As
filed with the Securities and Exchange Commission on January 28, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BTCS
Inc.
(Exact
name of registrant as specified in its charter)
|
Nevada
|
|
90-1096644
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
|
(I.R.S.
Employer
Identification
No.)
|
9466
Georgia Avenue, No. 124, Silver Spring, Maryland 20910
(202)
430-6576
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Charles
Allen
Chief
Executive Officer
BTCS
Inc.
9466
Georgia Avenue, No. 124, Silver Spring, Maryland 20910
(202)
430-6576
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Brian
S. Bernstein, Esq.
Nason,
Yeager, Gerson, Harris & Fumero, P.A.
3001
PGA Blvd., Suite 305
Palm
Beach Gardens, Florida 33410
(561)
686-3307
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. [ ]
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, other than securities offering only in connection with dividend or interest reinvestment plans, check the
following box. [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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 post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company.
|
Large
accelerated filer [ ]
|
Accelerated
filer [ ]
|
|
Non-accelerated
filer [X]
|
Smaller
reporting company [X]
|
|
|
Emerging
growth company [ ]
|
If
an emerging growth company, indicate by checkmark if the registrant has not elected to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. [ ]
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities to be Registered (1)
|
|
Proposed
Maximum
Aggregate
Offering Price
(1)(2)
|
|
|
Amount of
Registration Fee
(4)
|
|
|
Common Stock, par value $0.001 per share
|
|
|
-
|
|
|
|
-
|
|
|
Preferred Stock, par value $0.001 per share
|
|
|
-
|
|
|
|
-
|
|
|
Warrants
|
|
|
-
|
|
|
|
-
|
|
|
Units (3)
|
|
|
-
|
|
|
|
-
|
|
|
Total
|
|
$
|
100,000,000
|
|
|
$
|
10,910
|
|
|
(1)
|
An
indeterminate amount of the securities of each identified class is being registered as may from time to time be offered hereunder
at indeterminate prices, which together with the Unsold Securities, shall have an aggregate initial offering price not to
exceed $100,000,000 (the “Securities”). The Securities registered hereunder also include such indeterminate number
of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder
or pursuant to the anti-dilution provisions of any such securities. Separate consideration may or may not be received for
securities that are issuable upon conversion, exercise or exchange of other securities. In addition, the proposed maximum
aggregate offering price is estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under
the Securities Act of 1933 (the “Securities Act”).
|
|
|
|
|
(2)
|
The
proposed maximum offering price per share will be determined from time to time by the registrant in connection with the issuance
by the registrant of the Securities registered hereunder. Not specified as to each class of securities to be registered pursuant
to General Instruction II.D to Form S-3 under the Securities Act.
|
|
|
|
|
(3)
|
Consisting
of some or all of the securities listed above, in any combination, including common stock, preferred stock, and warrants.
|
|
|
|
|
(4)
|
Calculated
pursuant to Rule 457(o) of the rules and regulations 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 which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission of which this prospectus is a part becomes 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 January 28, 2021
PROSPECTUS
$100,000,000
Common
Stock
Preferred
Stock
Warrants
Units
BTCS
Inc. intends to offer and sell from time to time the securities described in this prospectus. The total offering price of the
securities described in this prospectus will not exceed a total of $100,000,000.
This
prospectus describes some of the general terms that apply to the securities. We will provide specific terms of any securities
we may offer in supplements to this prospectus. You should read this prospectus and any applicable prospectus supplement carefully
before you invest. The prospectus supplement also may add, update or change information contained or incorporated in this prospectus.
We
may offer and sell these securities to or through one or more underwriters, brokers or agents, or directly to purchasers on a
continuous or delayed basis. The prospectus supplement for each offering of securities will describe the plan of distribution
for that offering. For general information about the distribution of securities offered, see “Plan of Distribution”
in this prospectus. The prospectus supplement also will set forth the price to the public of the securities and the net proceeds
that we expect to receive from the sale of such securities.
Our
common stock is quoted on OTCQB under the symbol “BTCS.” On January 22, 2021 the last reported sales price of our
common stock on the OTCQB was $1.61 per share.
Investing
in our securities involves risks. You should read carefully and consider “Risk Factors” included in our most recent
Annual Report on Form 10-K and on page 2 of this prospectus and in the applicable prospectus supplement before investing in
our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined whether this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is _________, 2021
TABLE
OF CONTENTS
You
should rely only on information contained in this prospectus. We have not authorized anyone to provide you with information that
is different from that contained in this prospectus. We are not offering to sell or seeking offers to buy shares of common stock
or other securities in jurisdictions where offers and sales are not permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of our common
stock or other securities. We are responsible for updating this prospectus to ensure that all material information is included
and will update this prospectus to the extent required by law.
PROSPECTUS
SUMMARY
This
summary only highlights the more detailed information appearing elsewhere in this prospectus or incorporated by reference in this
prospectus. It may not contain all of the information that is important to you. You should carefully read the entire prospectus
and the documents incorporated by reference in this prospectus before deciding whether to invest in our securities. Unless otherwise
indicated or the context requires otherwise, in this prospectus and any prospectus supplement hereto references to “BTCS,”
the “Company,” “we,” “us,” and “our” refer to BTCS Inc.
About
This Prospectus
This
prospectus is part of a “shelf” registration statement that we have filed with the Securities and Exchange Commission
(the “Commission”). By using a shelf registration statement, we may sell, at any time and from time to time, in one
or more offerings, any combination of the securities described in this prospectus. The exhibits to our registration statement
contain the full text of certain contracts and other important documents we have summarized in this prospectus. Since these summaries
may not contain all the information that you may find important in deciding whether to purchase the securities we offer, you should
review the full text of these documents. The registration statement and the exhibits can be obtained from the Commission as indicated
under the section entitled “Incorporation of Certain Information by Reference.”
This
prospectus only provides you with a general description of the securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that contains specific information about the terms of those securities. The prospectus supplement
also may add, update or change information contained in this prospectus. If there is an inconsistency between the information
in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement. You should
read carefully both this prospectus and any prospectus supplement together with the additional information described below under
the section entitled “Incorporation of Certain Information by Reference.”
We
are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the
information in this prospectus or a prospectus supplement is accurate as of any date other than the date on the front of the document.
Our
Company
BTCS
Inc. is an early entrant in the Digital Asset market and one of the first U.S. publicly traded companies to be involved with Digital
Assets and blockchain technologies. To our knowledge, we are one of a few public companies intending to acquire both Digital Assets
and a controlling interest in one or more businesses in the Digital Asset and blockchain industries. We are also internally developing
a digital asset data analytics platform aimed at aggregating users’ information, such as tracking of multiple exchanges
and wallets to aggregate portfolio holdings into a single platform to view and analyze performance, risk metrics, and potential
tax implications.
We
acquire additional Digital Assets to provide investors with indirect ownership of Digital Assets that are not securities, such
as bitcoin and ether. The Company acquires Digital Assets through open market purchases. We are not limiting our assets to a single
type of Digital Asset and may purchase a variety of Digital Assets that appear to benefit our investors.
Corporate
Information
Our
address is 9466 Georgia Avenue, No. 124, Silver Spring, Maryland, 20910, and our telephone number is (202) 430-6576. Our website
address is http: www.btcs.com. Our website and the information contained on, or that can be accessed through, our website is not
be deemed to be incorporated by reference into this prospectus.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus including the documents incorporated by reference contains forward-looking statements. All statements other than statements
of historical facts, including statements regarding our future financial position, liquidity, business strategy and plans and
objectives of management for future operations, are forward-looking statements. The words “believe,” “may,”
“estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,”
“could,” “target,” “potential,” “is likely,” “will,” “expect”
and similar expressions, as they relate to us, are intended to identify forward-looking statements. We have based these forward-looking
statements largely on our current expectations and projections about future events and financial trends that we believe may affect
our financial condition, results of operations, business strategy and financial needs.
The
results anticipated by any or all of these forward-looking statements might not occur. Important factors, uncertainties and risks
that may cause actual results to differ materially from these forward-looking statements are contained in the risk factors that
follow and elsewhere in this prospectus and the documents incorporated by reference. We undertake no obligation to publicly update
or revise any forward-looking statements, whether as the result of new information, future events or otherwise. For more information
regarding some of the ongoing risks and uncertainties of our business, see the risk factors that follow and or that are disclosed
in our incorporated documents.
RISK
FACTORS
Investing
in our securities involves risks. Before purchasing the securities offered by this prospectus you should consider carefully the
risk factors incorporated by reference in this prospectus from our Annual Report on Form 10-K for the year ended December 31,
2020 filed with the SEC on January 26, 2021, as well as the risks, uncertainties and additional information set forth in the other
documents incorporated by reference in this prospectus that we file with the Commission after the date of this prospectus and
which are deemed incorporated by reference in this prospectus, and the information contained in any applicable prospectus supplement.
For a description of these reports and documents, and information about where you can find them, see “Incorporation of Certain
Information by Reference.” The risks and uncertainties we discuss in this prospectus and in the documents incorporated by
reference in this prospectus are those that we currently believe may materially affect our company. Additional risks not presently
known, or currently deemed immaterial, also could materially and adversely affect our financial condition, results of operations,
business and prospects.
USE
OF PROCEEDS
Unless
we specify otherwise in an accompanying prospectus supplement, we intend to use the net proceeds from the sale of the securities
by us to provide additional funds for purchasing digital assets, working capital, and other general corporate purposes. Any specific
allocation of the net proceeds of an offering of securities will be determined at the time of such offering and will be described
in the accompanying supplement to this prospectus.
DESCRIPTION
OF CAPITAL STOCK
We
are authorized to issue 975,000,000 shares of common stock, par value $0.001 per share, and 20,000,000 shares of preferred stock,
par value $0.001 per share.
Common
Stock
We
are authorized to issue 975,000,000 shares of common stock, par value $0.001 per share. The holders of common stock are entitled
to one vote per share on all matters submitted to a vote of stockholders, including the election of directors. There is no cumulative
voting in the election of directors. In the event of our liquidation or dissolution, holders of common stock are entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred
stock. Holders of common stock have no preemptive rights and have no right to convert their common stock into any other securities
and there are no redemption provisions applicable to our common stock.
The
holders of common stock are entitled to any dividends that may be declared by the Company’s Board of Directors (the “Board”)
out of funds legally available for payment of dividends subject to the prior rights of holders of preferred stock and any contractual
restrictions we have against the payment of dividends on common stock. We have not paid dividends on our common stock since inception
and do not plan to pay dividends on our common stock in the foreseeable future.
As
of January 22, 2021, we had 44,411,617 shares of common stock outstanding. In addition, as of that date, there were 17,252,915
shares underlying our outstanding warrants, restricted stock units and stock options.
Preferred
Stock
We
are authorized to issue 20,000,000 shares of “blank check” preferred stock with designations, rights and preferences
as may be determined from time to time by our Board. As the date of this prospectus, we had 29,414 shares of Series C-1 preferred
stock outstanding and 1,100,000 shares of Series C-2 preferred stock outstanding.
Preferred
stock is available for possible future financings or acquisitions and for general corporate purposes without further authorization
of our stockholders unless such authorization is required by applicable law, or the rules of any securities exchange or market
on which our stock is then listed or admitted or trading.
Our
Board may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power
or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection with
possible acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying, deferring or
preventing a change in control of the Company. For a description of how future issuances of our preferred stock could affect the
rights of our stockholders, see “Certain Provisions of Nevada Law and of Our Charter and Bylaws – Articles of Incorporation
and Bylaws,” below.
A
prospectus supplement relating to any series of preferred stock being offered will include specific terms relating to the offering.
Such prospectus supplement will include:
|
|
●
|
the
title and stated or par value of the preferred stock;
|
|
|
|
|
|
|
●
|
the
number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred
stock;
|
|
|
|
|
|
|
●
|
the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the preferred stock;
|
|
|
|
|
|
|
●
|
whether
dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall
accumulate;
|
|
|
|
|
|
|
●
|
the
provisions for a sinking fund, if any, for the preferred stock;
|
|
|
|
|
|
|
●
|
any
voting rights of the preferred stock;
|
|
|
|
|
|
|
●
|
the
provisions for redemption, if applicable, of the preferred stock;
|
|
|
|
|
|
|
●
|
any
listing of the preferred stock on any securities exchange;
|
|
|
|
|
|
|
●
|
the
terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the
conversion price or the manner of calculating the conversion price and conversion period;
|
|
|
|
|
|
|
●
|
if
appropriate, a discussion of federal income tax consequences applicable to the preferred stock; and
|
|
|
|
|
|
|
●
|
any
other specific terms, preferences, rights, limitations or restrictions of the preferred stock.
|
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of common stock. Warrants may be issued independently or together with other securities and
may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement.
Set forth below is a brief summary of the general terms and provisions of the warrants that we may issue from time to time. Additional
terms of the warrants and the applicable warrant agreement will be described in the applicable prospectus supplement.
The
following descriptions, and any description of the warrants included in a prospectus supplement, may not be complete and is subject
to and qualified in its entirety by reference to the terms and provisions of the applicable warrant agreement, which we will file
with the Commission in connection with any offering of warrants.
General
The
prospectus supplement relating to a particular issue of warrants will describe the terms of the warrants, including the following:
|
|
●
|
the
title of the warrants;
|
|
|
|
|
|
|
●
|
the
offering price of the warrants, if any;
|
|
|
|
|
|
|
●
|
the
aggregate number of the warrants;
|
|
|
|
|
|
|
●
|
the
terms of the security that may be purchased upon exercise of the warrants;
|
|
|
|
|
|
|
●
|
if
applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued
with each security;
|
|
|
|
|
|
|
●
|
if
applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
|
|
|
|
|
|
|
●
|
the
dates on which the right to exercise the warrants commences and expires;
|
|
|
|
|
|
|
●
|
if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
|
|
|
|
|
|
|
●
|
if
applicable, a discussion of material United States federal income tax considerations;
|
|
|
|
|
|
|
●
|
anti-dilution
provisions of the warrants, if any;
|
|
|
|
|
|
|
●
|
redemption
or call provisions, if any, applicable to the warrants; and
|
|
|
|
|
|
|
●
|
any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the
warrants.
|
Exercise
of warrants
Each
warrant will entitle the holder of the warrant to purchase the securities that we specify in the applicable prospectus supplement
at the exercise price that we describe in the applicable prospectus supplement. Holders may exercise warrants at any time up to
the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will be void. Holders may exercise warrants as set forth in the prospectus supplement
relating to the warrants being offered. Until a holder exercises the warrants to purchase any securities underlying the warrants,
the holder will not have any rights as a holder of the underlying securities by virtue of ownership of warrants.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus or any prospectus supplement in
any combination. Each unit will be issued so that the holder of the unit is also the holder, with the rights and obligations of
a holder, of each security included in the unit. 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 times before a specified date or upon the
occurrence of a specified event or occurrence.
The
applicable prospectus supplement will describe:
|
|
●
|
the
designation and the 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;
|
|
|
|
|
|
|
●
|
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.
|
Transfer
Agent
We
have appointed Equity Stock Transfer as our stock transfer agent. Its address is 237 W 37th Street, Suite 602, New York, NY 10018
and its telephone number is (212) 575-5757 and email address is: info@equitystock.com
CERTAIN
PROVISIONS OF NEVADA LAW AND OF OUR CHARTER AND BYLAWS
Anti-Takeover
Effects of Nevada Law
We
may currently be, or in the future become, subject to the provisions of the Nevada Revised Statutes regarding the acquisition
of controlling interest (the “Controlling Interest Law”). A corporation is subject to the Controlling Interest Law
if it has more than 200 stockholders of record, at least 100 of whom are residents of Nevada, and if the corporation does business
in Nevada, directly or through an affiliated corporation. The Controlling Interest Law may have the effect of discouraging corporate
takeovers. As of January 22, 2021, we had no stockholders of record who are residents of Nevada.
The
Controlling Interest Law focuses on the acquisition of a “controlling interest,” which means the ownership of outstanding
voting shares that would be sufficient, but for the operation of law, to enable the acquiring person to exercise the following
proportions of the voting power of the corporation in the election of directors: (1) one-fifth or more but less than one-third;
(2) one-third or more but less than a majority; or (3) a majority or more. The ability to exercise this voting power may be direct
or indirect, as well as individual or in association with others.
The
effect of the Controlling Interest Law is that an acquiring person, and those acting in association with such person, will obtain
only such voting rights in the controlling interest as are conferred by a resolution of (1) a majority of the stockholders of
the corporation and, if applicable (2) a majority of each class or series of outstanding shares of which the acquisition would
adversely affect or alter a preference or relative or other right, approved at a special or annual stockholders’ meeting.
The Controlling Interest Law contemplates that voting rights will be considered only once by the other stockholders. Thus, there
is no authority to take away voting rights from the control shares of an acquiring person once those rights have been approved
in accordance with the Controlling Interest Law. However, if the stockholders do not grant voting rights to the shares acquired
by an acquiring person, those shares do not become permanent non-voting shares. The acquiring person is free to sell the shares
to others, and so long as the subsequent buyer or buyers of those shares themselves do not acquire a controlling interest, those
shares would not be governed by the Controlling Interest Law.
If
control shares are accorded full voting rights and the acquiring person has acquired control shares with a majority or more of
the voting power, a stockholder of record, other than the acquiring person, who did not vote in favor of approval of voting rights,
is entitled to dissent to the acquisition and demand fair value for such stockholder’s shares pursuant to applicable provisions
of Chapter 92 of the Nevada Revised Statutes governing rights and procedures for dissenting stockholders.
In
addition to the Controlling Interest Law, Nevada has a business combination law, which prohibits certain business combinations
between Nevada publicly traded corporations and any “interested stockholder” for two years after the interested stockholder
first becomes an interested stockholder, unless the board of directors of the corporation approved the combination before the
person became an interested stockholder or the corporation’s board of directors approves the transaction and at least 60%
of the corporation’s disinterested stockholders approve the combination at an annual or special meeting thereof. For purposes
of Nevada law, an interested stockholder is any person who is: (a) the beneficial owner, directly or indirectly, of 10% or more
of the voting power of the outstanding voting shares of the corporation, or (b) an affiliate or associate of the corporation and
at any time within the previous two years was the beneficial owner, directly or indirectly, of 10% or more of the voting power
of the then-outstanding shares of the corporation. The definition of “combination” contained in the statute is sufficiently
broad to cover virtually any kind of transaction that would allow a potential acquirer to use the corporation’s assets to
finance the acquisition or otherwise to benefit its own interests rather than the interests of the corporation and its other stockholders.
The
effect of Nevada’s business combination law is to potentially discourage parties interested in taking control of the Company
from doing so if they cannot obtain the approval of our Board or stockholders.
In
addition, under Nevada law directors may be removed only by the vote of stockholders representing not less than two-thirds of
the voting power of the issued and outstanding stock entitled to vote, which could also have an anti-takeover effect.
Articles
of Incorporation and Bylaws
Provisions
of our articles of incorporation, as amended, and amended and restated bylaws may delay or discourage transactions involving an
actual or potential change in our control or change in our management, including transactions in which stockholders might otherwise
receive a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests.
Therefore, these provisions could adversely affect the price of our common stock. Among other things, our articles of incorporation
and bylaws:
|
|
●
|
permit
our Board to issue up to 20,000,000 shares of preferred stock, without further action by the stockholders, with any rights,
preferences and privileges as our Board may designate, including the right to approve an acquisition or other change in
control;
|
|
|
|
|
|
|
●
|
provide
that the authorized number of directors may be changed only by a resolution adopted by the Board;
|
|
|
|
|
|
|
●
|
provide
that, for interim periods before the next meeting of the stockholders held for the election of directors, all vacancies,
including newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a
majority of directors then in office, even if less than a quorum;
|
|
|
|
|
|
|
●
|
do
not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled
to vote in any election of directors to elect all of the directors standing for election, if they should so
choose);
|
|
|
|
|
|
|
●
|
provide
that special meetings of stockholders may be called only by the Chairman of the Board, the Chief Executive Officer or the
Board;
|
|
|
|
|
|
|
●
|
provide
advance notice provisions applicable to a stockholder who wishes to nominate a director or propose other business to be
considered at a stockholders’ meeting.
|
PLAN
OF DISTRIBUTION
We
may sell the securities offered by this prospectus from time to time in one or more transactions, including without limitation:
|
|
●
|
through
underwriters or brokers;
|
|
|
●
|
directly
to purchasers;
|
|
|
●
|
in
a rights offering;
|
|
|
●
|
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
agents;
|
|
|
●
|
in
block trades;
|
|
|
●
|
through
a combination of any of these methods; or
|
|
|
●
|
through
any other method permitted by applicable law and described in a prospectus supplement.
|
In
addition, we may issue the securities as a dividend or distribution to our existing stockholders or other security holders.
The
prospectus supplement with respect to any offering of securities will include the following information:
|
●
|
the
terms of the offering;
|
|
●
|
the
names of any underwriters or agents;
|
|
●
|
the
name or names of any managing underwriter or underwriters;
|
|
●
|
the
purchase price or initial public offering price of the securities;
|
|
●
|
the
net proceeds from the sale of the securities;
|
|
●
|
any
delayed delivery arrangements;
|
|
●
|
any
underwriting discounts, commissions and other items constituting underwriters’ compensation;
|
|
●
|
any
discounts or concessions allowed or re-allowed or paid to brokers;
|
|
●
|
any
commissions paid to agents; and
|
|
●
|
any
securities exchange on which the securities may be listed.
|
Sale
through Underwriters or Brokers
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 re-allowed or paid to brokers.
We
will describe the name or names of any underwriters, brokers 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 brokers, and these brokers 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, brokers 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 OTCQB, the existing trading market for our common stock, or sales
made to or through a market maker other than on OTCQB. 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 shares of common stock, which are currently traded on OTCQB. 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 the trading market for any of the
securities.
Under
agreements we may enter into, we may indemnify underwriters, brokers, and agents who participate in the distribution of the securities
against certain liabilities, including liabilities under the Securities Act, or contribute with respect to payments that the underwriters,
brokers or agents may be required to make.
Any
compensation we pay underwriters or brokers will be subject to the guidelines of the Financial Industry Regulatory Authority,
Inc. We will disclose the compensation in any applicable prospectus supplement or pricing supplement, as the case may be.
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 brokers 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 may engage in transactions with these underwriters, brokers, and agents in the ordinary course of business.
Direct
Sales and Sales through Agents
We
may sell the securities directly. In this case, no underwriters or agents would be involved. We also may 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
or sale 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
also may 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 brokers to solicit offers from
certain types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. 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 applicable prospectus supplement will describe the commission
payable for solicitation of those contracts.
General
Information
We
may have agreements with the underwriters, brokers, 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, brokers, agents
or remarketing firms may be required to make. Underwriters, brokers, 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 securities offered hereby will be passed upon for us by Nason, Yeager, Gerson, Harris & Fumero, P.A., Palm
Beach Gardens, Florida.
EXPERTS
The
consolidated financial statements of the Company as of and for the fiscal years ended December 31, 2020 and 2019 incorporated
by reference in this prospectus and elsewhere in the registration statement have been so incorporated in reliance on the report
of RBSM LLP.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
documents listed below are incorporated by reference into this registration statement:
|
|
●
|
Our
annual report on Form 10-K for the year ended December 31, 2020 filed on January 26, 2021;
|
|
|
|
|
|
|
●
|
Our
current reports on Form 8-K filed on January 4, 2021, January 6, 2021, January 11, 2021, and January 22, 2021;
|
|
|
|
|
|
|
●
|
The
description of our common stock in our registration statement on Form 8-A filed with the SEC on February 7, 2014, as updated
by any amendments and reports filed for the purpose of updating such description; and
|
|
|
|
|
|
|
●
|
All
documents subsequently filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange
Act”) prior to the termination of the offering, other than information furnished pursuant to Items 2.02 and 7.01 of
Form 8-K and any related exhibits, shall be deemed to be incorporated by reference into the prospectus.
|
All
reports and other documents that we file with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act before
the completion or termination of the offering of the securities hereunder, including all such reports and documents we may file
with the Commission after the date of the initial filing of and prior to the effectiveness of the registration statement, will
also be considered to be incorporated by reference into this prospectus from the date of the filing of these reports and documents,
and will supersede the information herein; provided, however, that all reports or portions thereof that we “furnish”
to the Commission will not be considered incorporated by reference into this prospectus.
We
undertake to provide without charge to each person (including any beneficial owner) who receives a copy of this prospectus, upon
written or oral request, a copy of all of the preceding documents that are incorporated by reference (other than exhibits, unless
the exhibits are specifically incorporated by reference into these documents). You may request a copy of these materials by contacting
us at:
BTCS
Inc.
9466
Georgia Avenue No. 124
Silver
Spring, Maryland 20910
(202)
430-6576
We
are an Exchange Act reporting company and are required to file periodic reports on Form 10-K and 10-Q and current reports on Form
8-K. The Commission maintains an Internet website that contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the Commission, including the Company at www.sec.gov. You may also access our
Exchange Act reports and proxy statements free of charge at our website, www. http://www.btcs.com/index.php#ir.
$100,000,000
Common
Stock
Preferred
Stock
Warrants
Units
PROSPECTUS
,
2021
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Other
Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses payable by us in connection with the issuance and distribution of the securities
being registered hereunder. All of the amounts shown are estimates, except for the Commission Registration Fees.
|
SEC registration fees
|
|
$
|
10,910
|
|
|
Printing expenses
|
|
$
|
(1
|
)
|
|
Accounting fees and expenses
|
|
$
|
(1
|
)
|
|
Legal fees and expenses
|
|
$
|
(1
|
)
|
|
Miscellaneous
|
|
$
|
(1
|
)
|
|
Total
|
|
$
|
(1
|
)
|
|
(1)
|
These
fees are dependent on the type and number of securities offered and cannot be determined at this time. Additional information
regarding estimated fees and expenses will be provided at the time that such information is required to be included in a prospectus
supplement.
|
Indemnification
of Directors and Officers.
Neither
our Articles of Incorporation nor Bylaws prevent us from indemnifying our officers, directors and agents to the extent permitted
under the NRS. NRS Section 78.7502 provides that a corporation shall indemnify any director, officer, employee or agent of a corporation
against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with any the defense
to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to NRS Section 78.7502(1) or 78.7502(2), or in defense of any claim, issue or matter
therein.
NRS
Section 78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or
proceeding if he: (a) is not liable pursuant to NRS Section 78.138; or (b) acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
NRS
Section 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred
by him in connection with the defense or settlement of the action or suit if he: (a) is not liable pursuant to NRS Section 78.138;
or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals there from, to be liable to the corporation or for amounts paid in settlement to
the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
NRS
Section 78.747 provides that except as otherwise provided by specific statute, no director or officer of a corporation is individually
liable for a debt or liability of the corporation, unless the director or officer acts as the alter ego of the corporation. The
court as a matter of law must determine the question of whether a director or officer acts as the alter ego of a corporation.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling
us pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter
has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by us is against public policy as expressed hereby in the Securities Act and we will be governed by the final adjudication of
such issue.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Exhibits
and Financial Statement Schedules.
|
*
|
Filed
herewith.
|
|
**
|
To
be filed by amendment or by Current Report on Form 8-K.
|
Undertakings
|
(a)
|
The
undersigned registrant hereby undertakes:
|
|
|
|
|
(1)
|
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement;
|
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 in such information in the registration statement;
provided,
however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by a 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
(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 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 the 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 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.
(b)
The 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue.
(d)
The undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the Town of Wayne, State of Pennsylvania, on January 28, 2021.
|
|
BTCS
INC.
|
|
|
|
|
|
|
By:
|
/s/
Charles Allen
|
|
|
|
Charles
Allen
|
|
|
|
Chief
Executive Officer
|
Pursuant
to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities
and on the date indicated.
|
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/
Charles Allen
|
|
Chief
Executive Officer (Principal Executive Officer),
|
|
January
28, 2021
|
|
Charles
Allen
|
|
Chief
Financial Officer (Principal Financial Officer), Chief Accounting Officer (Principal Accounting Officer) and Director
|
|
|
|
|
|
|
|
|
|
/s/
Michal Handerhan
|
|
Chief
Operating Officer
|
|
January
28, 2021
|
|
Michal
Handerhan
|
|
(Principal
Operating Officer) and Director
|
|
|
|
|
|
|
|
|
|
/s/
David Garrity
|
|
Director
|
|
January
28, 2021
|
|
David
Garrity
|
|
|
|
|