symbol “IDN.”
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is Continental Stock Transfer, 17 Battery Place, 8
th
Floor, New York,
NY 10004. Its phone number is (212) 509-4000.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase common stock or preferred stock. We may issue warrants independently or together with any other
securities we offer under a prospectus supplement. Warrants sold with other securities may be attached to or separate from the
other 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
have summarized material provisions of the warrants and the warrant agreements below. This summary is not complete. We will file
the form of any warrant agreement with the SEC, and you should read the warrant agreement for provisions that may be important
to you.
The
prospectus supplement relating to any warrants we are offering will include specific terms relating to the offering. These terms
will include some or all of the following:
|
|
●
|
the
title of the warrants;
|
|
|
|
|
|
|
●
|
the aggregate number
of warrants offered;
|
|
|
|
|
|
|
●
|
the designation,
number and terms of the common stock or preferred stock purchasable upon exercise of the warrants, and procedures by which
those numbers may be adjusted;
|
|
|
|
|
|
|
●
|
the exercise price
of the warrants;
|
|
|
|
|
|
|
●
|
the dates or periods
during which the warrants are exercisable;
|
|
|
|
|
|
|
●
|
the designation
and terms of any securities with which the warrants are issued;
|
|
|
|
|
|
|
●
|
if the warrants
are issued as a unit with another security, the date on and after which the warrants and the other security will be separately
transferable;
|
|
|
|
|
|
|
●
|
if the exercise
price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price
is denominated;
|
|
|
|
|
|
|
●
|
any minimum or maximum
amount of warrants that may be exercised at any one time; and
|
|
|
|
|
|
|
●
|
any terms, procedures
and limitations relating to the transferability, exchange or exercise of the warrants.
|
Exercise
of Warrants
Holders
may exercise warrants as described in the prospectus supplement relating to the warrants being offered. Each warrant will entitle
the holder of the warrant to purchase for cash at the exercise price provided in the applicable prospectus supplement the principal
amount of shares of common stock or shares of preferred stock being offered. Upon receipt of 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 prospectus
supplement, we will, as soon as practicable, forward the shares of common stock or shares of preferred stock purchasable upon
the exercise of the warrants. If less than all of the warrants represented by the warrant certificate are exercised, we will issue
a new warrant certificate for the remaining warrants.
Holders
may exercise warrants at any time up to the close of business on the expiration date provided in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants are void.
Prior
to the exercise of their warrants, holders of warrants will not have any of the rights of holders of the securities subject to
the warrants.
Modifications
We
may amend the warrant agreements and the warrants 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 materially and adversely
affect the interests of holders of outstanding warrants.
We
may also modify or amend certain other terms of the warrant agreements and the warrants with the consent of the holders of not
less than a majority in number of the then outstanding unexercised warrants affected. Without the consent of the holders affected,
however, no modification or amendment may:
|
|
●
|
shorten
the period of time during which the warrants may be exercised; or
|
|
|
|
|
|
|
●
|
otherwise materially
and adversely affect the exercise rights of the holders of the warrants.
|
Enforceability
of Rights
The
warrant agent will act solely as our agent in connection with the warrants and will not assume any obligations or relationship
of agency or trust for or with any warrant holder. The warrant agent will not have any duty or responsibility if we default under
the warrant agreements or the warrant certificates. A warrant holder may, without the consent of the warrant agent, enforce by
appropriate legal action on its own behalf the holder’s right to exercise the holder’s warrants.
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 a 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 before a specified date.
We
have summarized material provisions of the units and the unit agreements below. This summary is not complete. We will file the
form of any unit agreement with the SEC, and you should read the unit agreement for provisions that may be important to you.
The
prospectus supplement relating to any units we are offering will include specific terms relating to the offering. These terms
will include some or all of the following:
|
|
●
|
the
designation and terms of the units and the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
|
|
|
|
|
|
|
●
|
any provisions for
the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
|
|
|
|
|
|
|
●
|
whether such units
will be issued in fully registered or global form.
|
PLAN
OF DISTRIBUTION
Intellicheck
Mobilisa may from time to time offer and sell, separately or together, some or all of the securities covered by this prospectus.
Registration of the securities covered by this prospectus does not mean, however, that the securities will be offered or sold.
The
securities covered by this prospectus may be sold from time to time, at market prices prevailing at the time of sale, at prices
related to market prices, at a fixed price or prices subject to change or at negotiated prices, by a variety of methods, including
the following:
|
|
●
|
transactions
on the NYSE MKT LLC (including through at the market offerings) or any other organized market where the securities may be
traded;
|
|
|
|
|
|
|
●
|
in the over-the-counter
market;
|
|
|
|
|
|
|
●
|
in privately negotiated
transactions;
|
|
|
|
|
|
|
●
|
through broker-dealers,
who may act as agents or principals;
|
|
|
|
|
|
|
●
|
through one or more
underwriters on a firm commitment or best-efforts basis;
|
|
|
|
|
|
|
●
|
in a block trade
in which a broker-dealer will attempt to sell a block of securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
|
|
|
|
|
|
|
●
|
through offerings
of securities exchangeable, convertible or exercisable for the securities;
|
|
|
|
|
|
|
●
|
directly to one
or more purchasers;
|
|
|
|
|
|
|
●
|
through agents;
or
|
|
|
|
|
|
|
●
|
through any combination
of the above.
|
At
any time a particular offer of securities covered by this prospectus is made, a revised prospectus or prospectus supplement, if
required, will be distributed which will set forth:
|
|
●
|
the
name or names of any underwriters, broker-dealers or agents;
|
|
|
|
|
|
|
●
|
the purchase price
of the securities and the proceeds to be received by us from the sale;
|
|
|
|
|
|
|
●
|
any discounts, commissions,
concessions and other items constituting underwriters’ or agents’ compensation;
|
|
|
|
|
|
|
●
|
any public offering
price;
|
|
|
|
|
|
|
●
|
any discounts, commissions
or concessions allowed or reallowed or paid to dealers;
|
|
|
|
|
|
|
●
|
any additional risk
factors applicable to the securities that we propose to sell; and
|
|
|
|
|
|
|
●
|
any securities exchange
on which the securities may be listed.
|
Any
such required prospectus supplement of which this prospectus is a part will be filed with the SEC to reflect the disclosure of
additional information with respect to the distribution of securities covered by this prospectus.
Underwriters,
broker-dealers or agents may be paid compensation for offering and selling the securities. That compensation may be in the form
of discounts, concessions or commissions to be received from us, from the purchasers of the securities or from both the sellers
and the purchasers. The compensation received may be in excess of customary discounts, concessions or commissions. Any underwriters,
dealers, agents or other investors participating in the distribution of the securities may be deemed to be “underwriters,”
as that term is defined in the Securities Act, and compensation and profits received by them on sale of the securities may be
deemed to be underwriting commissions, as that term is defined in the rules promulgated under the Securities Act.
If
dealers are utilized in the sale of offered securities, we will sell such offered securities to the dealers as principals. The
dealers may then resell such offered securities to the public at varying prices to be determined by such dealers at the time of
resale. The names of the dealers and the terms of the transaction will be set forth in the prospectus supplement relating to that
transaction.
We
may sell securities from time to time to one or more underwriters, who would purchase the securities as principal for resale to
the public, either on a firm-commitment or best-efforts basis. The securities may be either offered to the public through underwriting
syndicates represented by managing underwriters, or directly by underwriters. If we sell securities to underwriters, we may execute
an underwriting agreement with them at the time of sale and will name them in the applicable prospectus supplement. The underwriting
agreement will provide that the obligations of the underwriters are subject to certain conditions precedent and that the underwriters
with respect to a sale of offered securities will be obligated to purchase all such offered securities of a series if any are
purchased. We may grant to the underwriters options to purchase additional offered securities, to cover over-allotments, if any,
at the public offering price (with additional underwriting discounts or commissions), as may be set forth in the applicable prospectus
supplement. If we grant any over-allotment option, the terms of such over-allotment option will be set forth in the prospectus
supplement relating to such offered securities. In connection with such sales, underwriters may be deemed to have received compensation
from us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of the securities
for whom they may act as agents. Underwriters may resell the securities to or through dealers, and those dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters and/or commissions from purchasers for whom they may
act as agents. The applicable prospectus supplement will include any required information about underwriting compensation we pay
to underwriters, and any discounts, concessions or commissions underwriters allow to participating dealers, in connection with
an offering of securities.
If
so indicated in the applicable prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase offered securities from us at the public offering price set forth in such prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts
will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth
the commission payable for solicitation of such contracts.
Underwriters,
broker-dealers or agents may be entitled under agreements entered into with us to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the underwriters,
dealers, agents and remarketing firms may be required to make. Underwriters, broker-dealers and agents, as well as their respective
affiliates, may be customers of, engage in transactions with, or perform services in the ordinary course of business for us and/or
our affiliates.
Each
series of securities will be a new issue of securities and will have no established trading market other than our common stock
which is listed on the NYSE MKT LLC. Any common stock sold will be listed on the NYSE MKT LLC, upon official notice of issuance.
The securities, other than our common stock, may or may not be listed on a national securities exchange or other organized market.
Any underwriters to whom securities are sold by us for public offering and sale may make a market in the securities, but such
underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity or trading market for any of the securities.
Certain
persons participating in the offering may engage in over-allotment, stabilizing transactions, short-covering transactions and
penalty bids in accordance with Regulation M under the Exchange Act. We make no representation or prediction as to the direction
or magnitude of any effect that such transactions may have on the price of the securities.
LEGAL
MATTERS
The
validity of the issuance of the shares of common stock, preferred stock, warrants, or units, as applicable, offered hereby will
be passed upon for us by K&L Gates LLP, 925 Fourth Avenue, Seattle, WA 98104. Additional legal matters may be passed on for
us, or any underwriters, dealers or agents, by counsel whom we will name in the applicable prospectus supplement.
EXPERTS
The
consolidated balance sheets of Intellicheck Mobilisa, Inc. as of December 31, 2015 and 2014, and the related consolidated statements
of operations, stockholders’ equity, and cash flows for each of the years then ended, have been audited by EisnerAmper LLP,
independent registered public accounting firm, as stated in their report which is incorporated herein by reference. Such financial
statements have been incorporated herein by reference in reliance on the report of such firm given upon their authority as experts
in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
Each
time securities are offered to be sold, we will provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. This
prospectus, together with the applicable prospectus supplement, will include or refer you to all material information relating
to each offering.
In
addition, Intellicheck Mobilisa files annual, quarterly and current reports, proxy and information statements and other information
with the SEC under the Exchange Act. Copies of these reports, proxy statements and other information may be inspected and copied
at the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. Copies of these materials can
also be obtained by mail at prescribed rates from the Public Reference Room. Please call the SEC at 1-800-SEC-0330 for further
information on the Public Reference Room. The SEC maintains a Website that contains reports, proxy statements and other information
regarding Flow. The address of the SEC web site is
http://www.sec.gov
.
INCORPORATION
BY REFERENCE
The
SEC allows us to “incorporate by reference” the information that we file with them, which means that we can disclose
important information to you by referring you to other documents. The information incorporated by reference is an important part
of this prospectus, and information that we file later with the SEC will automatically update and supersede this information.
We
incorporate by reference the filed documents listed below, except as superseded, supplemented or modified by this prospectus,
and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act:
|
|
●
|
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2015 as filed with the SEC on March 25, 2016;
|
|
|
|
|
|
|
●
|
our Quarterly Report
on Form 10-Q for the quarter ended March 31, 2016 as filed with the SEC on May 13, 2016, and the Amendment to our Quarterly
Report on Form 10-Q/A for the quarter ended March 31, 2016 as filed with the SEC on May 16, 2016;
|
|
|
|
|
|
|
●
|
our Quarterly Report
on Form 10-Q for the quarter ended June 30, 2016 as filed with the SEC on August 11, 2016;
|
|
|
|
|
|
|
●
|
our
Current Reports on Form 8-K as filed with the SEC on March 1, 2016, March 7, 2016,
March 9, 2016, May 5, 2016, May 6, 2016, May 20, 2016, June 20, 2016, and September
28, 2016;
|
|
|
|
|
|
|
●
|
a description of
our common stock contained in our Registration Statement on Form 8-A (001-15465) filed with the SEC under Section 12 of the
Exchange Act on November 15, 1999, including any amendment or reports filed for the purpose of updating this description;
and
|
|
|
|
|
|
|
●
|
all documents subsequently
filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until this offering is completed, including
those made between the date of the initial registration statement that includes this prospectus and prior to the effectiveness
of such registration statement (other than information furnished under Item 2.02 or Item 7.01 of any Form 8-K which information
is not deemed filed under the Exchange Act).
|
You
may request and obtain a copy of these filings, at no cost, by writing or telephoning us at the following address or phone number:
Intellicheck
Mobilisa, Inc.
100
Jericho Quadrangle, Suite 202, Jericho, NY 11753
(516)
992-1900: Bill White, Chief Financial Officer
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 Intellicheck Mobilisa, Inc.
All of such fees and expenses, except for the SEC Registration Fee, are estimated:
|
SEC registration fee
|
|
$
|
2,898.00
|
|
|
Legal and accounting fees and expenses
|
|
|
*
|
|
|
Miscellaneous
|
|
|
*
|
|
|
Total
|
|
$
|
*
|
|
*
These fees are calculated based on the number of issuances and the amount of securities offered and accordingly cannot be estimated
at this time.
Item
15. Indemnification of Officers and Directors
Intellicheck
Mobilisa’s certificate of incorporation limits the liability of directors to the maximum extent permitted by Section 145
of the Delaware General Corporation Law. Delaware law provides that the directors of a corporation will not be personally liable
to such corporation or its stockholders for monetary damages for breach of their fiduciary duties as directors, except for liability
(i) for any breach of their duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or (iv) for any transaction from
which the director derives an improper personal benefit.
The
Company provides officers’ and directors’ liability insurance for its officers and directors.
Item
16. Exhibits
|
Exhibit No.
|
|
Description
|
|
|
|
|
|
1.1
|
|
Form of Underwriting
Agreement **
|
|
3.1
|
|
Certificate of Incorporation
of the Company (1)
|
|
3.2
|
|
Amendment to the
Certificate of Incorporation of the Company (6)
|
|
3.3
|
|
Amendment to the
Certificate of Incorporation of the Company (7)
|
|
3.4
|
|
By-laws of the Company
(1)
|
|
3.5
|
|
Amendment to the
By-laws of the Company (5)
|
|
3.6
|
|
Certificate of Designation
of Preferred Stock of Intelli-Check, Inc. (2)
|
|
3.7
|
|
Certificate of Designation
of Preferred Stock **
|
|
4.1
|
|
Specimen Stock Certificate
(4)
|
|
4.2
|
|
Form of Preferred
Stock Certificate **
|
|
4.3
|
|
Form of Warrant
Agreement (including form of Warrant Certificate) **
|
|
4.4
|
|
Form of Unit Agreement
(including form of Unit Certificate) **
|
|
5.1
|
|
Opinion of K&L
Gates LLP as to the legality of the securities being registered *
|
|
23.1
|
|
Consent of K&L
Gates LLP (included in Exhibit 5.1) *
|
|
23.2
|
|
Consent of EisnerAmper
LLP *
|
|
24.1
|
|
Power of Attorney
(Included on the signature page to this registration statement) *
|
|
*
|
Filed
herewith.
|
|
|
|
|
**
|
To be filed by amendment
or as an exhibit to a document to be incorporated by reference herein in connection with the issuance of the securities.
|
|
|
|
|
(1)
|
Incorporated by
reference to Registration Statement on Form SB-2 (File No. 333-87797) filed September 24, 1999.
|
|
|
|
|
(2)
|
Incorporated by
reference to Registrant’s Annual Report on Form 10-K filed March 31, 2003.
|
|
|
|
|
(3)
|
Incorporated by
reference to Registrant’s Annual Report on Form 10-K filed March 30, 2006.
|
|
|
|
|
(4)
|
Incorporated by
reference to Registrant’s Annual Report on Form 10-K filed March 11, 2010.
|
|
|
|
|
(5)
|
Incorporated by
reference to Registrant’s Current Report on Form 8-K filed June 15, 2007.
|
|
|
|
|
(6)
|
Incorporated by
reference to Registrant’s Current Report on Form 8-K filed October 28, 2009.
|
|
|
|
|
(7)
|
Incorporated by
reference to Registrant’s Proxy Statement on Schedule 14A filed September 15, 2009.
|
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 the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
|
|
|
|
|
|
|
(iii)
|
To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
|
provided,
however
, that subparagraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by these subparagraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of a 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 to any purchaser:
|
|
|
(i)
|
If the registrant is relying on Rule 430B:
|
|
|
|
|
|
|
|
(A) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
|
|
|
|
|
|
|
|
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering 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 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such effective date; or
|
|
|
|
|
|
|
(ii)
|
If the registrant is subject to Rule 430C, each prospectus
filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements
relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included
in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.
|
|
|
(5)
|
That, for the purpose
of determining liability under the Securities Act of 1933 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.
|
The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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 SEC, such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding)
is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
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 registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Jericho, State of New York, on October 21, 2016.
|
|
INTELLICHECK MOBILISA, INC.
|
|
|
|
|
|
|
By:
|
/s/ William H. Roof, Ph. D
|
|
|
Name:
|
William H. Roof, Ph.D.
|
|
|
|
Chief Executive Officer
|
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
|
/s/
William H. Roof, Ph.D
|
|
Chief
Executive Officer
|
October
21, 2016
|
|
William
H. Roof, Ph.D
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
/s/
Bill White
|
|
Chief
Financial Officer, Treasurer & Secretary
|
October
21, 2016
|
|
Bill
White
|
|
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
|
|
/s/
Vice-Admiral Michael D. Malone
|
|
Chairman
and Director
|
October
21, 2016
|
|
Vice-Admiral
Michael D. Malone
|
|
|
|
|
|
|
|
|
|
/s/
Guy L. Smith
|
|
Director
|
October
21, 2016
|
|
Guy
L. Smith
|
|
|
|
|
|
|
|
|
|
/s/
William P. Georges
|
|
Director
|
October
21, 2016
|
|
William
P. Georges
|
|
|
|
|
|
|
|
|
|
/s/
General Emil R. Bedard
|
|
Director
|
October
21, 2016
|
|
General
Emil R. Bedard
|
|
|
|
|
|
|
|
|
|
/s/
Jack Davis
|
|
Director
|
October
21, 2016
|
|
Jack
Davis
|
|
|
|
Intellicheck (AMEX:IDN)
Historical Stock Chart
From Mar 2024 to Apr 2024
Intellicheck (AMEX:IDN)
Historical Stock Chart
From Apr 2023 to Apr 2024
