As filed with the Securities and Exchange Commission
on May 8, 2020
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AKOUSTIS
TECHNOLOGIES, INC.*
(Exact
name of registrant as specified in its charter)
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Delaware
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33-1229046
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(State or other jurisdiction
of
incorporation or organization)
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(IRS Employer
Identification No.)
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9805
Northcross Center Court, Suite A
Huntersville, North Carolina 28078
(704) 997-5735
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Jeffrey
B. Shealy
President
and Chief Executive Officer
Akoustis Technologies, Inc.
9805 Northcross Center Court, Suite A
Huntersville, North Carolina 28078
(704) 997-5735
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy
to:
Sean
M. Jones
K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
(704) 331-7400
From
time to time after the effective date of this registration statement.
(Approximate
date of commencement of proposed sale to the public)
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 check the following box. ☑
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
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Large
accelerated filer ☐
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Accelerated
filer ☑
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Non-accelerated filer ☐
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Smaller
reporting company ☑
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Emerging
growth company ☐
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities to be Registered (1)
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Amount
to
be
Registered
(1) (2)
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Proposed
Maximum
Offering
Price
per Share (1)(2)
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Proposed
Maximum
Aggregate
Offering
Price (1)(2)(3)
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Amount
of
Registration
Fee
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Common
Stock, par value $0.001 per share
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Preferred
Stock, par value $0.001 per share
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Debt
Securities
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Guarantees
of Debt Securities (4)
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Warrants
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Rights
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Units
(5)
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Total
for Sale by Registrant
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$
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150,000,000
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(6)
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$
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19,470
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(7)
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(1)
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Pursuant
to General Instruction II.D of Form S-3, this information is not specified as to each class of securities to be registered. There
is being registered hereby such indeterminate number of the securities of each identified class as may from time to time be issued
at indeterminate prices. Securities registered hereby may be offered for U.S. dollars or the equivalent thereof in foreign currencies.
Securities registered hereunder may be sold separately, together or in units with other securities registered hereunder.
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(2)
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The
securities being registered hereby may be convertible into or exchangeable or exercisable for other securities of any identified
class. In addition to the securities set forth in the table, there is being registered hereunder such indeterminate aggregate
number or amount, as the case may be, of the securities of each identified class as may from time to time be issued in connection
with any stock split, stock dividend or similar transaction, including under any applicable anti-dilution provisions. (including,
without limitation, upon adjustment of the conversion or exchange rate thereof). Separate consideration may or may not be received
for securities that are issued upon the conversion or exercise of, or in exchange for, other securities offered hereby.
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(3)
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The
proposed maximum aggregate offering price has been estimated solely to calculate the registration fee in accordance with Rule
457(o) under the Securities Act of 1933.
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(4)
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No
separate consideration will be paid in respect of the guarantees and no additional registration fee is required pursuant to Rule
457(n) under the Securities Act.
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(5)
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Consisting
of some or all of the securities listed above, in any combination, including common stock, preferred stock, debt securities and
warrants.
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(6)
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Pursuant
to Rule 415(a)(6) under the Securities Act of 1933, the securities registered pursuant to this Registration Statement include
$24,687,500 of unsold securities that were previously registered by the Registrant on Form S-3 (File No. 333-227637), initially
filed on October 1, 2018 and declared effective October 5, 2018 (the “Prior Registration Statement”). A filing fee
of $3,204.44 was paid in connection with such unsold securities and will continue to be applied to such unsold securities in accordance
with Rule 415(a)(6). Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under the Prior Registration
Statement will be deemed terminated as of the effective date of this Registration Statement. If the registrant sells any of such
unsold securities pursuant to the Prior Registration Statement after the date of filing, and prior to the date of effectiveness,
of this Registration Statement, the registrant will file a pre-effective amendment to this Registration Statement which will reduce
the number of such unsold securities included on this Registration Statement.
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(7)
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Calculated
pursuant to Rule 457(o) under the Securities Act of 1933.
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The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, 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.
*
ADDITIONAL REGISTRANT GUARANTOR
The
following additional registrant may guarantee the debt securities registered hereby:
Exact
name of additional registrant as
specified in its charter (1)
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State
or other jurisdiction of incorporation
or organization
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I.R.S.
Employer
Identification No.
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Akoustis,
Inc.
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Delaware
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46-5645617
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(1)
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The
address of the additional registrant guarantor’s principal executive office is 9805 Northcross Center Court, Suite A Huntersville,
North Carolina 28078 and the phone number is (704) 997-5735.
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EXPLANATORY
NOTE
This
registration statement contains:
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a
base prospectus which covers the offering, issuance and sale by us of up to $150,000,000
in the aggregate of the securities identified above from time to time in one or more
offerings; and
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a
sales agreement prospectus supplement covering the offering, issuance and sale by us
of up to a maximum aggregate offering price of $50,000,000 of our common stock that may
be issued and sold under a sales agreement with BofA Securities, Inc. and Piper Sandler
& Co.
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The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the
base prospectus will be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus supplement
immediately follows the base prospectus. The $50,000,000 of common stock that may be offered, issued and sold under the sales
agreement prospectus supplement is included in the $150,000,000 of securities that may be offered, issued and sold by us under
the base prospectus. Upon termination of the sales agreement with BofA Securities, Inc. and Piper Sandler & Co., any portion
of the $50,000,000 included in the sales agreement prospectus supplement that is not sold pursuant to the sales agreement will
be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and if no
shares are sold under the sales agreement, the full $150,000,000 of securities may be sold in other offerings pursuant to the
base prospectus and a corresponding prospectus supplement.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to completion, dated May 8, 2020
Akoustis
Technologies, Inc.
Akoustis,
Inc.
Prospectus
$150,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Rights
Units
This
prospectus relates to common stock, preferred stock, debt securities, warrants, rights and units that Akoustis Technologies, Inc.
may sell from time to time in one or more offerings on terms to be determined at the time of sale. Our subsidiary, Akoustis, Inc.,
may guarantee any debt securities offered by this prospectus, if and to the extent identified in the related prospectus supplement.
We refer to the common stock, preferred stock, debt securities and any related guarantees, warrants, rights and units collectively
as the “securities.” We will provide specific terms of these securities in supplements to this prospectus. You should
read this prospectus and any supplement carefully before you invest. This prospectus may not be used to offer and sell securities
unless accompanied by a prospectus supplement for those securities.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters or through
a combination of these methods. See “Plan of Distribution” in this prospectus. We may also describe the plan of distribution
for any particular offering of these securities in any applicable prospectus supplement. If any agents, underwriters or dealers
are involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose their names
and the nature of our arrangements with them in a prospectus supplement. The net proceeds we expect to receive from any such sale
will also be included in a prospectus supplement.
Our
common stock trades on the Nasdaq Capital Market under the symbol “AKTS.” On May 7, 2020, the last reported
sale price for our common stock was $8.38 per share.
INVESTING
IN OUR SECURITIES INVOLVES RISKS. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING “RISK
FACTORS” CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS, AND UNDER SIMILAR HEADINGS
IN OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS OR ANY SUCH PROSPECTUS SUPPLEMENT. SEE “RISK
FACTORS” ON PAGE 2 OF THIS PROSPECTUS.
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.
The
date of this prospectus is , 2020.
Table
of Contents
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC,
utilizing a “shelf” registration process. Under this shelf process, we may from time to time sell any combination
of securities described in this prospectus in one or more offerings.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities under this shelf
registration process, we will provide a prospectus supplement that will contain specific information about the terms of the securities
being offered. That prospectus supplement may include a discussion of any risk factors or other special considerations that apply
to those securities. The prospectus supplement may also add, update or change information contained in this prospectus. If there
is any inconsistency between the information in this prospectus and a prospectus supplement, you should rely on the information
in that prospectus supplement. You should read both this prospectus and any applicable prospectus supplement together with additional
information described below under the headings “Where You Can Find More Information” and “Incorporation by Reference.”
When
acquiring any securities discussed in this prospectus, you should rely on the information provided in this prospectus and the
prospectus supplement, including the information incorporated by reference. Neither we, nor any underwriters or agents, have authorized
anyone to provide you with different information. We are not offering the securities in any state where such an offer is prohibited.
You should not assume that the information in this prospectus, any prospectus supplement, or any document incorporated by reference,
is truthful or complete at any date other than the date mentioned on the cover page of those documents. You should also carefully
review the section entitled “Risk Factors”, which highlights certain risks associated with an investment in our securities,
to determine whether an investment in our securities is appropriate for you.
Unless
otherwise stated or the context requires otherwise, references to “Akoustis”, the “Company,” “we,”
“us” or “our” are to Akoustis Technologies, Inc and its wholly owned consolidated subsidiary, Akoustis,
Inc., each a Delaware corporation.
FORWARD-LOOKING
STATEMENTS
Certain
information set forth in this prospectus or incorporated by reference in this prospectus may contain 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”), that are intended to be covered by the “safe
harbor"” created by those sections. Forward-looking statements include information concerning our possible future results
of operations, business strategies, competitive position, potential growth opportunities, potential market opportunities and the
effects of competition. Forward-looking statements include all statements that are not historical facts and can be identified
by terms such as “anticipates,” “believes,” “could,” “seeks,” “estimates,”
“expects,” “forecasts,” “may” “intends,” “may,” “plans,”
“potential,” “predicts,” “projects,” “should,” “will,” “would”
or similar expressions and the negatives of those terms.
Forward-looking
statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or
achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking
statements. We discuss these risks in greater detail in the “Risk Factors” section and elsewhere in this prospectus.
Given these uncertainties, you should not place undue reliance on these forward-looking statements. Also, forward-looking statements
represent our management’s beliefs and assumptions only as of the date of this prospectus. You should read this prospectus
and the documents that we have filed as exhibits to the registration statement, of which this prospectus is a part, completely
and with the understanding that our actual future results may be materially different from what we expect.
Except
as required by law, we assume no obligation to update these forward-looking statements publicly, or to update the reasons actual
results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available
in the future.
THE
COMPANY
Akoustis®
is an emerging commercial company focused on developing, designing, and manufacturing innovative radio frequency (“RF”)
filter products for the wireless industry, including for products such as smartphones and tablets, network infrastructure equipment,
WiFi Customer Premise Equipment (“CPE”) and defense applications. Filters are critical in selecting and rejecting
signals, and their performance enables differentiation in the modules defining the RF front-end (“RFFE”). Located
between the device’s antenna and its digital backend, the RFFE is the circuitry that performs the analog signal processing
and contains components such as amplifiers, filters and switches. We have developed a new and proprietary microelectromechanical
systems (“MEMS”) based bulk acoustic wave (“BAW”) technology and a unique manufacturing process flow,
called “XBAW”, for our filters produced for use in RFFE modules. Our XBAW™ filters incorporate optimized
high purity piezoelectric materials for high power, high frequency and wide bandwidth operation. We currently build high performance
RF filter circuits, using our first generation XBAW™ wafer process, in our 120,000-square foot wafer-manufacturing
facility located in Canandaigua, New York, which we acquired in June 2017.
Company
Information
Our
principal executive offices are located at 9805 Northcross Center Court, Suite A, Huntersville, North Carolina 28078. Our telephone
number is (704) 997-5735. Our website address is www.akoustis.com. The information on, or that can be accessed through, our website
is not part of this prospectus and is not incorporated by reference in this prospectus.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully consider the risk factors described in our Annual Report
on Form 10-K for our most recent fiscal year (together with any material changes thereto contained in subsequent filed Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K) and those contained in our other filings with the SEC, which are incorporated
by reference in this prospectus and any accompanying prospectus supplement.
The
prospectus supplement applicable to each type or series of securities we offer may contain a discussion of risks applicable to
the particular types of securities that we are offering under that prospectus supplement. Prior to making a decision about investing
in our securities, you should carefully consider the specific factors discussed under the caption “Risk Factors” in
the applicable prospectus supplement, together with all of the other information contained in the prospectus supplement or appearing
or incorporated by reference in this prospectus. These risks could materially affect our business, results of operations or financial
condition and cause the value of our securities to decline. You could lose all or part of your investment.
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, the net proceeds from the sale of the securities will be used for working capital
and general corporate purposes, which may include acquisitions, retirement of debt and other business opportunities.
DESCRIPTION
OF COMMON STOCK WE MAY OFFER
The
following summary description of our common stock is based on the provisions of our certificate of incorporation, as amended (the
“Certificate of Incorporation”), and bylaws, as amended (the “Bylaws”), and the applicable provisions
of the General Corporation Law of the State of Delaware (the “DGCL”). This information may not be complete in all
respects and is qualified entirely by reference to the provisions of our Certificate of Incorporation and our Bylaws and the DGCL.
For information on how to obtain copies of our Certificate of Incorporation and Bylaws, see the discussion below under the heading
“Where You Can Find More Information.”
We
may offer our common stock issuable upon the conversion of debt securities or preferred stock and upon the exercise of warrants.
Authorized
Capital
We
currently have authority to issue 100,000,000 shares of our common stock, par value of $0.001 per share. As of May
6, 2020, 36,469,000 shares of our common stock were issued and outstanding.
Voting
Rights
Except
as otherwise required by Delaware law, at every annual or special meeting of stockholders, every holder of common stock is entitled
to one vote per share. There is no cumulative voting in the election of directors.
Dividend
and Liquidation Rights
The
holders of outstanding shares of common stock are entitled to receive dividends out of assets or funds legally available for the
payment of dividends at such times and in such amounts as the Company’s board of directors (the “Board of Directors”)
from time to time may determine. We have never paid any cash dividends on our common stock and do not anticipate paying any cash
dividends on our common stock in the foreseeable future. We intend to retain future earnings to fund ongoing operations and future
capital requirements. Any future determination to pay dividends will be at the discretion of the Board of Directors and will be
dependent upon financial condition, results of operations, capital requirements and such other factors as the Board of Directors
deems relevant.
The
common stock is not entitled to pre-emptive rights and is not subject to conversion or redemption. Upon liquidation, dissolution
or winding up of our company, the assets legally available for distribution to stockholders are distributable ratably among the
holders of the common stock after payment of liquidation preferences, if any, on any outstanding payment of other claims of creditors.
Our
shares of common stock are listed on the Nasdaq Capital Market under the symbol “AKTS.”
DESCRIPTION
OF PREFERRED STOCK WE MAY OFFER
This
section describes the general terms and provisions of the preferred stock we may offer. This information may not be complete in
all respects and is qualified entirely by reference to the Certificate of Incorporation or certificate of designations, with respect
to each series of preferred stock. The specific terms of any series will be described in a prospectus supplement. Those terms
may differ from the terms discussed below. Any series of preferred stock we issue will be governed by the Certificate of Incorporation
and by the certificate of designations relating to that series. We will file the certificate of designations with the SEC and
incorporate it by reference as an exhibit to our registration statement at or before the time we issue any preferred stock of
that series.
Authorized
Preferred Stock
The
Certificate of Incorporation authorizes us to issue 5,000,000 shares of preferred stock, par value $0.001 per share.
As of May 6, 2020, we had no shares of preferred stock issued and outstanding. Our authorized but unissued shares of preferred
stock are available for issuance without further action by our stockholders, unless such action is required by applicable law
or the rules of any stock exchange or automated quotation system on which our securities may be listed or traded.
The
Board of Directors has the authority to issue preferred stock in one or more series, each of which will have such distinctive
designation or title as shall be determined by the Board of Directors prior to the issuance of any shares thereof. Preferred stock
will have such voting powers, whole or limited, or no voting powers, and such preferences and relative, participating, optional
or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated in such resolution or
resolutions providing for the issue of such class or series of preferred stock as may be adopted from time to time by the Board
of Directors prior to the issuance of any shares thereof. The designations, powers, rights and preferences of the preferred stock
could include voting rights, dividend rights, dissolution rights, conversion rights, exchange rights, redemption rights, liquidation
preferences, and the number of shares constituting any series or the designation of such series, any or all of which may be greater
than the rights of common stock. The issuance of preferred stock could adversely affect the voting power of holders of common
stock and the likelihood that such holders will receive dividend payments and payments upon liquidation. In addition, the issuance
of preferred stock could have the effect of delaying, deferring or preventing change in our control or other corporate action.
No shares of our preferred stock are currently issued and outstanding.
Specific
Terms of a Series of Preferred Stock
The
preferred stock we may offer will be issued in one or more series. A prospectus supplement will discuss the following features
of the series of preferred stock to which it relates:
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the
designations and stated value per share;
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the
number of shares offered;
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the
amount of liquidation preference per share;
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the
public offering price at which the preferred stock will be issued;
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the
dividend rate, the method of its calculation, the dates on which dividends would be paid
and the dates, if any, from which dividends would cumulate;
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any
redemption or sinking fund provisions;
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any
conversion or exchange rights; and
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any
additional voting, dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions.
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Rank
Unless
otherwise stated in the prospectus supplement, the preferred stock will have priority over our common stock with respect to dividends
and distribution of assets, but will rank junior to all our outstanding indebtedness for borrowed money. Any series of preferred
stock could rank senior, equal or junior to our other capital stock, as may be specified in a prospectus supplement, as long as
our amended and restated certificate of incorporation so permits.
Dividends
Holders
of each series of preferred stock shall be entitled to receive cash dividends to the extent specified in the prospectus supplement
when, as and if declared by the Board of Directors, from funds legally available for the payment of dividends. The rates and dates
of payment of dividends of each series of preferred stock will be stated in the prospectus supplement. Dividends will be payable
to the holders of record of preferred stock as they appear on our books on the record dates fixed by the Board of Directors. Dividends
on any series of preferred stock may be cumulative or non-cumulative, as discussed in the applicable prospectus supplement.
Convertibility
Shares
of a series of preferred stock may be exchangeable or convertible into shares of our common stock, another series of preferred
stock or other securities or property. The conversion or exchange may be mandatory or optional. The prospectus supplement will
specify whether the preferred stock being offered has any conversion or exchange features, and will describe all the related terms
and conditions.
Redemption
The
terms, if any, on which shares of preferred stock of a series may be redeemed will be discussed in the applicable prospectus supplement.
Liquidation
Upon
any voluntary or involuntary liquidation, dissolution or winding up of the affairs of Akoustis, holders of each series of preferred
stock will be entitled to receive distributions upon liquidation in the amount described in the related prospectus supplement.
These distributions will be made before any distribution is made on any securities ranking junior to the preferred stock with
respect to liquidation, including our common stock. If the liquidation amounts payable relating to the preferred stock of any
series and any other securities ranking on a parity regarding liquidation rights are not paid in full, the holders of the preferred
stock of that series will share ratably in proportion to the full liquidation preferences of each security. If the liquidation
amounts payable are insufficient to pay any distribution to the preferred stock of any series and any other securities ranking
on a parity regarding liquidation rights, the holders of the preferred stock of that series will receive nothing. Holders of our
preferred stock will not be entitled to any other amounts from us after they have received their full liquidation preference.
Voting
The
holders of preferred stock of each series will have no voting rights, except as required by law and as described below or in a
prospectus supplement. Our Board of Directors may, upon issuance of a series of preferred stock, grant voting rights to the holders
of that series to elect additional board members if we fail to pay dividends in a timely fashion.
Without
the affirmative vote of a majority of the shares of preferred stock of any series then outstanding, we may not:
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increase
or decrease the aggregate number of authorized shares of that series’
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increase
or decrease the par value of the shares of that series; or
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alter
or change the powers, preferences or special rights of the shares of that series so as
to affect them adversely
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No
Other Rights
The
shares of a series of preferred stock will not have any preferences, voting powers or relative, participating, optional or other
special rights except:
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as
discussed above or in the prospectus supplement;
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as
provided in our Certificate of Incorporation and in any certificate of designation; or
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as
otherwise required by law.
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DESCRIPTION
OF DEBT SECURITIES AND GUARANTEES WE MAY OFFER
General
The
debt securities that we may issue will constitute debentures, notes, bonds or other evidences of indebtedness of Akoustis Technologies,
Inc., to be issued in one or more series, which may include either senior debt securities, subordinated debt securities or senior
subordinated debt securities. The particular terms of any series of debt securities we offer, including the extent to which the
general terms set forth below may be applicable to a particular series, will be described in a prospectus supplement relating
to such series.
Debt
securities and any guarantees that we may issue will be issued under an indenture between us and a trustee qualified to act as
such under the Trust Indenture Act of 1939. We have filed the form of the indenture as an exhibit to the registration statement
of which this prospectus is a part. When we refer to the “indenture” in this prospectus, we are referring to the indenture
under which the debt securities are issued as supplemented by any supplemental indenture applicable to the debt securities. We
will provide the name of the trustee in any prospectus supplement related to the issuance of debt securities, and we will also
provide certain other information related to the trustee, including describing any relationship we have with the trustee, in such
prospectus supplement.
THE
FOLLOWING DESCRIPTION IS A SUMMARY OF THE MATERIAL PROVISIONS OF THE INDENTURE. IT DOES NOT RESTATE THE INDENTURE IN ITS ENTIRETY.
THE INDENTURE IS GOVERNED BY THE TRUST INDENTURE ACT OF 1939. THE TERMS OF THE DEBT SECURITIES INCLUDE THOSE STATED IN THE INDENTURE
AND THOSE MADE PART OF THE INDENTURE BY REFERENCE TO THE TRUST INDENTURE ACT. WE URGE YOU TO READ THE INDENTURE BECAUSE IT, AND
NOT THIS DESCRIPTION, DEFINES YOUR RIGHTS AS A HOLDER OF THE DEBT SECURITIES.
Information
You Will Find in the Prospectus Supplement
The
indenture provides that we may issue debt securities from time to time in one or more series and that we may denominate the debt
securities and make them payable in foreign currencies. The indenture does not limit the aggregate principal amount of debt securities
that can be issued thereunder. The prospectus supplement for a series of debt securities will provide information relating to
the terms of the series of debt securities being offered, which may include:
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the
title and denominations of the debt securities of the series;
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any
limit on the aggregate principal amount of the debt securities of the series;
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the
date or dates on which the principal and premium, if any, with respect to the debt securities
of the series are payable or the method of determination thereof;
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the
rate or rates, which may be fixed or variable, at which the debt securities of the series
shall bear interest, if any, or the method of calculating and/or resetting such rate
or rates of interest;
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the
dates from which such interest shall accrue or the method by which such dates shall be
determined and the duration of the extensions and the basis upon which interest shall
be calculated;
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the
interest payment dates for the series of debt securities or the method by which such
dates will be determined, the terms of any deferral of interest and any right of ours
to extend the interest payment periods;
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the
place or places where the principal and interest on the series of debt securities will
be payable;
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the
terms and conditions upon which debt securities of the series may be redeemed, in whole
or in part, at our option or otherwise;
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our
obligation, if any, to redeem, purchase, or repay debt securities of the series pursuant
to any sinking fund or other specified event or at the option of the holders and the
terms of any such redemption, purchase, or repayment;
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the
terms, if any, upon which the debt securities of the series may be convertible into or
exchanged for other securities, including, among other things, the initial conversion
or exchange price or rate and the conversion or exchange period;
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if
the amount of principal, premium, if any, or interest with respect to the debt securities
of the series may be determined with reference to an index or formula, the manner in
which such amounts will be determined;
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if
any payments on the debt securities of the series are to be made in a currency or currencies
(or by reference to an index or formula) other than that in which such securities are
denominated or designated to be payable, the currency or currencies (or index or formula)
in which such payments are to be made and the terms and conditions of such payments;
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any
changes or additions to the provisions of the indenture dealing with defeasance, including
any additional covenants that may be subject to our covenant defeasance option;
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the
currency or currencies in which payment of the principal and premium, if any, and interest
with respect to debt securities of the series will be payable, or in which the debt securities
of the series shall be denominated, and the particular provisions applicable thereto
in accordance with the indenture;
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the
portion of the principal amount of debt securities of the series which will be payable
upon declaration of acceleration or provable in bankruptcy or the method by which such
portion or amount shall be determined;
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whether
the debt securities of the series will be secured or guaranteed and, if so, on what terms;
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any
addition to or change in the events of default with respect to the debt securities of
the series;
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the
identity of any trustees, authenticating or paying agents, transfer agents or registrars;
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the
applicability of, and any addition to or change in, the covenants currently set forth
in the indenture;
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the
subordination, ranking or priority, if any, of the debt securities of the series and
terms of the subordination;
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any
other terms of the debt securities of the series which are not prohibited by the indenture;
and
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Holders
of debt securities may present debt securities for exchange in the manner, at the places, and subject to the restrictions set
forth in the debt securities, the indenture, and the prospectus supplement. We will provide these services without charge, other
than any tax or other governmental charge payable in connection therewith, but subject to the limitations provided in the indenture,
any board resolution establishing such debt securities and any applicable indenture supplement.
Senior
Debt
We
may issue senior debt securities under the indenture. Unless otherwise set forth in the applicable indenture supplement and described
in a prospectus supplement, the senior debt securities will be senior unsecured obligations, ranking equally with all of our existing
and future senior unsecured debt. The senior debt securities will be senior to all of our subordinated debt and junior to any
secured debt we may incur as to the assets securing such debt.
Subordinated
Debt
We
may issue subordinated debt securities under the indenture. These subordinated debt securities will be subordinate and junior
in right of payment, to the extent and in the manner set forth in the indenture and any applicable indenture supplement, to all
of our senior indebtedness.
If
this prospectus is being delivered in connection with a series of subordinated debt securities, the accompanying prospectus supplement
or the information incorporated by reference will set forth the approximate amount of senior indebtedness outstanding as of the
end of the most recent fiscal quarter.
Senior
Subordinated Debt
We
may issue senior subordinated debt securities under the indenture. These senior subordinated debt securities will be, to the extent
and in the manner set forth in the applicable indenture supplement, subordinate and junior in right of payment to all of our “senior
indebtedness” and senior to our other subordinated debt.
Guarantees
Our
payment obligations under any series of the debt securities may be unconditionally guaranteed by our subsidiary, Akoustis, Inc.
If a series of debt securities is so guaranteed, Akoustis, Inc. will execute a supplemental indenture as evidence of the guarantee.
The applicable prospectus supplement will describe the terms of any guarantee by Akoustis, Inc.
Interest
Rate
Debt
securities that bear interest will do so at a fixed rate or a variable rate. We may sell, at a discount below the stated principal
amount, any debt securities which bear no interest or which bear interest at a rate that at the time of issuance is below the
prevailing market rate. The relevant prospectus supplement will describe the special United States federal income tax considerations
applicable to:
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any
discounted debt securities; and
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any
debt securities issued at par which are treated as having been issued at a discount for
United States federal income tax purposes.
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Registered
Global Securities
We
may issue registered debt securities of a series in the form of one or more fully registered global securities. We will deposit
the registered global security with a depository or with a nominee for a depository identified in the prospectus supplement relating
to such series. The global security or global securities will represent and will be in a denomination or aggregate denominations
equal to the portion of the aggregate principal amount of outstanding registered debt securities of the series to be represented
by the registered global security or securities. Unless it is exchanged in whole or in part for debt securities in definitive
registered form, a registered global security may not be transferred, except as a whole in three cases:
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by
the depository for the registered global security to a nominee of the depository;
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by
a nominee of the depository to the depository or another nominee of the depository; and
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by
the depository or any nominee to a successor of the depository or a nominee of the successor.
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The
prospectus supplement relating to a series of debt securities will describe the specific terms of the depository arrangement concerning
any portion of that series of debt securities to be represented by a registered global security. We anticipate that the following
provisions will generally apply to all depository arrangements.
Upon
the issuance of a registered global security, the depository will credit, on its book-entry registration and transfer system,
the principal amounts of the debt securities represented by the registered global security to the accounts of persons that have
accounts with the depository. These persons are referred to as “participants.” Any underwriters, agents or dealers
participating in the distribution of debt securities represented by the registered global security will designate the accounts
to be credited. Only participants or persons that hold interests through participants will be able to beneficially own interests
in a registered global security. The depository for a global security will maintain records of beneficial ownership interests
in a registered global security for participants. Participants or persons that hold through participants will maintain records
of beneficial ownership interests in a global security for persons other than participants. These records will be the only means
to transfer beneficial ownership in a registered global security.
The
laws of some states may require that specified purchasers of securities take physical delivery of the securities in definitive
form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in global securities.
So
long as the depository, or its nominee, is the registered owner of a registered global security, the depository or its nominee
will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes
under the indenture. Except as set forth below, owners of beneficial interests in a registered global security:
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may
not have the debt securities represented by a registered global security registered in
their names;
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will
not receive or be entitled to receive physical delivery of debt securities represented
by a registered global security in definitive form; and
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will
not be considered the owners or holders of debt securities represented by a registered
global security under the indenture.
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Accordingly,
each person owning a beneficial interest in a registered global security must rely on the procedures of the depository for the
registered global security and, if the person is not a participant, on the procedures of the participant through which the person
owns its interests, to exercise any rights of a holder under the indenture applicable to the registered global security.
We
understand that, under existing industry practices, if we request any action of holders, or if an owner of a beneficial interest
in a registered global security desires to give or take any action which a holder is entitled to give or take under the indenture,
the depository for the registered global security would authorize the participants holding the relevant beneficial interests to
give or take the action, and the participants would authorize beneficial owners owning through the participants to give or take
the action or would otherwise act upon the instructions of beneficial owners holding through them.
Payment
of Interest on and Principal of Registered Global Securities
We
will make principal, premium, if any, and interest payments on debt securities represented by a registered global security registered
in the name of a depository or its nominee to the depository or its nominee as the registered owner of the registered global security.
None of Akoustis, the trustee, or any paying agent for debt securities represented by a registered global security will have any
responsibility or liability for:
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any
aspect of the records relating to, or payments made on account of, beneficial ownership
interests in such registered global security;
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maintaining,
supervising, or reviewing any records relating to beneficial ownership interests;
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the
payments to beneficial owners of the global security of amounts paid to the depository
or its nominee; or
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any
other matter relating to the actions and practices of the depository, its nominee or
any of its participants.
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We
expect that the depository, upon receipt of any payment of principal, premium or interest in respect of the global security, will
immediately credit participants’ accounts with payments in amounts proportionate to their beneficial interests in the principal
amount of a registered global security as shown on the depository’s records. We also expect that payments by participants
to owners of beneficial interests in a registered global security held through participants will be governed by standing instructions
and customary practices. This is currently the case with the securities held for the accounts of customers registered in “street
name.” Such payments will be the responsibility of participants.
Exchange
of Registered Global Securities
We
may issue debt securities in definitive form in exchange for the registered global security if both of the following occur:
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the
depository for any debt securities represented by a registered global security is at
any time unwilling or unable to continue as depository or ceases to be a clearing agency
registered under the Exchange Act; and
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we
do not appoint a successor depository within 90 days.
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In
addition, we may, at any time, determine not to have any of the debt securities of a series represented by one or more registered
global securities. In this event, we will issue debt securities of that series in definitive form in exchange for all of the registered
global security or securities representing those debt securities.
Covenants
by Akoustis
The
indenture includes covenants by us, including among other things that we will make all payments of principal and interest at the
times and places required. The supplemental indenture establishing each series of debt securities may contain additional covenants,
including covenants which could restrict our right to incur additional indebtedness or liens and to take certain actions with
respect to our businesses and assets.
Events
of Default
Unless
otherwise indicated in the applicable prospectus supplement, the following will be events of default under the indenture with
respect to each series of debt securities issued under the indenture:
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failure
to pay when due any interest on any debt security of that series, continued for 30 days;
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failure
to pay when due the principal of, or premium, if any, on, any debt security of that series;
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failure
to perform any other covenant or agreement of ours under the indenture or the supplemental
indenture with respect to that series or the debt securities of that series, continued
for 90 days after written notice to us by the trustee or holders of at least 25%
in aggregate principal amount of the outstanding debt securities of the series to which
the covenant or agreement relates;
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certain
events of bankruptcy, insolvency or similar proceedings affecting us; and
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any
other event of default specified in any supplemental indenture under which such series
of debt securities is issued.
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Except
as to certain events of bankruptcy, insolvency or similar proceedings affecting us and except as provided in the applicable prospectus
supplement, if any event of default shall occur and be continuing with respect to any series of debt securities under the indenture,
either the trustee or the holders of at least 25% in aggregate principal amount of outstanding debt securities of such series
may accelerate the maturity of all debt securities of such series. Upon certain events of bankruptcy, insolvency or similar proceedings
affecting us, the principal, premium, if any, and interest on all debt securities of each series shall be immediately due and
payable.
After
any such acceleration, but before a judgment or decree based on acceleration has been obtained by the trustee, the holders of
a majority in aggregate principal amount of each affected series of debt securities may waive all defaults with respect to such
series and rescind and annul such acceleration if all events of default, other than the non-payment of accelerated principal,
have been cured, waived or otherwise remedied.
No
holder of any debt securities will have any right to institute any proceeding with respect to the indenture or for any remedy
under the indenture, unless such holder shall have previously given to the trustee written notice of a continuing event of default
and the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the relevant series shall
have made written request and offered indemnity satisfactory to the trustee to institute such proceeding as trustee, and the trustee
shall not have received from the holders of a majority in aggregate principal amount of the outstanding debt securities of such
series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days.
However, such limitations do not apply to a suit instituted by a holder of a debt security for enforcement of payment of the principal
of and premium, if any, or interest on such debt security on or after the respective due dates expressed in such debt security.
Supplemental
Indentures
We
and the trustee may, at any time and from time to time, without prior notice to or consent of any holders of debt securities,
enter into one or more indentures supplemental to the indenture, among other things:
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to
add guarantees to or secure any series of debt securities;
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to
provide for the succession of another person pursuant to the provisions of the indenture
relating to consolidations, mergers and sales of assets and the assumption by such successor
of our covenants, agreements, and obligations, or to otherwise comply with the provisions
of the indenture relating to consolidations, mergers, and sales of assets;
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to
surrender any right or power conferred upon us under the indenture or to add to our covenants
further covenants, restrictions, conditions or provisions for the protection of the holders
of all or any series of debt securities;
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to
cure any ambiguity or to correct or supplement any provision contained in the indenture,
in any supplemental indenture or in any debt securities that may be defective or inconsistent
with any other provision contained therein;
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to
modify or amend the indenture in such a manner as to permit the qualification of the
indenture or any supplemental indenture under the Trust Indenture Act;
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to
add to or change any of the provisions of the indenture to supplement any of the provisions
of the indenture in order to permit the defeasance and discharge of any series of debt
securities pursuant to the indenture, so long as any such action does not adversely affect
the interests of the holders of debt securities of any series in any material respect;
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to
add to, change, or eliminate any of the provisions of the indenture with respect to one
or more series of debt securities, so long as any such addition, change or elimination
shall not apply to any debt securities of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision;
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to
evidence and provide for the acceptance of appointment by a successor or separate trustee;
and
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to
establish the form or terms of debt securities of any series and to make any change that
does not adversely affect the interests of the holders of debt securities.
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With
the consent of the holders of at least a majority in principal amount of debt securities of each series affected by such supplemental
indenture (each series voting as one class), we and the trustee may enter into one or more supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the provisions of the indenture or modifying in any
manner the rights of the holders of debt securities of each such series.
Notwithstanding
our rights and the rights of the trustee to enter into one or more supplemental indentures with the consent of the holders of
debt securities of the affected series as described above, no such supplemental indenture shall, without the consent of the holder
of each outstanding debt security of the affected series, among other things:
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change
the final maturity of the principal of, or any installment of interest on, any debt securities;
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reduce
the principal amount of any debt securities or the rate of interest on any debt securities;
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change
the currency in which any debt securities are payable;
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impair
the right of the holders to conduct a proceeding for any remedy available to the trustee;
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reduce
the percentage in principal amount of any series of debt securities whose holders must
consent to an amendment or supplemental indenture;
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modify
the ranking or priority of the securities; or
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reduce
any premium payable upon the redemption of any debt securities.
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Satisfaction
and Discharge of the Indenture; Defeasance
Except
to the extent set forth in a supplemental indenture with respect to any series of debt securities, we, at our election, may discharge
the indenture and the indenture shall generally cease to be of any further effect with respect to that series of debt securities
if (a) we have delivered to the trustee for cancellation all debt securities of that series (with certain limited exceptions)
or (b) all debt securities of that series not previously delivered to the trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year,
and we have deposited with the trustee the entire amount sufficient to pay at maturity or upon redemption all such debt securities.
In
addition, we have a “legal defeasance option” (pursuant to which we may terminate, with respect to the debt securities
of a particular series, all of our obligations under such debt securities and the indenture with respect to such debt securities)
and a “covenant defeasance option” (pursuant to which we may terminate, with respect to the debt securities of a particular
series, our obligations with respect to such debt securities under certain specified covenants contained in the indenture). If
we exercise our legal defeasance option with respect to a series of debt securities, payment of such debt securities may not be
accelerated because of an event of default. If we exercise our covenant defeasance option with respect to a series of debt securities,
payment of such debt securities may not be accelerated because of an event of default related to the specified covenants.
We
may exercise our legal defeasance option or our covenant defeasance option with respect to the debt securities of a series only
if we irrevocably deposit in trust with the trustee cash or U.S. government obligations (as defined in the indenture) for the
payment of principal, premium, if any, and interest with respect to such debt securities to maturity or redemption, as the case
may be. In addition, to exercise either of our defeasance options, we must comply with certain other conditions, including the
delivery to the trustee of an opinion of counsel to the effect that the holders of debt securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred
(and, in the case of legal defeasance only, such opinion of counsel must be based on a ruling from the Internal Revenue Service
or other change in applicable Federal income tax law).
The
trustee will hold in trust the cash or U.S. government obligations deposited with it as described above and will apply the deposited
cash and the proceeds from deposited U.S. government obligations to the payment of principal, premium, if any, and interest with
respect to the debt securities of the defeased series.
Mergers,
Consolidations and Certain Sales of Assets
We
may not:
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consolidate
with or merge into any other person or entity or permit any other person or entity to
consolidate with or merge into us in a transaction in which we are not the surviving
entity, or
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transfer,
lease or dispose of all or substantially all of our assets to any other person or entity,
unless:
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the
resulting, surviving or transferee entity shall be a corporation organized and existing
under the laws of the United States or any state thereof and such resulting, surviving
or transferee entity shall expressly assume, by supplemental indenture, executed and
delivered in form satisfactory to the trustee, all of our obligations under the debt
securities and the indenture;
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immediately
after giving effect to such transaction (and treating any indebtedness which becomes
an obligation of the resulting, surviving or transferee entity as a result of such transaction
as having been incurred by such entity at the time of such transaction), no default or
event of default would occur or be continuing; and
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we
shall have delivered to the trustee an officers’ certificate and an opinion of
counsel, each stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with the indenture.
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The
phrase “substantially all” of our assets will likely be interpreted under applicable state law and will be dependent
upon particular facts and circumstances. As a result, there may be a degree of uncertainty in ascertaining whether a sale or transfer
of “substantially all” of our assets has occurred.
Governing
Law
The
indenture and the debt securities will be governed by the laws of the State of New York.
No
Personal Liability of Directors, Officers, Employees and Stockholders
No
director, officer, incorporator or stockholder of Akoustis, as such, shall have any liability for any obligations of Akoustis
under the debt securities or the indenture or for any claim based on, in respect of, or by reason of, such obligations or their
creation, solely by reason of his, her, or its status as director, officer, incorporator or stockholder of Akoustis. By accepting
a debt security, each holder waives and releases all such liability, but only such liability. The waiver and release are part
of the consideration for issuance of the debt securities. Nevertheless, such waiver may not be effective to waive liabilities
under the federal securities laws and it has been the view of the SEC that such a waiver is against public policy.
Conversion
or Exchange Rights
Any
debt securities offered hereby may be convertible into or exchangeable for shares of our equity or other securities. The terms
and conditions of such conversion or exchange will be set forth in the applicable prospectus supplement. Such terms may include,
among others, the following:
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the
conversion or exchange price;
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the
conversion or exchange period;
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provisions
regarding our ability or that of the holder to convert or exchange the debt securities;
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events
requiring adjustment to the conversion or exchange price; and
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provisions
affecting conversion or exchange in the event of our redemption of such debt securities.
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Concerning
the Trustee
The
indenture provides that there may be more than one trustee with respect to one or more series of debt securities. If there are
different trustees for different series of debt securities, each trustee will be a trustee of a trust under a supplemental indenture
separate and apart from the trust administered by any other trustee under such indenture. Except as otherwise indicated in this
prospectus or any prospectus supplement, any action permitted to be taken by a trustee may be taken by the trustee only with respect
to the one or more series of debt securities for which it is the trustee under an indenture. Any trustee under the indenture or
a supplemental indenture may resign or be removed with respect to one or more series of debt securities. All payments of principal
of, premium, if any, and interest on, and all registration, transfer, exchange authentication and delivery (including authentication
and delivery on original issuance of the debt securities) of, the debt securities of a series will be effected by the trustee
with respect to such series at an office designated by the trustee.
The
indenture contains limitations on the right of the trustee, should it become a creditor of Akoustis, to obtain payment of claims
in certain cases or to realize on certain property received in respect of any such claim as security or otherwise. If the trustee
acquires an interest that conflicts with any duties with respect to the debt securities, the trustee is required to either resign
or eliminate such conflicting interest to the extent and in the manner provided by the indenture.
DESCRIPTION
OF WARRANTS WE MAY OFFER
We
may issue warrants for the purchase of debt securities, preferred stock or common stock. Warrants may be issued independently
or together with debt securities, preferred stock or common stock and may be attached to or separate from any offered securities.
Any issue of warrants will be governed by the terms of the applicable form of warrant and any related warrant agreement which
we will file with the SEC and they will be incorporated by reference to the registration statement of which this prospectus is
a part on or before the time we issue any warrants.
The
particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may
include:
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the
title of such warrants;
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the
aggregate number of such warrants;
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the
price or prices at which such warrants will be issued;
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the
currency or currencies (including composite currencies) in which the price of such warrants
may be payable;
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the
terms of the securities purchasable upon exercise of such warrants and the procedures
and conditions relating to the exercise of such warrants;
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the
price at which the securities purchasable upon exercise of such warrants may be purchased;
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the
date on which the right to exercise such warrants will commence and the date on which
such right shall expire;
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any
provisions for adjustment of the number or amount of securities receivable upon exercise
of the warrants or the exercise price of the warrants;
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if
applicable, the minimum or maximum amount of such warrants that may be exercised at any
one time;
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if
applicable, the designation and terms of the securities with which such warrants are
issued and the number of such warrants issued with each such security;
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if
applicable, the date on and after which such warrants and the related securities will
be separately transferable;
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information
with respect to book-entry procedures, if any; and
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any
other terms of such warrants, including terms, procedures and limitations relating to
the exchange or exercise of such warrants.
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The
prospectus supplement relating to any warrants to purchase equity securities may also include, if applicable, a discussion of
certain U.S. federal income tax and ERISA considerations.
Warrants
for the purchase of preferred stock and common stock will be offered and exercisable for U.S. dollars only.
Each
warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock
or common stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement.
After
the close of business on the expiration date, unexercised warrants will become void. We will specify the place or places where,
and the manner in which, warrants may be exercised in the applicable prospectus supplement.
Prior
to the exercise of any warrants to purchase debt securities, preferred stock or common stock, holders of the warrants will not
have any of the rights of holders of the debt securities, preferred stock or common stock purchasable upon exercise.
As
of May 4, 2020, we have issued warrants to purchase a total of 419,314 shares of common stock at a weighted average exercise price
of $5.70 per share. Warrants to purchase a total of 12,501 shares of common stock expire in May 2020 and have an exercise price
of $1.50 per share. Warrants to purchase a total of 29,000 shares of common stock expire in April 2021 and have an exercise price
of $1.60 per share. Warrants to purchase a total of 177,226 shares of common stock expire in December 2021 through February 2022
and have an exercise price of $5.00 per share. Warrants to purchase a total of 46,410 shares of common stock expire in May 2022
and have an exercise price of $9.00 per share. Warrants to purchase (i) a total of 88,507 shares of common stock at an exercise
price of $5.50 per share and (ii) a total of 65,670 shares of common stock at an exercise price of $8.16 per share expire in June
2023.
DESCRIPTION
OF UNITS WE MAY OFFER
We
may issue units composed of any combination of our debt securities, common stock, preferred stock and warrants. We will issue
each unit so that the holder of the unit is also the holder of each security included in the unit. As a result, the holder of
a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued
may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before
a specified date.
The
following description is a summary of selected provisions relating to units that we may offer. The summary is not complete. When
units are offered in the future, a prospectus supplement, information incorporated by reference or a free writing prospectus,
as applicable, will explain the particular terms of those securities and the extent to which these general provisions may apply.
The specific terms of the units as described in a prospectus supplement or free writing prospectus will supplement and, if applicable,
may modify or replace the general terms described in this section.
The
specific terms of any units offered will be set forth in a unit agreement, collateral arrangements and depositary arrangements,
if applicable. We will file each of these documents, as applicable, with the SEC and they will be incorporated by reference to
the registration statement of which this prospectus is a part on or before the time we issue a series of units. See “Where
You Can Find More Information” and “Incorporation by Reference” below for information on how to obtain a copy
of a document when it is filed.
The
applicable prospectus supplement or free writing prospectus may describe:
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the
designation and terms of the units and of the securities comprising the units, including
whether and under what circumstances those securities may be held or transferred separately;
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any
provisions for the issuance, payment, settlement, transfer, or exchange of the units
or of the securities composing the units;
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whether
the units will be issued in fully registered or global form; and
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any
other terms of the units.
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The
applicable provisions described in this section, as well as those described under “— Description of Debt Securities
and Guarantees We May Offer,” “— Description of Common Stock We May Offer,” “— Description
of Preferred Stock We May Offer” and “— Description of Warrants We May Offer” above, will apply to each
unit and to each security included in each unit, respectively.
DESCRIPTION
OF RIGHTS WE MAY OFFER
We
may issue rights to purchase our debt securities, common stock, preferred stock or other securities. These rights may be issued
independently or together with any other security offered hereby and may or may not be transferable by the stockholder receiving
the rights in such offering. In connection with any offering of such rights, we may enter into a standby arrangement with one
or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any
securities remaining unsubscribed for after such offering.
Each
series of rights will be issued under a separate rights agreement which we will enter into with a bank or trust company, as rights
agent, all which will be set forth in the relevant offering material. The rights agent will act solely as our agent in connection
with the certificates relating to the rights and will not assume any obligation or relationship of agency or trust with any holders
of rights certificates or beneficial owners of rights.
The
following description is a summary of selected provisions relating to rights that we may offer. The summary is not complete. When
rights are offered in the future, a prospectus supplement, information incorporated by reference or a free writing prospectus,
as applicable, will explain the particular terms of those securities and the extent to which these general provisions may apply.
The specific terms of the rights as described in a prospectus supplement or free writing prospectus will supplement and, if applicable,
may modify or replace the general terms described in this section.
The
specific terms of any units offered will be set forth in a rights agreement and the rights certificate, as applicable. We will
file each of these documents, as applicable, with the SEC and they will be incorporated by reference to the registration statement
of which this prospectus is a part on or before the time we issue a series of rights. See “Where You Can Find More Information”
and “Incorporation by Reference” below for information on how to obtain a copy of a document when it is filed.
The
applicable prospectus supplement or free writing prospectus may describe:
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in
the case of a distribution of rights to our stockholders, the date of determining the
stockholders entitled to the rights distribution;
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in
the case of a distribution of rights to our stockholders, the number of rights issued
or to be issued to each stockholder;
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the
exercise price payable for the underlying debt securities, common stock, preferred stock
or other securities upon the exercise of the rights;
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the
number and terms of the underlying debt securities, common stock, preferred stock or
other securities which may be purchased per each right;
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the
extent to which the rights are transferable;
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the
date on which the holder’s ability to exercise the rights shall commence, and the
date on which the rights shall expire;
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the
extent to which the rights may include an over-subscription privilege with respect to
unsubscribed securities;
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if
applicable, the material terms of any standby underwriting or purchase arrangement entered
into by us in connection with the offering of such rights; and
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any
other terms of the rights, including, but not limited to, the terms, procedures, conditions
and limitations relating to the exchange and exercise of the rights.
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The
provisions described in this section, as well as those described under “— Description of Debt Securities and Guarantees
We May Offer,” “— Description of Common Stock We May Offer” and “— Description of Preferred
Stock We May Offer” above, will apply, as applicable, to any rights we offer.
CERTAIN
PROVISIONS OF DELAWARE LAW AND OF THE COMPANY’S
CERTIFICATE OF INCORPORATION AND BYLAWS
The
following paragraphs regarding certain provisions of the DGCL, the Certificate of Incorporation, and the Bylaws are summaries
of the material terms thereof and do not purport to be complete. We urge you to read the applicable prospectus supplements, any
related free writing prospectuses related to a security that we may offer under this prospectus, the DGCL, and the Certificate
of Incorporation and Bylaws. Copies of the Certificate of Incorporation and Bylaws are on file with the SEC as exhibits to filings
previously made by us. See “Where You Can Find More Information.”
General
The
provisions of the DGCL, and the Certificate of Incorporation and Bylaws could have the effect of discouraging others from attempting
an unsolicited offer to acquire our company. Such provisions may also have the effect of preventing changes in our management.
It is possible that these provisions could make it more difficult to accomplish transactions that stockholders may otherwise deem
to be in their best interests.
Authorized
but Unissued Shares
The
authorized but unissued shares of our common stock and our preferred stock are available for future issuance without any further
vote or action by our stockholders. These additional shares may be utilized for a variety of corporate purposes, including future
public or private offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized
but unissued shares of our common stock and our preferred stock could render more difficult or discourage an attempt to obtain
control over us by means of a proxy contest, tender offer, merger or otherwise.
Special
Meeting of Stockholders and Advance Notice Requirements for Stockholder Proposals
The
Bylaws require that special meetings of stockholders be called only by a majority of our entire Board of Directors, by the chairman
of the board, the Chief Executive Officer, the President, or the Secretary. In addition, the Bylaws provide that candidates for
director may be nominated and other business brought before an annual meeting only by the Board of Directors or by a stockholder
who gives written notice to us not less than 90 days, nor more than 120 days, prior to the first anniversary of the preceding
year’s annual meeting, subject to certain exceptions. Such stockholder’s notice must set forth certain information
required by the Bylaws. These provisions may have the effect of deterring unsolicited offers to acquire our company or delaying
stockholder actions, even if they are favored by the holders of a majority of our outstanding voting securities.
Business
Combinations
The
DGCL generally prohibits a corporation from engaging in any business combination with any interested stockholder for a three-year
period following the time that the stockholder became an interested stockholder, unless:
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prior
to such time, the Board of Directors approved either the business combination or the
transaction which resulted in the stockholder becoming an interested stockholder;
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upon
consummation of the transaction that resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of our voting stock outstanding
at the time the transaction commenced, excluding certain shares; or
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at
or subsequent to that time, the business combination is approved by our board of directors
and by the affirmative vote of holders of at least 66 2⁄3% of the outstanding voting
stock that is not owned by the interested stockholder.
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Generally,
a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit
to the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together
with that person’s affiliates and associates, owns, or within the previous three years owned, 15% or more of our voting
stock.
Under
certain circumstances, this provision could make it more difficult for a person who would be an “interested stockholder”
to effect various business combinations with a corporation for a three-year period. However, this provision generally does not
apply to a corporation that does not have a class of voting stock that is listed on a national securities exchange or held of
record by more than 2,000 stockholders. Accordingly, this provision does not currently apply to us.
PLAN
OF DISTRIBUTION
We
may sell the securities offered by this prospectus to one or more underwriters or dealers for public offering, through agents,
directly to one or more purchasers or through a combination of any such methods of sale. The name of any such underwriters,
dealers or agents involved in the offer and sale of the securities, the amounts underwritten and the nature of its obligation
to take the securities will be specified in the applicable prospectus supplement. We have reserved the right to sell the
securities directly to investors on our own behalf in those jurisdictions where we are authorized to do so. The sale of
the securities may be effected in one or more transactions (a) on any national or international securities exchange or quotation
service on which the securities may be listed or quoted at the time of sale, (b) in the over-the-counter market, (c) in transactions
otherwise than on such exchanges or in the over-the-counter market or (d) through the writing of options. Each time that we sell
securities covered by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of
distribution and set forth the terms and conditions of the offering of such securities, including the offering price of the securities
and the proceeds to us, if applicable.
We
and our agents and underwriters may offer and sell the securities at a fixed price or prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The securities
may be offered on an exchange, which will be disclosed in the applicable prospectus supplement. We may, from time to time,
authorize dealers, acting as our agents, to offer and sell the securities upon such terms and conditions as set forth in the applicable
prospectus supplement. We may also sell the securities offered by any applicable prospectus supplement in “at-the-market
offerings” within the meaning of Rule 415 of the Securities Act of 1933, to or through a market maker or into an existing
trading market, on an exchange or otherwise.
If
we use underwriters to sell securities, we will enter into an underwriting agreement with them at the time of the sale to them.
In connection with the sale of the securities, underwriters or agents may receive 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 agent. The
names of any underwriters, any underwriting compensation paid by us to underwriters or agents in connection with the offering
of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set
forth in the applicable prospectus supplement to the extent required by applicable law. Underwriters may sell the securities
to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the
underwriters or commissions (which may be changed from time to time) from the purchasers for whom they may act as agents. If a
dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer,
as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the
time of resale.
Dealers
and agents participating in the distribution of the securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions
under the Securities Act. Unless otherwise indicated in the applicable prospectus supplement, an agent will be acting on
a best efforts basis and a dealer will purchase debt securities as a principal, and may then resell the debt securities at varying
prices to be determined by the dealer.
If
so indicated in the prospectus supplement, we will authorize underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase offered securities from us at the public offering price set forth in the prospectus supplement pursuant
to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will
be subject to any conditions set forth in the applicable prospectus supplement and the prospectus supplement will set forth the
commission payable for solicitation of such contracts. The underwriters and other persons soliciting such contracts will
have no responsibility for the validity or performance of any such contracts. Offers to purchase the securities being offered
by this prospectus may also be solicited directly.
Underwriters,
dealers and agents may be entitled, under agreements entered into with us, to indemnification against and contribution towards
certain civil liabilities, including any liabilities under the Securities Act.
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. These may include over-allotment, stabilization, syndicate short
covering transactions and penalty bids. Over-allotment involves sales in excess of the offering size, which creates a short
position. Stabilizing transactions involve bids to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Syndicate short covering transactions involve purchases of securities in the open market after
the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the underwriters to
reclaim selling concessions from dealers when the securities originally sold by the dealers are purchased in covering transactions
to cover syndicate short positions. These transactions may cause the price of the securities sold in an offering to be higher
than it would otherwise be. These transactions, if commenced, may be discontinued by the underwriters at any time.
Any
securities other than our common stock issued hereunder may be new issues of securities with no established trading market. Any
underwriters or agents to or through whom such securities are sold for public offering and sale may make a market in such securities,
but such underwriters or agents 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 of the trading market for any such securities. The amount of expenses
expected to be incurred by us in connection with any issuance of securities will be set forth in the applicable prospectus supplement.
Certain of the underwriters, dealers or agents and their associates may engage in transactions with, and perform services
for, us and certain of our affiliates in the ordinary course of business.
During
such time as we may be engaged in a distribution of the securities covered by this prospectus we are required to comply with Regulation
M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes us, any affiliated purchasers, and
any broker-dealer or other person who participates in such distribution from bidding for or purchasing, or attempting to induce
any person to bid for or purchase, any security which is the subject of the distribution until the entire distribution is complete.
Regulation M also restricts bids or purchases made in order to stabilize the price of a security in connection with the
distribution of that security. All of the foregoing may affect the marketability of our shares of common stock.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business
for which they receive compensation.
LEGAL
MATTERS
The
validity and legality of the securities offered hereby and certain other legal matters will be passed upon for the Company by
K&L Gates LLP, Charlotte, North Carolina.
EXPERTS
The consolidated financial statements of Akoustis Technologies, Inc. and its wholly-owned subsidiary included in the Company’s
Annual Report on Form 10-K for the fiscal year ended June 30, 2019 and the Company’s internal control over financial
reporting have been audited by Marcum LLP, an independent registered public accounting firm, as stated in its report which
is incorporated by reference herein, and has been so incorporated in reliance upon such report and upon the authority of such
firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual reports, quarterly reports, current reports, proxy statements and other information with the SEC under the Exchange
Act. You can read our SEC filings, including the registration statement, at the SEC’s website at www.sec.gov, which contains
reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. Our web
site is located at www.akoustis.com. The information contained on, or that may be obtained from, our website is not, and shall
not be deemed to be, a part of this prospectus.
We
will provide, upon written or oral request, without charge to you, including any beneficial owner to whom this prospectus is delivered,
a copy of any or all of the documents incorporated herein by reference other than the exhibits to those documents, unless the
exhibits are specifically incorporated by reference into the information that this prospectus incorporates. You should direct
a request for copies to Akoustis Technologies, Inc., 9805 Northcross Center Court, Suite A, Huntersville, North Carolina 28078;
Telephone: (704) 997-5735.
INCORPORATION
BY REFERENCE
The
SEC permits us to “incorporate by reference” the information and reports we file with it. This means that we can disclose
important information to you by referring to another document. The information that we incorporate by reference is considered
to be part of this prospectus, and later information that we file with the SEC automatically updates and supersedes this information.
We incorporate by reference the documents listed below, except to the extent information in those documents is different from
the information contained in this prospectus, and all future documents filed with the SEC under Sections 13(a), 13(c), 14, or
15(d) of the Exchange Act until we terminate the offering of these securities:
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Our Annual Report on Form 10-K for the fiscal year ended June 30, 2019, which
was filed on September
13, 2019;
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Our Quarterly Reports on Form 10-Q for the quarterly period ended September
30, 2019, which was filed on November
7, 2019, for the quarterly period ended December 31, 2019, which was filed on January
31, 2020, and for the quarterly period ended March 31, 2020, which was filed on May
1, 2020;
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The information specifically incorporated by reference into our Annual Report
on Form 10-K for the fiscal year ended June 30, 2019 from our definitive proxy statement on Schedule
14A (other than information furnished rather than filed), filed with the SEC on September 24, 2019; and
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The description of our common stock contained in our Registration Statement
on Form 8-A (File No. 001-38029)
filed with the SEC on March 10, 2017, including any amendment or report filed for the purpose of updating such description.
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We
also incorporate by reference any future filings made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act, including those made on or after the date of the initial filing of the registration statement of which this prospectus is
a part and prior to effectiveness of such registration statement, until we file a post-effective amendment that indicates the
termination of the offering of the securities made by this prospectus and will become a part of this prospectus from the date
that such documents are filed with the SEC. Information in such future filings updates and supplements the information provided
in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information
in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the
extent that statements in the later filed document modify or replace such earlier statements.
We
will furnish without charge to you, on written or oral request, a copy of any or all of the documents incorporated by reference,
including exhibits to these documents. You should direct any requests for documents to:
Akoustis
Technologies, Inc.
9805
Northcross Center Court, Suite A
Huntersville,
North Carolina 28078
Attention:
Corporate Secretary
Telephone:
(704) 997-5735
Copies
of the above reports may also be accessed from our website at ir.akoustis.com/sec-filings. We have authorized no one to provide
you with any information that differs from that contained in this prospectus supplement. Accordingly, you should not rely on any
information that is not contained or incorporated by reference in this prospectus supplement and the accompanying base prospectus.
You should not assume that the information in this prospectus supplement is accurate as of any date other than the date of the
front cover of this prospectus supplement.
$150,000,000
Common
Stock
Preferred
Stock
Debt Securities
Warrants
Rights
Units
PROSPECTUS
, 2020
The
information in this prospectus supplement is not complete and may be changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus supplement is not an offer to sell nor
does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject
to Completion, dated May 8, 2020.
PROSPECTUS
SUPPLEMENT
(to
the Prospectus dated , 2020)
Common
Stock
Having
an Aggregate Offering Price of up to $50,000,000
We
have entered into an ATM Equity Offering Sales Agreement (the “Sales Agreement”) with BofA Securities, Inc. and Piper
Sandler & Co. (each, a “Sales Agent” and together, the “Sales Agents”) relating to shares of our common
stock, par value $0.001 per share, offered by this prospectus supplement and accompanying prospectus. In accordance with the terms
of the Sales Agreement, we may from time to time offer and sell shares of our common stock (the “Shares”) having an
aggregate offering price of up to $50,000,000 through the Sales Agents.
Sales
of Shares, if any, may be made by means of transactions that are deemed to be “at the market” offerings as defined
in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), including block trades and sales
made in ordinary brokers’ transactions on the Nasdaq Capital Market (“Nasdaq”) or otherwise at market prices
prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. We will instruct only one
Sales Agent to sell Shares on any given trading day. The compensation payable to a Sales Agent for sales of Shares with respect
to which such Sales Agent acts as sales agent shall be up to 3.0% of the gross sales price for such Shares.
Under
the terms of the Sales Agreement, we also may sell Shares to either or both of the Sales Agents as principal for their own accounts.
If we sell shares to any Sales Agent or Agents as principal, we will enter into a separate terms agreement with such Sales Agent
or Agents setting forth the terms of such transaction, and we will describe this agreement in a separate pricing supplement. In
connection with the sale of the Shares on our behalf, the Sales Agents may be deemed “underwriters” within the meaning
of the Securities Act and the compensation paid to the Sales Agents may be deemed to be underwriting commissions or discounts.
The
Sales Agents are not required to sell any specific number or dollar amount of Shares, but, if instructed to do so and subject
to the terms and conditions of the Sales Agreement, the applicable Sales Agent will use its commercially reasonable efforts to
sell all of the designated Shares in accordance with our instruction.
Our
common stock trades on the Nasdaq Capital Market under the symbol “AKTS.” On May 7, 2020, the last reported
sale price of our common stock on the Nasdaq Capital Market was $8.38 per share.
Investing
in our securities involves a high degree of risk. Before making an investment decision, you should carefully review and consider
all of the information set forth in this prospectus supplement, the accompanying prospectus and the documents incorporated by
reference herein and therein, including the risks and uncertainties described under “Risk Factors” beginning on page
S-5 of this prospectus supplement and the risk factors incorporated by reference into this prospectus supplement and the accompanying
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
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BofA Securities
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Piper
Sandler
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The
date of this prospectus supplement is , 2020.
Table
of Contents
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
prospectus supplement and the accompanying base prospectus are part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) utilizing a “shelf” registration process. By using a shelf registration
statement, we may offer shares of our common stock having an aggregate offering price of up to $50,000,000 from time to time under
this prospectus supplement at prices and on terms to be determined by market conditions at the time of offering.
We
provide information to you about this offering of our common stock in two separate documents that are bound together: (1) this
prospectus supplement, which describes the specific details regarding this offering; and (2) the accompanying prospectus,
which provides general information, some of which may not apply to this offering. Generally, when we refer to this “prospectus
supplement,” we are referring to both documents combined. If information in this prospectus supplement is inconsistent with
the accompanying prospectus, you should rely on this prospectus supplement. To the extent there is a conflict between the information
contained in this prospectus supplement, on the one hand, and the information contained in any document incorporated by reference
in this prospectus supplement, on the other hand, you should rely on the information in this prospectus supplement. If any statement
in one of these documents is inconsistent with a statement in another document having a later date—for example, a document
incorporated by reference in this prospectus supplement—the statement in the document having the later date modifies or
supersedes the earlier statement. You should carefully read this prospectus supplement, the accompanying prospectus
and the information and documents incorporated herein by reference herein and therein, as well as any free writing prospectus
we have authorized for use in connection with this offering, before making an investment decision. See “Incorporation
of Certain Documents by Reference” and “Where You Can Find More Information” in this prospectus
supplement and in the accompanying prospectus.
Neither
we nor the Sales Agents have authorized anyone to provide you with additional or different information. We take no responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you. We are offering to
sell shares of our common stock, and seeking offers to buy shares of our common stock, only in jurisdictions where offers and
sales are permitted. You should not assume that the information contained in this prospectus supplement, the accompanying prospectus
or any free writing prospectus is accurate as of any date other than the dates shown in these documents or that any information
we have incorporated by reference herein is accurate as of any date other than the date of the document incorporated by reference.
Our business, financial condition, results of operations and prospects may have changed since such dates.
Unless
otherwise stated or the context requires otherwise, all references in this prospectus supplement to the “Company,”
“we,” “us,” “our” and “Akoustis” refer to Akoustis Technologies, Inc., a Delaware
corporation, and its wholly-owned subsidiary. We operate under a number of trademarks, including, among others, “Akoustis”
and “XBAW,” which are registered under applicable intellectual property laws. All other trademarks, trade names and
service marks included or incorporated by reference into this prospectus supplement, the accompanying prospectus and any free
writing prospectus are the property of their respective owners.
PROSPECTUS
SUPPLEMENT SUMMARY
This
prospectus supplement summary highlights information contained elsewhere in this prospectus supplement, the accompanying prospectus
and the documents incorporated by reference herein and therein. This summary does not contain all of the information that you
should consider before deciding to invest in our securities. You should read this entire prospectus supplement and the accompanying
prospectus carefully, including the section entitled “Risk Factors” in this prospectus supplement and our consolidated
financial statements and the related notes and the other information incorporated by reference into this prospectus supplement
and the accompanying prospectus, before making an investment decision.
Our
Company
Akoustis®
is an emerging commercial company focused on developing, designing, and manufacturing innovative RF filter products for the wireless
industry, including for products such as smartphones and tablets, network infrastructure equipment, WiFi Customer Premise Equipment
(“CPE”) and defense applications. Filters are critical in selecting and rejecting signals, and their performance enables
differentiation in the modules defining the RF front-end (“RFFE”). Located between the device’s antenna and
its digital backend, the “RFFE” is the circuitry that performs the analog signal processing and contains components
such as amplifiers, filters and switches. We have developed a proprietary microelectromechanical system (“MEMS”) based
bulk acoustic wave (“BAW”) technology and a unique manufacturing process flow, called “XBAW”, for our
filters produced for use in RFFE modules. Our XBAWTM filters incorporate optimized high purity piezoelectric materials
for high power, high frequency and wide bandwidth operation.
We
believe owning the core resonator device technology, manufacturing facility and intellectual property (“IP”) to produce
our RF filter designs is the most direct and efficient means of delivering our solutions to the market. Furthermore, our technology
is based upon bulk-mode acoustic resonance, which we believe is superior to surface-mode resonance for high-band applications
that include 4G/LTE, 5G, WiFi, and defense applications. Although some of our target customers utilize or make the RFFE module,
they may lack access to critical ultra-high-band (UHB) filter technology needed to compete in high frequency applications. We
seek to design, manufacture, and market our RF filter products to mobile phone original equipment manufacturers (“OEMs”),
defense OEMs, network infrastructure OEMs, and WiFi CPE OEM’s to enable broader competition among the front-end module manufacturers.
We operate as a “pure-play” RF filter supplier and align with the front-end module manufacturers who seek to acquire
high performance filters to expand their module business.
We
currently build high performance RF filter circuits, using our first generation XBAWTM wafer process, in our 120,000-square
foot wafer-manufacturing facility located in Canandaigua, New York, which we acquired in June 2017. As of April 24, 2020, our
intellectual property (IP) portfolio included 31 patents, including a blocking patent that we have licensed from Cornell University.
Additionally, as of April 24, 2020, we have 61 pending patent applications. These patents cover our XBAWTM RF filter
technology from raw materials through the system architectures. Where possible, we leverage both federal and state level R&D
grants to support development and commercialization of our technology.
We
are developing RF filters for 4G/LTE, 5G, WiFi and defense bands using our proprietary resonator device models and product design
kits (PDKs). As we qualify our first RF filter products, we are engaging with target customers to evaluate our filter solutions.
Our initial designs target UHB, sub 7 GHz 4G/LTE, 5G, WiFi and defense bands. Since Akoustis owns its core technology and controls
access to its intellectual property, we expect to offer several ways to engage with potential customers. First, we intend to engage
with multiple wireless markets, providing standardized filters that we design and offer as standard catalog components. Second,
we expect to deliver unique filters to customer-supplied specifications, which we will design and fabricate on a customized basis.
Finally, we may offer our models and design kits for our customers to design their own filters utilizing our proprietary technology.
We have earned minimal
revenue from operations since inception, and we have funded our operations primarily with development contracts, RF filter and
production orders, government grants, MEMS foundry and engineering services, and sales of debt and equity securities. We have
incurred losses totaling approximately $93.5 million from inception through March 31, 2020. These losses are primarily the result
of material and processing costs associated with developing and commercializing our technology, as well as personnel costs, professional
fees (primarily accounting and legal), and other general and administrative (“G&A”) expenses. We expect to continue
to incur substantial costs for commercialization of our technology on a continuous basis because our business model involves materials
and solid-state device technology development and engineering of catalog and custom filter design solutions.
Plan
of Operation
We
plan to commercialize our technology by designing and manufacturing single-band and multi-band BAW RF filter solutions in our
New York wafer fabrication facility. We expect our filter solutions will address problems (such as loss, bandwidth, power handling,
and isolation) created by the growing number of frequency bands in the RFFE of mobile devices, infrastructure and premise equipment
to support 4G/LTE, 5G, and WiFi. We have prototyped our first single-band low-loss BAW filter designs for 4G/LTE frequency bands,
which are dominated by competitive BAW solutions and historically cannot be addressed with low-band, lower power handling surface
acoustic wave (“SAW”) technology.
To
succeed, we must convince mobile phone OEMs, RFFE module manufacturers, cellular infrastructure OEMs, WiFi CPE OEMs and military
customers to use our XBAWTM filter technology in their systems and modules. However, since there are two dominant
BAW filter suppliers in the industry that have high-band technology, and both utilize such technology as a competitive advantage
at the module level, we expect customers that lack access to high-band filter technology will be open to engage with our pure-play
filter company.
We
plan to pursue RF filter design and R&D development agreements and potentially joint ventures with target customers and other
strategic partners, although we cannot guarantee we will be successful in these efforts. These types of arrangements may subsidize
technology development costs and qualification, filter design costs, and offer complementary technology and market intelligence
and other avenues to revenue. However, we intend to retain ownership of our core technology, intellectual property, designs, and
related improvements. We expect to pursue development of catalog designs for multiple customers and to offer such catalog products
in multiple sales channels.
Commercial development
of new technology, by its nature, is unpredictable. Although we will undertake development efforts with commercially reasonable
diligence, there can be no assurance that our current cash position will be sufficient to enable us to commercialize our technology
to the extent needed to create future sales to sustain operations. If our current cash is insufficient for these purposes, we
are unable to source additional funds on terms acceptable to the Company (or at all), or we experience costs in excess of estimates
to continue our R&D plan, it is possible that we would not have sufficient resources to continue as a going concern and we
may be required to curtail or suspend our operations. Even if we are able to source sufficient funds to continue as a going concern,
our technology may not be accepted, we may never earn revenues sufficient to support our operations, and we may never be profitable.
Company
Information
Our
principal executive offices are located at 9805 Northcross Center Court, Suite A, Huntersville, North Carolina 28078. Our telephone
number is (704) 997-5735. Our website address is www.akoustis.com. The information on, or that can be accessed through, our website
is not part of this prospectus supplement and is not incorporated by reference in this prospectus supplement.
The
Offering
The
following is a brief summary of some of the terms of the offering and is qualified in its entirety by reference to the more detailed
information appearing elsewhere in this prospectus supplement and the accompanying prospectus. For a more complete description
of the terms of our common stock, see “Description of Common Stock We May Offer” in the accompanying prospectus.
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Common
stock offered by us
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Shares
of common stock having an aggregate offering price of up to $50,000,000.
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Manner
of offering
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Sales
of the Shares, if any, may be made by means that are deemed to be “at the market” offerings as defined in
Rule 415 under the Securities Act, including block trades and sales made in ordinary brokers’ transactions on Nasdaq
or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated
prices. We will instruct only one Sales Agent to sell Shares on any given trading day. If instructed by us to do so, and
subject to the terms and conditions of the Sales Agreement, the applicable Sales Agent will use its commercially reasonable
efforts to sell on our behalf all of the designated Shares as instructed. See “Plan of Distribution.”
We
may also sell the Shares to either or both of the Sales Agents as principals for their own account, at a price per share
agreed upon at the time of sale. If we sell shares to either or both of the Sales Agents as principal, we will enter into
a separate terms agreement setting forth the terms of such transaction, and we will describe the agreement in a pricing
supplement.
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Use
of proceeds
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We
intend to use the net proceeds of this offering, if any, after deducting the Sales Agents’ commissions and related
offering expenses payable by us, for general corporate purposes. See “Use of Proceeds.”
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Risk
factors
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Investing
in our common stock involves a high degree of risk. You should carefully consider the information under “Risk Factors”
in this prospectus supplement and the other risks identified in the documents included or incorporated by reference in this
prospectus supplement and the accompanying prospectus before deciding to invest in our common stock.
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Exchange
Listing
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Our
common stock is traded on the Nasdaq under the symbol “AKTS.”
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RISK
FACTORS
Investing
in our common stock involves a high degree of risk. Before purchasing our common stock, you should read and consider carefully
the following risk factors as well as the risk factors described under the section captioned “Risk Factors” contained
in our Annual Report on Form 10-K for the fiscal year ended June 30, 2019, as filed with the SEC on September 13, 2019, and subsequently
filed Quarterly Reports on Form 10-Q, which are incorporated by reference in this prospectus supplement and the accompanying prospectus,
together with the other information contained in or incorporated by reference in this prospectus supplement and the accompanying
prospectus, including our consolidated financial statements and the related notes. Each of these risk factors, either alone or
taken together, could adversely affect our business, operating results and financial condition, as well as adversely affect the
value of an investment in our common stock. There may be additional risks that we do not presently know of or that we currently
believe are immaterial, which could also impair our business and financial position. If any of the events described below were
to occur, our financial condition, our ability to access capital resources, our results of operations and/or our future growth
prospects could be materially and adversely affected and the market price of our common stock could decline. As a result, you
could lose some or all of any investment you may make in our common stock.
Risks
Related to this Offering and Our Common Stock
Our
common stock has been thinly traded and our share price has been volatile. Our common stock has traded on the Nasdaq Capital
Market, under the symbol “AKTS,” since March 13, 2017. Since that date, our common stock has at times been relatively
thinly traded and subject to price volatility. There can be no assurance that we will be able to successfully maintain a liquid
market for our common stock. The stock market, and development-stage public companies in particular, have been subject to extreme
price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of such companies.
If we are unable to develop and maintain a liquid market for our common stock, you may not be able to sell your common stock at
prices you consider to be fair or at times that are convenient for you, or at all. This situation may be attributable to a number
of factors, including but not limited to the fact that we are a development-stage company that is relatively unknown to stock
analysts, stock brokers, institutional investors, and others in the investor community. In addition, investors may be risk averse
to investments in development-stage companies. The low trading volume is outside of our control and may not increase or, if it
increases, may not be maintained. In addition, following periods of volatility in the market price of a company’s securities,
litigation has often been brought against that company and we may become the target of litigation as a result of price volatility.
Litigation could result in substantial costs and divert our management’s attention and resources from our business. This
could have a material adverse effect on our business, results of operations and financial condition.
There
is no certainty regarding the net proceeds to the Company. There is no certainty that gross proceeds of $50,000,000 will
be raised in this offering. The Sales Agents have agreed to use their commercially reasonable efforts to sell the Shares on the
Company’s behalf if and as instructed by the Company, or to purchase the Shares as principals from time to time, if agreed
pursuant to a separate terms agreement. However, the Company is not required to request the sale of the maximum amount offered
or any amount and, if the Company requests a sale, the Sales Agents are not obligated to purchase any Shares that are not sold.
As a result of the offering being made on a commercially reasonable efforts basis with no minimum, and only as requested by the
Company, the Company may raise substantially less than the maximum total offering amount or nothing at all.
Our
management will have broad discretion over the use of the net proceeds, if any, from this offering, which we may
not use effectively or in a manner with which you agree. Our management will have broad discretion as to the use of the
net proceeds from this offering and could use them for purposes other than those contemplated at the time of this offering. Accordingly,
you will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the
opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible
that the proceeds will be invested in a way that does not yield a favorable, or any, return for our Company.
Stockholders
may experience dilution of their ownership interests because of the future issuance of additional shares of our common or preferred
stock or other securities that are convertible into or exercisable for our common or preferred stock. In the future, we
may issue our authorized but previously unissued equity securities, resulting in the dilution of the ownership interests of our
stockholders. The Company is authorized to issue an aggregate of 100,000,000 shares of common stock and 5,000,000 shares of preferred
stock. We may issue additional shares of our common stock or other securities that are convertible into or exercisable for our
common stock in connection with hiring or retaining employees, future acquisitions, future sales of our securities for capital
raising purposes, or for other business purposes. In addition, as of May 4, 2020, warrants and options to purchase 419,314 and
2,212,915 shares, respectively, of our common stock were outstanding. Additionally, the aggregate principal amount of our outstanding
convertible notes were convertible into approximately 4.96 million shares of common stock on such date. The future issuance of
additional shares of our common stock may create downward pressure on the trading price of the common stock. We will need to raise
additional capital in the near future to meet our working capital needs, and there can be no assurance that we will not be required
to issue additional shares, warrants or other convertible securities in the future in conjunction with these capital raising efforts,
including at a price (or exercise prices) below the price you paid for your stock.
We
do not anticipate paying dividends on our common stock. Cash dividends have never been declared or paid on our common
stock, and we do not anticipate such a declaration or payment for the foreseeable future. We expect to use future earnings, if
any, to fund business growth. Furthermore, the indentures governing our outstanding convertible notes prohibits us from declaring
or paying any dividend or making any other payment or distribution on account of our capital stock. Therefore, stockholders will
not receive any funds absent a sale of their shares of common stock. If we do not pay dividends, our common stock may be less
valuable because a return on your investment will only occur if our stock price appreciates. We cannot assure stockholders that
our stock price will appreciate or that they will receive a positive return on their investment if and when they sell their shares.
If
securities or industry analysts issue an adverse opinion regarding our stock, our stock price and trading volume could decline.
The trading market for our common stock is influenced by the research and reports that securities or industry analysts
may publish about us, our business, our market or our competitors. If any of the analysts who may cover us adversely change its
recommendation regarding our common stock, or provide more favorable relative recommendations about our competitors, the trading
price of our common stock could decline. If any analyst who may cover us were to cease coverage of our Company or fail to regularly
publish reports on us, we could lose visibility in the financial markets, which in turn could cause the trading price of our common
stock or trading volume to decline.
The
common stock is equity and is subordinate to our existing and future indebtedness, including our outstanding 6.5% Convertible
Senior Secured Notes due 2023 and 6.5% Convertible Senior Notes due 2023, and preferred stock. Shares of the common stock
are equity interests in our Company and do not constitute indebtedness. As such, shares of the common stock will rank junior to
all indebtedness, including our outstanding 6.5% Convertible Senior Secured Notes due 2023 and 6.5% Convertible Senior Notes due
2023, and other non-equity claims on our Company with respect to assets available to satisfy claims on our Company, including
in a liquidation of our Company. Additionally, our Board of Directors is authorized to issue series of preferred stock without
any action on the part of shareholders of our common stock. Holders of our common stock are subject to the prior dividend, liquidation
preferences, terms of redemption, conversion rights and voting rights, if any, of any holders of our preferred stock or depositary
shares representing such preferred stock then outstanding.
FORWARD-LOOKING
STATEMENTS
This
prospectus supplement, the accompanying prospectus and documents we have filed with the SEC that are incorporated by reference
herein and therein contain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In addition, from time to time we or our
representatives have made or will make forward-looking statements in various other filings that we make with the SEC or in other
documents, including press releases or other similar announcements. Any and all statements contained in this prospectus supplement
and the accompanying prospectus that are not statements of historical fact may be deemed forward-looking statements. Terms such
as “may,” “will,” “might,” “would,” “should,” “could,”
“project,” “forecast,” “estimate,” “predict,” “potential,” “strategy,”
“anticipate,” “attempt,” “develop,” “plan,” “help,” “seek,”
“believe,” “continue,” “intend,” “expect,” “future,” and terms of
similar import (including the negative of any of the foregoing) may identify forward-looking statements. However, not all forward-looking
statements may contain one or more of these identifying terms. Forward-looking statements in this prospectus supplement, the accompanying
prospectus and documents we have filed with the SEC that are incorporated by reference herein and therein may include, without
limitation, statements regarding (i) the plans and objectives of management for future operations, including plans or objectives
relating to the development of commercially viable radio frequency (“RF”) filters, (ii) projections of income (including
income/loss), earnings (including earnings/loss) per share, capital expenditures, dividends, capital structure or other financial
items, (iii) our future financial performance, including any such statement contained in this management’s discussion and
analysis of financial condition or in the results of operations included pursuant to the rules and regulations of the SEC, (iv)
our ability to efficiently utilize cash and cash equivalents to support our operations for a given period of time, (v) our ability
to engage customers while maintaining ownership of our intellectual property, and (vi) the assumptions underlying or relating
to any statement described in (i), (ii), (iii), (iv) or (v) above.
Forward-looking
statements are not meant to predict or guarantee actual results, performance, events or circumstances and may not be realized
because they are based upon our current projections, plans, objectives, beliefs, expectations, estimates and assumptions and are
subject to a number of risks and uncertainties and other influences, many of which are beyond our control. Actual results and
the timing of certain events and circumstances may differ materially from those described by the forward-looking statements as
a result of these risks and uncertainties. Factors that may influence or contribute to the inaccuracy of the forward-looking statements
or cause actual results to differ materially from expected or desired results may include, without limitation:
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inability to obtain adequate financing and sustain our status as a going concern,
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our
limited operating history,
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our
inability to generate revenues or achieve profitability,
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the
impact of the COVID-19 pandemic on our operations financial condition and the worldwide economy,
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our
inability to service the debt represented by the $25.0 million aggregate principal amount of our senior convertible notes
issued in calendar year 2018,
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our
failure to remediate the material weaknesses in our internal control over financial reporting,
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the
results of our R&D activities,
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our
inability to achieve acceptance of our products in the market,
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general
economic conditions, including upturns and downturns in the industry,
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risks
related to doing business in foreign countries,
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any
security breaches or other disruptions compromising our proprietary information and exposing us to liability,
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our
limited number of patents,
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failure
to obtain, maintain and enforce our intellectual property rights,
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our
inability to attract and retain qualified personnel,
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our
reliance on third parties to complete certain processes in connection with the manufacture of our products,
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product
quality and defects,
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existing
or increased competition,
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our
ability to market and sell our products,
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our
inability to successfully scale our New York fabrication facility and related operations and to maintain a successful fabrication
operation while maintaining quality control and assurance and avoiding delays in output,
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our
failure to innovate or adapt to new or emerging technologies, including in relation to our competitors,
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our
failure to comply with regulatory requirements,
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results
of any present or future arbitration or litigation,
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stock
volatility and illiquidity,
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our
failure to implement our business plans or strategies,
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results
of any litigation or arbitration that may arise, and
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our
failure to maintain the Trusted Foundry accreditation of our New York fabrication facility.
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A
description of some of the risks and uncertainties that could cause our actual results to differ materially from those described
by the forward-looking statements in this prospectus supplement and accompanying prospectus appears in the section captioned “Risk
Factors” as well as the risk factors described under the section captioned “Risk Factors” contained in our Annual
Report on Form 10-K for the fiscal year ended June 30, 2019, as filed with the SEC on September 13, 2019, and subsequently filed
Quarterly Reports on Form 10-Q, which are incorporated by reference in this prospectus supplement and the accompanying prospectus,
and elsewhere in this prospectus supplement and accompanying prospectus. Readers are cautioned not to place undue reliance on
forward-looking statements because of the risks and uncertainties related to them and to the risk factors. The forward-looking
statements in this prospectus supplement and accompanying prospectus speak only as of the date hereof and, except as may be required
by law, we do not undertake any obligation to update the forward-looking statements contained in this prospectus supplement or
accompanying prospectus to reflect any new information or future events or circumstances or otherwise.
USE
OF PROCEEDS
We
intend to use the net proceeds from this offering, after deducting the Sales Agents’ commissions and related offering expenses
payable by us, for general corporate purposes.
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS TO NON-U.S. HOLDERS
The
following discussion is a summary of material U.S. federal income tax considerations relevant to Non-U.S. Holders (as defined
below) relating to the purchase, ownership and disposition of our common stock issued pursuant to this offering. This discussion
is based on the U.S. Internal Revenue Code of 1986, as amended, or the “Code,” Treasury Regulations promulgated thereunder,
judicial decisions, and published rulings and administrative pronouncements of the U.S. Internal Revenue Service, or the “IRS,”
in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations that may
be applied retroactively in a manner that could adversely affect a Non-U.S. Holder of our common stock. We have not sought and
will not seek any rulings from the IRS regarding the matters discussed below. There can be no assurance that the IRS or a court
will not take a contrary position to that discussed below regarding the U.S. federal income tax consequences of the purchase,
ownership and disposition of our common stock.
This
discussion is limited to Non-U.S. Holders that hold our common stock as a “capital asset” within the meaning of the
Code (generally, property held for investment). This discussion does not purport to be a complete analysis of all potential tax
consequences and does not address the effects of other U.S. federal tax laws, such as the U.S. estate and gift tax laws, and any
applicable state, local or non-U.S. tax laws or tax treaties. This summary does not address all U.S. federal income tax consequences
relevant to a Non-U.S. Holder’s particular circumstances, including the impact of the Medicare contribution tax on net investment
income. In addition, it does not address consequences relevant to Non-U.S. Holders subject to special rules, including, without
limitation:
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U.S.
expatriates and former citizens or long-term residents of the United States;
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persons
subject to the alternative minimum tax;
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persons
holding our common stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction
or other integrated investment;
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banks,
thrifts, regulated investment companies, real estate investment trusts, insurance companies and other financial institutions;
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brokers,
dealers or traders in securities or foreign currencies;
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“controlled
foreign corporations” or “passive foreign investment companies”;
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partnerships
or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and partners therein);
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tax-exempt
organizations or governmental organizations;
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persons
deemed to sell our common stock under the constructive sale provisions of the Code;
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persons
who hold or receive our common stock pursuant to the exercise of any employee stock option or otherwise as compensation; and
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tax-deferred
or other retirement accounts.
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If
an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds our common stock, the tax treatment
of such partnership and a partner of the partnership will depend on the activities of the partnership and certain determinations
made at the partner level. Accordingly, partnerships holding our common stock and the partners in such partnerships should consult
their tax advisors regarding the U.S. federal income tax consequences to them in connection with the purchase, ownership and disposition
of our common stock.
THIS
DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE TAX ADVICE. INVESTORS SHOULD CONSULT THEIR TAX ADVISORS
WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER
THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.
Definition
of a Non-U.S. Holder
For
purposes of this discussion, a “Non-U.S. Holder” is any beneficial owner of our common stock that is neither a “U.S.
person” nor an entity treated as a partnership for U.S. federal income tax purposes. A U.S. person is any person that, for
U.S. federal income tax purposes, is or is treated as any of the following:
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an
individual who is a citizen or resident of the United States;
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a
corporation or entity treated as a corporation that is created or organized under the laws of the United States, any state
thereof, or the District of Columbia;
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an
estate, the income of which is subject to U.S. federal income tax regardless of its source; or
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a
trust that (i) is subject to the primary supervision of a U.S. court and the control of one or more U.S. persons, or (ii)
has a valid election in effect to be treated as a U.S. person for U.S. federal income tax purposes.
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Distributions
We
do not currently intend to pay any cash dividends on our common stock in the foreseeable future. However, if we make distributions
of cash or property on our common stock, such distributions will constitute dividends for U.S. federal income tax purposes to
the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles.
Amounts not treated as dividends for U.S. federal income tax purposes will constitute a return of capital and first be applied
against and reduce a Non-U.S. Holder’s adjusted tax basis in its common stock, but not below zero. Any excess will be treated
as capital gain and will be treated as described below under “—Sale or Other Taxable Disposition.”
Subject
to the discussions below on effectively connected income, backup withholding and the Foreign Account Tax Compliance Act (“FATCA”),
dividends paid to a Non-U.S. Holder of our common stock will be subject to U.S. federal withholding tax at a rate of 30% of the
gross amount of the dividends (or such lower rate specified by an applicable income tax treaty, provided the Non-U.S. Holder furnishes
a valid IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) certifying qualification for the lower treaty rate). A
Non-U.S. Holder that does not timely furnish the required documentation, but that qualifies for a reduced treaty rate, may obtain
a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Non-U.S. Holders should
consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.
If
dividends paid to a Non-U.S. Holder are effectively connected with the Non-U.S. Holder’s conduct of a trade or business
within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment
or fixed base in the United States to which such dividends are attributable), the Non-U.S. Holder will be exempt from the U.S.
federal withholding tax described above. To claim the exemption, the Non-U.S. Holder must furnish to the applicable withholding
agent a valid IRS Form W-8ECI, certifying that the dividends are effectively connected with the Non-U.S. Holder’s conduct
of a trade or business within the United States.
Any
such effectively connected dividends will be subject to U.S. federal income tax on a net income basis at the regular graduated
rates. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate
specified by an applicable income tax treaty) on such effectively connected dividends, as adjusted for certain items. Non-U.S.
Holders should consult their tax advisors regarding any applicable tax treaties that may provide for different rules.
Sale
or Other Taxable Disposition
Subject
to the discussions below regarding backup withholding and FATCA, a Non-U.S. Holder will not be subject to U.S. federal income
tax on any gain realized upon the sale or other taxable disposition of our common stock unless:
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|
●
|
the
gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and,
if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment or fixed base in the
United States to which such gain is attributable);
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|
|
●
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the
Non-U.S. Holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year
of the disposition and certain other requirements are met; or
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|
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●
|
our
common stock constitutes a United States real property interest, or “USRPI,” by reason of our status as a United
States real property holding corporation, or “USRPHC,” for U.S. federal income tax purposes.
|
Gain
described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular
graduated rates. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such
lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.
Gain
described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified
by an applicable income tax treaty), which may be offset by U.S.-source capital losses of the Non-U.S. Holder (even though the
individual is not considered a resident of the United States), provided the Non-U.S. Holder has timely filed U.S. federal income
tax returns with respect to such losses.
With
respect to the third bullet point above, we believe we currently are not, and do not anticipate becoming, a USRPHC. Because the
determination of whether we are a USRPHC depends, however, on the fair market value of our USRPIs relative to the fair market
value of our non-USRPIs and our other business assets, there can be no assurance we currently are not a USRPHC or will not become
one in the future. Even if we are or were to become a USRPHC, gain arising from the sale or other taxable disposition by a Non-U.S.
Holder of our common stock will not be subject to U.S. federal income tax if our common stock is considered “regularly traded,”
as defined by applicable Treasury Regulations, on an established securities market, and such Non-U.S. Holder owned, actually or
constructively, 5% or less of our common stock throughout the shorter of the five-year period ending on the date of the sale or
other taxable disposition or the Non-U.S. Holder’s holding period. If we are a USRPHC and either our common stock is not
regularly traded on an established securities market or a Non-U.S. Holder holds more than 5% of our common stock, actually or
constructively, during the applicable period, such Non-U.S. Holder will generally be taxed on any gain in the same manner as gain
that is effectively connected with the conduct of a U.S. trade or business, except that the branch profits tax generally will
not apply.
Non-U.S.
Holders should consult their tax advisors regarding potentially applicable income tax treaties that may provide for different
rules.
Information
Reporting and Backup Withholding
Payments
of dividends on our common stock will not be subject to backup withholding, provided the applicable withholding agent does not
have actual knowledge or reason to know the holder is a U.S. person and the holder either certifies its non-U.S. status, such
as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, or otherwise establishes an exemption. However, information returns
are required to be filed with the IRS in connection with any dividends on our common stock paid to a Non-U.S. Holder, regardless
of whether any tax was actually withheld. In addition, proceeds from the sale or other taxable disposition of our common stock
within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding
or information reporting, if the applicable withholding agent receives the certification described above and does not have actual
knowledge or reason to know that such holder is a United States person, or the holder otherwise establishes an exemption. Proceeds
of a disposition of our common stock conducted through a non-U.S. office of a non-U.S. broker that does not have certain enumerated
relationships with the United States generally will not be subject to backup withholding or information reporting.
Copies
of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or
agreement to the tax authorities of the country in which the Non-U.S. Holder resides or is established.
Backup
withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a
credit against a Non-U.S. Holder’s U.S. federal income tax liability, provided the required information is timely furnished
to the IRS.
FATCA
Withholding
taxes may be imposed under Sections 1471 to 1474 of the Code (such Sections commonly referred to as FATCA) on certain types of
payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may
be imposed on dividends on, or gross proceeds from the sale or other disposition of, our common stock paid to a “foreign
financial institution” or a “non-financial foreign entity” (each as defined in the Code), unless (i) the foreign
financial institution undertakes certain diligence and reporting obligations, (ii) the non-financial foreign entity either certifies
it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information
regarding each substantial United States owner or (iii) the foreign financial institution or non-financial foreign entity otherwise
qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and
reporting requirements in (i) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among
other things, that it undertake to identify accounts held by certain “specified United States persons” or “United
States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and
withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Foreign financial
institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject
to different rules.
Under
the applicable Treasury Regulations and administrative guidance, these withholding requirements generally currently apply to payments
of dividends on our common stock. This withholding tax currently will not apply to the gross proceeds from the sale or other disposition
of our common stock.
Prospective
investors should consult their tax advisors regarding the potential application of withholding under FATCA to their investment
in our common stock.
PLAN
OF DISTRIBUTION
We
have entered into the Sales Agreement with BofA Securities, Inc. and Piper Sandler & Co., as Sales Agents, under which we
are permitted to offer and sell the Shares having an aggregate offering price of up to $50,000,000 through a Sales Agent acting
as sales agent or directly to a Sales Agent or Agents acting as principal from time to time. We have filed a copy of the Sales
Agreement as an exhibit to the registration statement of which this prospectus supplement forms a part. The sales, if any, of
the Shares made under the Sales Agreement may be made by means of transactions that are deemed to be “at the market”
offerings as defined in Rule 415 under the Securities Act, including block trades and sales made in ordinary brokers’ transactions
on Nasdaq or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated
prices.
If
we sell shares of our common stock to either Sales Agent as principal, we will enter into a separate agreement with such Sales
Agent and we will describe this agreement in a pricing supplement.
On
any day (other than a day on which Nasdaq is closed or scheduled to close prior to its regular weekday closing time) (each, a
“trading day”), we may sell Shares through only one Sales Agent and, if we determine to do so, we will instruct the
applicable Sales Agent as to the maximum number of Shares to be sold on such trading day and the minimum price per Share at which
such Shares may be sold. Subject to the terms and conditions of the Sales Agreement, such Sales Agent will use its commercially
reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell on our
behalf all of the designated Shares in accordance with such instruction. We or the Sales Agent through whom the sale of Shares
is to be made as sales agent on any trading day may suspend the offering of Shares for any reason and at any time, upon notifying
the other party.
If
acting as sales agent, the applicable Sales Agent will provide to us written confirmation following the close of trading on the
Nasdaq on each trading day on which Shares are sold under the Sales Agreement. Each confirmation will include the number of Shares
sold on that day, the aggregate gross sales proceeds of the Shares, the net proceeds to us (after deduction of any transaction
fees, transfer taxes or similar taxes or fees imposed by any governmental entity or self-regulatory organization in respect of
such sales) and the aggregate compensation payable by us to such Sales Agent with respect to such sales. We will report, on a
quarterly basis, the number of Shares sold by or through the Sales Agents during such quarterly fiscal period, the net proceeds
received by the Company and the aggregate compensation paid by the Company to the Sales Agents with respect to such sales.
We
will pay each Sales Agent a commission of up to 3.00% of the gross sales price of the Shares sold through such Sales Agent. We
have agreed to reimburse the Sales Agents for certain of their legal expenses in connection with the establishment of the ATM
program.
Settlement
for sales of Shares will occur on the second business day that is also a trading day following the trade date on which such sales
are made, unless another date is agreed to in writing by us and the applicable Sales Agent.
If
the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to
the Company or the Shares, we will promptly notify the Sales Agents and future offers and sales of Shares through the Sales Agents
on an agented basis pursuant to the Sales Agreement shall be suspended until that or other exemptive provisions have been satisfied
in the judgment of each party.
The
offering of common stock pursuant to the Sales Agreement will terminate upon the earlier of (1) the sale of all Shares subject
to the Sales Agreement or (2) the termination of the Sales Agreement by us or by the Sales Agents, which may occur for any reason,
at any time, by us or a Sales Agent, as to itself, upon the giving of two days prior written notices to the other parties.
In
connection with the sale of the Shares on our behalf, the Sales Agents may be deemed “underwriters” within the meaning
of the Securities Act, and the compensation paid to the Sales Agents may be deemed to be underwriting commissions or discounts.
We have agreed to provide indemnification and contribution to the Sales Agents against certain liabilities, including civil liabilities
under the Securities Act.
We
estimate that the total expenses of this offering payable by us, excluding commissions payable to the Sales Agents under the Sales
Agreement, will be approximately $ .
The
Sales Agents and their respective affiliates are full service financial institutions engaged in various activities, which may
include sales and trading, commercial and investment banking, advisory, investment management, investment research, principal
investment, hedging, market making, brokerage and other financial and non-financial activities and services. The Sales Agents
and their respective affiliates have provided, and may in the future provide, a variety of these services to us and to persons
and entities with relationships with us, for which they received or will receive customary fees and expenses.
In
the ordinary course of their various business activities, the Sales Agents and their respective affiliates, officers, directors
and employees may purchase, sell or hold a broad array of investments and actively trade securities, derivatives, loans, commodities,
currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers,
and such investment and trading activities may involve or relate to our assets, securities and/or instruments (directly, as collateral
securing other obligations or otherwise) and/or persons and entities with relationships with us. The Sales Agents and their respective
affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express
independent research views in respect of such assets, securities or instruments and may at any time hold, or recommend to clients
that they should acquire, long and/or short positions in such assets, securities and instruments.
LEGAL
MATTERS
The
validity of the shares of common stock offered by this prospectus supplement will be passed upon for us by K&L Gates LLP,
Charlotte, North Carolina. Shearman & Sterling LLP, New York, New York, is acting as counsel for the Sales Agents in connection
with this offering.
EXPERTS
The
consolidated financial statements of Akoustis Technologies, Inc. and its wholly-owned subsidiary included in the Company’s
Annual Report on Form 10-K for the fiscal year ended June 30, 2019 and the Company’s internal control
over financial reporting have been audited by Marcum LLP, an independent registered public accounting firm, as stated in its report
which is incorporated by reference herein, and has been so incorporated in reliance upon such report and upon the authority of
such firm as experts in accounting and auditing.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC permits us to “incorporate by reference” the information and reports we file with it. This means that we can disclose
important information to you by referring to another document. The information that we incorporate by reference is considered
to be part of this prospectus supplement, and later information that we file with the SEC automatically updates and supersedes
this information. We incorporate by reference the documents listed below, except to the extent information in those documents
is different from the information contained in this prospectus supplement, and all future documents filed with the SEC under Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act until we terminate the offering of these securities:
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|
●
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Our Annual Report on Form 10-K for the fiscal year ended June 30, 2019, which was filed on September 13, 2019;
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●
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Our Quarterly Reports on Form 10-Q for the quarterly periods ended September 30, 2019, December 31, 2019 and March 31, 2020, which were filed on November 7, 2019, January 31, 2020 and May 1, 2020, respectively;
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●
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The information specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended June 30, 2019 from our definitive proxy statement on Schedule 14A (other than information furnished rather than filed), filed with the SEC on September 24, 2019;
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●
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The description of our common stock contained in our Registration Statement on Form 8-A (File No. 001-38029) filed with the SEC on March 10, 2017, including any amendment or report filed for the purpose of updating such description; and
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●
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All documents we file with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus supplement and prior to the termination of this offering made by way of this prospectus supplement.
|
To
the extent that any statement in this prospectus supplement is inconsistent with any statement that is incorporated by reference
and that was made on or before the date of this prospectus supplement, the statement in this prospectus supplement shall supersede
such incorporated statement. The incorporated statement shall not be deemed, except as modified or superseded, to constitute a
part of this prospectus supplement or the registration statement. Statements contained in this prospectus supplement as to the
contents of any contract or other document are not necessarily complete and, in each instance, we refer you to the copy of each
contract or document filed as an exhibit to our various filings made with the SEC.
We
will furnish without charge to you, on written or oral request, a copy of any or all of the documents incorporated by reference,
including exhibits to these documents. You should direct any requests for documents to:
Akoustis
Technologies, Inc.
9805
Northcross Center Court, Suite A
Huntersville,
North Carolina 28078
Attention:
Corporate Secretary
Telephone:
(704) 997-5735
Copies
of the above reports may also be accessed from our website at ir.akoustis.com/sec-filings. We have not incorporated by reference
into this prospectus supplement the information on our website and it is not a part of this document. We have authorized no one
to provide you with any information that differs from that contained in this prospectus supplement. Accordingly, you should not
rely on any information that is not contained or incorporated by reference in this prospectus supplement and the accompanying
prospectus. You should not assume that the information in this prospectus supplement is accurate as of any date other than the
date of the front cover of this prospectus supplement.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus supplement will be
deemed modified, superseded or replaced for purposes of this prospectus supplement to the extent that a statement contained in
this prospectus supplement modifies, supersedes or replaces such statement.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement under the Securities Act (SEC File No. 333- ) that registers the securities
offered hereby. The registration statement, including the exhibits and schedules attached thereto and the information incorporated
by reference therein, contains additional relevant information about the securities and our Company, which we are allowed to omit
from this prospectus supplement pursuant to the rules and regulations of the SEC. In addition, we are subject to the informational
requirements of the Securities Act and in accordance therewith file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are available on the SEC’s website at www.sec.gov. Copies of certain
information filed by us with the SEC are also available free of charge on our website at ir.akoustis.com/sec-filings. We have
not incorporated by reference into this prospectus supplement the information on our website and it is not a part of this document.
Common
Stock
Having
an Aggregate Offering Price of up to $50,000,000
PROSPECTUS
SUPPLEMENT
BofA
Securities
Piper
Sandler
,
2020
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following is an itemized statement of expenses of the Company in connection with the issuance and delivery of the securities being
registered hereby, other than underwriting discounts and commissions.
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SEC registration fee
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$
|
19,470
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Printing Expenses
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|
|
*
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|
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NASDAQ Listing Fees
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|
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*
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Trustee Fees and Expenses
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|
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*
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Accounting Fees and Expenses
|
|
|
*
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|
Legal Fees and Expenses
|
|
|
*
|
|
|
Miscellaneous
|
|
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*
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|
Total
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|
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*
|
|
|
|
*
|
These
fees will be dependent on the types of securities offered and number of offerings and,
therefore, cannot be estimated at this time.
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Item
15. Indemnification of Directors and Officers.
Section
102(b)(7) of the DGCL allows a corporation to provide in its certificate of incorporation that a director of the corporation will
not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or
obtained an improper personal benefit. The Company’s Certificate of Incorporation provides for this limitation of liability.
Section
145 of the DGCL, or Section 145, provides that a Delaware corporation may indemnify any person who was, is or is threatened to
be made, party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was
an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable
cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who were or are a party
to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person
is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action
or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the
corporation’s best interests, provided that no indemnification is permitted without judicial approval if the officer, director,
employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise
in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
Section
145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity,
or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him under
Section 145.
The
Company’s Certificate of Incorporation provides that the liability of directors for monetary damages shall be eliminated
to the fullest extent under applicable law. The Company’s Bylaws state that the Company shall indemnify every present or
former director, officer, employee, or agent of the Company or person who is or was serving at the Company’s request as
a director, officer, member, manager, partner, trustee, fiduciary, employee or agent of another corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise (each an “Indemnitee”).
The
Company’s Bylaws provide that the Company shall indemnify an Indemnitee against all judgments, fines, amounts paid in settlement
and reasonable expenses actually and reasonably incurred by the Indemnitee in connection with any proceeding in which he was,
or is threatened to be made, a party by reason of his serving or having served, if it is determined that the Indemnitee (a) acted
in good faith, (b) reasonably believed that such action was in, or not opposed to, the Company’s best interests and (c)
in the case of any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful; provided, however, that
the Company shall not be obligated to indemnify an Indemnitee that was threatened to be made a party but does not become a party
unless the incurring of such expenses was authorized by or under the authority of the Board of Directors, and the Company shall
not be obligated to indemnify against any amount paid in settlement unless the Board of Directors has consented to such settlement.
In any action brought by or in the right of the Company to procure a judgment in its favor, no indemnification shall be made in
respect of any proceeding if a final adjudication establishes that the Indemnitee is liable to the Company, unless the court determines
that such person is fairly and reasonably entitled to indemnity. The Company may indemnify an Indemnitee who has served, or prepared
to serve, as a witness in, but is not a party to, any action, suit, or proceeding. The termination of any proceeding by judgment,
order, settlement or conviction, or on a plea of nolo contendere or its equivalent, is not of itself determinative that the Indemnitee
did not meet the requirements set forth in clauses (a) through (c) above.
Expenses
incurred by any present or former director or officer of the Company in defending any civil, criminal, administrative, or investigative
action, suit, or proceeding, shall be paid by the Company in advance of the final disposition of such action, suit, or proceeding
upon receipt of an undertaking in writing by or on behalf of such person to repay such amount if it shall ultimately be determined
that such person is not entitled to indemnification. Expenses and costs incurred by other Indemnitees may be paid by the Company
in advance of the final disposition of such action, suit, or proceeding upon a similar undertaking.
Other
than discussed above, neither the Company’s Bylaws nor its Certificate of Incorporation includes any specific indemnification
provisions for the Company’s officers or directors against liability under the Securities Act. The Company has also purchased
insurance providing for indemnification of its directors and officers. Additionally, insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the
foregoing provisions, or otherwise, the Company has been advised that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item
16. Exhibits.
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
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|
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1.1
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|
Form of Underwriting Agreement *
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|
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1.2
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ATM Equity Offering℠ Sales Agreement, dated May 8, 2020 by and among the Company, as issuer, and BofA Securities, Inc. and Piper Sandler & Co., as sales agents.
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2.1
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|
Articles of Conversion of the Company, as filed with the Nevada Secretary of State on December 15, 2016 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 16, 2016)
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|
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2.2
|
|
Certificate of Conversion of the Company, as filed with the Delaware Secretary of State on December 15, 2016 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the SEC on December 16, 2016)
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3.1
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|
Certificate of Incorporation of the Company, as filed with the Delaware Secretary of State on December 15, 2016 (incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K filed with the SEC on December 16, 2016)
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3.2
|
|
Certificate of Amendment to the Certificate of Incorporation, as filed with the Delaware Secretary of State on November 4, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 6, 2019)
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3.3
|
|
Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.5 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on May 1, 2020)
|
|
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3.4
|
|
Restated Certificate of Incorporation of Akoustis, Inc., as filed with the Delaware Secretary of State on June 13, 2014, as amended (incorporated by reference to Exhibit 3.5 to the Company’s Registration Statement on Form S-1 filed with the SEC on June 25, 2018)
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3.5
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Bylaws of Akoustis, Inc., as amended (incorporated by reference to Exhibit 3.6 to the Company’s Registration Statement on Form S-1 filed with the SEC on June 25, 2018)
|
|
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4.1
|
|
Indenture, dated as of October 23, 2018, by and between the Company and The Bank of New York Mellon Trust Company, N.A. (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 23, 2018)
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4.2
|
|
First Supplemental Indenture, dated as of October 23, 2018, by and between the Company and The Bank of New York Mellon Trust Company, N.A. (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the SEC on October 23, 2018)
|
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4.3
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Specimen certificate representing shares of common stock of Akoustis Technologies, Inc. (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-8 filed with the SEC on February 7, 2018)
|
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4.4
|
|
Form of certificate representing shares of preferred stock of Akoustis Technologies, Inc.*
|
|
|
|
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4.5
|
|
Form of certificate of designations for preferred stock*
|
|
|
|
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4.6
|
|
Form of Indenture relating to the issuance from time to time in one or more series of debentures, notes, bonds or other evidences of indebtedness (filed herewith)
|
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|
|
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4.7
|
|
Form of senior debt security*
|
*
To be filed, if necessary, with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement.
**
To be filed, if necessary, pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
Item
17. Undertakings.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant, pursuant to the provisions described under Item 15 or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification by it 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, the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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:
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|
(i)
|
to
include any prospectus required by Section 10(a)(3) of the Securities Act;
|
(ii) to
reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in 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 a prospectus filed with the SEC pursuant to Rule 424(b)
under the Securities Act if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement);
and
(iii) to
include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided,
however, that subparagraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective
amendment by those 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 the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, 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 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 of 1933 shall be deemed to be part of
and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or
made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part
of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede
or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser, 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
(6)
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.
(7)
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 this 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.
(8)
That, 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.
(9) That,
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.
(10) To
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the
Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Huntersville, North Carolina, on this 8th day of May 2020.
|
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Akoustis Technologies,
Inc.
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/s/
Jeffrey B. Shealy
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Jeffrey B. Shealy
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President and Chief Executive Officer
|
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(Principal Executive Officer)
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jeffrey B. Shealy, Kenneth
E. Boller and Andrew Wright, or any of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution
and re-substitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments, exhibits thereto and other documents in connection therewith) to this registration statement
and any subsequent registration statement filed by the registrant pursuant to Rule 462(b) and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents or any one
of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about
the premises, as fully as to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming
all that each of said attorneys-in-fact and agents, or any of them, or his or her substitutes, may lawfully do or cause to be
done by virtue hereof.
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 May 8, 2020.
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Signature
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|
Title
|
|
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/s/
Jeffrey B. Shealy
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President
and Chief Executive Officer
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Jeffrey
B. Shealy
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(Principal
Executive Officer), Director
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/s/
Kenneth E. Boller
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Interim
Chief Financial Officer
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Kenneth
E. Boller
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(Principal
Financial Officer and Accounting Officer)
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/s/
Arthur E. Geiss
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Co-Chairman
of the Board
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Arthur
E. Geiss
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/s/
Jerry D. Neal
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Co-Chairman
of the Board
|
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Jerry
D. Neal
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|
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/s/
Steven P. DenBaars
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Director
|
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Steven
P. DenBaars
|
|
|
|
|
|
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/s/
Jeffrey K. McMahon
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Director
|
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Jeffrey
K. McMahon
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|
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/s/
Suzanne B. Rudy
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Director
|
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Suzanne
B. Rudy
|
|
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of Huntersville, State of North Carolina, on May 8, 2020.
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AKOUSTIS, INC.
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By:
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/s/ Jeffrey B. Shealy
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|
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Name:
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Jeffrey B. Shealy
|
|
|
Title:
|
President and Chief Executive Officer (Principal Executive Officer)
|
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Jeffrey B. Shealy,
Kenneth E. Boller, and Andrew Wright, or any of them, his true and lawful attorney-in-fact and agent, with full power of substitution
and re-substitution, for such person and in his name, place and stead, in any and all capacities, to sign any or all amendments
or supplements to this registration statement and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the SEC, granting unto said attorneys-in-fact and agents or any one of them full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents
and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or any of them, or his or her substitutes, may lawfully do or cause to be done by virtue hereof.
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 May 8, 2020.
|
/s/Jeffrey
B. Shealy
|
|
/s/
Kenneth E. Boller
|
|
Jeffrey
B. Shealy
|
|
Kenneth
E. Boller
|
|
President,
Chief Executive Officer, and Director (Principal Executive Officer)
|
|
Interim
Chief Financial Officer and Director (Principal Financial and Accounting Officer)
|
|
|
|
|
|
/s/
Andrew Wright
|
|
|
|
Andrew
Wright
|
|
|
|
Secretary
and Director
|
|
|
II-8
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