As
filed with the Securities and Exchange Commission on September 27, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BIOMERICA,
INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
95-2645573 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
Number) |
17571
Von Karman Avenue
Irvine,
CA 92614
(949)
645-2111
(Address,
including zip code, and telephone number, including area code of registrant’s principal executive offices)
Zackary
Irani
Chairman
& Chief Executive Officer Biomerica, Inc.
17571
Von Karman Avenue
Irvine,
California 92614
(949)
645-2111
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Christopher
D. Ivey, Esq.
Stradling
Yocca Carlson & Rauth, P.C.
660
Newport Center Drive, Suite 1600
Newport
Beach, California 92660
(949)
725-4000
From
time to time after the effective date of this Registration Statement
(Approximate
date of commencement of proposed sale to the public)
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
| Emerging
growth company |
☐ |
|
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS
SUBJECT
TO COMPLETION, DATED SEPTEMBER 27, 2023
$20,000,000
BIOMERICA,
INC.
Common
Stock
From
time to time, we may offer and sell shares of our common stock with total gross proceeds of up to $20,000,000.
This
prospectus provides a general description of the shares of common stock that we may offer. Each time we sell shares of our common stock,
we will provide the specific terms of the offering in a prospectus supplement. Any prospectus supplement that we provide to you may add,
update or change information in this prospectus. You should read this prospectus and any prospectus supplement, as well as the documents
incorporated by reference herein and therein, carefully before you invest in our common stock.
This
prospectus may not be used to consummate a sale of our common stock unless accompanied by a prospectus supplement.
Our
common stock is traded on the Nasdaq Capital Market under the symbol “BMRA.” On September 22, 2023, the last reported sale
price of our common stock was $1.05 per share.
We
may sell shares of our common stock directly to investors, through agents designated from time to time or to or through underwriters
or dealers, on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section entitled
“Plan of Distribution” in this prospectus. If any agents or underwriters are involved in the sale of any shares of our common
stock with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions,
discounts or over-allotment options will be set forth in a prospectus supplement. The price to the public of such shares and the net
proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
As
of September 22, 2023, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $16,315,670,
which was calculated based on 15,538,733 shares of outstanding common stock held by non-affiliates as of September 22, 2023, at a price
per share of $1.05, the last reported sale price of our common stock on Nasdaq on September 22, 2023. In no event will we sell shares
pursuant to this prospectus with a value of more than one-third of the aggregate market value of shares of our common stock held by non-affiliates
in any 12-month period so long as the aggregate market value of shares of our common stock held by non-affiliates is less than $75,000,000.
During the 12 calendar months prior to, and including, the date of this prospectus supplement, we have sold an aggregate of approximately
$8,203,128 of shares of our common stock pursuant to General Instruction I.B.6 of Form S-3.
INVESTING
IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING
“RISK FACTORS” BEGINNING ON PAGE 5 OF THIS PROSPECTUS, CONTAINED IN ANY APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED
FREE WRITING PROSPECTUS, AND UNDER SIMILAR HEADINGS IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is September 27, 2023.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using
a “shelf” registration process. Under this shelf registration process, we may sell shares of our common stock in one or more
offerings up to a total aggregate offering price of $20,000,000. This prospectus provides you with a general description of our common
stock that we may offer.
All
references to “Company,” “Biomerica,” “we,” “our,” or “us” refer solely to
Biomerica, Inc.
Each
time we sell shares of our common stock, we will provide the specific terms of the offering in a prospectus supplement. We may also authorize
one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may add, update, or change information
contained in this prospectus or in any documents that we have incorporated by reference into this prospectus. To the extent there is
a conflict between the information contained in this prospectus and any accompanying prospectus supplement, you should rely on the information
in the prospectus supplement. This prospectus, together with any accompanying prospectus supplement, includes all material information
relating to an offering pursuant to this registration statement. You should read this prospectus, any applicable prospectus supplement,
and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading
“Incorporation of Certain Information by Reference,” before investing in our common stock.
Neither
we, nor any agent, underwriter, dealer, salesperson, or other person has authorized any person to give any information or to make any
representations other than those contained or incorporated by reference in this prospectus, any accompanying prospectus supplement, or
any related free writing prospectus in connection with the offer made by this prospectus, any accompanying prospectus supplement or any
related free writing prospectus. You must not rely upon any information or representation not contained or incorporated by reference
in this prospectus or any accompanying prospectus supplement as if we had authorized it.
This
prospectus, any accompanying prospectus supplement or any related free writing prospectus do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the registered securities to which they relate, nor does this prospectus, any accompanying
prospectus supplement or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities
in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You
should not assume that the information contained in this prospectus, any accompanying prospectus supplement or any related free writing
prospectus is correct on any date after their respective dates or that any information we have incorporated by reference is correct on
any date after the date of the document incorporated by reference, even though this prospectus, any accompanying prospectus supplement
or any related free writing prospectus may be delivered or securities may be sold on a later date.
Investing
in our securities involves a high degree of risk. You should carefully consider the section entitled “Risk Factors” in this
prospectus, any accompanying prospectus supplement, and any related free writing prospectus before you invest in our securities.
You
should also carefully read the additional information described in the sections entitled “Incorporation of Certain Documents by
Reference” and “Where You Can Find More Information” before you invest in our securities.
SPECIAL
NOTE REGARDING FORWARD-LOOKING INFORMATION
This
prospectus, any accompanying prospectus supplement, and the documents we incorporate by reference in this prospectus and any accompanying
prospectus supplement, contain forward-looking statements within the meaning of the federal securities laws, which statements are subject
to substantial risks and uncertainties. These forward-looking statements are intended to qualify for the safe harbor from liability established
by the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact are forward-looking
statements. We have attempted to identify forward-looking statements by using words such as “may,” “believe,”
“will,” “could,” “project,” “anticipate,” “expect,” “estimate,”
“should,” “continue,” “potential,” “plan,” “forecasts,” “goal,”
“seek,” “intend,” other forms of these words or similar words or expressions or the negative thereof.
We
have based our forward-looking statements on our expectations and projections about trends affecting our business and industry and other
future events. Although we do not make forward-looking statements unless we believe we have a reasonable basis for doing so, we cannot
guarantee their accuracy. Forward-looking statements are subject to substantial risks and uncertainties that could cause our future business,
financial condition, results of operations or performance, to differ materially from our historical results or those expressed or implied
in any forward-looking statement. Some of the risks and uncertainties that may cause actual results to differ from those expressed or
implied in the forward-looking statements are described in the section entitled “Risk Factors” in this prospectus and in
any accompanying prospectus supplement, as well as in our other filings with the SEC. In addition, actual results may differ as a result
of additional risks and uncertainties of which we are currently unaware or which we do not currently view as material to our business.
For these reasons, investors are cautioned not to place undue reliance on any forward-looking statements.
You
should read this prospectus in its entirety, together with any accompanying prospectus supplement, the documents that we file as exhibits
to the registration statement of which this prospectus is a part, and the documents that we incorporate by reference into this prospectus
and any accompanying prospectus supplement, with the understanding that our future results may be materially different from what we currently
expect. The forward-looking statements we make speak only as of the date on which they are made. We expressly disclaim any intent or
obligation to update any forward-looking statements after the date hereof to conform such statements to actual results or to changes
in our opinions or expectations, except as required by applicable law or the rules of the Nasdaq Stock Market. If we do update or correct
any forward-looking statements, investors should not conclude that we will make additional updates or corrections.
We
qualify all of our forward-looking statements by these cautionary statements.
ABOUT
THE COMPANY
The
following is a summary of what we believe to be the most important aspects of our business. Please read the additional information
in the sections entitled “Incorporation of Certain Documents by Reference” and “Where You Can Find More Information.”
Our
Company
We
are a global biomedical technology company that develops, patents, manufactures and markets advanced diagnostic and therapeutic products
used at the point-of-care (in home and in physicians’ offices) and in hospital/clinical laboratories for detection and/or treatment
of medical conditions and diseases. Our products are designed to enhance the health and well-being of people, while reducing total healthcare
costs.
Our
primary focus is the research, development, commercialization and in certain cases regulatory approval, of patented, diagnostic-guided
therapy (“DGT”) products to treat gastrointestinal diseases, such as irritable bowel syndrome (“IBS”), and other
inflammatory diseases. These products are directed at chronic inflammatory illnesses that are widespread and common, and as such address
very large markets. Our inFoods® IBS product uses a simple blood sample and is designed to identify patient-specific foods that,
when removed from the diet, may alleviate IBS symptoms such as pain, bloating, diarrhea, and constipation. Instead of broad and difficult
to manage dietary restrictions, the inFoods® IBS product works by identifying specific foods that may have an abnormally high immune
response in the patient. A food identified as positive, which is causing the abnormal immune response in the patient, can be simply removed
from the diet to help alleviate IBS symptoms.
During
fiscal 2022, we completed an endpoint determination clinical trial on our inFoods® IBS product. This trial was conducted at Mayo
Clinics in Florida and Arizona, Beth Israel Deaconess Medical Center Inc., a Harvard Medical School Teaching Hospital, University of
Texas Health Science Center at Houston, Houston Methodist, the University of Michigan, and other institutions. This trial monitored IBS
patients over an 8-week treatment period to determine the efficacy of our inFoods® IBS product to improve the patients’ IBS
symptoms or endpoints. The top-line trial results were reported in February 2022. Multiple endpoints demonstrated statistically significant
improvements, indicating that the elimination of specific foods may meaningfully reduce the symptoms of IBS in each patient subtype (including
patients with IBS-Constipation, IBS-Diarrhea & IBS-Mixed). The greatest clinical improvements, including but not limited to abdominal
pain and bloating, were seen in patients diagnosed with IBS-Mixed and IBS-Constipation, in the top line data. The purpose of the endpoint
study was to validate the efficacy of the product, and to determine the primary symptom endpoint, or endpoints to be used in a final
pivotal trial that will be conducted to attain the validation data needed to apply for U.S. Food and Drug Administration (“FDA”)
clearance for the product. We are continuing to review and refine the complete dataset and have selected the final endpoint that we would
intend to use in a final pivotal trial. We are starting to develop the protocol for submission to the FDA, and once approved, the trial
will be run thereafter. The trial is expected to include the large medical institution participants that conducted the endpoint clinical
trial, in addition to other new institutions and a Clinical Research Organization.
Following
the successful completion and positive results from the Company’s inFoods® IBS clinical trial, we saw significant
interest from Gastroenterology (“GI”) physicians who would like to provide the inFoods® IBS product to their
patients. Therefore, while we continue the work of advancing this product toward FDA clearance, during our fourth quarter of fiscal 2023,
we launched the inFoods® IBS product through a CAP-Certified high-complexity Clinical Laboratory Improvement Amendments
(“CLIA”) laboratory facility and began offering the product as a laboratory developed test (“LDT”) to GI physicians.
The first physician group to offer inFoods® IBS to their IBS patients is Gastro Health at their flagship location in Miami,
Florida. Gastro Health is a leading GI physician group with over 390 physicians operating in over 150 offices in seven states.
inFoods®
IBS product is currently offered on a “cash-pay” basis (without insurance reimbursement) to IBS patients. However,
we have begun the process of speaking to reimbursement consultants who can help us seek and attain reimbursement through government pay
(i.e., Medicare and Medicaid), and from private insurers.
We
are also beginning the work of validating one new disease (such as ulcerative colitis or migraines), where there is evidence that certain
foods can trigger or contribute to the symptoms found in patients suffering from those illnesses. Each inFoods® test is
developed specifically for patients suffering from the disease being targeted. For instance, the panel of foods that would be tested
for patients with migraines will be different from the known problematic foods that we test for in IBS. We have already performed much
of the initial research and development work necessary to determine what foods are commonly problematic for each of eight different diseases.
We have found that some diseases show approximately 20 foods that are commonly problematic for patients, while other diseases show over
70 foods for which patients commonly show an abnormal immune response. Once the panel of problematic foods is identified for a specific
disease, the panel must then be tested to confirm which of the problematic foods are causing an abnormal and harmful immune response.
We expect any new disease we target will follow a similar development pathway as inFoods® IBS in simultaneously seeking
FDA clearance of the product while also launching the product as an LDT.
We
are also continuing to evaluate partnership/licensing opportunities, as they arise, with U.S. and multinational companies that could
help us commercialize, or accelerate revenue growth of, the inFoods® products in the United States and overseas.
Our
existing medical diagnostic products are sold worldwide primarily in two markets: 1) clinical laboratories and 2) point-of-care (physicians’
offices and over-the-counter drugstores like Walmart and Walgreens). The diagnostic test kits are used to analyze blood, urine, nasal
or fecal specimens from patients in the diagnosis of various diseases, food intolerances and other medical complications, by measuring
or detecting the existence and/or level of specific bacteria, hormones, antibodies, antigens, or other substances, which may exist in
a patient’s body, stools, or blood, often in extremely small concentrations.
During
fiscal 2022, we finalized development of our H. Pylori diagnostic test that indicates if a patient is infected with the H. Pylori bacteria.
H. Pylori infection is extremely common, and if left untreated, can lead to ulcers and possibly stomach cancers. During our fourth quarter
of fiscal 2022, we applied for FDA clearance of this product though a 510(k) premarket submission. We have been in communication with
the FDA answering certain follow-up questions and providing additional data as requested. We are working with the FDA to perform one
additional set of in-lab tests that the FDA has requested prior to making their final determination on clearance of the product. Provided
we receive FDA clearance, we will begin marketing the product in the U.S. market. We have already begun discussions with international
distributors for this product and expect to see revenues through these international channels during 2024.
Due
to the global 2019 SARS-CoV-2 novel coronavirus (“COVID-19”) pandemic, in March 2020, we began developing, marketing, and
selling COVID-19 diagnostic tests. In fiscal 2022, we generated revenues from the international sale of our COVID-19 antigen tests. Due
to falling demand for such tests, the Company generated 4% of our sales during fiscal year 2023, as compared to 75% of our revenue during
fiscal year 2022. Due to the dramatic increase in fiscal 2022 revenues, and subsequent decrease in fiscal 2023 revenues from this COVID-related
product, we saw significant volatility in our revenues and our earnings during those two fiscal years. By the end of fiscal year 2023,
and during our fourth quarter, none of our revenues came from the sale of COVID-related tests.
Our
non-COVID-19 products that accounted for approximately 96% and 25% of our revenues during the fiscal years ended May 31, 2023, and 2022,
respectively, are primarily focused on gastrointestinal diseases, food intolerances, and certain esoteric tests. These diagnostic test
products utilize immunoassay technology. Most of our products are CE marked and/or sold for diagnostic use where they are registered
by each country’s regulatory agency. In addition, some products are cleared for sale in the United States by the FDA.
Technological
advances in medical diagnostics have made it possible to perform diagnostic tests within the home and the physician’s office (the
point-of-care), rather than in the clinical laboratory. One of our objectives also has been to develop and market rapid diagnostic tests
that are accurate, utilize easily obtained patient specimens, and are simple to perform without instrumentation. Our over-the-counter
(home use) and professional use (doctor’s office, clinics, etc.) rapid diagnostic test products help to manage existing medical
conditions and may save lives through early detection and diagnosis of specific diseases. Typically, tests of this kind require the services
of medical technologists and sophisticated instrumentation. Further, results are often not available until at least the following day.
We believe rapid point-of-care tests can be as accurate as laboratory tests when developed and used properly, may require limited to
no instrumentation, can give reliable results in minutes, and can be performed with confidence in the home or the physician’s office.
We
expend considerable funds in research and development of certain new products that diagnose and, in certain cases, are designed to be
used as a therapy for several major medical diseases. These products are both internally developed and licensed from others. We employ
experienced and highly trained technical personnel (including Ph.D.’s and other scientists) to develop new products and evaluate
and implement technology technical transfer activities. Our technical staff, many of whom have been previously employed at large diagnostic
manufacturing companies, have extensive industry experience. We also rely on our Scientific Advisory Board of leading medical doctors
and clinicians to assist in guiding our clinical studies and product development.
Biomerica
maintains its headquarters in Irvine, California, where it houses administration, finance, regulatory compliance, product development,
sales and marketing, customer services and its primary manufacturing operations. Biomerica maintains manufacturing and assembly operations
in Mexicali, Mexico, in order to reduce the cost of manufacturing and compete more effectively worldwide. Biomerica also has a legal
entity in Europe, BioEurope GmbH, for the purpose of selling certain products internationally.
Corporate
Information
We
were originally incorporated in Delaware in September 1971 as Nuclear Medical Systems, Inc. We also have two wholly owned subsidiaries,
Biomerica de Mexico, and BioEurope GmbH, the latter of which acts as a distributor of Biomerica products in certain markets. Our principal
executive offices are located at 17571 Von Karman Avenue, Irvine, California 92614, and our telephone number is (949) 645-2111. Our corporate
website address is www.biomerica.com. Information contained on or accessible through our website is not a part of this prospectus, and
the inclusion of our website address in this prospectus is an inactive textual reference only.
Implications
of Being a Smaller Reporting Company
We
are a “smaller reporting company” as defined in the Securities Exchange Act of 1934, or the Exchange Act, and have elected
to take advantage of certain of the scaled disclosures available to smaller reporting companies.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before making an investment decision, you should carefully consider the risks described
in (i) the sections entitled “Risk Factors” in our most recent Annual Report on Form 10-K and subsequent quarterly, annual
and other reports, each as filed with the SEC, which are incorporated by reference in this prospectus in their entirety and (ii) any
amendment or updates to our risk factors reflected in subsequent filings with the SEC, including in any applicable prospectus supplement
or related free writing prospectus. For more information, see the sections entitled “Incorporation of Certain Documents by Reference”
and “Where You Can Find More Information.” Our business, financial condition or results of operations could be materially
adversely affected by any of these risks. In addition, the trading price of our securities could decline due to any of these risks, and
you may lose all or part of your investment. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our business, financial condition or results of operations.
This
prospectus and the documents we incorporate by reference in this prospectus contain forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain
factors, including the risks described in this prospectus and in the documents incorporated by reference in this prospectus. For more
information, see “Special Note Regarding Forward-Looking Information.”
USE
OF PROCEEDS
We
will retain broad discretion over the use of the net proceeds from the sale of our common stock offered by us hereby. Except as described
in any prospectus supplement or any related free writing prospectus that we may authorize to be provided to you, we currently intend
to use the net proceeds from the sale of our common stock offered hereby for working capital and general corporate purposes, which may
include capital expenditures, debt repayment, research and development, sales and marketing and general and administrative expenses.
We may also use a portion of the net proceeds to acquire or invest in businesses, products and technologies that are complementary to
our own, although we have no current plans, commitments or agreements with respect to any such acquisitions or investments as of the
date of this prospectus. We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the
net proceeds received from the sale of any common stock sold pursuant to the prospectus supplement or free writing prospectus. Our management
will have broad discretion in the allocation of the net proceeds from this offering.
Pending
the application of the net proceeds, we may invest the net proceeds in short-term, investment grade, interest-bearing securities, certificates
of deposit or direct or guaranteed obligations of the U.S. government.
DESCRIPTION
OF CAPITAL STOCK
The
following is a summary of all material characteristics of the capital stock of Biomerica, Inc. as set forth in our First Amended and
Restated Certificate of Incorporation (our “Charter”), Amended and Restated Bylaws (our “Bylaws”),
and certain provisions of the General Corporation Law of the State of Delaware (the “DGCL”). The summary does not
purport to be complete and is qualified in its entirety by reference to our Charter and Bylaws, copies of which have been filed as exhibits
to our public filings with the Securities and Exchange Commission, and applicable provisions of the DGCL.
Common
Stock
General.
We may issue shares of our common stock from time to time. We are authorized to issue 25,000,000 shares of our common stock, par value
$0.08 per share.
Voting
Rights. The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of
the stockholders. The holders of common stock are not entitled to cumulative voting rights with respect to the election of directors
Dividends.
Subject to preferences that may be applicable to any shares of preferred stock issued in the future, holders of common stock are entitled
to receive dividends on a pro rata basis out of funds legally available at the times and in the amounts that our board of directors may
determine.
Rights
to Receive Liquidation Distributions. In the event of a liquidation, dissolution or winding up of our Company, holders of our common
stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any then outstanding
preferred stock.
No
Preemptive or Similar Rights. Holders of common stock have no preemptive rights and no right to convert their common stock into any
other securities. There are no redemption or sinking fund provisions applicable to the common stock.
Preferred
Stock
Pursuant
to the terms of our Charter, our board of directors is authorized, subject to limitations prescribed by Delaware law, to issue up to
5,000,000 shares of preferred stock, par value $0.08 per share, in one or more series, to establish from time to time the number of shares
to be included in each series, and to fix the designation, powers, preferences and rights of the shares of each series and any of its
qualifications, limitations or restrictions, in each case without further action by our stockholders. Our board of directors also can
increase or decrease the number of shares of any series of preferred stock, but not below the number of shares of that series then outstanding.
Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the
voting power or other rights of the holders of our common stock. The issuance of preferred stock, while providing flexibility in connection
with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring, or preventing
a change in our control or the removal of management and could adversely affect the market price of our common stock and the voting and
other rights of the holders of our common stock.
Delaware
Law and Certain Charter and Bylaw Provisions
The
provisions of DGCL, as well as certain terms of our Charter and Bylaws, may have the effect of delaying, deferring or discouraging another
person from acquiring control of us by means of a tender offer, a proxy contest or otherwise, or removing incumbent officers and directors.
These provisions, some of which are summarized below, are expected to discourage certain types of coercive takeover practices and takeover
bids that our board of directors may consider inadequate and to encourage any person seeking to acquire control of us to first negotiate
with our board of directors.
Delaware
Law. We are governed by the provisions of Section 203 of the DGCL. In general, Section 203 prohibits a public Delaware corporation
from engaging in a “business combination” with an “interested stockholder” for a period of three years after
the date such stockholder became an “interested stockholder”. A “business combination” includes mergers, asset
sales or other transactions resulting in a financial benefit to the stockholder. An “interested stockholder” is a person
who, together with affiliates and associates, owns, or within three years did, prior to the determination of interested stockholder status,
own, 15% or more of the corporation’s outstanding voting stock.
Charter
and Bylaw Provisions. Each of our Charter and Bylaws include a number of other provisions that may have the effect of deterring hostile
takeovers or delaying or preventing changes in control or our management, including the following:
| ● | Issuance
of Undesignated Preferred Stock. Our board of directors has the authority to issue up
to 5,000,000 shares of our preferred stock with rights and preferences designated from time
to time by our board of directors. |
| ● | No
Cumulative Voting. The DGCL provides that stockholders are denied the right to cumulate
votes in the election of directors unless our Charter provides otherwise. Our Charter does
not provide for cumulative voting. |
| | | |
| ● | Size
of Board and Vacancies. Our Charter and Bylaws provide that the number of directors on
our board of directors shall consist of not less than three nor more than nine members as
fixed from time to time by resolution of our board of directors. Newly created directorships
resulting from any increase in our authorized number of directors, and any vacancies resulting
from death, resignation, retirement, disqualification, removal from office or other cause,
will generally be filled by a majority of the remaining members of our board of directors
then in office. |
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Capital Market Listing
Our
common stock is listed on the Nasdaq Capital Market and traded under the symbol “BMRA.” On September 22, 2023, the last reported
sale price for our common stock on the Nasdaq Capital Market was $1.05 per share.
Transfer
Agent and Registrar
The
transfer agent and registrar for the common stock is Issuer Direct. The transfer agent and registrar’s address is 1981 East 4800
So, Suite 100, Salt Lake City, Utah 84117.
PLAN
OF DISTRIBUTION
We
may sell shares of our common stock from time to time pursuant to underwritten public offerings, negotiated transactions, block trades
or a combination of these methods. We may sell shares of our common stock to or through underwriters or dealers, through agents, or directly
to one or more purchasers. We may sell shares of our common stock from time to time in one or more transactions:
| ● | at
a fixed price or prices, which may be changed; |
| ● | at
market prices prevailing at the time of sale; |
| ● | at
prices related to such prevailing market prices; or |
| ● | at
negotiated prices. |
We
may also sell shares of our common stock covered by this registration statement in an “at the market offering” as defined
in Rule 415 under the Securities Act. Such offering may be made into an existing trading market for such securities in transactions at
other than a fixed price, either:
| ● | on
or through the facilities of the Nasdaq Capital Market or any other stock exchange or quotation
or trading service on which our common stock may be listed, quoted or traded at the time
of sale; and/or |
| ● | to
or through a market maker other than on the Nasdaq Capital Market or such other stock exchanges
or quotation or trading services. |
Such
at-the-market offerings, if any, may be conducted by underwriters acting as principal or agent.
A
prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe
the terms of the offering of our common stock, including, to the extent applicable:
| ● | whether
we will be selling shares of our common stock thereunder; |
| ● | the
name or names of any underwriters, dealers or agents, if any; |
| ● | the
purchase price of the common stock and the proceeds we will receive from the sale; |
| ● | any
over-allotment options under which underwriters may purchase additional common stock from
us; |
| ● | any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’
compensation; |
| ● | any
public offering price; |
| ● | any
discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any
securities exchange or market on which our common stock may be listed. |
Only
underwriters named in the prospectus supplement are underwriters of the common stock offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the common stock for their own account and may resell the common stock from time
to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations
of the underwriters to purchase the common stock will be subject to the conditions set forth in the applicable underwriting agreement.
We may offer our common stock to the public through underwriting syndicates represented by managing underwriters or by underwriters without
a syndicate. Subject to certain conditions unless otherwise specified in the prospectus supplement, the underwriters will be obligated
to purchase all of the common stock offered by the prospectus supplement. Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship.
We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We
may sell our common stock directly or through agents we designate from time to time. We will name any agent involved in the offering
and sale of our common stock, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase common stock from us at
the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
We
may provide agents and underwriters with indemnification against civil liabilities related to any offering pursuant to this prospectus,
including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with
respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course
of business.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions, and penalty bids in accordance with Regulation
M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. This short sales
position may involve either “covered” short sales or “naked” short sales. Covered short sales are short sales
made in an amount not greater than the underwriters’ over-allotment option to purchase additional shares in the offering. The underwriters
may close out any covered short position either by exercising their over-allotment option or by purchasing shares of our common stock
in the open market. To determine how they will close the covered short position, the underwriters will consider, among other things,
the price of shares available for purchase in the open market, as compared to the price at which they may purchase shares through the
over-allotment option. Naked short sales are short sales in excess of the over-allotment option. The underwriters must close out any
naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters
are concerned that, in the open market after pricing, there may be downward pressure on the price of the shares that could adversely
affect investors who purchase shares in the offering. Stabilizing transactions permit bids to purchase the underlying security for the
purpose of fixing the price of the security so long as the stabilizing bids do not exceed a specified maximum. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering
transaction to cover short positions.
Any
underwriters who are qualified market makers on the Nasdaq Capital Market, or any other stock exchange or which our common stock may
be listed at the time of sale, may engage in passive market making transactions in our common stock on the Nasdaq Capital Market or such
other stock exchange in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before
the commencement of offers or sales of the shares of our common stock. Passive market makers must comply with applicable volume and price
limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in
excess of the highest independent bid for our common stock; if all independent bids are lowered below the passive market maker’s
bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Similar
to other purchase transactions, an underwriter’s purchase to cover the syndicate short sales or to stabilize the market price of
our common stock may have the effect of raising or maintaining the market price of our common stock or preventing or mitigating a decline
in the market price of our common stock. As a result, the price of our common stock may be higher than the price that might otherwise
exist in the open market. The imposition of a penalty bid might also have an effect on the price of the common stock if it discourages
resales of the shares.
Neither
we nor the underwriters make any representation or prediction as to the effect that the transactions described above may have on the
price of the common stock offered by this prospectus. If such transactions are commenced, they may be discontinued without notice at
any time.
LEGAL
MATTERS
Certain
legal matters, including the validity of the issuance of the shares of common stock offered by this prospectus will be passed upon for
us by Stradling Yocca Carlson & Rauth, P.C., Newport Beach, California.
EXPERTS
Haskell
& White LLP, an independent registered public accounting firm, has audited the consolidated financial statements of Biomerica, Inc.
and Subsidiaries included in the financial statements of Biomerica, Inc. and Subsidiaries for the years ended May 31, 2023 and
2022, included in our Annual Report on Form 10-K for the fiscal year ended May 31, 2023, as set forth in their report on our consolidated
financial statements, which is incorporated by reference in this prospectus and elsewhere in this registration statement. Such consolidated
financial statements of Biomerica, Inc. and Subsidiaries are incorporated by reference in reliance on Haskell & White LLP’s
report, given on the authority of such firm as experts in accounting and auditing.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate” into this prospectus information that we file with the SEC in other documents. This means
that we can disclose important information to you by referring to other documents that contain that information. Any information that
we incorporate by reference into this prospectus is considered part of this prospectus.
Information
contained in this prospectus and information that we file with the SEC in the future and incorporate by reference in this prospectus
automatically modifies and supersedes previously filed information, including information in previously filed documents or reports that
have been incorporated by reference in this prospectus, to the extent the new information differs from or is inconsistent with the old
information. Any information so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part
of this prospectus.
The
following documents previously filed by us with the SEC are incorporated in this prospectus by reference:
| ● | Our
Annual Report on Form 10-K for the fiscal year ended May 31, 2023, as filed with the SEC
on August 25, 2023; |
| | | |
| ● | Our
Definitive Proxy Statement on Schedule 14A, as filed with the SEC on September 27, 2023 (to
the extent incorporated by reference into Part III of our Annual Report on Form 10-K for
the fiscal year ended May 31, 2023); |
| | | |
| ● | Our
Current Report on Form 8-K as filed with the SEC on August 28, 2023; and |
| | | |
| ● | The
description of our common stock contained in our Form 10-K, filed with the SEC on August
25, 2023, including any amendment or report filed for the purpose of updating such description. |
We
also incorporate by reference all documents (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items) filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date the initial registration statement is initially filed and prior to the termination of this offering, provided that nothing in
this prospectus shall be deemed to incorporate portions of documents or information “furnished” and not “filed”
with the SEC.
You
should rely only on the information incorporated by reference or provided in this prospectus or any accompanying prospectus supplement.
We have not authorized anyone to provide you with different information.
You
should not assume that the information contained in this prospectus and any accompanying prospectus supplement is correct on any date
after their respective dates, even though this prospectus or any prospectus supplement is delivered, or securities are sold on a later
date.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, upon oral or written request, a copy
of any document incorporated by reference at no cost. Requests should be made to:
Zackary
Irani
Chairman
& Chief Executive Officer
Biomerica,
Inc.
17571
Von Karman Avenue Irvine, California 92614
(949)
645-2111
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the
public at no cost from the SEC’s website at http://www.sec.gov.
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s
rules, this prospectus, and any accompanying prospectus supplement, which form a part of the registration statement, do not contain all
the information that is included in the registration statement. You will find additional information about us in the registration statement.
Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily complete and you should
read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding
of the document or matter.
$20,000,000
BIOMERICA,
INC.
Common
Stock
PROSPECTUS
September
27, 2023
PART
II
| ± | Filed herewith. |
| * | To be filed by
amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of the offered securities,
if applicable. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on September 27, 2023.
| |
BIOMERICA,
INC. |
| |
|
|
| |
By: |
/s/ Zackary Irani |
| |
Name: |
Zackary
Irani |
| |
Its: |
Chairman
and Chief Executive Officer |
Each
person whose signature appears below constitutes and appoints Zackary Irani and Allen Barbieri, as his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments) and supplements to this registration statement (or any
other registration statement for the same offering that is effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, as amended) and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his or her substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
| Name |
|
Title |
|
Date |
| |
|
|
|
|
/s/
Zackary Irani |
|
Chairman
and Chief Executive Officer
(Principal
Executive Officer) |
|
September
27, 2023 |
| Zackary
Irani |
|
|
|
|
| |
|
|
|
|
/s/
Gary Lu |
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer) |
|
September
27, 2023 |
| Gary
Lu |
|
|
|
|
| |
|
|
|
|
/s/
Allen Barbieri
|
|
Director |
|
September
27, 2023 |
| Allen
Barbieri |
|
|
|
|
| |
|
|
|
|
/s/
David Moatazedi
|
|
Director
|
|
September
27, 2023 |
| David
Moatazedi |
|
|
|
|
| |
|
|
|
|
/s/
Jane Emerson
|
|
Director |
|
September
27, 2023 |
| Jane
Emerson, M.D., Ph.D. |
|
|
|
|
| |
|
|
|
|
/s/
Jack Kenny
|
|
Director |
|
September
27, 2023 |
| Jack
Kenny |
|
|
|
|
| |
|
|
|
|
/s/
Catherine Coste
|
|
Director |
|
September
27, 2023 |
| Catherine
Coste |
|
|
|
|
