As filed with the Securities and Exchange Commission
on September 14 , 2018
Registration Statement No. 333- 224379
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
Amendment No. 1
to
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CEMTREX,
INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
|
30-0399914
|
(State
or other jurisdiction of
incorporation or organization)
|
|
(I.R.S.
Employer
Identification Number)
|
19
Engineers Lane
Farmingdale,
New York 11735
(631)
756-9116
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Aron
Govil
Executive
Director
Cemtrex,
Inc.
19
Engineers Lane
Farmingdale,
New York 11735
(631)
756-9116
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all communications to:
Spencer
G. Feldman, Esq.
Olshan
Frome Wolosky LLP
1325
Avenue of the Americas, 15
th
Floor
New
York, New York 10019
Telephone:
(212) 451-2300
Facsimile:
(212) 451-2222
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933,
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 of 1933, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
[ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See definitions of “large accelerated filer”, “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large
accelerated filer [ ]
|
Accelerated
filer [ ]
|
Non-accelerated
filer [ ]
(Do
not check if a smaller reporting company)
|
Smaller
reporting company [X]
Emerging
growth company [X]
|
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 Commission acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. The selling stockholder named in this prospectus 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 the selling stockholder named in this prospectus is not soliciting offers to buy
these securities in any jurisdiction where the offer or sale is not permitted.
Subject
to completion, dated September 14 , 2018
PROSPECTUS
Cemtrex,
Inc.
1,012,625
Shares of Common Stock
This
prospectus relates to the offer and sale by NIL Funding Corporation, the selling stockholder named in this prospectus, and any
pledgee, donee, transferee or other successor in interest, of up to 1,012,625 shares of common stock of Cemtrex, Inc. We are filing
the registration statement (of which this prospectus is a part) at this time to fulfill a contractual obligation to do so, which
we undertook at the time of the original issuance of the shares described in this prospectus. We will not receive any of the proceeds
from the sale of the common stock by the selling stockholder.
We
have agreed to pay all legal, accounting, registration and related fees and expenses in connection with the registration of these
shares and to indemnify the selling stockholder against all losses, claims, damages and liabilities, including liabilities under
the Securities Act of 1933, in connection with any misrepresentation made by us in this prospectus. The selling stockholder will
pay all underwriting discounts and selling commissions, if any, in connection with the sale of its shares.
The
selling stockholder named in this prospectus, and any pledgee, donee, transferee or other successor-in-interest, may offer the
shares from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market
prices or at privately negotiated prices.
Our common stock is traded
on the Nasdaq Capital Market under the symbol “CETX.” On September 12 , 2018, the closing sale price of the
common stock on Nasdaq was $ 1.46 per share. We urge you to obtain current market quotations for our common stock.
Investing
in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 2.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is __________, 2018
TABLE
OF CONTENTS
We
have not authorized anyone to provide you with information different from that contained or incorporated by reference in this
prospectus.
PROSPECTUS
SUMMARY
This
summary highlights important features of this offering and the information included or incorporated by reference in this prospectus.
This summary does not contain all of the information that you should consider before investing in our common stock. You should
read the entire prospectus carefully, especially the risks of investing in our common stock discussed under “Risk Factors.”
Unless
the context otherwise requires, references in this prospectus to “Cemtrex,” “we,” “us” and
“our” refer to Cemtrex, Inc. and its subsidiaries.
Cemtrex,
Inc.
We
are a rapidly growing diversified technology company operating in a wide array of business segments providing solutions to meet
today’s industrial and manufacturing challenges. We provide manufacturing services of advanced electronics system assemblies,
broad-based industrial services, instruments and emission monitors for industrial processes, and industrial air filtration and
environmental control systems. Our operations are currently divided into two market groups – the Electronics Manufacturing
Services (EMS) group and the Industrial Products and Services (IPS) group.
Our
EMS group provides end-to-end electronic manufacturing services that include product design and sustaining engineering services,
printed circuit board assembly and production, cabling and wire harnessing, systems integration, comprehensive testing services,
and completely assembled electronic products. Our EMS group offers fully integrated contract manufacturing services to global
original equipment manufacturers (OEMs) and technology companies that operate primarily in the medical, industrial, automation,
automotive and renewable energy markets.
Our
IPS group provides a complete line of air filtration and environmental control products to a wide variety of industrial and manufacturing
industries worldwide. The group manufactures, sells and services monitoring instruments, software and systems for measurement
of emissions of greenhouse gases, hazardous gases, and particulate and other regulated pollutants used in emissions trading globally,
as well as for industrial processes. We also market monitoring and analysis equipment for gas and liquid measurement for various
downstream oil and gas applications and industrial process applications. In addition, we offer one-source expertise and capabilities
in plant and equipment erection, relocation and disassembly in numerous industrial markets such as automotive, printing and graphics,
industrial automation, packaging and chemicals.
We
have rapidly grown to become one of the leading worldwide diversified technology companies in our business segments. We have grown
through both organic expansion and acquisitions. Our broad sales and marketing efforts in the United States, Europe and Asia,
through our direct sales force, independent sales representatives and a variety of other distribution channels, have largely driven
this growth. Acquisitions have also accelerated this growth with our purchases of the ROB Group, an electronics manufacturing
solutions company located in Germany (October 2013), Advanced Industrial Services Inc., an installer of high precision equipment
located in York, Pennsylvania (December 2015), Periscope, GmbH, an electronics manufacturing firm located in northern Germany
(June 2016), and, most recently, a 46% interest in Vicon Industries, Inc., a global producer of video management systems for use
in security, surveillance, safety and communication applications (March 2018).
For the fiscal years ended
September 30, 2017 and 2016, we had total revenues of $120.6 million and $93.7 million, respectively, and net income of $4.4 million
and $5.0 million, respectively. For the nine months ended June 30, 2018 and 201 7 , we had total revenues of
$ 72.0 million and $ 87.7 million, respectively, and net income (loss) of $( 1.4 million ) and $3.0
million , respectively, and we had total assets of $ 68.7 million at June 30, 2018.
We
were incorporated in Delaware in April 1998. Our principal executive offices are located at 19 Engineers Lane, Farmingdale, New
York 11735, and our telephone number is (631) 756-9116. We maintain a website at www.cemtrex.com. We make our periodic and current
reports that are filed with the SEC available, free of charge, on our website as soon as reasonably practicable after such material
is electronically filed with, or furnished to, the SEC. Information contained on, or accessible through, our website is not a
part of, and is not incorporated by reference into, this prospectus.
The
Offering
Common
stock
offered by selling stockholder
|
1,012,625
shares
|
|
|
|
Common
stock
outstanding (as of August 31 , 2018)
|
12,893,889 shares
|
|
|
|
|
Use
of proceeds
|
We
will not receive any proceeds from the sale of shares in this offering.
|
|
|
|
|
Nasdaq
Capital Market symbol
|
CETX
|
RISK
FACTORS
Investing
in our common stock involves significant risks. Please see the risk factors under the heading “Risk Factors” in our
most recent Annual Report on Form 10-K, as amended, and revised or supplemented by our Quarterly Reports on Form 10-Q filed with
the SEC since the filing of our most recent Annual Report on Form 10-K, each of which are on file with the SEC and are incorporated
by reference in this prospectus. Before making an investment decision, you should carefully consider these risks as well as other
information we include or incorporate by reference in this prospectus. The risks and uncertainties we have described are not the
only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our business operations.
SPECIAL
NOTE REGARDING FORWARD-LOOKING INFORMATION
This
prospectus includes and incorporates forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). All statements, other than statements of historical facts, included or incorporated in this prospectus regarding
our strategy, future operations, financial position, future revenues, projected costs, prospects, plans and objectives of management
are forward-looking statements. The words “anticipates,” “believes,” “estimates,” “expects,”
“intends,” “may,” “plans,” “projects,” “will,” “would”
and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain
these identifying words. We cannot guarantee that we actually will achieve the plans, intentions or expectations disclosed in
our forward-looking statements and you should not place undue reliance on our forward-looking statements. There are a number of
important factors that could cause our actual results to differ materially from those indicated by these forward-looking statements.
These important factors include the factors that we identify in the documents we incorporate by reference in this prospectus,
as well as other information we include or incorporate by reference in this prospectus. See “Risk Factors.” You should
read these factors and other cautionary statements made in this prospectus, and in the documents we incorporate by reference as
being applicable to all related forward-looking statements wherever they appear in the prospectus, and in the documents incorporated
by reference. We do not assume any obligation to update any forward-looking statements made by us, except as required by U.S.
federal securities laws.
USE
OF PROCEEDS
We
will not receive any proceeds from the sale of shares by the selling stockholder. The selling stockholder will pay all underwriting
discounts, selling commissions and expenses incurred by it for brokerage, accounting, tax or legal services or any other expenses
incurred by the selling stockholder in connection with the sale of the shares. We will bear all other costs, fees and expenses
incurred in effecting the registration of the shares covered by this prospectus, including, without limitation, all registration
and filing fees, Nasdaq listing fees and fees and expenses of our counsel and our accountants.
DESCRIPTION
OF TRANSACTION
Issuance
of Cemtrex Common Stock in Exchange for Vicon Industries Shares
On
March 23, 2018, in a private resale transaction, we purchased 7,284,824 shares of common stock and a warrant to purchase an additional
1,500,000 shares of common stock of Vicon Industries, Inc., a global producer of video management systems for use in security,
surveillance, safety and communication applications, from former Vicon Industries shareholder NIL Funding Corporation, pursuant
to the terms of a Securities Purchase Agreement. Our purchase of the Vicon Industries common stock and warrant resulted in our
beneficial ownership of approximately 46% of the outstanding shares of common stock of Vicon Industries.
We
purchased the shares of common stock and warrant of Vicon Industries in exchange for 1,012,625 shares of our common stock. These
shares are covered by this prospectus. The number of shares was calculated based on the volume weighted average price of our common
stock during the five consecutive trading days ending on the fifth trading day immediately preceding the date of the Securities
Purchase Agreement, which equaled $2.8776 per share.
We
issued the shares of our common stock in the transaction pursuant to the exemption from registration afforded by Section 4(a)(2)
of the Securities Act of 1933. The shares offered in the transaction have not been registered under the Securities Act, and may
not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
Under
the Securities Purchase Agreement, we agreed to file this registration statement with the Securities and Exchange Commission and
to use our commercially reasonable efforts to cause such registration statement to become effective with respect to the resale
of our common stock.
The
foregoing summary of the Securities Purchase Agreement is qualified in its entirety by reference to the full text of that document
that is included as an exhibit to our current report on Form 8-K filed with the SEC on March 26, 2018.
SELLING
STOCKHOLDER
This
prospectus relates to the resale from time to time of up to 1,012,625 shares of our common stock by the selling stockholder.
The following table, based
upon information currently known by us, sets forth as of September 12 , 2018: (i) the number of shares held of record or
beneficially by the selling stockholder as of such date (as determined below) and (ii) the number of shares that may be offered
under this prospectus by the selling stockholder. Beneficial ownership includes shares of common stock plus any securities held
by the holder exercisable for or convertible into shares of common stock within 60 days after September 12 , 2018, in accordance
with Rule 13d-3(d)(1) under the Exchange Act. The inclusion of any shares in this table does not constitute an admission of beneficial
ownership for the selling stockholder named below.
The selling stockholder
has not held any position or office, or has otherwise had a material relationship, with us or any of our subsidiaries within the
past three years other than as described in “Description of Transactions” above. To our knowledge, the selling stockholder
has sole voting and investment power with respect to its shares of common stock.
Percentage of beneficial
ownership in the table below is based on 12,893,889 shares of our common stock outstanding. The selling stockholder is
not a broker-dealer regulated by the Financial Industry Regulatory Authority, Inc. (“FINRA”), nor is it affiliated
with such a broker-dealer. The selling stockholder acquired its shares in the ordinary course of such selling stockholder’s
business and, at the time of the acquisition of the shares to be resold pursuant to this prospectus, the selling stockholder had
no agreements or understandings, directly or indirectly, with any person to distribute them.
|
Name
of Selling Stockholder
|
|
Common
Stock Beneficially Owned
Prior to the
Offering
|
|
|
Common
Stock
Offered
Pursuant to
this Prospectus
|
|
|
Common
Stock
Owned Upon
Completion of
this Offering (1)
|
|
|
Percentage
of
Common
Stock Owned
Upon
Completion
of this
Offering
|
|
NIL Funding Corporation
(2)
4838 Jenkins Avenue
North Charleston, South Carolina 29405
|
|
|
1,012,625
|
|
|
|
1,012,625
|
|
|
|
0
|
|
|
|
—
|
|
|
|
|
|
(1)
|
We
do not know when or in what amounts the selling stockholder may offer shares for sale. The selling stockholder may not sell
any or all of the shares offered by this prospectus. Because the selling stockholder may offer all or some of the shares pursuant
to this offering, and because there are currently no agreements, arrangements or understandings with respect to the sale of
any of the shares, we cannot estimate the number of the shares that will be held by the selling stockholder after completion
of the offering. However, for purposes of this table, we have assumed that, after completion of the offering, none of the
shares covered by this prospectus will be held by the selling stockholder.
|
|
|
|
|
(2)
|
Anita
G. Zucker, as Trustee of the Article 6 Marital Trust under the First Amended and Restated Jerry Zucker Revocable Trust dated
April 2, 2007 (the “Trust”), has sole voting and investment power with respect to the shares of our common stock
shown in the table above to be beneficially owned by NIL Funding Corporation, which is a subsidiary of the Trust.
|
Material
Relationships between Cemtex and Selling Stockholder
On
March 4, 2016, Vicon Industries, a 46%-owned subsidiary of our company, entered into a Credit Agreement with NIL Funding Corporation
to provide a $3.0 million revolving line of credit for working capital purposes, which was subsequently amended and restated.
On August 18, 2016, Vicon Industries entered into an Amended and Restated Credit Agreement with NIL Funding Corporation which
increased the $3.0 million revolving line of credit to $6.0 million. On April 20, 2017, Vicon Industries entered into a Second
Amended and Restated Credit Agreement effectively providing Vicon Industries with $2.0 million of additional borrowing availability.
In connection with the Second Amended Agreement, Vicon Industries issued NIL Funding Corporation a three-year warrant to purchase
1,500,000 shares of Vicon Industries common stock at a price of $0.40 per share. On July 27, 2017, Vicon Industries entered into
an Investment Agreement with NIL Funding, under which NIL Funding Corporation agreed to backstop Vicon Industries’ rights
offering and purchase up to $3.0 million of Vicon Industries common stock, subject to the terms and conditions of the Investment
Agreement. Pursuant to the Investment Agreement, following the closing of the rights offering, NIL Funding Corporation purchased
7,500,000 shares of Vicon Industries common stock for an aggregate purchase price of $3.0 million. As indicated above, on March
23, 2018, we purchased the Vicon Industries common stock and warrant from NIL Funding Corporation.
On
March 23, 2018, Julian A. Tiedemann resigned as the Chairman of the Board of Vicon Industries. Mr. Tiedemann is the Executive
Vice President and Chief Operating Officer of The InterTech Group, Inc., an affiliate of NIL Funding Corporation.
PLAN
OF DISTRIBUTION
The
selling stockholder, and any pledgee, donee, transferee or other successor in interest, may, from time to time, sell any or all
of its shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions.
These sales may be at fixed or negotiated prices, and may be effected in transactions, which may involve crosses or block transactions,
pursuant to one or more of the following methods:
|
|
●
|
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
|
|
|
|
|
●
|
block
trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
|
|
|
|
|
|
|
●
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
|
|
|
|
|
●
|
an
exchange distribution in accordance with the rules of the applicable exchange;
|
|
|
|
|
|
|
●
|
privately
negotiated transactions;
|
|
|
|
|
|
|
●
|
short
sales;
|
|
|
|
|
|
|
●
|
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
|
|
|
|
|
●
|
broker-dealers
may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share;
|
|
|
|
|
|
|
●
|
one
or more underwritten offerings on a firm commitment or best efforts basis;
|
|
|
|
|
|
|
●
|
a
combination of any such methods of sale; and
|
|
|
|
|
|
|
●
|
any
other method permitted pursuant to applicable law.
|
The
selling stockholder may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling stockholder may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling stockholder (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser)
in amounts to be negotiated, which commissions or discounts may be less than or in excess of those customary in the types of transactions
involved. Any profits on the resale of shares of common stock by a broker-dealer acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. Discounts, concessions, commissions and similar selling expenses, if any, attributable
to the sale of shares will be borne by the selling stockholder. The selling stockholder may agree to indemnify any agent, dealer
or broker-dealer that participates in transactions involving sales of the shares if liabilities are imposed on that person under
the Securities Act.
The
selling stockholder may from time to time pledge or grant a security interest in some or all of the shares of common stock owned
by it and, if it defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the
shares of common stock from time to time under this prospectus after we have filed a supplement to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act supplementing or amending the list of selling stockholders to include
any pledgee, transferee or other successor in interest as a selling stockholder under this prospectus.
The
selling stockholder may also transfer the shares of common stock in other circumstances, in which case any donee, transferee,
pledgee or other successor in interest will be the selling beneficial owner for purposes of this prospectus and may sell the shares
of common stock from time to time under this prospectus after we have filed a supplement to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act of supplementing or amending the list of selling stockholders to include any
donee, pledgee, transferee or other successor in interest as a selling stockholder under this prospectus.
Under
the securities laws of some states, the shares of our common stock may be sold in such states only through registered or licensed
brokers or dealers. In addition, in some states the shares of our common stock may not be sold unless such shares have been registered
or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
The
selling stockholder and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to
be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act.
We
are required to pay all legal, accounting, registration, printing and related fees and expenses incident to the registration of
the shares of common stock being registered. We have agreed to indemnify the selling stockholder against all losses, claims, damages
and liabilities, including liabilities under the Securities Act, in connection with any misrepresentation made by us in this prospectus.
The
selling stockholder has advised us that it has not entered into any agreements, understandings or arrangements with any underwriters
or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting
in connection with a proposed sale of shares of common stock by the selling stockholder. If we are notified by the selling stockholder
that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required,
we will file a supplement to this prospectus.
The
selling stockholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange
Act, which may limit the timing of purchases and sales of any of the shares of our common stock by the selling stockholder and
any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in
the distribution of the shares of our common stock to engage in market-making activities with respect to the shares of our common
stock. All of the foregoing may affect the marketability of the shares of our common stock and the ability of any person or entity
to engage in market-making activities with respect to the shares of our common stock.
There
can be no assurance that the selling stockholder will sell any or all of the shares of our common stock registered pursuant to
the registration statement, of which this prospectus forms a part.
LEGAL
MATTERS
Olshan
Frome Wolosky LLP has opined as to the legality of the shares of common stock being offered by this registration statement.
EXPERTS
The
consolidated financial statements of Cemtrex, Inc. for the fiscal years ended September 30, 2017 and 2016 incorporated by reference
in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the report
of Bharat Parikh & Associates, independent registered public accountants, upon the authority of said firm as experts in accounting
and auditing in giving said report.
WHERE
YOU CAN FIND MORE INFORMATION
We
file reports, proxy statements and other documents with the SEC. You may read and copy any document we file at the SEC’s
public reference room at 100 F Street, N.E., Room 1580, Washington, DC 20549. You should call 1-800-SEC-0330 for more information
on the operation of the public reference room. Our SEC filings are also available to you on the SEC’s Internet site at http://www.sec.gov.
The SEC’s Internet site contains reports, proxy and information statements, and other information regarding issuers that
file electronically with the SEC.
This
prospectus is part of a registration statement that we filed with the SEC. The registration statement contains more information
than this prospectus regarding us and our common stock, including certain exhibits and schedules. You can obtain a copy of the
registration statement from the SEC at the address listed above or from the SEC’s Internet site.
Our
Internet address is www.cemtrex.com. The information on our Internet website is not incorporated by reference in this prospectus.
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 is considered part of this prospectus. The documents and reports that we list below are incorporated
by reference into this prospectus. In addition, all documents and reports which we file pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this prospectus are incorporated by reference in this prospectus as of the respective
filing dates of these documents and reports. Statements contained in documents that we file with the SEC and that are incorporated
by reference in this prospectus will automatically update and supersede information contained in this prospectus, 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.
We
have filed the following documents with the SEC. These documents are incorporated herein by reference as of their respective dates
of filing:
|
|
●
|
Annual Report on Form 10-K for the fiscal year ended September
30, 2017 filed on December 13, 2017, as amended by Amendment No. 1 filed on January 29, 2018 and Amendment No. 2 filed
on September 7, 2018;
|
|
|
|
|
|
|
●
|
Quarterly Report s on Form 10-Q for the quarterly periods
ended December 31, 2017 filed on February 14, 2018 , March 31, 2018 filed on May 15, 2018, and June 30, 2018 filed on
August 14, 2018;
|
|
|
|
|
|
|
●
|
Current Reports on Form 8-K, but only to the extent that the
information set forth therein is “filed” rather than “furnished” under the SEC’s rules, filed
on October 23, 2017, November 8, 2017, February 9, 2018, February 27, 2018, March 27, 2018, April 4 , 2018, and August 22 ,
2018, and Form 8-K/A filed on November 24, 2017 (Amendment No. 5 to Form 8-K filed on June 7, 2016 ), November 24, 2017
(Amendment No. 6 to Form 8-K filed on June 7, 2016 ), June 6, 2018 (Amendment No. 1 to Form 8-K filed on March 27, 2018),
and June 8, 2018 (Amendment No. 2 to Form 8-K filed on March 27, 2018);
|
|
|
|
|
|
|
●
|
Definitive Proxy Statement on Schedule 14A filed on February 27, 2018;
|
|
|
|
|
|
|
●
|
the description of our common stock contained in our registration statement on Form 10/A filed with the SEC on November 25, 2008 (File No. 000-53238), and any amendment or report filed with the SEC for the purpose of updating the description;
|
|
|
|
|
|
|
●
|
the description of our series 1 preferred stock contained in our registration statement on Form 8-A filed with the SEC on February 16, 2017 (File No. 001-37464), and any amendment or report filed with the SEC for the purpose of updating the description; and
|
|
|
|
|
|
|
●
|
the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on February 16, 2017 (File No. 001-37464), and any amendment or report filed with the SEC for the purpose of updating the description.
|
You
may request a copy of these documents, which will be provided to you at no cost, by contacting:
Cemtrex,
Inc.
19
Engineers Lane
Farmingdale,
New York 11735
Attn:
Investor Relations
Tel.:
(631) 756-9116
You
should rely only on the information contained in this prospectus, including information incorporated by reference as described
above, or any prospectus supplement that we have specifically referred you to. We have not authorized anyone else to provide you
with different information. You should not assume that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of those documents or that any document incorporated by reference is accurate
as of any date other than its filing date. You should not consider this prospectus to be an offer or solicitation relating to
the securities in any jurisdiction in which such an offer or solicitation relating to the securities is not authorized. Furthermore,
you should not consider this prospectus to be an offer or solicitation relating to the securities if the person making the offer
or solicitation is not qualified to do so, or if it is unlawful for you to receive such an offer or solicitation.
PART
II
Information
Not Required In Prospectus
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the various expenses to be incurred in connection with the sale and distribution of the securities
being registered hereby, all of which will be borne by Cemtrex (except any underwriting discounts and commissions and expenses
incurred by the selling stockholder for brokerage, accounting, tax or legal services or any other expenses incurred by the selling
stockholder in connection with the sale of the shares). All amounts shown are estimates except the SEC registration fee.
|
SEC registration fee
|
|
$
|
356.78
|
|
|
Legal fees and expenses
|
|
|
10,000.00
|
|
|
Accounting fees and expenses
|
|
|
1,000.00
|
|
|
Miscellaneous
|
|
|
143.22
|
|
|
Total
expenses
|
|
$
|
11,500.00
|
|
Item
15. Indemnification of Directors and Officers
Our
certificate of incorporation provides that any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (whether or not by or
in the right of the company) by reason of the fact that he is or was a director, officer, incorporator, employee or agent of the
company, or is or was serving at the request of the company as a director, officer, incorporator, employee or agent of another
company, partnership, joint venture, trust or other enterprise, shall be entitled to be indemnified by the company to the full
extent then permitted by law or to the extent that a court of competent jurisdiction shall deem proper or permissible under the
circumstance, whichever is greater, against expenses (including attorneys’ fees), judgments, fines and amount paid in settlement
incurred by such person in connection with such action, suit or proceeding. Such right of indemnification shall inure whether
or not the claim asserted is based on matters which pre-date the company’s adoption of the indemnification provisions in
its certificate of incorporation. Furthermore, such right of indemnification will continue as to a person who has ceased to be
a director, officer, incorporator, employee or agent and will inure to the benefit of the heirs and personal representatives of
such person.
Insofar
as indemnification for liabilities arising under the Securities Act, may be permitted to our directors, officers, and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment of expenses incurred or paid by a director, officer or controlling person in
a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to the court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act and will be governed by the final adjudication of such issue.
In
addition, we have entered into indemnification agreements with each of our officers and directors under which we agree to indemnify
each officer and director to the fullest extent now or hereafter permitted by applicable law (including, without limitation, the
indemnification permitted by the General Corporation Law of Delaware) in the event that an officer or director was or is made
or is threatened to be made a party to or a witness in any threatened, pending or completed action, suit, proceeding or appeal,
whether civil, criminal, administrative or investigative, by reason of the fact that such person was or is a director and/or officer
of ours or any of our subsidiaries, both as to action in such person’s official capacity and as to action in another capacity
while holding such directorship or office, where such person acts or acted in that capacity at our request, against all reasonable
expenses (including attorneys’ fees and disbursements), judgments, fines (including excise taxes and penalties) and amounts
paid in settlement actually and reasonably incurred by officer of director in connection with such action, suit, proceeding or
appeal.
Item
16. Exhibits.
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
2.1
|
|
Securities
Purchase Agreement, dated March 23, 2018, between Cemtrex, Inc. and NIL Funding Corporation.
(5)
|
|
|
|
|
|
3.1
|
|
Certificate
of Incorporation of the company.
(1)
|
|
|
|
|
|
3.2
|
|
By-Laws
of the company.
(1)
|
|
|
|
|
|
3.3
|
|
Certificate
of Amendment of Certificate of Incorporation, dated September 29, 2006.
(1)
|
|
|
|
|
|
3.4
|
|
Certificate
of Amendment of Certificate of Incorporation, dated March 30, 2007.
(1)
|
|
|
|
|
|
3.5
|
|
Certificate
of Amendment of Certificate of Incorporation, dated May 16, 2007.
(1)
|
|
|
|
|
|
3.6
|
|
Certificate
of Amendment of Certificate of Incorporation, dated August 21, 2007.
(1)
|
|
|
|
|
|
3.7
|
|
Certificate
of Amendment of Certificate of Incorporation, dated April 3, 2015.
(3)
|
|
|
|
|
|
3.8
|
|
Certificate
of Designation of the Series A Preferred Shares, dated September 8, 2009.
(2)
|
|
|
|
|
|
3.9
|
|
Certificate
of Designation of the Series 1 Preferred Stock.
(4)
|
|
|
|
|
|
5.1*
|
|
Opinion
of Olshan Frome Wolosky LLP.
|
|
|
|
|
|
23.1*
|
|
Consent
of Bharat Parikh & Associates, Independent Registered Public Accountants.
|
|
|
|
|
|
23.2*
|
|
Consent
of Olshan Frome Wolosky LLP (included in its opinion filed as Exhibit 5.1).
|
|
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page of the Registration Statement).
|
|
*
|
Filed
herewith.
|
|
|
|
|
(1)
|
Incorporated
by reference from Form 10-12G filed on May 22, 2008.
|
|
(2)
|
Incorporated
by reference from Form 8-K filed on September 10, 2009.
|
|
(3)
|
Incorporated
by reference from Form 8-K filed on August 22, 2016.
|
|
(4)
|
Incorporated
by reference from Form 10-K filed on December 28, 2016.
|
|
(5)
|
Incorporated
by reference from Form 8-K filed on March 26, 2018.
|
Item
17. Undertakings
The
undersigned Registrant hereby undertakes:
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933.
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided,
however
, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
If the Registrant is relying on Rule 430B:
(A)
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or
(ii)
If the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part
of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such date of first use.
That,
for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred
to by the undersigned Registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
That,
for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
The
undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed
by the SEC under Section 305(b)(2) of the Trust Indenture Act.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 15 above, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue.
Signatures
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Farmingdale, New York, on September 14 , 2018.
|
|
CEMTREX, INC.
|
|
|
|
|
|
|
By:
|
/s/ Saagar Govil
|
|
|
|
Saagar Govil
|
|
|
|
Chairman
of the Board, Chief Executive Officer, President
and
Secretary (principal executive officer)
|
|
|
|
|
|
|
By:
|
/s/ Renato Dela Rama
|
|
|
|
Renato Dela Rama
|
|
|
|
Vice President of Finance (principal financial and accounting
officer)
|
Pursuant to the requirements
of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
Chairman
of the Board, Chief Executive
|
|
|
|
/s/
Saagar Govil
|
|
Officer,
President, Secretary and Director
|
|
September 14 , 2018
|
|
Saagar
Govil
|
|
(principal
executive officer)
|
|
|
|
|
|
|
|
|
|
/s/
Renato Dela Rama
|
|
Vice
President of Finance (principal
|
|
September 14 , 2018
|
|
Renato
Dela Rama
|
|
financial
and accounting officer)
|
|
|
|
|
|
|
|
|
|
/s/
Aron Govil
|
|
Executive
Director
|
|
September 14 , 2018
|
|
Aron
Govil
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Metodi Filipov *
|
|
Director
|
|
September 14 , 2018
|
|
Metodi
Filipov
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Raju Panjwani
*
|
|
Director
|
|
September 14 , 2018
|
|
Raju
Panjwani
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Sunny Patel
*
|
|
Director
|
|
September 14 , 2018
|
|
Sunny
Patel
|
|
|
|
|
|
*By:
|
/s/
Aron Govil
|
|
|
|
Aron
Govil
Attorney-in-Fact
|
|
Cemtrex (NASDAQ:CETXP)
Historical Stock Chart
From Mar 2024 to Apr 2024
Cemtrex (NASDAQ:CETXP)
Historical Stock Chart
From Apr 2023 to Apr 2024
