Filed
Pursuant to Rule 424(b)(5)
File
No: 333-248911
PROSPECTUS
3,722,251
Shares
Common
Stock
This
prospectus relates to the sale of up to 3,722,251 shares of our common stock by Aspire Capital Fund, LLC. Aspire Capital is also
referred to in this prospectus as the selling stockholder. The prices at which the selling stockholder may sell the shares will
be determined by the prevailing market price for the shares or in negotiated transactions. We will not receive proceeds from the
sale of the shares by the selling stockholder. However, we may receive proceeds of up to $12.5 million from the sale of our common
stock to the selling stockholder, pursuant to a common stock purchase agreement entered into with the selling stockholder on September
18, 2020.
The
selling stockholder is an “underwriter” within the meaning of the Securities Act of 1933, as amended. We will pay
the expenses of registering these shares, but all selling and other expenses incurred by the selling stockholder will be paid
by the selling stockholder.
Our
common stock is listed on the Nasdaq Capital Market under the ticker symbol “OPTT.” On October 8, 2020, the last reported
sale price per share of our common stock was $1.95 per share.
You
should read this prospectus and any prospectus supplement, together with additional information described under the headings “Incorporation
of Certain Documents by Reference” and “Where You Can Find More Information,” carefully before you invest in
any of our securities.
Investing
in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 6 of this prospectus and
in our reports filed with the Securities and Exchange Commission which are incorporated by reference herein for a discussion of
information that should be considered in connection with an investment in our common stock.
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 October 9, 2020.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
You
should rely only on the information contained in or incorporated by reference into this prospectus and in any written communication
from us, including any free writing prospectus. We have not authorized anyone to provide you with additional or different information.
We are not making an offer of these securities in any state where the offer or sale is not permitted. In making an investment
decision, prospective investors must rely on their own examination of us and the terms of the offering, including the merits and
risks involved. None of Ocean Power Technologies, Inc. or any of its representatives is making any representation to you regarding
the legality of an investment decision in our common stock by you under applicable laws. You should not assume that the information
provided by this prospectus or the documents incorporated by reference in this prospectus is accurate as of any date other than
its respective date. Our business, financial condition, results of operations, and prospects may have changed since those dates.
Before
you invest in our common stock, you should carefully read this prospectus and the documents incorporated by reference herein.
The incorporated documents are described in this prospectus under the heading “Incorporation of Certain Documents by Reference.”
This
prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond
our control. Please read “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”
Certain
industry and market data presented in this prospectus has been derived from data included in various industry publications, surveys
and forecasts. We have assumed the correctness and truthfulness of such data, including projections and estimates, when we use
them in this prospectus.
PROSPECTUS
SUMMARY
This
summary highlights information contained elsewhere in or incorporated by reference into this prospectus. Because this summary
provides only a brief overview of the key aspects of the offering, it does not contain all of the information that you should
consider before investing in our common stock. You should read the entire prospectus carefully, including “Risk Factors”
beginning on page 6, “Cautionary Note Regarding Forward-Looking Statements” beginning on page 10 and the documents
incorporated by reference, which are described under “Incorporation of Certain Documents by Reference,” before making
an investment decision. As used in this prospectus, unless otherwise indicated, “we,” “our,” “us,
“company” or similar terms refer collectively to Ocean Power Technologies, Inc. and its operating subsidiaries.
Overview
We
believe that we are a marine power solutions provider. We control the design, manufacture, sales, installation, operations and
maintenance of our products while working closely with partners that provide payloads, integration services, and marine installation
capabilities. We believe our solutions provide distributed offshore power which is persistent and reliable power along with communications
for remote surface and subsea applications. Our mission and purpose is to utilize our proprietary, state-of-the-art technologies
to reduce the global carbon footprint by providing renewable solutions for reliable electrical power and, in so doing, drive demand
for our products and services.
We
also continue to develop and commercialize our proprietary systems that generate electricity by harnessing the renewable energy
of ocean waves for our PB3 PowerBuoy®, and solar power for our newest product, the hybrid PowerBuoy. The PB3 PowerBuoy®
uses proprietary technologies that convert the kinetic energy created by the heaving motion of ocean waves into electricity. Based
on feedback from our current customers, discussions with potential future customers in the offshore oil and gas, defense and security,
science and research, and communications, as well as government applications in fishery protection, together with our market research
and publicly available data, we believe that numerous markets have a direct need for our solutions. While our recent projects
have been in the oil and gas industry, we believe there is an increasing need for our products and solutions in areas such as
fishery protection, offshore windfarm support, marine surveillance, and ocean-based science and research applications. We believe
that having demonstrated the capability of our solutions, we can advance our product and services and gain further adoption from
our target markets. Our marketing efforts are focused on offshore locations that require a cost-efficient solution for renewable,
reliable and persistent power and communications, either by supplying electric power to payloads that are integrated directly
with our product or located in its vicinity, such as on the seabed and in the water column. We believe we are the leader in offshore
autonomous ocean wave power conversion technology which provides renewable power for offshore operations that were previously
difficult to decarbonize.
Our
achievements during fiscal 2020 and the first three months of fiscal 2021 included the Company’s first commercial sale of
a PB3 to Enel Green Power (“EGP”). We continued work on Eni S.p.A. (“Eni”) project and completed work
for Premier Oil (“PMO”), U.S. Navy Small Business Innovation Research (“U.S. SBIR”), and a leading oil
& gas operator. During the fiscal year, the Company continued development of the hybrid and its subsea battery solutions.
The Company also signed a memorandum of understanding with Modus Seabed Intervention Ltd. (“Modus”) to develop and
deliver innovative solutions including a combined AUV charging station which will be able to utilize the PowerBuoy® system
for topside charging and communications. In June, 2020, the Company signed a memorandum of understanding with Mackay Marine (a
division of Mackay Communications) to develop a Marine Surveillance Solution.
Business
Strategy
Since
2015, we have brought the PB3 from initial concept to a full-scale design. We have performed multiple prototype iterations. During
this time, we have conducted a number of in-ocean tests in combination with our facility-based accelerated life testing to prepare
for low rate initial production. In 2019, we completed the design of our hybrid PowerBuoy®. In December 2017, we relocated
our production and corporate headquarters to a larger facility. This facility allows for expansion of our manufacturing capabilities
and a move toward higher volume production of our solutions.
In
fiscal 2020 we continued progress in marketing our PB3. We have made progress in transitioning from R&D to a commercialization
focus with SELL, BUILD, SHIP as our motto and we intend to build on our success by implementing processes and solutions that cover
the entire life cycle, from demand generation to close of contract, and from channel strategies to customer care.
A
majority of the Company’s opportunities with potential customers have been for projects in Western Europe, including the
North Sea, as well as North America and Asia. Nearly two-thirds of these opportunities have progressed past the initial feasibility
and non-disclosure agreement stage to more detailed, confidential discussions around specific customer applications. Many of these
discussions occur at the executive, decision-making level, as well as the implementation level.
Many
proposal requests are for projects where one of our PowerBuoys® products, either the PB3, the hybrid, or our sunsea battery
solution is part of a larger solution demonstration, and typically include the potential lease or sale of one or more PowerBuoys®,
as well as required services and maintenance support. A majority of hybrid inquiries are for shorter term deployments and in calmer
waters. Historically, demonstration projects have been a necessary step toward broad solution deployment and revenues associated
with specific applications. A proposal phase typically lasts from three months to more than one year. During the demonstration
project specification, negotiation and evaluation period, we are often subject to the prospective customer’s vendor qualification
process, which entails substantial due diligence of our company and capabilities and may include negotiation of standard terms
and conditions. Many proposals contain provisions which would mandate the sale or lease of our PowerBuoy® product upon successful
conclusion of the demonstration project.
We
believe this is an accurate depiction of the overall sales cycle for new technology in each of our target markets, including our
PowerBuoy® products. Cycle times for each step of the sales cycle will vary depending on several customer factors, including,
but not limited to, technical evaluation, project priorities, project funding approval process, and alignment of new technology
integration with the customer’s broader operational strategy. We believe that potential demand, vis-à-vis specific
application proposal requests, is indicative of significant progress in our commercialization strategy. We believe in the potential
for growth as a result of our positioning for higher volume production of our products and solutions and their initial indications
of demand for our PowerBuoy® products in multiple customer applications.
We
continue to commercialize our products and solutions for use in remote offshore power and real-time data communications applications,
and in order to achieve this goal, we are pursuing the following business objectives:
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Integrated
turn-key solutions sales or leases incorporating our products and services. We believe our PB3 and hybrid PowerBuoys®
and our subsea battery solutions are well suited to enable many unmanned, autonomous (non-grid connected) offshore solutions,
such as topside and subsea surveillance and communications, subsea equipment monitoring, early warning systems platform and
subsea power and buffering, and weather and climate data collection. We have investigated and realized market demand for some
of these solutions leveraging both PowerBuoy® and subsea battery sales and leases within our selected markets, and we
intend to sell and lease our products to these markets as part of these broader integrated solutions. Additionally, we intend
to provide services associated with our solution offerings such as paid engineering studies, value-added engineering, maintenance,
remote monitoring and diagnostics, application engineering, planning, training, project management, and marine and logistics
support required for our solution life-cycle. We also intend to pursue turn-key projects where we take on a prime contractor
role to capture broader revenue opportunities while ensuring that solutions effectively address customer needs. We continue
to increase our commercial capabilities through new hires in sales and application support, and through engagement of expert
market consultants in various geographies.
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Expand
customer system solution offerings through new complimentary products that enable shorter and more cost-efficient deployments.
We completed the design and construction of the hybrid PowerBuoy® in 2019. This product builds on our existing expertise
in offshore power systems. The hybrid PowerBuoy® is a solar powered buoy with a liquid-fueled Stirling engine as backup.
The hybrid is to be highly complementary to the PB3 PowerBuoy® by providing the Company the opportunity to address a broader
spectrum of customer deployment needs, including low-wave environments, with the potential for greater system integration
within each customer project. The hybrid is primarily intended for shorter term deployment applications such as eROV and AUV
inspections and short-term maintenance, topside surveillance and communications, and subsea equipment and controls. The Company
has also developed a subsea battery system that is complimentary to the Company’s PowerBuoy® products. The subsea
battery system offers the possibility of creating a sea floor energy storage solution for remote offshore operations. These
subsea battery systems contain lithium ion batteries, which provide high power density to supply power to subsea equipment,
sensors, communications, and recharging of AUVs and eROV. Ideal for many remote offshore customer applications, these subsea
battery systems are anticipated to be high performance, cost-efficient, and quickly deployable.
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Concentrate
sales and marketing efforts in specific geographic markets. We are currently focusing our marketing efforts on parts of
North and South America, Europe, Asia and Western Africa. We believe that each of these areas has demand for our solutions,
sizable end market opportunities, political and economic stability, and high levels of industrialization and economic development.
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Expand
our relationships in key market areas through strategic partnerships and collaborations. We believe that strategic partners
are an important part of commercializing a new product. Partnerships and collaborations can be used to improve the development
of overall integrated solutions, create new market channels, expand commercial know-how and geographic footprint, and bolster
our product delivery capabilities. We believe that offering a turn-key solution, and not just power, is key to securing long
term success. We have formed such a relationship with several well-known groups, including Mackay, BAP, Modus, Saab and Acteon.
We continue to seek other opportunities to collaborate with application experts from within our selected markets.
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Outsourcing
of fabrication, deployment and service support. We outsource all fabrication, anchoring, mooring, cabling supply, and
in most cases deployment of our PowerBuoy® in order to minimize our capital requirements as we scale our business. Our
PTO is a proprietary subsystem and is assembled and tested at our facility. We believe this distributed manufacturing and
assembly approach enables us to focus on our core competencies to ensure a cost-effective product by leveraging a larger more
established supply base. We also continue to seek strategic partnerships with regard to servicing of our products and solutions.
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Cost
reduction and PowerBuoy® solution development. Our engineering efforts are mainly focused on addressing customer solutions;
PowerBuoy® sales; reducing costs associated with production, installation and product life-cycle costs; and improving
the energy output, reliability, maintenance interval and expected operating life of our products and solutions. We continue
to optimize manufacturability of our designs with a focus on cost competitiveness, and we believe we will be able to address
new applications by developing new payloads and solutions that address customer needs.
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Corporate
Information
Our
principal executive offices are located at 28 Engelhard Drive, Suite B, Monroe Township, New Jersey. Our telephone number is (609)
730-0400. We were incorporated in New Jersey in 1984 and reincorporated in Delaware in 2007. We maintain a website at www.oceanpowertechnologies.com
where general information about us is available. We are not incorporating the contents of the website into this prospectus.
THE
OFFERING
Common
stock offered by the selling stockholder
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3,722,251
shares.
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Common
stock outstanding
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23,089,685
shares, as of October 8, 2020.
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Use
of proceeds
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The
selling stockholder will receive all of the proceeds from the sale of the shares offered for sale by it under this prospectus.
We will not receive proceeds from the sale of the shares by the selling stockholder. However, we may receive up to $12.5 million
in proceeds from the sale of our common stock to the selling stockholder under the common stock purchase agreement described
below. Any proceeds from the selling stockholder that we receive under the purchase agreement are expected be used to build
additional PB3 PowerBuoys® to meet potential market demand, to further advance the development of new products and solutions,
and for other general corporate purposes. The amounts and timing of these expenditures will depend on a number of factors,
such as the timing, scope, progress and results of our sales, research and development efforts, the timing and progress of
any partnering efforts, and the regulatory and competitive environment.
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Dividend
policy
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We
have not declared or paid any cash or other dividends on our common stock, and do not expect to declare or pay any cash or
other dividends on our common stock in the foreseeable future.
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Risk
factors
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You
should consider carefully the risks discussed under the “Risk Factors” beginning on page 6 of this prospectus,
as well as those described in our Annual Report on Form 10-K for the year ended April 30, 2020, and the other disclosures
contained or incorporated by reference herein and therein.
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Nasdaq
symbol
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OPTT
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On
September 18, 2020, we entered into a common stock purchase agreement (referred to in this prospectus as the “Purchase Agreement”),
with Aspire Capital Fund, LLC, an Illinois limited liability company (referred to in this prospectus as “Aspire Capital”
or the “selling stockholder”), which provides that, upon the terms and subject to the conditions and limitations set
forth therein, Aspire Capital is committed to purchase up to an aggregate of $12.5 million of our shares of common stock over
the approximately 30-month term of the Purchase Agreement. Concurrently with entering into the Purchase Agreement, we also entered
into a registration rights agreement with Aspire Capital (referred to in this prospectus as the “Registration Rights Agreement”),
in which we agreed to file one or more registration statements, including the registration statement of which this prospectus
is a part, as permissible and necessary to register under the Securities Act of 1933, as amended, or the Securities Act, the sale
of the shares of our common stock that have been and may be issued to Aspire Capital under the Purchase Agreement.
As
of October 8, 2020, there were 23,089,685 shares of our common stock outstanding excluding the 3,722,251 shares
offered that have been issued or may be issuable to Aspire Capital pursuant to the Purchase Agreement. If all of such 3,722,251
shares of our common stock offered hereby were issued and outstanding as of the date hereof, such shares would represent 13.9%
of the total common stock outstanding. The number of shares of common stock outstanding excludes (i) options outstanding as
of that date representing the right to purchase a total of 533,411 shares of common stock at a weighted average exercise
price of approximately $3.15 per share, (ii) outstanding warrants to purchase up to 7,298 shares of our common stock which
are exercisable at a price of $121.60, (iii) outstanding warrants to purchase up to 8,925 shares of our common stock which are
exercisable at a price of $187.20, and (iv) outstanding warrants to purchase up to 4,927,680 shares of our common stock which
are exercisable at a price of $3.85.
Pursuant
to the Purchase Agreement and the Registration Rights Agreement, we are registering 3,722,251 shares of our common stock under
the Securities Act which we may issue to Aspire Capital. All 3,722,251 shares of common stock are being offered pursuant to this prospectus.
On
October 9, 2020, the conditions necessary for purchases under the Purchase Agreement to commence were satisfied. On any trading
day on which the closing sale price of our common stock exceeds $0.10, we have the right, in our sole discretion, to present Aspire
Capital with a purchase notice (each, a “Purchase Notice”), directing Aspire Capital (as principal) to purchase up
to 250,000 shares of our common stock per trading day, up to $12.5 million of our common stock in the aggregate at a per share
price (the “Purchase Price”) calculated by reference to the prevailing market price of our common stock (as more specifically
described below).
In
addition, on any date on which we submit a Purchase Notice for 250,000 shares to Aspire Capital, we also have the right, in our
sole discretion, to present Aspire Capital with a volume-weighted average price purchase notice (each, a “VWAP Purchase
Notice”) directing Aspire Capital to purchase an amount of stock equal to up to 30% of the aggregate shares of our common
stock traded on Nasdaq on the next trading day (the “VWAP Purchase Date”), subject to a maximum number of shares we
may determine (the “VWAP Purchase Share Volume Maximum”) and a minimum trading price (the “VWAP Minimum Price
Threshold”) (as more specifically described below). The purchase price per Purchase Share pursuant to such VWAP Purchase
Notice (the “VWAP Purchase Price”) is calculated by reference to the prevailing market price of our common stock (as
more specifically described below). The respective prices and share numbers in the preceding paragraphs shall be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction.
The
Purchase Agreement provides that we and Aspire Capital shall not effect any sales under the Purchase Agreement on any purchase
date where the closing sale price of our common stock is less than $0.10 per share (the “Floor Price”). There are
no trading volume requirements or restrictions under the Purchase Agreement, and we will control the timing and amount of any
sales of our common stock to Aspire Capital. Aspire Capital has no right to require any sales by us but is obligated to make purchases
from us as we direct in accordance with the Purchase Agreement. There are no limitations on use of proceeds, financial or business
covenants, restrictions on future fundings, rights of first refusal, participation rights, penalties or liquidated damages in
the Purchase Agreement. Aspire Capital may not assign its rights or obligations under the Purchase Agreement. The Purchase Agreement
may be terminated by us at any time, at our discretion, without any penalty or cost to us.
RISK
FACTORS
Investing
in our common stock involves substantial risk. You should carefully consider the risk factors disclosed below as well as those
contained in our most recent Annual Report on Form 10-K, which is incorporated by reference herein, as updated by our subsequent
filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the other information contained
in this prospectus before acquiring any of our common stock. These risks could have a material adverse effect on our business,
results of operations or financial condition and cause the value of our common stock to decline. You could lose all or part of
your investment.
This
prospectus also contains or incorporates by reference forward-looking statements that involve risks and uncertainties. Our actual
results could differ materially from those anticipated in the forward-looking statements as a result of certain factors, including
the risks faced by us described or incorporated by reference in this prospectus. See “Cautionary Statement Regarding Forward-Looking
Information.”
Risks
Relating to Our Common Stock
Our
auditors have raised substantial doubts as to our ability to continue as a going concern.
Our
financial statements have been prepared assuming we will continue as a going concern. Due to the significant product development
costs associated with our business and operations, we have experienced substantial and recurring losses from operations, which
have contributed to an accumulated deficit of $223.5 million as of July 31, 2020. As of July 31, 2020, we had approximately $12.0
million in cash, cash equivalents and restricted cash on hand. We generated revenues of $0.2 million and $0.2 million during the
three months ended July 31, 2020 and 2019, respectively. Based on our cash, cash equivalents and restricted cash balances as of
July 31, 2020, we believe that it will be able to finance its capital requirements and operations into the quarter ending July
31, 2021.
We
continue to experience operating losses and currently have only two revenue producing contracts. During fiscal 2020, our net burn
rate (cash used in operations less cash generated by operations) including engineering and product development spending was approximately
$1.0 million per month.
We
have been funding our business principally through sales of our securities, and we expect to continue to fund our business with
sales of our securities and, to a limited extent, with our revenues until, if ever, we generate sufficient cash flow to internally
fund our business. These factors, among others, raise substantial doubt about our ability to continue as a going concern. Our
consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty. We anticipate
that our operating expenses will be approximately $14.0 million in fiscal 2021 including expected savings from cost reduction
initiatives and engineering and product development spending of more than $6.9 million. However, we may choose to reduce our operating
expenses through personnel reductions, and reductions in our research and development and other operating costs during fiscal
year 2021, if we are not successful in our efforts to raise additional capital. We cannot assure you that we will be able to increase
our revenues and cash flow to a level which would support our operations and provide sufficient funds to pay our obligations for
the foreseeable future. Further, we cannot assure you that we will be able to secure additional financing or raise additional
capital or, if we are successful in our efforts to raise additional capital, of the terms and conditions upon which any such financing
would be extended. If we are unable to meet our obligations, we would be forced to cease operations, in which event investors
would lose their entire investment in our company.
We
will need to raise substantial additional capital in the future to fund our operations and we may be unable to raise such funds
when needed and on acceptable terms.
Historically,
we have funded our business operations through sales of equity securities. We do not know whether we will be able to secure additional
funding or, if secured, whether the terms will be favorable to us or our investors. Our ability to obtain additional funding will
be subject to a number of factors, including market conditions, our operating performance, pending litigation and investor sentiment.
These factors may make additional funding unavailability, or the timing, dollar amount, and terms and conditions of additional
funding unattractive.
The
extent to which we utilize the Purchase Agreement with Aspire Capital as a source of funding will depend on a number of factors,
including the prevailing market price of our common stock, the volume of trading in our common stock and the extent to which we
are able to secure funds from other sources. The number of shares that we may sell to Aspire Capital under the Purchase Agreement
on any given day and during the term of the agreement is limited. See “The Aspire Capital Transaction” section of
this prospectus for additional information. Additionally, we and Aspire Capital may not effect any sales of shares of our common
stock under the Purchase Agreement during the continuance of an event of default or on any trading day that the closing sale price
of our common stock is less than $0.10 per share. Even if we are able to access the full $12.5 million under the Purchase Agreement,
we will still need additional capital to fully implement our business, operating and development plans.
We
may issue or sell shares of our common stock or securities convertible or exchangeable for our common stock in the future and
this may depress our stock price.
We
are registering for sale 3,722,251 shares that we may sell to Aspire Capital under the Purchase Agreement. It is anticipated that
shares registered in this offering will be sold by Aspire Capital over a period of up to approximately 30 months from the date
of commencement. As of October 8, 2020, there were 23,089,685 shares outstanding, excluding (i) options outstanding
as of that date representing the right to purchase a total of 533,411 shares of common stock at a weighted average exercise
price of approximately $3.15 per share, (ii) outstanding warrants to purchase up to 7,298 shares of our common stock which
are exercisable at a price of $121.60, (iii) outstanding warrants to purchase up to 8,925 shares of our common stock which are
exercisable at a price of $187.20, and (iv) outstanding warrants to purchase up to 4,927,680 shares of our common stock which
are exercisable at a price of $3.85
Our
stockholders may experience substantial dilution in the value of their investment or their ownership interest as a result of this
offering or if we issue additional shares of our capital stock in the future.
We
are registering for sale 3,722,251 shares that we may sell to Aspire Capital under the Purchase Agreement. It is anticipated that
shares registered in this offering will be sold by Aspire Capital over a period of up to approximately 30 months from the date
of commencement. The number of shares of common stock that we may sell under the Purchase Agreement may exceed 3,722,251 shares,
depending on the sales price. Depending upon market liquidity at the time, sales of shares of our common stock under the Purchase
Agreement may cause the trading price of our common stock to decline.
Our
business is capital intensive and we will likely need to raise additional capital to meet our business requirements in the future.
We may offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock at
prices that may not be the same as the price per share paid by other investors, and dilution to our stockholders in the value
of their investment and their ownership and voting interest in us could result. Furthermore, investors purchasing shares or other
securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional
shares of our common stock or securities convertible or exchangeable into common stock in future transactions may be higher or
lower than the price per share paid by other investors.
In
addition, we have a significant number of stock options and warrants outstanding. To the extent that outstanding stock options
or warrants have been or may be exercised or other shares are issued, investors purchasing our common stock in this offering may
experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations
even if we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital is
raised through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution
to our stockholders or result in downward pressure on the price of our common stock.
Management
will have broad discretion as to the use of any proceeds received under the Purchase Agreement and we may not use the proceeds
effectively.
Our
management will have broad discretion as to the application of any proceeds received from Aspire Capital under the Purchase Agreement
and could spend the proceeds in ways that do not necessarily improve our operating results or enhance the value of our common
stock.
We
may issue debt and equity securities or securities convertible into equity securities, any of which may be senior to our common
stock as to distributions and in liquidation, which could negatively affect the value of our common stock.
In
the future, we may attempt to increase our capital resources by entering into debt or debt-like financing that is unsecured or
secured by some or all of our assets, or by issuing additional debt or equity securities, which could include issuances of secured
or unsecured commercial paper, medium-term notes, senior notes, subordinated notes, guarantees, preferred stock, hybrid securities,
or securities convertible into or exchangeable for equity securities, any of which may rank senior to our common stock. In the
event of our liquidation, our lenders and holders of our debt and preferred securities would receive distributions of our available
assets before distributions to the holders of our common stock. Because our decision to incur debt and issue securities in future
offerings may be influenced by market conditions and other factors beyond our control, we cannot predict or estimate the amount,
timing or nature of our future offerings or debt financings. Further, market conditions could require us to accept less favorable
terms for the issuance of our securities in the future.
As
a smaller reporting company, we are subject to scaled disclosure requirements that may make it more challenging for investors
to analyze our results of operations and financial prospects.
Currently,
we are a “smaller reporting company,” meaning that our outstanding common stock held by non-affiliates had a market
value of less than $75 million as of October 31, 2019. As a “smaller reporting company,” we are able to provide simplified
executive compensation disclosures in our filings; are exempt from the provisions of Section 404(b) of the Sarbanes-Oxley Act
requiring that independent registered public accounting firms provide an attestation report on the effectiveness of internal control
over financial reporting; and have certain other decreased disclosure obligations in our filings with the SEC, including being
required to provide only two years of audited financial statements in annual reports. Consequently, it may be more challenging
for investors to analyze our results of operations and financial prospects.
Furthermore,
a material weakness in internal controls may remain undetected for a longer period because of our extended exemption from the
auditor attestation requirements under Section 404(b) of the Sarbanes-Oxley Act.
Historically,
our stock price has been volatile and this is likely to continue; purchasers of our common stock could incur substantial losses
as a result.
Historically,
the market price of our common stock has fluctuated significantly, and we expect that this will continue. Purchasers of our common
stock could incur substantial losses relating to their investment in our stock as a result. Also, the stock market in general
has recently experienced volatility that has often been unrelated or disproportionate to the operating performance of particular
companies. These broad market fluctuations could result in fluctuations in the price of our common stock, which could cause purchasers
of our common stock to incur substantial losses. The market price for our common stock may be influenced by many factors, including:
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developments
in our business or with respect to our projects;
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the
success of competitive products or technologies;
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regulatory
developments in the United States and foreign countries;
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developments
or disputes concerning patents or other proprietary rights;
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the
recruitment or departure of key personnel;
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quarterly
or annual variations in our financial results or those of companies that are perceived to be similar to us;
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market
conditions in the conventional and renewable energy industries and issuance of new or changed securities analysts’ reports
or recommendations;
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the
failure of securities analysts to cover our common stock or changes in financial estimates by analysts;
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the
inability to meet the financial estimates of analysts who follow our common stock;
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investor
perception of our company and of our targeted markets; and
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general
economic, political and market conditions.
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We
have never paid cash dividends on our common stock, and we do not anticipate paying any cash dividends in the foreseeable future.
We
have not paid any cash dividends on our common stock to date. We currently intend to retain our future earnings, if any, to fund
the development and growth of our business. In addition, the terms of any future debt agreements may preclude us from paying dividends.
As a result, capital appreciation, if any, of our common stock will be the sole source of gain for our stockholders for the foreseeable
future.
Provisions
in our corporate charter documents and under Delaware law may delay or prevent attempts by our stockholders to change our management
and hinder efforts to acquire a controlling interest in us.
As
a result of our reincorporation in Delaware in April 2007, provisions of our certificate of incorporation and bylaws may discourage,
delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions
in which our stockholders might otherwise receive a premium for their shares. These provisions may also prevent or frustrate attempts
by our stockholders to replace or remove our management. These provisions include:
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advance
notice requirements for stockholder proposals and nominations;
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the
inability of stockholders to act by written consent or to call special meetings; and
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the
ability of our Board of Directors to designate the terms of and issue new series of preferred stock without stockholder approval,
which could be used to institute a “poison pill” that would work to dilute the stock ownership of a potential
hostile acquirer, effectively preventing acquisitions that have not been approved by our Board of Directors.
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The
affirmative vote of the holders of at least 75% of our shares of capital stock entitled to vote is necessary to amend or repeal
the above provisions of our certificate of incorporation. In addition, absent the approval of our Board of Directors, our bylaws
may only be amended or repealed by the affirmative vote of the holders of at least 75% of our shares of capital stock entitled
to vote.
In
addition, Section 203 of the Delaware General Corporation Law prohibits a publicly held Delaware corporation from engaging in
a business combination with an interested stockholder, which is generally a person who together with its affiliates owns or within
the last three years has owned 15% of our voting stock, for a period of three years after the date of the transaction in which
the person became an interested stockholder, unless the business combination is approved in a prescribed manner. Accordingly,
Section 203 may discourage, delay or prevent a change in control of our company.
If
securities or industry analysts fail to cover us, or do not publish research or publish unfavorable or inaccurate research about
our business, our stock price and trading volume could decline.
The
trading market for our common stock is influenced by the research and reports that industry or securities analysts may publish
about us, our business or our industry from time to time. If one or more of these analysts cease coverage of us or fail to publish
reports on us regularly, we could lose visibility in the financial markets, which in turn could cause the price or trading volume
of our common stock to decline. Moreover, if one or more of the analysts who cover us downgrade our common stock or release a
negative report, or if our operating results do not meet analyst expectations, the price of our common stock could decline.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
The
information discussed in this prospectus, our filings with the SEC and our public releases include “forward-looking statements”
within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act, the Private Securities Litigation
Reform Act of 1995 (the “PSLRA”), or in releases made by the SEC. Such forward-looking statements involve known and
unknown risks, uncertainties and other important factors that could cause the actual results, performance or achievements of us
and our subsidiaries to differ materially from any future results, performance or achievements expressed or implied by such forward-looking
statements. Statements that are not historical fact are forward-looking statements. Forward-looking statements can be identified
by, among other things, the use of forward-looking language, such as the words “plan,” “believe,” “expect,”
“anticipate,” “intend,” “estimate,” “project,” “may,” “will,”
“would,” “could,” “should,” “seeks,” or “scheduled to,” or other similar
words, or the negative of these terms or other variations of these terms or comparable language, or by discussion of strategy
or intentions. These cautionary statements are being made pursuant to the Securities Act, the Exchange Act and the PSLRA with
the intention of obtaining the benefits of the “safe harbor” provisions of such laws.
The
forward-looking statements contained in or incorporated by reference into this prospectus are largely based on our expectations,
which reflect estimates and assumptions made by our management. These estimates and assumptions reflect our best judgment based
on currently known market conditions and other factors. Although we believe such estimates and assumptions to be reasonable, they
are inherently uncertain and involve a number of risks and uncertainties that are beyond our control, including:
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the
impact of COVID-19 pandemic on our business, operations, customers, suppliers and manufacturers;
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our
ability to commercialize our products, and achieve and sustain profitability;
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our
continued development of our proprietary technologies, and expected continued use of cash from operating activities unless
or until we achieve positive cash flow from the commercialization of our products and services;
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our
ability to obtain additional funding, as and if needed which will be subject to a number of factors, including market conditions,
and our operating performance;
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our
estimates regarding expenses, future revenues and capital requirements;
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the
adequacy of our cash balances and our need for additional financings;
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our
ability to develop and manufacture commercially viable products;
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our
ability to successfully develop and market new products, such as subsea battery solutions;
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that
we will be successful in our efforts to commercialize our products or the timetable upon which commercialization can be achieved,
if at all;
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our
ability to identify and penetrate markets for our products and our wave energy technology;
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our
ability to implement our commercialization strategy as planned, or at all;
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our
relationships with our strategic partners may not be successful and we may not be successful in establishing additional relationships;
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our
ability to maintain the listing of our common stock on the Nasdaq Capital Market;
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the
reliability of our technology and our products;
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our
ability to improve the power output, survivability and reliability of our products;
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the
impact of pending and threatened litigation on our business, financial condition and liquidity;
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changes
in current legislation, regulations and economic conditions that affect the demand for renewable energy;
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our
ability to compete effectively in our target markets;
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our
limited operating history and history of operating losses;
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our
sales and marketing capabilities and strategy in the United States and internationally; and
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our
ability to protect our intellectual property portfolio.
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Many
of these factors are beyond our ability to control or predict. These factors are not intended to represent a complete list of
the general or specific factors that may affect us.
In
addition, management’s assumptions about future events may prove to be inaccurate. All readers are cautioned that the forward-looking
statements contained in this prospectus and in the documents incorporated by reference into this prospectus are not guarantees
of future performance, and we cannot assure any reader that such statements will be realized or that the forward-looking events
and circumstances will occur. Actual results may differ materially from those anticipated or implied in the forward-looking statements
due to factors described in “Risk Factors” included elsewhere in this prospectus and in the documents that we include
in or incorporate by reference into this prospectus, including our Annual Report on Form 10-K for the fiscal year ended April
30, 2020, and our subsequent SEC filings. All forward-looking statements speak only as of the date they are made. We do not intend
to update or revise any forward-looking statements as a result of new information, future events or otherwise, except as required
by law. These cautionary statements qualify all forward-looking statements attributable to us or persons acting on our behalf.
USE
OF PROCEEDS
This
prospectus relates to shares of our common stock that may be offered and sold from time to time by Aspire Capital. We will not
receive any proceeds upon the sale of shares by Aspire Capital. However, we may receive proceeds of up to $12.5 million under
the Purchase Agreement with Aspire Capital. The proceeds received from the sale of the shares under the Purchase Agreement are
expected be used to build additional PB3 PowerBuoys® to meet potential market demand, to further advance the development of
new products and solutions, and for other general corporate purposes. The amounts and timing of these expenditures will depend
on a number of factors, such as the timing, scope, progress and results of our sales, research and development efforts, the timing
and progress of any partnering efforts, and the regulatory and competitive environment. However, we cannot guarantee that we will
receive any proceeds in connection with the Purchase Agreement because we may be unable or choose not to issue and sell any securities
pursuant to the Purchase Agreement. Because of this, we have not determined the amount of proceeds to be used specifically for
any particular purpose or the timing of any expenditures. Accordingly, management will retain broad discretion and flexibility
in applying the proceeds. Pending any use of the proceeds, we intend to invest the proceeds in repurchase contracts or deposit
them in checking accounts at financial institutions.
The
Aspire Capital TransactionS
Purchase
Agreement
General
On
September 18, 2020, we entered into the Purchase Agreement which provides that, upon the terms and subject to the conditions and
limitations set forth therein, Aspire Capital is committed to purchase up to an aggregate of $12.5 million of our shares of common
stock over the term of the Purchase Agreement. Concurrently with entering into the Purchase Agreement, we also entered into the
Registration Rights Agreement, in which we agreed to file one or more registration statements as permissible and necessary to
register under the Securities Act, the sale of the shares of our common stock that have been and may be issued to Aspire Capital
under the Purchase Agreement.
As
of October 8, 2020, there were 23,089,685 shares of our common stock outstanding excluding the 3,722,251 shares
offered that have been issued or may be issuable to Aspire Capital pursuant to the Purchase Agreement. If all of such 3,722,251
shares of our common stock offered hereby were issued and outstanding as of the date hereof, such shares would represent 13.9%
of the total common stock outstanding. The number of shares of common stock outstanding excludes (i) options outstanding as
of that date representing the right to purchase a total of 533,411 shares of common stock at a weighted average exercise
price of approximately $3.15 per share, (ii) outstanding warrants to purchase up to 7,298 shares of our common stock which
are exercisable at a price of $121.60, (iii) outstanding warrants to purchase up to 8,925 shares of our common stock which are
exercisable at a price of $187.20, and (iv) outstanding warrants to purchase up to 4,927,680 shares of our common stock which
are exercisable at a price of $3.85.
Pursuant
to the Purchase Agreement and the Registration Rights Agreement, we are registering 3,722,251 shares of our common stock under
the Securities Act which we may issue to Aspire Capital. All 3,722,251 shares of common stock are being offered pursuant to this prospectus. Under the Purchase Agreement, we have
the right but not the obligation to issue more than the 3,722,251shares of common stock included in this prospectus to Aspire
Capital. As of the date hereof, we do not have any plans or intent to issue to Aspire Capital any shares of common stock in addition
to the 3,722,251 shares of common stock offered hereby.
On
October 9, 2020, the conditions necessary for purchases under the Purchase Agreement to commence were satisfied. On any trading
day on which the closing sale price of our common stock is not less than $0.10 per share, we have the right, in our sole discretion,
to present Aspire Capital with a Purchase Notice, directing Aspire Capital (as principal) to purchase up to 250,000 shares of
our common stock per business day, up to $12.5 million of our common stock in the aggregate over the term of the Purchase Agreement,
at a Purchase Price calculated by reference to the prevailing market price of our common stock over the preceding 10-business
day period (as more specifically described below); however, no sale pursuant to a Purchase Notice may exceed $500,000 per trading
day.
In
addition, on any date on which we submit a Purchase Notice to Aspire Capital for 250,000 Purchase Shares, we also have the right,
in our sole discretion, to present Aspire Capital with a VWAP Purchase Notice directing Aspire Capital to purchase an amount of
stock equal to up to 30% of the aggregate shares of our common stock traded on the Nasdaq Capital Market on the next trading day,
subject to the VWAP Purchase Share Volume Maximum and the VWAP Minimum Price Threshold. The VWAP Purchase Price is calculated
by reference to the prevailing market price of our common stock (as more specifically described below).
The
Purchase Agreement provides that we and Aspire Capital shall not effect any sales under the Purchase Agreement on any purchase
date where the closing sale price of our common stock is less than the Floor Price. There are no trading volume requirements or
restrictions under the Purchase Agreement, and we will control the timing and amount of any sales of our common stock to Aspire
Capital. Aspire Capital has no right to require any sales by us but is obligated to make purchases from us as we direct in accordance
with the Purchase Agreement. There are no limitations on use of proceeds, financial or business covenants, restrictions on future
financings, rights of first refusal, participation rights, penalties or liquidated damages in the Purchase Agreement. Aspire Capital
may not assign its rights or obligations under the Purchase Agreement. The Purchase Agreement may be terminated by us at any time,
at our discretion, without any penalty or cost to us.
Purchase
Of Shares Under The Common Stock Purchase Agreement
Under
the common stock Purchase Agreement, on any trading day selected by us on which the closing sale price of our common stock exceeds
$0.10 per share, we may direct Aspire Capital to purchase up to 250,000 shares of our common stock per trading day. The Purchase
Price of such shares is equal to the lesser of:
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the
lowest sale price of our common stock on the purchase date; or
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the
arithmetic average of the three lowest closing sale prices for our common stock during the ten consecutive trading days ending
on the trading day immediately preceding the purchase date.
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In
addition, on any date on which we submit a Purchase Notice to Aspire Capital for purchase of 250,000 shares, we also have the
right to direct Aspire Capital to purchase an amount of stock equal to up to 30% of the aggregate shares of our common stock traded
on the Nasdaq Capital Market on the next trading day, subject to the VWAP Purchase Share Volume Maximum and the VWAP Minimum Price
Threshold, which is equal to the greater of (a) 80% of the closing price of our common stock on the business day immediately preceding
the VWAP Purchase Date or (b) such higher price as set forth by us in the VWAP Purchase Notice. The VWAP Purchase Price of such
shares is the lower of:
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the
Closing Sale Price on the VWAP Purchase Date; or
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97%
of the volume-weighted average price for our common stock traded on the Nasdaq Capital Market:
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○
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on
the VWAP Purchase Date, if the aggregate shares to be purchased on that date have not exceeded the VWAP Purchase Share Volume
Maximum or
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○
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during
that portion of the VWAP Purchase Date until such time as the sooner to occur of (i) the time at which the aggregate shares
traded on the Nasdaq Capital Market exceed the VWAP Purchase Share Volume Maximum or (ii) the time at which the sale price
of our common stock falls below the VWAP Minimum Price Threshold.
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The
Purchase Price will be adjusted for any reorganization, recapitalization, non-cash dividend, stock split, or other similar transaction
occurring during the trading day(s) used to compute the Purchase Price. We may deliver multiple Purchase Notices and VWAP Purchase
Notices to Aspire Capital from time to time during the term of the Purchase Agreement, so long as the most recent purchase has
been completed.
Minimum
Share Price
Under
the Purchase Agreement, we and Aspire Capital may not effect any sales of shares of our common stock under the Purchase Agreement
on any trading day that the closing sale price of our common stock is less than $0.10 per share.
Events
of Default
No
sales are permitted to be made under the Purchase Agreement upon the occurrence of any of the following, among other, events of
default:
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the
effectiveness of any registration statement that is required to be maintained effective pursuant to the terms of the Registration
Rights Agreement between us and Aspire Capital lapses for any reason (including, without limitation, the issuance of a stop
order) or is unavailable to Aspire Capital for sale of our shares of common stock, and such lapse or unavailability continues
for a period of ten consecutive business days or for more than an aggregate of thirty business days in any 365-day period,
which is not in connection with a post-effective amendment to any such registration statement; in connection with any post-effective
amendment to such registration statement that is required to be declared effective by the SEC such lapse or unavailability
may continue for a period of no more than 40 consecutive business days;
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the
suspension from trading or failure of our common stock to be listed on our principal market for a period of three consecutive
business days;
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the
delisting of our common stock from our principal market, provided our common stock is not immediately thereafter trading on
the New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq Capital
Market;
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our
transfer agent’s failure to issue to Aspire Capital shares of our common stock which Aspire Capital is entitled to receive
under the Purchase Agreement within five business days after an applicable purchase date;
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any
breach by us of the representations or warranties or covenants contained in the Purchase Agreement or any related agreements
which could have a material adverse effect on us, subject to a cure period of five business days;
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if
we become insolvent or are generally unable to pay our debts as they become due; or
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any
participation or threatened participation in insolvency or bankruptcy proceedings by or against us.
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The
Purchase Agreement will be automatically terminated in the event of any participation in insolvency or bankruptcy proceedings
by or against us.
Our
Termination Rights
The
Purchase Agreement may be terminated by us at any time, at our discretion, without any penalty or cost to us.
No
Short-Selling or Hedging by Aspire Capital
Aspire
Capital has agreed that neither it nor any of its agents, representatives and affiliates shall engage in any direct or indirect
short-selling or hedging of our common stock during any time prior to the termination of the Purchase Agreement.
Effect
of Performance of the Purchase Agreement on Our Stockholders
The
Purchase Agreement does not limit the ability of Aspire Capital to sell any or all of the 3,722,251 shares registered in this
offering. It is anticipated that shares registered in this offering will be sold over a period of up to approximately thirty months
from the date of this prospectus. The sale by Aspire Capital of a significant amount of shares registered in this offering at
any given time could cause the market price of our common stock to decline and/or to be highly volatile. Aspire Capital may ultimately
purchase all, some or none of the 3,722,251 shares of common stock not yet issued but registered in this offering. After it has
acquired such shares, it may sell all, some or none of such shares. Therefore, sales to Aspire Capital by us pursuant to the Purchase
Agreement also may result in substantial dilution to the interests of other holders of our common stock. However, we have the
right to control the timing and amount of any sales of our shares to Aspire Capital and the Purchase Agreement may be terminated
by us at any time at our discretion without any penalty or cost to us.
Percentage
of Outstanding Shares After Giving Effect to the Purchased Shares Issued to Aspire Capital
In
connection with entering into the Purchase Agreement, we authorized the sale to Aspire Capital of up to $12.5 million of our shares
of common stock. However, we estimate that we will sell no more than 3,722,251 shares to Aspire Capital under the Purchase Agreement,
all of which are included in this offering. Subject to any required approval by our Board of Directors, we have the right but
not the obligation to issue more than the 3,722,251 shares included in this prospectus to Aspire Capital under the Purchase Agreement.
In the event we elect to issue more than 3,722,251 shares under the Purchase Agreement, we will be required to file a new registration
statement and have it declared effective by the SEC. The number of shares ultimately offered for sale by Aspire Capital in this
offering is dependent upon the number of shares purchased by Aspire Capital under the Purchase Agreement. The following table
sets forth the number and percentage of outstanding shares to be held by Aspire Capital after giving effect to the sale of shares
of common stock issued to Aspire Capital at varying purchase prices:
Assumed Average
Purchase Price
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|
|
Proceeds from the
Sale of Purchase
Shares to Aspire
Capital Under the
Purchase Agreement
Registered in this
Offering
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|
Number of Purchase
Shares to be Issued in
this Offering at the
Assumed Average
Purchase Price
|
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|
Percentage of
Outstanding Shares
After Giving Effect to the
Purchase Shares Issued
to Aspire Capital(1)
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|
$
|
0.50
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$
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1,861,125
|
|
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|
3,722,251
|
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|
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13.9
|
%
|
$
|
0.75
|
|
|
$
|
2,791,688
|
|
|
|
3,722,251
|
|
|
|
13.9
|
%
|
$
|
1.00
|
|
|
$
|
3,722,251
|
|
|
|
3,722,251
|
|
|
|
13.9
|
%
|
$
|
1.50
|
|
|
$
|
5,583,376
|
|
|
|
3,722,251
|
|
|
|
13.9
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%
|
$
|
2.00
|
|
|
$
|
7,444,502
|
|
|
|
3,722,251
|
|
|
|
13.9
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%
|
$
|
3.00
|
|
|
$
|
11,166,753
|
|
|
|
3,722,251
|
|
|
|
13.9
|
%
|
|
(1)
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The
denominator is based on 23,089,685 shares outstanding as of October 8, 2020. The number of shares of common
stock outstanding excludes (i) options outstanding as of that date representing the right to purchase a total of 533,411
shares of common stock at a weighted average exercise price of approximately $3.15 per share, (ii) outstanding
warrants to purchase up to 7,298 shares of our common stock which are exercisable at a price of $121.60, (iii) outstanding
warrants to purchase up to 8,925 shares of our common stock which are exercisable at a price of $187.20, and (iv) outstanding
warrants to purchase up to 4,927,680 shares of our common stock which are exercisable at a price of $3.85.. The numerator
is based on the number of shares which we may issue to Aspire Capital under the Purchase Agreement (that are the subject of
this offering) at the corresponding assumed purchase price set forth in the adjacent column.
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DESCRIPTION
OF COMMON STOCK
Authorized
and Outstanding Capital Stock
The
following description of our common stock and provisions of our certificate of incorporation and bylaws are summaries and are
qualified by reference to our certificate of incorporation and bylaws, which have been incorporated by reference as exhibits to
the registration statement of which this prospectus forms a part.
Our
authorized capital stock consists of 100,000,000 shares of common stock, par value $0.001 per share, and 5,000,000 shares of preferred
stock, par value $0.001 per share, all of which are undesignated.
As
of October 8, 2020, there also were outstanding options representing the right to purchase a total of 533,411 shares
of common stock at a weighted average exercise price of approximately $3.15 per share, (ii) warrants to purchase up to
7,298 shares of our common stock which are exercisable at a price of $121.60, (iii) warrants to purchase up to 8,925 shares of
our common stock which are exercisable at a price of $187.20, and (iv) warrants to purchase up to 4,927,680 shares of our common
stock which are exercisable at a price of $3.85.
Description
of Common Stock
Voting.
Holders of common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do
not have cumulative voting rights. Accordingly, holders of a majority of the shares of common stock entitled to vote in any election
of directors may elect all of the directors standing for election.
Dividends.
Holders of common stock are entitled to receive proportionately any dividends that may be declared by our Board, subject to any
preferential dividend rights of outstanding preferred stock.
Liquidation
and Distribution. Upon our liquidation, dissolution or winding up, the holders of common stock are entitled to receive proportionately
our net assets available after the payment of all debts and other liabilities and subject to the prior rights of any outstanding
preferred stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. Our outstanding shares
of common stock are, and the shares offered by us in this offering will be, when issued and paid for, fully paid and nonassessable.
The rights, preferences and privileges of holders of common stock are subject to, and may be adversely affected by, the rights
of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Anti-Takeover
Effects of Delaware Law; Our Certificate of Incorporation and Our Bylaws
Delaware
law, our certificate of incorporation and our bylaws 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 intended to discourage coercive
takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control
of us to first negotiate with our Board.
Removal
of Directors
Our
certificate of incorporation currently provides that directors may be removed only for cause and only by the affirmative vote
of the holders of 75% of our shares of capital stock present in person or by proxy and entitled to vote. However, our Board of
Directors approved an amendment to our bylaws that became effective on June 17, 2016, which permits our directors to be removed
either for cause or without cause by our stockholders. At our annual meeting of stockholders for the year ended April 30, 2016
that was held on October 21, 2016 (the “2016 Annual Meeting”), we submitted a proposal to stockholders seeking stockholder
approval to amend our certificate of incorporation to delete the reference to “for cause” in Section 6 of Article
IX of the certificate of incorporation. This proposal to amend the certificate of incorporation did not receive the required affirmative
vote of the holders of at least 75% of the outstanding shares of common stock entitled to vote at the meeting, so the proposal
did not pass. However, we also submitted a proposal to stockholders at the 2016 Annual Meeting seeking approval to amend our certificate
of incorporation to add a clause that specified that, to the fullest extent permitted by law, any provision in the Certificate
of Incorporation that is contrary to a requirement of the Delaware General Corporate Law (the “DGCL”) shall be read
in conformity with the applicable requirement of the DGCL. This second proposal only required the affirmative vote of the holders
of a majority of the outstanding shares of common stock entitled to vote at the 2016 Annual Meeting, and it passed.
Our
Board of Directors takes the position that under current Delaware law, the “only for cause” provision in the certificate
of incorporation regarding removal of the company’s directors is not enforceable and is therefore not in conformity with
the applicable requirement of the DGCL. Accordingly, we will comply with the provisions of our bylaws, as amended and as described
above, relating to director removal and will not seek to enforce that provision of our certificate of incorporation relating to
stockholder removal of directors only for cause, as presently in effect. Under our certificate of incorporation and bylaws, any
vacancy on the Board, including a vacancy resulting from an enlargement of the Board, may be filled only by vote of a majority
of our directors then in office.
The
limitations on the ability of our stockholders to remove directors and fill vacancies could make it more difficult for a third
party to acquire, or discourage a third party from seeking to acquire, control of us.
Stockholder
Action by Written Consent; Special Meetings
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 our bylaws also provide that, except as otherwise required by law, special meetings of our stockholders
can only be called by our chairman of the board, our chief executive officer, our president or the Board.
Advance
Notice Requirements for Stockholder Proposals
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. Stockholders at an annual meeting may only consider proposals
or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the Board of Directors
or by a stockholder of record on the record date for the meeting, that is entitled to vote at the meeting and that has delivered
to our secretary a timely written notice in proper form 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.
Delaware
Business Combination Statute
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 our 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.
Amendment
of Certificate of Incorporation and Bylaws
The
Delaware General Corporation Law provides generally that the affirmative vote of a majority of the shares entitled to vote on
any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate
of incorporation or bylaws, as the case may be, requires a greater percentage. Our bylaws may be amended or repealed by a majority
vote of our Board of Directors or the affirmative vote of the holders of at least 75% of the voting power of our capital stock
issued and outstanding and entitled to vote on the matter.
Limitation
of Liability and Indemnification of Officers and Directors
Our
certificate of incorporation limits the personal liability of directors for breach of fiduciary duty to the maximum extent permitted
by the Delaware General Corporation Law. Our certificate of incorporation provides that no director will have personal liability
to us or to our stockholders for monetary damages for breach of fiduciary duty or other duty as a director. However, these provisions
do not eliminate or limit the liability of any of our directors:
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for
any breach of their duty of loyalty to us or our stockholders;
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for
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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for
voting or assenting to unlawful payments of dividends or other distributions; or
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for
any transaction from which the director derived an improper personal benefit.
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Any
amendment to or repeal of these provisions will not eliminate or reduce the effect of these provisions in respect of any act or
failure to act, or any cause of action, suit or claim that would accrue or arise prior to any amendment or repeal or adoption
of an inconsistent provision. If the Delaware General Corporation Law is amended to provide for further limitations on the personal
liability of directors of corporations, then the personal liability of our directors will be further limited to the greatest extent
permitted by the Delaware General Corporation Law.
In
addition, our certificate of incorporation provides that we must indemnify our directors and officers and we must advance expenses,
including attorneys’ fees, to our directors and officers in connection with legal proceedings, subject to limited exceptions.
Notice
of Share Ownership
Our
bylaws contain a provision requiring any beneficial owner of three percent or more of our outstanding common stock to notify us
of his or her stockholdings, as well as of any change in his or her beneficial ownership of one percent or more of our outstanding
common stock. Our bylaws do not provide for any specific remedy in the event a stockholder does not comply with this provision.
We do not intend to make any such information public, unless required by law or the rules of the SEC or the Nasdaq Capital Market.
Authorized
but Unissued Shares
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 standards of the Nasdaq Capital Market. 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.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare Trust Company, N.A. Its address is 462 South 4th Street, Suite
1600, Louisville, KY 40202, and its telephone number is 1-800-662-7232.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “OPTT.”
Selling
Stockholder
The
selling stockholder may from time to time offer and sell any or all of the shares of our common stock set forth below pursuant
to this prospectus. When we refer to the “selling stockholder” in this prospectus, we mean the entity listed in the
table below, and its respective pledgees, donees, permitted transferees, assignees, successors and others who later come to hold
any of the selling stockholder’s interests in shares of our common stock other than through a public sale.
The
following table sets forth, as of the date of this prospectus, the name of the selling stockholder for whom we are registering
shares for sale to the public, the number of shares of common stock beneficially owned by the selling stockholder prior to this
offering, the total number of shares of common stock that the selling stockholder may offer pursuant to this prospectus and the
number of shares of common stock that the selling stockholder will beneficially own after this offering. Except as noted below,
the selling stockholder does not have, or within the past three years has not had, any material relationship with us or any of
our predecessors or affiliates and the selling stockholder is not or was not affiliated with registered broker-dealers.
Based
on the information provided to us by the selling stockholder, assuming that the selling stockholder sells all of the shares of
our common stock beneficially owned by it that have been registered by us and does not acquire any additional shares during the
offering, the selling stockholder will not own any shares other than those appearing in the column entitled “Beneficial
Ownership After This Offering.” We cannot advise you as to whether the selling stockholder will in fact sell any or all
of such shares of common stock. In addition, the selling stockholder may have sold, transferred or otherwise disposed of, or may
sell, transfer or otherwise dispose of, at any time and from time to time, the shares of our common stock in transactions exempt
from the registration requirements of the Securities Act after the date on which it provided the information set forth in the
table below.
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Shares of
Common
Stock
Owned
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Shares of
Common
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Beneficial Ownership
After this Offering(1)
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Name
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Prior to this
Offering
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Stock Being
Offered
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Number of
Shares
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%(2)
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Aspire Capital Fund, LLC(3)
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—
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3,722,251
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—
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(1)
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Assumes
the sale of all shares of common stock registered pursuant to this prospectus, although the selling stockholder is under no
obligation known to us to sell any shares of common stock at this time.
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(2)
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Based
on 23,089,685 shares of common stock outstanding on October 8, 2020, and assumes the issuance and sale by us
to Aspire Capital of all 3,722,251 shares under the Purchase Agreement and the sale by Aspire of all 3,722,251 shares being
offered pursuant to this registration statement.
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(3)
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Aspire
Capital Partners, LLC (“Aspire Partners”) is the Managing Member of Aspire Capital Fund LLC (“Aspire Fund”).
SGM Holdings Corp (“SGM”) is the Managing Member of Aspire Partners. Mr. Steven G. Martin (“Mr. Martin”)
is the president and sole shareholder of SGM, as well as a principal of Aspire Partners. Mr. Erik J. Brown (“Mr. Brown”)
is the president and sole shareholder of Red Cedar Capital Corp (“Red Cedar”), which is a principal of Aspire
Partners. Mr. Christos Komissopoulos (“Mr. Komissopoulos”) is president and sole shareholder of Chrisko Investors
Inc. (“Chrisko”), which is a principal of Aspire Partners. Mr. William F. Blank, III (“Mr. Blank”)
is president and sole shareholder of WML Ventures Corp. (“WML Ventures”), which is a principal of Aspire Partners.
Each of Aspire Partners, SGM, Red Cedar, Chrisko, WML Ventures, Mr. Martin, Mr. Brown, Mr. Komissopoulos and Mr. Blank may
be deemed to be a beneficial owner of common stock held by Aspire Fund. Each of Aspire Partners, SGM, Red Cedar, Chrisko,
WML Ventures, Mr. Martin, Mr. Brown, Mr. Komissopoulos and Mr. Blank disclaims beneficial ownership of the common stock held
by Aspire Fund.
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PLAN
OF DISTRIBUTION
The
common stock offered by this prospectus is being offered by Aspire Capital, the selling stockholder. The common stock may be sold
or distributed from time to time by the selling stockholder directly to one or more purchasers or through brokers, dealers, or
underwriters who may act solely as agents at market prices prevailing at the time of sale, at prices related to the prevailing
market prices, at negotiated prices, or at fixed prices, which may be changed. The sale of the common stock offered by this prospectus
may be effected in one or more of the following methods:
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ordinary
brokers’ transactions;
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transactions
involving cross or block trades;
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through
brokers, dealers, or underwriters who may act solely as agents;
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“at
the market” into an existing market for the common stock;
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in
other ways not involving market makers or established business markets, including direct sales to purchasers or sales effected
through agents;
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in
privately negotiated transactions; or
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any
combination of the foregoing.
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In
order to comply with the securities laws of certain states, if applicable, the shares may be sold only through registered or licensed
brokers or dealers. In addition, in certain states, the shares may not be sold unless they have been registered or qualified for
sale in the state or an exemption from the registration or qualification requirement is available and complied with.
The
selling stockholder may transfer the shares of common stock by other means not described in this prospectus.
Brokers,
dealers, underwriters, or agents participating in the distribution of the shares as agents may receive compensation in the form
of commissions, discounts, or concessions from the selling stockholder and/or purchasers of the common stock for whom the broker-dealers
may act as agent. Aspire Capital has informed us that each such broker-dealer will receive commissions from Aspire Capital which
will not exceed customary brokerage commissions.
Aspire
Capital is an “underwriter” within the meaning of the Securities Act.
Neither
we nor Aspire Capital can presently estimate the amount of compensation that any agent will receive. We know of no existing arrangements
between Aspire Capital, any other stockholder, broker, dealer, underwriter, or agent relating to the sale or distribution of the
shares offered by this prospectus. At the time a particular offer of shares is made, a prospectus supplement, if required, will
be distributed that will set forth the names of any agents, underwriters, or dealers and any compensation from the selling stockholder,
and any other required information.
We
will pay all of the expenses incident to the registration, offering, and sale of the shares to the public other than commissions
or discounts of underwriters, broker-dealers, or agents. We have agreed to indemnify Aspire Capital and certain other persons
against certain liabilities in connection with the offering of shares of common stock offered hereby, including liabilities arising
under the Securities Act or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities.
Aspire Capital has agreed to indemnify us against liabilities under the Securities Act that may arise from certain written information
furnished to us by Aspire Capital specifically for use in this prospectus or, if such indemnity is unavailable, to contribute
amounts required to be paid in respect of such liabilities.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling
persons, we have been advised that in the opinion of the SEC this indemnification is against public policy as expressed in the
Securities Act and is therefore, unenforceable.
Aspire
Capital and its affiliates have agreed not to engage in any direct or indirect short selling or hedging of our common stock during
the term of the Purchase Agreement.
We
have advised Aspire Capital that while it is engaged in a distribution of the shares included in this prospectus 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 offered
hereby this prospectus.
We
may suspend the sale of shares by Aspire Capital pursuant to this prospectus for certain periods of time for certain reasons,
including if the prospectus is required to be supplemented or amended to include additional material information.
This
offering will terminate on the date that all shares offered by this prospectus have been sold by Aspire Capital.
LEGAL
MATTERS
Certain
legal matters in connection with the securities offered hereby will be passed on for us by Porter Hedges LLP, Houston, Texas.
EXPERTS
The
consolidated financial statements of Ocean Power Technologies, Inc. and subsidiaries (the Company) as of April 30, 2020 and 2019,
and for the years then ended, have been incorporated by reference herein, in reliance upon the report of KPMG LLP, independent
registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting
and auditing.
The
audit report covering the April 30, 2020 consolidated financial statements contains an explanatory paragraph that states that
the Company’s recurring losses from operations and accumulated deficit raise substantial doubt about the Company’s
ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result
from the outcome of that uncertainty.
The
audit report covering the April 30, 2020 financial statements refers to the Company changing its method of accounting for leases
as of May 1, 2019 due to the adoption of Accounting Standards Update (ASU) No. 2016-02, Leases (Topic 842), and the related
amendments.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. These documents contain specific
information regarding us. These documents, including exhibits and schedules thereto, may be inspected without charge at the SEC’s
principal office in Washington, D.C., and copies of all or any part thereof may be obtained from the Public Reference Section
of the SEC, 100 F Street, N.E., Washington, D.C. 20549. Information on the operation of the Public Reference Section may be obtained
by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website which provides online access to reports, proxy and information
statements and other information regarding registrants that file electronically with the SEC at the address http://www.sec.gov.
Our
common stock is listed on the Nasdaq Capital Market under the ticker symbol “OPTT.” Our SEC filings are also available
(free of charge) from our web site at www.oceanpowertechnologies.com, including our annual reports on Form 10-K, quarterly reports
on Form 10-Q, and current reports on Form 8-K and any amendments to those reports. Information contained on our website or any
other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
following documents, which have previously been filed by us with the SEC under the Exchange Act, are incorporated herein by reference:
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our
Annual Report on Form 10-K for the fiscal year ended April 30, 2020, filed with the SEC on June 29, 2020 (File No. 001-33417);
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended July 31, 2020, filed with the SEC on September 14, 2020 (File No.
001-33417);
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the
description of our common stock set forth in our registration statement on Form 8-A filed on April 18, 2007 (File No. 001-33417)
and in any and all subsequent amendments and reports filed for the purpose of updating that description; and
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our
Current Reports on Form 8-K, filed with the SEC on May 1, 2020, May 4, 2020, May 7, 2020, June 26, 2020, June 29, 2020, July
8, 2020, July 15, 2020, August 17, 2020, August 18, 2020, August 19, 2020, August 24, 2020, August 26, 2020, September 14,
2020 and September 18, 2020 (File No. 001-33417) (excluding any information furnished pursuant to Item 2.02 or Item 7.01 of
any such Current Report on Form 8-K).
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All
documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished
pursuant to Item 2.02 or Item 7.01 on any current report on Form 8-K and any corresponding information furnished under Item 9.01
or included as an exhibit) after the date of the initial registration statement of which this prospectus forms a part and until
the offering of all of the securities by this prospectus is completed, including all filings made after the date of this prospectus,
shall be deemed to be incorporated in this prospectus by reference and to be a part hereof from the date of filing of such documents.
Any statement contained herein, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You
may request a free copy of these filings, other than any exhibits, unless the exhibits are specifically incorporated by reference
into this prospectus, by writing or telephoning us at the following address:
Ocean
Power Technologies, Inc.
28
Engelhard Drive, Suite B
Monroe
Township, NJ 08831
Attention:
Chief Financial Officer
(609)
730-0400
DISCLOSURE
OF SEC’S POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITY
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling
us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable.
3,722,251
Shares
Common
Stock
PROSPECTUS
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