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This prospectus relates to the offer and sale from time to time of up to 1,379,668 shares of common stock, par value $0.005 per share, by Lincoln Park Capital Fund, LLC, or the selling stockholder. The shares offered by the selling stockholder consist of shares of common stock that have been, or may be, issued to the selling stockholder pursuant to a purchase agreement we entered into with the selling stockholder as of April 26, 2021, or the Purchase Agreement.

We are not selling any of the shares of common stock offered by this prospectus, and we will not receive any proceeds from resales of those shares. Under the Purchase Agreement, however, we have issued 56,041 shares to the selling stockholder as consideration for entering into the Purchase Agreement and we may elect, subject to satisfaction of specified conditions, to require the selling stockholder to purchase from time to time additional shares of common stock for a total purchase price of up to $20,000,000.

The common stock is listed on the NYSE American under the symbol “BTX.” On April 29, 2021, the closing sale price of the common stock as reported on the NYSE American was $34.22. You are urged to obtain current market quotations for the common stock.

Our business and an investment in the common stock involve significant risks. See “Risk Factors” on page 6.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

The selling stockholder is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act of 1933. The selling stockholder may sell the shares of common stock offered by this prospectus in a number of different ways and at varying prices, as described in “Plan of Distribution” on page 25.

We have agreed to bear all of the expenses incurred in connection with the registration of the shares of common stock offered by this prospectus. The selling stockholder will pay or assume any discounts, commissions, or fees of underwriters, selling brokers or dealer managers incurred in connection with its sales of the shares.

As a “smaller reporting company” under applicable rules of the Securities and Exchange Commission, we have elected to comply with certain reduced public company disclosure requirements for this prospectus and other filings with the Securities and Exchange Commission. See “Prospectus Summary—Implications of Being a Smaller Reporting Company.”

The date of this prospectus is    , 2021.

This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission. Before making your investment decision, we urge you to carefully read this prospectus and all of the information contained in the documents incorporated by reference in this prospectus, as well as the additional information described under the headings “Where You Can Find More Information.”

To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference in this prospectus, on the other hand, you should rely on the information in this prospectus, provided that 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—the statement in the document having the later date modifies or supersedes the earlier statement.

We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreement, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.

We have not, and the selling stockholder has not, authorized anyone to provide you with any information or to make any representations other than that contained in or incorporated by reference in this prospectus, any prospectus supplement or in any related free writing prospectus filed by us with the Securities and Exchange Commission. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in this prospectus or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus is accurate only as of the date on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed materially since those dates.

References in this prospectus to “our company,” “our,” “us,” “we” and similar terms refer to Brooklyn ImmunoTherapeutics, Inc. and not, unless the context otherwise requires, subsidiaries of Brooklyn ImmunoTherapeutics, Inc.

Unless the context otherwise requires, this prospectus reflects a one-for-two reverse split of common stock effective as of March 25, 2021.

Our logo design is our trademark. This prospectus also includes trademarks, trade names and service marks that are the property of other organizations. For convenience, our logo appears in this prospectus without the ™ symbol, but those uses are not intended to indicate that we will not assert, to the fullest extent under applicable law, our rights to this trademark.

to issue any shares of common stock under the Purchase Agreement if such issuance would breach our obligations under the rules or regulations of the NYSE American. In addition, the selling stockholder will not be required to purchase any shares of common stock if such sale would result in the selling stockholder’s beneficial ownership exceeding 4.99% of the then-outstanding shares of common stock. Our inability to access a portion or the full amount available under the Purchase Agreement, in the absence of any other financing sources, could have a material adverse effect on our business.

The purchase price of shares of common stock sold to the selling stockholder under the Purchase Agreement is derived from the market price of common stock on the NYSE American. Shares to be sold to the selling stockholder pursuant to the Purchase Agreement will be acquired at a discounted price depending on the type of purchase.

The selling stockholder will effect Regular Purchases (as defined in the Purchase Agreement) under the Purchase Agreement at a price equal to the lower of (a) the lowest sale price of common stock on the applicable purchase date, as reported on the NYSE American, and (b) the arithmetic average of the three lowest closing sale prices of common stock, as reported on the NYSE American, during the ten consecutive business days ending on the business day immediately preceding such purchase date (in each case, to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, share split or other similar transaction that occurs on or after the date of the Purchase Agreement). It will make Accelerated Purchases or Additional Accelerated Purchases (each as defined in the Purchase Agreement) at a price equal to 95% of the lower of (i) the closing sale price of common stock on the NYSE American on the applicable purchase date and (ii) the volume-weighted average price of common stock on the NYSE American on, in the case of an Accelerated Purchase, the applicable purchase date or, in the case of an Additional Accelerated Purchase, during the applicable measurement period on the applicable purchase date. See “Equity Line Transaction—Purchase of Shares under the Purchase Agreement”.

The selling stockholder may sell shares of common stock that it receives under the Purchase Agreement immediately after receipt of the shares, which, as a result of the pricing structure described above, could cause the price of common stock to decrease.

Subject to certain limitations in the Purchase Agreement, the NYSE American regulations and applicable law, we have the discretion to deliver a sales notice to the selling stockholder at any time throughout the term of the Purchase Agreement. The number of shares that are sold will fluctuate based on the market price of the shares of common stock. Because the price per share of each share sold to the selling stockholder will fluctuate based on the market price of common stock, it is not possible at this stage to predict the number of shares that will be ultimately issued under the Purchase Agreement.

The market price for common stock historically has been highly volatile, and the market for common stock has from time to time experienced significant price and volume fluctuations, based both on our operating performance and for reasons that appear to us unrelated to our operating performance. For example, on April 29, 2021, the closing sale price of the common stock as reported on the NYSE American was $34.22. Since March 26, 2021, the interday trading price of common stock has varied between a low of $3.59 on April 1, 2021 and a high of $54.24 on April 28, 2021. During this time, we did not make any announcements regarding our financial condition or results of operations. We may continue to incur rapid and substantial increases or decreases in the price of common stock in the foreseeable future that are do not coincide in timing with the disclosure of news or developments by us.

In addition, the market price of common stock may fluctuate significantly in response to several factors, including:

The realization of any of the foregoing could have a dramatic and adverse impact on the market price of common stock.

As of April 29, 2021, there were, in addition to the shares of common stock that may be sold under the Purchase Agreement, (a) 3,238,188 shares of common stock reserved for issuance upon the exercise of outstanding stock options with exercise prices ranging from $4.86 to $55.00 at weighted average exercise price of $8.08, (b) 3,368,804 shares of common stock reserved for issuance under our 2020 Stock Incentive Plan, and (c) 156,112 shares of outstanding Series A convertible preferred stock outstanding which were then convertible into approximately 42,027 shares of common stock. Registration statements registering the shares of common stock underlying the outstanding options are currently effective. Generally, the shares of common stock issuable upon conversion of Series A convertible preferred stock, which the holders may do at any time, may be sold under Rule 144 of the Securities Act of 1933. Accordingly, a significant number of shares of common stock could be sold at any time. Depending on market liquidity at the time common stock is resold by the holders thereof, such resales could cause the trading price of common stock to decline. In addition, our agreement with the selling stockholder and the sale of a substantial number of shares of common stock, or anticipation of such sales, including sales by the selling stockholder, could make it more difficult for us to obtain future financing. To the extent the trading price of common stock at the time any of our outstanding options are exercised exceeds their exercise price or at the time any of the outstanding shares of Series A convertible preferred stock are converted exceeds their conversion price, such exercise or conversion will have a dilutive effect on our stockholders.

We may raise additional capital at any time and may do so through one or more financing alternatives, including , including by selling shares of common stock to the selling stockholder under the Purchase Agreement and other public or private sales of equity or debt securities directly to investors or through underwriters or placement agents. See “Our ability to raise capital may be limited by applicable laws and regulations.” Raising capital through the issuance of common stock (or securities convertible into or exchangeable or exercisable for shares of common stock) may depress the market price of common stock and may substantially dilute our existing stockholders. In addition, our board of directors may issue preferred stock with rights, preferences and privileges senior to those of the holders of common stock. Debt financings could involve covenants that restrict our operations. These restrictive covenants may include limitations on additional borrowing and specific restrictions on the use of our assets, as well as prohibitions on our ability to create liens or make investments and may, among other things, preclude us from making distributions to stockholders (either by paying dividends or redeeming stock) and taking other actions beneficial to our stockholders. In addition, investors could impose more one-sided investment terms on companies that have or are perceived to have limited remaining funds or limited ability to raise additional funds. The lower our cash balance, the more difficult it is likely to be for us to raise additional capital on commercially reasonable terms, or at all.

Certain provisions of our certificate of incorporation could make it more difficult for a third party to acquire control of us, even if such a change in control would benefit our stockholders, or to make changes in the board of directors. For example, our certificate of incorporation (a) prohibits stockholders from filling vacancies on the board, calling special stockholder meetings, or taking action by written consent and (b) requires a supermajority vote of at least 80% of the total voting power of our outstanding shares, voting together as a single class, to remove our directors from office or to amend provisions relating to stockholders taking action by written consent or calling special stockholder meetings.

Additionally, our certificate of incorporation and bylaws contain provisions that could delay or prevent a change of control of our company. Some provisions:

Our bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on our behalf, (b) any action asserting a claim of breach of a fiduciary duty owed by any of our directors or officers to our company or stockholders, (c) any action asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or amended and restated bylaws, or (d) any action asserting a claim against us governed by the internal affairs doctrine. We do not expect this choice of forum provision will apply to suits brought to enforce a duty or liability created by the Securities Act, the Securities Exchange Act of 1934, or the Exchange Act, or any other claim for which federal courts have exclusive jurisdiction. Although our bylaws contain the choice of forum provision described above, it is possible that a court could rule that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable.

By becoming a stockholder in our company, you will be deemed to have notice of and have consented to the provisions of our bylaws related to choice of forum. The choice of forum provision in our bylaws may limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or any of our directors, officers, other employees, agents or stockholders, which may discourage lawsuits with respect to such claims. Alternatively, if a court were to find the choice of forum provision contained in our bylaws to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business, results of operations and financial condition.

The trading market for common stock will depend in part on the research and reports that securities or industry analysts publish about us or our business. If one or more of the analysts who cover us downgrade the common stock or publish inaccurate or unfavorable research about our business, the common stock price would likely decline. In addition, if one or more of these analysts ceases coverage of the common stock or fails to publish reports about the common stock on a regular basis, we could lose visibility in the financial markets, which in turn could cause the common stock price or trading volume to decline.

We are subject to the reporting requirements of the Securities Exchange Act, the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the listing requirements of the NYSE American, and other rules and regulations of the Securities and Exchange Commission. We are working with our legal, independent accounting and financial advisors to identify those areas in which changes should be made to our financial and management control systems to manage our growth and our obligations as a public reporting company. These areas include corporate governance, corporate control, disclosure controls and procedures, and financial reporting and accounting systems. We have made, and will continue to make, changes in these and other areas. Compliance with the various reporting and other requirements applicable to public reporting companies will require considerable time, attention of management and financial resources. In addition, the changes we make may not be sufficient to allow us to satisfy our obligations as a public reporting company on a timely basis.

The listing requirements of the NYSE American require that we satisfy certain corporate governance requirements relating to director independence, distributing annual and interim reports, stockholder meetings, approvals and voting, soliciting proxies, conflicts of interest and a code of conduct. Our management and other personnel will need to devote a substantial amount of time to ensure that we comply with all of these requirements. The reporting requirements, rules and regulations will increase our legal and financial compliance costs and will make some activities more time-consuming and costly. These reporting requirements, rules and regulations, coupled with the increase in potential litigation exposure associated with being a public company, could also make it more difficult for us to attract and retain qualified persons to serve as our directors or executive officers, or to obtain certain types of insurance, including director and officer liability insurance, on acceptable terms.

Short selling is the practice of selling securities that a seller does not own but rather has borrowed, or intends to borrow, from a third party with the intention of buying identical securities at a later date to return to the lender. A short seller hopes to profit from a decline in the value of the securities between the sale of the borrowed securities and the purchase of the replacement shares, as the short seller expects to pay less in that purchase than it received in the sale. As it is in the short seller’s interest for the price of the stock to decline, some short sellers publish, or arrange for the publication of, opinions or characterizations regarding the relevant issuer, its business prospects and similar matters calculated to or which may create negative market momentum, which may permit them to obtain profits for themselves as a result of selling the securities short. The use of the Internet, social media, and blogging have allowed short sellers to publicly attack a company’s credibility, strategy and veracity by means of so-called “research reports” that mimic the type of investment analysis performed by legitimate securities research analysts. Issuers with limited trading volumes or substantial retail stockholder bases can be particularly susceptible to higher volatility levels, and can be particularly vulnerable to such short attacks.

Short seller publications are not regulated by any governmental or self-regulatory organization or any other official authority in the United States and are not subject to the certification requirements imposed by the SEC in Regulation Analyst Certification. Accordingly, the opinions they express may be based on distortions of actual facts or, in some cases, outright fabrications. In light of the limited risks involved in publishing such information, and the significant profits that can be made from running successful short attacks, short sellers will likely continue to issue such reports. Short-seller publications may create the appearance or perception of wrongdoing, even when they are not substantiated, and may therefore affect the reputation or perception of our company and management.

While we intend to strongly defend our public filings against any such short seller attacks, in many situations we could be constrained, for example, by principles of freedom of speech, applicable state law or issues of commercial

confidentiality, in the manner in which we are able to proceed against the relevant short seller. Such short-seller attacks may cause temporary, or possibly long term, declines in the market price of common stock and possible litigation initiated against us.

If the common stock were delisted or suspended from trading on the NYSE American, it may be subject to the so-called “penny stock” rules. The Securities and Exchange Commission has adopted regulations that define a “penny stock” to be any equity security that has a market price per share of less than $5.00, subject to certain exceptions, such as any securities listed on a national securities exchange. For any transaction involving a “penny stock,” unless exempt, the rules impose additional sales practice requirements on broker-dealers, subject to certain exceptions. If the common stock were delisted and determined to be a “penny stock,” a broker-dealer may find it more difficult to trade common stock and an investor may find it more difficult to acquire or dispose of common stock.

On April 26, 2021, we entered into a Purchase Agreement and a Registration Rights Agreement with the selling stockholder. The Purchase Agreement provides that we may elect, subject to satisfaction of specified conditions, to require the selling stockholder to purchase from time to time shares of common stock for up to an aggregate of $20,000,000 on or before     , 2024. Pursuant to the terms of the Registration Rights Agreement, we have filed the registration statement of which this prospectus forms a part to register for resale under the Securities Act of 1933, or the Securities Act, a total of 1,379,668 shares of common stock that have been, or may be, issued to the selling stockholder under the Purchase Agreement.

Pursuant to the terms of the Purchase Agreement, we issued to the selling stockholder on April 26, 2021 the 56,041 Commitment Shares as consideration for the selling stockholder’s commitment to purchase additional shares of common stock under the Purchase Agreement. The Commitment Shares are included in the 1,379,668 shares of common stock registered under the registration statement of which this prospectus forms a part.

Under the terms of the Purchase Agreement, we have the right, but not the obligation, to sell to the selling stockholder, and upon our request the selling stockholder will be obligated to purchase from us, shares of common stock for a cumulative total purchase price of $20,000,000. Any such sales of common stock by us will be subject to specified conditions and may occur from time to time, at our election, on or before     , 2024, subject to conditions specified in the Purchase Agreement. The selling stockholder has no right to require us to sell any shares of common stock to it, but it is obligated to make purchases as we elect, subject to conditions set forth in the Purchase Agreement. We are obligated to pay to Maxim Group LLC, our financial adviser, a fee of 3.0% of the purchase price we receive from the selling stockholder in connection with each purchase of shares of common stock, including the issuance of the Commitment Shares, under the Purchase Agreement.

A total of 1,379,668 shares of common stock that have been, or may be, issued to the selling stockholder are being offered by this prospectus. Depending on the market prices of common stock at the various times we may elect to sell shares to the selling stockholder under the Purchase Agreement, we may be required, under the Registration Rights Agreement, to register for resale under the Securities Act additional shares of common stock that we may sell to the selling stockholder in order for us to receive the total commitment of $20,000,000 available under the Purchase Agreement. If we elect to issue and sell to the selling stockholder more than the 1,379,668 shares offered under this prospectus, which we have the right, but not the obligation, to do, we must first register for resale under the Securities Act any such additional shares, which could cause additional substantial dilution to our stockholders. The number of shares ultimately offered for resale by the selling stockholder is dependent upon the number of shares we sell to the selling stockholder under the Purchase Agreement.

Under applicable rules of the NYSE American, we would not be able to sell to the selling stockholder under the Purchase Agreement more than 8,297,055 shares of common stock (including the Commitment Shares), which represents 19.99% of the 41,506,031 shares of common stock outstanding immediately prior to the execution of the Purchase Agreement and which we refer to as the Exchange Cap, unless (a) we obtain stockholder approval to issue shares of common stock in excess of the Exchange Cap or (b) the price of all applicable sales of common stock to the selling stockholder under the Purchase Agreement equals or exceeds the lower of (i) the official closing price on the NYSE American immediately preceding the delivery by us of an applicable purchase notice under the Purchase Agreement and (ii) the average of the closing prices of common stock on the NYSE American for the five business days immediately preceding the delivery by us of an applicable purchase notice under the Purchase Agreement, in each case plus $0.039, such that the issuances and sales of common stock to the selling stockholder under the Purchase Agreement would be exempt from the Exchange Cap limitation under applicable rules of the NYSE American.

Under the Purchase Agreement, we may not require the selling stockholder to purchase any shares of common stock if those shares, when aggregated with all other shares of common stock then beneficially owned by the selling stockholder and its affiliates, would result in the selling stockholder and its affiliates having beneficial ownership, at any single point in time, of more than 4.99% of the then total outstanding shares of common stock, which limitation we refer to as the Beneficial Ownership Cap.

Under the Purchase Agreement, we may elect from time to time, subject to specified conditions, to require the selling stockholder to purchase on any single business day, on which the closing price of common stock is equal to or greater than $1.00, which we refer to as a Regular Purchase, (a) up to 60,000 shares of common stock, (b) if the closing sale price of common stock on the NYSE American is at least $5.50 per share, up to 80,000 shares of common stock or (c) if the closing sale price of common stock on the NYSE American is at least $7.00 per share, up to 120,000 shares of common stock. In no case, however, will the selling stockholder’s commitment with respect to any single Regular Purchase exceed $1,000,000. The foregoing share amounts and per share prices will be adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction occurring after the date of the Purchase Agreement with respect to common stock.

The purchase price per share for each such Regular Purchase will be equal to the lower of:

We may also require the selling stockholder, on any business day on which we have properly submitted a Regular Purchase notice for the maximum number of shares of common stock that we are then permitted to include in a single Regular Purchase notice, to purchase an additional number of shares of common stock, which we refer to as an Accelerated Purchase, not to exceed the lesser of:

The purchase price per share for each such Accelerated Purchase will be equal to 95% of the lower of:

We may also require the selling stockholder on any business day on which an Accelerated Purchase has been completed and all of the shares to be purchased thereunder (and under the corresponding Regular Purchase) have been properly delivered to the selling stockholder in accordance with the Purchase Agreement prior to such time on such business day, to purchase an additional number of shares of common stock, which we refer to as an Additional Accelerated Purchase, of up to the lower of:

We may elect to submit multiple Additional Accelerated Purchase notices to the selling stockholder on a single Accelerated Purchase date, provided that all prior Accelerated Purchases and Additional Accelerated Purchases

(including those that have occurred earlier on the same day) have been completed and all of the shares to be purchased thereunder (and under the corresponding Regular Purchase) have been properly delivered to the selling stockholder in accordance with the Purchase Agreement.

The purchase price per share for each such Additional Accelerated Purchase will be equal to 95% of the lower of:

In the case of Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases, the purchase price per share will be equitably adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction occurring during the business days used to compute the purchase price.

Other than as described above, there are no trading volume requirements or restrictions under the Purchase Agreement, and we will control the timing and amount of any sales of common stock to the selling stockholder.

Events of default under the Purchase Agreement include the following:

The selling stockholder does not have the right to terminate the Purchase Agreement upon any of the events of default set forth above, but the Purchase Agreement will automatically terminate upon initiation of insolvency or bankruptcy proceedings by or against us. During any of the events of default, all of which are outside of the selling stockholder’s control, we may not require the selling stockholder to purchase any shares of common stock under the Purchase Agreement.

We have the unconditional right, at any time, for any reason and without any payment or liability to us, to give notice to the selling stockholder to terminate the Purchase Agreement.

The selling stockholder has agreed that neither it nor any of its affiliates shall engage in any direct or indirect short-selling or hedging of common stock during any time prior to the termination of the Purchase Agreement.

Subject to specified exceptions included in the Purchase Agreement, we are limited in our ability to enter into any new “equity line” or similar transaction whereby an investor is irrevocably bound to purchase securities over a period of time from us at a price based on the market price of common stock at the time of such purchase.

All shares of common stock registered for resale in the offering made by this prospectus that have been, or may be, issued or sold by us to the selling stockholder under the Purchase Agreement are expected to be freely tradable. The sale by the selling stockholder of a significant number of shares of common stock registered for resale in this offering at any given time could cause the market price of common stock to decline and to be highly volatile. Sales of common stock to the selling stockholder, if any, will depend upon market conditions and other factors to be determined by us. We may ultimately decide to sell to the selling stockholder all, some or none of the shares of common stock, other than the Commitment Shares, that may be available for us to sell pursuant to the Purchase Agreement. If and when we do sell shares to the selling stockholder, after the selling stockholder has acquired the shares, the selling stockholder may resell all, some or none of those shares at any time or from time to time in its discretion. Therefore, sales to the selling stockholder by us under the Purchase Agreement may result in substantial dilution to the interests of our other stockholders. In addition, if we sell a substantial number of shares to the selling stockholder under the Purchase Agreement, or if investors expect that we will do so, the actual sales of shares or the mere existence of our arrangement with the selling stockholder may make it more difficult for us to sell equity or equity-related securities in the future at a time and at a price that we might otherwise wish to effect such sales. We generally have the right to control the timing and amount of any future sales of common stock to the selling stockholder, however, and we may terminate the Purchase Agreement at any time without any cost to us.

Pursuant to the terms of the Purchase Agreement and as of the date hereof, we have the right, but not the obligation, to require the selling stockholder to purchase shares of common stock for a cumulative total purchase price of up to $20,000,000. Depending on the price per share at which we sell common stock to the selling stockholder pursuant to the Purchase Agreement, we may need to sell to the selling stockholder under the Purchase Agreement more shares of common stock than are offered under this prospectus in order to receive aggregate gross funds equal to the total commitment available to us under the Purchase Agreement. If we choose to do so, we must first register for resale under the Securities Act such additional shares of common stock, which could cause additional substantial dilution to our stockholders. The number of shares ultimately offered for resale by the selling stockholder is dependent upon the number of shares we sell to the selling stockholder under the Purchase Agreement.

The following table sets forth information assuming we sell to the selling stockholder under the Purchase Agreement the maximum number of shares offered by this prospectus, other than the Commitment Shares, at varying purchase prices:

Our certificate of incorporation and bylaws and the Delaware General Corporation Law contain provisions that could have the effect of delaying, deferring or discouraging another party from acquiring control of us. These provisions, which are summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids and are designed in part to encourage persons seeking to acquire control of us to first negotiate with the board of directors.

Our certificate of incorporation provides that the number of directors is established by the board of directors, which may delay the ability of stockholders to change the composition of a majority of the board. The board has the exclusive right to elect a director to fill any vacancy or newly created directorship.

A director may be removed only by the affirmative vote of the holders of at least 80% of the voting power of all shares entitled to vote generally in the election of directors, voting together as a single class.

Our certificate of incorporation provides that any action required or permitted to be taken by our stockholders must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. Our certificate of incorporation and bylaws also provide that, except as otherwise required by law, special meetings of our stockholders can only be called by the board of directors. These provisions may delay the ability of our stockholders to force consideration of a proposal or to take action, including the removal of directors.

Our bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of persons for election to the board of directors. Stockholders at an annual meeting may consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the board or by a stockholder of record on the record date for the meeting who is entitled to vote at the meeting and who has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business before the meeting. These provisions could have the effect of delaying until the next stockholder meeting stockholder actions that are favored by the holders of a majority of our outstanding voting securities.

We are subject to Section 203 of the Delaware General Corporation Law. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from engaging in a “business combination” with any “interested stockholder” for three years following the date that the person became an interested stockholder, unless the interested stockholder attained such status with the approval of the board of directors or unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.

Any provision of our certificate of incorporation may be amended, altered, changed or repealed in any manner prescribed by law, provided that (a) the affirmative vote of the holders of at least 80% of the voting power of all shares entitled to vote generally in the election of directors, voting together as a single class, is required to alter, amend, or repeal, or adopt any provision inconsistent with Article X of the certificate of incorporation, which contains the prohibition on stockholder action by written consent and the requirement that special meetings be called only by the board of directors, and (b) Article XI of the certificate of incorporation, which provides that, subject to certain exceptions, no purchase by or from any Controlling Person (as defined below) of shares of our stock owned by such

Controlling Person shall be made at a price exceeding the average price paid by such Controlling Person for all shares of our stock acquired by such Controlling Person during the two-year period preceding the date of such proposed purchase unless such purchase is approved by the affirmative vote of not less than a majority of the voting power of the shares of our stock entitled to vote held by Disinterested Stockholders (as defined below), may not be amended without the affirmative vote of not less than a majority of the our stock entitled to vote thereon, provided that if, at the time of such vote, there shall be one or more Controlling Persons, such affirmative vote shall include the affirmative vote in favor of such amendment of not less than a majority of the voting power of the shares of our stock entitled to vote thereon held by Disinterested Stockholders. “Controlling Person” means any individual, corporation, partnership, trust, association or other organization or entity (including any group formed for the purpose of acquiring, voting or holding our securities) which either directly, or indirectly through one or more intermediaries, owns, beneficially or of record, or controls by agreement, voting trust or otherwise, at least 10% of the voting power of stock, and such term also includes any corporation, partnership, trust, association or other organization or entity in which one or more Controlling Persons have the power, through the ownership of voting securities, by contract, or otherwise, to influence significantly any of the management, activities or policies of such corporation, partnership, trust, association, other organization or entity. “Disinterested Stockholders” means those holders of stock entitled to vote on any matter, none of which is a Controlling Person.

The board may, by majority vote, amend or repeal our bylaws and may adopt new bylaws.

Our stockholders may not adopt, amend, or repeal our bylaws or adopt new bylaws except by the vote or written consent of at least 66-2/3% of the voting power of our company.

Our bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on our behalf, (b) any action asserting a claim of breach of a fiduciary duty owed by any of our directors or officers to our company or stockholders, (c) any action asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or amended and restated bylaws, or (d) any action asserting a claim against us governed by the internal affairs doctrine. We do not expect this choice of forum provision will apply to suits brought to enforce a duty or liability created by the Securities Act, the Securities Exchange Act of 1934, or the Exchange Act, or any other claim for which federal courts have exclusive jurisdiction. Although our bylaws contain the choice of forum provision described above, it is possible that a court could rule that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable.

Our authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing requirements of the NYSE American. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stock and preferred stock could make it more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.

As of April 29, 2021, we had outstanding options to purchase 3,238,188 shares of common stock at a weighted average price $8.08 per share.

The common stock is listed on the NYSE American under the symbol “BTX.”

The transfer agent and registrar for the common stock is American Stock Transfer & Trust Company, LLC.

the common stock or any hedging transaction, which establishes a net short position with respect to the common stock. The selling stockholder has agreed that, during the term of the Purchase Agreement, neither it nor its agents, representatives or affiliates will enter into or effect, directly or indirectly, any of the foregoing transactions.

We have advised the selling stockholder that it is required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes the selling stockholder, any affiliated purchasers, and any broker-dealer or other person who participates in the 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 prohibits any 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 the shares of common stock offered by this prospectus.

In order to comply with the securities laws of some states, shares of common stock sold in those jurisdictions may only be sold through registered or licensed brokers or dealers. In addition, in some states, shares of common stock may not be sold unless the shares have been registered or qualified for sale in that state or an exemption from registration or qualification is available and is complied with.

The offering made by this prospectus will terminate on the date that all shares of common stock issued or issuable under the Purchase Agreement have been sold by the selling stockholder.

The common stock is listed on the NYSE American under the symbol “BTX.”

The validity of the shares of common stock offered hereby is being passed upon for us by K&L Gates LLP, Irvine, California.

 

suit or proceeding. The indemnification described herein does not limit our right to indemnify any other person for any such expense to the full extent permitted by law, nor is it exclusive of any other rights to which any person seeking indemnification from us may be entitled under any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.

The board of directors has approved a form of indemnification agreement that has been executed by each of our directors and executive officers. In general, these agreements each provide that we will indemnify the director or executive officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or executive officer of our company or in connection with their service at our request for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that a director or executive officer makes a claim for indemnification and establish certain presumptions that are favorable to the director or executive officer.

We maintain a general liability insurance policy that covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.

Set forth below is information regarding shares of common stock issued by us within the past three years that were not registered under the Securities Act of 1933. Included is the consideration, if any, we received for such shares and information relating to the section of the Securities Act of 1933, or the rule of the Securities and Exchange Commission, under which exemption from registration was claimed.

On April 26, 2021, we entered into a purchase agreement with Lincoln Park Capital Fund, LLC pursuant to which we have the right to sell to Lincoln Park Capital Fund, LLC up to $20,000,000 in shares of common stock, subject to certain limitations, from time to time on or before      , 2024. On April 26, 2021, we issued 56,041 shares of common stock to Lincoln Park Capital Fund, LLC as consideration for its commitment to purchase shares of common stock under the Purchase Agreement.

No underwriters were involved in the foregoing issuances of securities. The securities described in this section (a) of Item 15 were issued to investors in reliance upon the exemption from the registration requirements of the Securities Act of 1933, as set forth in Section 4(a)(2) under the Securities Act of 1933 and/or Regulation D promulgated thereunder relative to transactions by an issuer not involving any public offering, to the extent an exemption from such registration was required. The recipients of securities in the transactions described above represented that they were accredited investors and were acquiring the securities for their own account for investment purposes only and not with a view to, or for sale in connection with, any distribution thereof and that they could bear the risks of the investment and could hold the securities for an indefinite period of time and appropriate legends were affixed to the instruments representing such securities issued in such transactions.

The exhibits to the registration statement are listed in the Exhibit Index attached hereto and incorporated by reference herein.

No financial statement schedules are provided because the information called for is not required or is shown either in the financial statements or notes.