As
filed with the Securities and Exchange Commission on November 25, 2022
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BLUE
STAR FOODS CORP
(Exact
name of registrant as specified in its charter)
Delaware |
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3000
NW 109th Avenue
Miami,
Florida 33172
(305)
836-6858 |
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82-4270040 |
(State
or other jurisdiction of
incorporation
or organization) |
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(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices) |
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(I.R.S.
Employer
Identification
No.) |
John
Keeler
Chief
Executive Officer and Executive Chairman
Blue
Star Foods Corp.
3000
NW 109th Avenue
Miami,
Florida 33172
(305)
836-6858
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Mark
Crone, Esq.
Liang
Shih, Esq.
The
Crone Law Group, P.C.
500
Fifth Avenue, Suite 938
New
York, New York 10110
mcrone@cronelawgroup.com
lshih@cronelawgroup.com
Telephone:
(646) 861-7891
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 to be 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, as amended (the “ Securities Act”), 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 definition of “accelerated filer,” “large accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act (Check One).
Large
accelerated filer ☐ |
Accelerated
filer ☐ |
Non-accelerated
filer ☐ (Do not check if smaller reporting company) |
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 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 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.
EXPLANATORY
NOTE
This
registration statement contains two prospectuses:
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a
base prospectus which covers the offering, issuance and sale by us of up to $25,000,000 of our common stock, preferred stock, debt
securities, warrants, subscription rights and/or units; and |
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a
sales agreement prospectus covering the offering, issuance and sale by us of up to $3,000,000 of our common stock that may
be issued and sold in an “at the market” offering pursuant to a sales agreement between our company and Roth Capital
Partners, LLC. |
The
base prospectus immediately follows this explanatory note. The sales agreement prospectus immediately follows the base prospectus. The
$3,000,000 of common stock that may be offered, issued and sold by us under the sales agreement prospectus is included in the
$25,000,000 of securities that may be offered, issued and sold by us under the base prospectus. The sales agreement prospectus includes
the base prospectus, except that the sales agreement prospectus contains a different front and back cover page, and sets forth additional
information in the sections titled “About this Prospectus,” “The Offering,” “Risk Factors,” “Use
of Proceeds,” “Dilution,” “Plan of Distribution” and “Legal Matters.” The cover pages and such
additional information contained in the sales agreement prospectus are set forth in the pages following the base prospectus included
herein.
The
information in this prospectus is not complete and may be changed. We may not sell the securities until the Registration Statement filed
with the Securities and Exchange Commission, of which this prospectus is a part, is effective. This prospectus is not an offer to sell
these securities and 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 November 25, 2022 |
BLUE
STAR FOODS CORP.
$25,000,000
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
SUBSCRIPTION
RIGHTS
DEBT
SECURITIES
UNITS
We
may offer and sell from time to time, in one or more series, any one of the following securities of our company, for total gross proceeds
of up to $25,000,000:
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common
stock; |
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preferred
stock; |
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warrants
to purchase common stock, preferred stock, debt securities, other securities or any combination of those securities; |
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subscription
rights to purchase common stock, preferred stock, debt securities, other securities or any combination of those securities; |
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secured
or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness which may be senior debt securities,
senior subordinated debt securities or subordinated debt securities, each of which may be convertible into equity securities; or |
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units
comprised of, or other combinations of, the foregoing securities. |
We
may offer and sell these securities separately or together, in one or more series or classes and in amounts, at prices and on terms described
in one or more offerings. We may offer securities through underwriting syndicates managed or co-managed by one or more underwriters or
dealers, through agents or directly to purchasers. The prospectus supplement for each offering of securities will describe in detail
the plan of distribution for that offering. For general information about the distribution of securities offered, please see “Plan
of Distribution” in this prospectus.
Each
time our securities are offered, we will provide a prospectus supplement containing more specific information about the particular offering
and attach it to this prospectus. The prospectus supplements may also add, update or change information contained in this prospectus.
This
prospectus may not be used to offer or sell securities without a prospectus supplement which includes a description of the method and
terms of this offering.
Our common stock is quoted
on the Nasdaq Capital Market under the symbol “BSFC.” The last reported sale price of our common stock on the Nasdaq Capital
Market on November 23, 2022 was $0.78 per share. The aggregate market value of our outstanding common stock held by non-affiliates
is $9,690,595 based on 25,538,844 shares of outstanding common stock, of which 9,888,362 shares are held by non-affiliates,
and a per share price of $0.98, which was the closing sale price of our common stock as quoted on the Nasdaq Capital Market on
November 3, 2022.
If
we decide to seek a listing of any preferred stock, purchase contracts, warrants, subscriptions rights, depositary shares, debt securities
or units offered by this prospectus, the related prospectus supplement will disclose the exchange or market on which the securities will
be listed, if any, or where we have made an application for listing, if any.
Investing
in our securities is highly speculative and involves a significant degree of risk. See “Risk Factors” beginning on page 5 and the risk factors in our most recent Annual Report on Form 10-K, which is incorporated by reference herein, as well as in any other
recently filed quarterly or current reports and, if any, in the relevant prospectus supplement. We urge you to carefully read this prospectus
and the accompanying prospectus supplement, together with the documents we incorporate by reference, describing the terms of these securities
before investing.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is ____________, 2022.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing
a “shelf” registration process. Under this shelf registration process, we may offer and sell, either individually or in combination,
in one or more offerings, any of the securities described in this prospectus, for total gross proceeds of up to $25,000,000. This prospectus
provides you with a general description of the securities we may offer. Each time we offer securities under this prospectus, we will
provide a prospectus supplement to this prospectus that will contain more specific information about the terms of that offering. 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 also add, update or
change any of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus.
We
urge you to read carefully this prospectus, any applicable prospectus supplement and any free writing prospectuses we have authorized
for use in connection with a specific offering, together with the information incorporated herein by reference as described under the
heading “Incorporation of Documents by Reference,” before investing in any of the securities being offered. You should rely
only on the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus supplement, along
with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering. We
have not authorized anyone to provide you with different or additional information. This prospectus is an offer to sell only the securities
offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so.
The
information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only
as of the date on the front of the document and any information we have incorporated by reference is accurate only as of the date of
the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or
any related free writing prospectus, or any sale of a security.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the section entitled
“Where You Can Find Additional Information.”
This
prospectus contains, or incorporates by reference, trademarks, tradenames, service marks and service names of Blue Star Foods Corp. and
its consolidated subsidiaries.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and any accompanying prospectus or prospectus supplement and the documents incorporated by reference herein and therein may
contain forward looking statements that involve significant risks and uncertainties. All statements other than statements of historical
fact contained in this prospectus and any accompanying prospectus supplement and the documents incorporated by reference herein, including
statements regarding future events, our future financial performance, business strategy, and plans and objectives of management for future
operations, are forward-looking statements. We have attempted to identify forward-looking statements by terminology including “anticipates,”
“believes,” “can,” “continue,” “could,” “estimates,” “expects,”
“intends,” “may,” “plans,” “potential,” “predicts,” “should,”
or “will” or the negative of these terms or other comparable terminology. Although we do not make forward looking statements
unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. These statements are only predictions
and involve known and unknown risks, uncertainties and other factors, including the risks outlined under “Risk Factors” or
elsewhere in this prospectus and the documents incorporated by reference herein, which may cause our or our industry’s actual results,
levels of activity, performance or achievements expressed or implied by these forward-looking statements. Moreover, we operate in a highly
regulated, very competitive, and rapidly changing environment. New risks emerge from time to time and it is not possible for us to predict
all risk factors, nor can we address the impact of all factors on our business or the extent to which any factor, or combination of factors,
may cause our actual results to differ materially from those contained in any forward-looking statements.
We
have based these forward-looking statements largely on our current expectations and assumptions about future events and financial trends
that we believe may affect our financial condition, results of operations, business strategy, short term and long term business operations,
and financial needs. These forward-looking statements are subject to certain risks and uncertainties that could cause our actual results
to differ materially from those reflected in the forward-looking statements. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed in this prospectus, and in particular, the risks discussed below and under the heading
“Risk Factors” and those discussed in other documents we file with the SEC which are incorporated by reference herein. This
prospectus, and any accompanying prospectus or prospectus supplement, should be read in conjunction with the consolidated financial statements
for the fiscal years ended December 31, 2021 and 2020 and related notes, which are incorporated by reference herein.
We
undertake no obligation to revise or publicly release the results of any revision to these forward-looking statements, except as required
by law. In light of the significant risks, uncertainties and assumptions that accompany forward-looking statements, the forward-looking
events and circumstances discussed in this prospectus and any accompanying prospectus or prospectus supplement may not occur and actual
results could differ materially and adversely from those anticipated or implied in the forward-looking statement.
You
should not place undue reliance on any forward-looking statement, each of which applies only as of the date of this prospectus, or any
accompanying prospectus or any prospectus supplement. Except as required by law, we undertake no obligation to update or revise publicly
any of the forward-looking statements after the date of this prospectus to conform our statements to actual results or changed expectations.
Any
forward-looking statement you read in this prospectus, any accompanying prospectus, or any prospectus supplement or any document incorporated
by reference reflects our current views with respect to future events and is subject to these and other risks, uncertainties and assumptions
relating to our operations, operating results, growth strategy and liquidity. You should not place undue reliance on these forward-looking
statements because such statements speak only as to the date when made. We assume no obligation to publicly update or revise these forward-looking
statements for any reason, or to update the reasons actual results could differ materially from those anticipated in these forward-looking
statements, even if new information becomes available in the future, except as otherwise required by applicable law. You are advised,
however, to consult any further disclosures we make on related subjects in our reports on Forms 10-Q, 8-K and 10-K filed with the SEC.
You should understand that it is not possible to predict or identify all risk factors. Consequently, you should not consider any such
list to be a complete set of all potential risks or uncertainties.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information that
you should consider before investing in our Company. You should carefully read the entire prospectus, including all documents incorporated
by reference herein. In particular, attention should be directed to our “Risk Factors,” “Information With Respect to
the Company,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the
financial statements and related notes thereto contained herein or otherwise incorporated by reference hereto, before making an investment
decision.
As
used herein, and any amendment or supplement hereto, unless otherwise indicated, “we,” “us,” “our,”
or the “Company” means Blue Star Foods Corp. and its consolidated subsidiaries.
Overview
We
are an international sustainable marine protein company that owns and operates several portfolio companies with an emphasis on environmental,
social and governance values. We seek to create a vertically integrated seafood company that offers customers high quality products while
maintaining a focus on our core values of delivering food safety, traceability and certified resource sustainability. Our companies include:
John
Keeler & Co., Inc. (“Keeler & Co.”) doing business as Blue Star Foods, which imports, packages
and sells refrigerated pasteurized crab meat sourced primarily from Southeast Asia and other premium seafood products;
Coastal Pride
Seafood, LLC (“Coastal Pride”) which imports pasteurized and fresh crab meat sourced primarily from
Mexico and Latin America and sells premium branded label crab meat throughout North America; and
Taste of
BC Aquafarms, Inc. (“TOBC”), a land-based recirculating aquaculture systems (“RAS”) salmon farming operation,
which sells its steelhead salmon to distributors in Canada.
Our
long-term strategy is to create a vertically integrated seafood company that offers customers high quality products while maintaining
a focus on our core values of delivering food safety, traceability and certified resource sustainability.
We
plan to grow the Company organically by continuing to grow our customer base and introducing new high-value product lines and categories,
as well as strategically acquiring companies that focus on additional species and proprietary technologies that we believe we can integrate
into a larger, diversified company.
Implications
of Being an Emerging Growth Company and Smaller Reporting Company
We
qualify as an “emerging growth company” under the Jumpstart our Business Startups Act (“JOBS Act”). As a result,
we are permitted to, and intend to, rely on exemptions from certain disclosure requirements. For so long as we are an emerging growth
company, we will not be required to:
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have
an auditor report on our internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act; |
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comply
with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation
or a supplement to the auditor’s report providing additional information about the audit and the financial statements (i.e.,
an auditor discussion and analysis); |
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submit
certain executive compensation matters to shareholder advisory votes, such as “say-on-pay,” “say-on-frequency”
and pay ratio; and |
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disclose
certain executive compensation related items such as the correlation between executive compensation and performance and comparisons
of the CEO’s compensation to median employee compensation. |
In
addition, Section 107 of the JOBS Act also provides that an emerging growth company can take advantage of the extended transition period
provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards.
In
other words, an emerging growth company can delay the adoption of certain accounting standards until those standards would otherwise
apply to private companies. We have elected to take advantage of the benefits of this extended transition period. Our financial statements
may therefore not be comparable to those of companies that comply with such new or revised accounting standards.
We
will remain an “emerging growth company” for up to five years from the date of the first sale of our common stock of the
issuer pursuant to an effective registration statement, or until the earliest of (i) the last day of the first fiscal year in which our
total annual gross revenues exceed $1.07 billion, (ii) the date that we become a “large accelerated filer” as defined in
Rule 12b-2 under the Exchange Act, which would occur if the market value of our common stock that is held by non-affiliates exceeds $700
million as of the last business day of our most recently completed second fiscal quarter, or (iii) the date on which we have issued more
than $1 billion in non-convertible debt during the preceding three year period.
Additionally,
we are a “smaller reporting company” as defined in Item 10(f)(1) of Regulation S-K. Smaller reporting companies may take
advantage of certain reduced disclosure obligations, including, among other things, providing only two years of audited financial statements.
We will remain a smaller reporting company until the last day of the fiscal year in which (1) the market value of our common stock held
by non-affiliates equals or exceeds $250 million as of the end of that year’s second fiscal quarter, or (2) our annual revenues
equaled or exceeded $100 million during such completed fiscal year and the market value of our common stock held by non-affiliates equals
or exceeds $700 million as of the end of that year’s second fiscal quarter.
Corporate
Information
We
were incorporated on October 17, 2017 in the State of Delaware as a blank check company to be used as a vehicle to pursue a business
combination. Prior to the Merger, we engaged in organizational efforts. Following the Merger, we discontinued our prior activities of
seeking a business for a merger or acquisition and acquired the business of John Keeler & Co. Inc., d/b/a Blue Star Foods, a Florida
corporation formed on May 5, 1995. Our executive offices are located at 3000 NW 109th Avenue, Miami, Florida 33172 and our telephone
number is (305) 836-6858. Our website address is https://bluestarfoods.com/. Except for any documents that are incorporated by
reference into this prospectus that may be accessed from our website, the information available on or through our website is not part
of this prospectus.
RISK
FACTORS
Investing
in our securities is highly speculative and involves a high degree of risk. Before deciding whether to invest in our securities, you
should carefully consider the risk factors we describe in any accompanying prospectus or any future prospectus supplement, as well as
in any related free writing prospectus for a specific offering of securities, and the risk factors incorporated by reference into this
prospectus, any accompanying prospectus or such prospectus supplement. You should also carefully consider other information contained
and incorporated by reference in this prospectus and any applicable prospectus supplement, including our financial statements and the
related notes thereto incorporated by reference in this prospectus. The risks and uncertainties described in the applicable prospectus
supplement and our other filings with the SEC incorporated by reference herein are not the only ones we face. Additional risks and uncertainties
not presently known to us or that we currently consider immaterial may also adversely affect us. If any of the described risks occur,
our business, financial condition or results of operations could be materially harmed. In such case, the value of our securities could
decline and you may lose all or part of your investment.
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, we intend to use the net proceeds from these sales for general corporate purposes, which
includes, without limitation, sales and marketing expenses generally, research and development expenses, sales and support staff and
software development including enterprise resource planning and practice management implementations. The amounts and timing of these
expenditures will depend on numerous factors, including the development of our current business initiatives.
DIVIDEND
POLICY
We
have never paid or declared any cash dividends on our common stock, and we do not anticipate paying any cash dividends on our common
stock in the foreseeable future. We intend to retain all available funds and any future earnings to fund the development and expansion
of our business. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon a
number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions
imposed by applicable law and other factors our board of directors deems relevant. Our future ability to pay cash dividends on our stock
may also be limited by the terms of any future debt or preferred securities or future credit facility.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time to or through underwriters or dealers, through agents, or directly to one or more purchasers.
A distribution of the securities offered by this prospectus may also be effected through the issuance of derivative securities, including
without limitation, warrants, rights to purchase and subscriptions. In addition, the manner in which we may sell some or all of the securities
covered by this prospectus includes, without limitation, through:
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a
block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as principal,
in order to facilitate the transaction; |
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purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its account; or |
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ordinary
brokerage transactions and transactions in which a broker solicits purchasers. |
A
prospectus supplement or supplements with respect to each series of securities will describe the terms of the offering, including, to
the extent applicable:
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the
terms of the offering; |
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the
name or names of the underwriters or agents and the amounts of securities underwritten or purchased by each of them, if any; |
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the
public offering price or purchase price of the securities or other consideration therefor, and the proceeds to be received by us
from the sale; |
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any
delayed delivery requirements; |
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any
over-allotment options under which underwriters may purchase additional securities from us; |
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any
underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
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any
discounts or concessions allowed or re-allowed or paid to dealers; and |
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any
securities exchange or market on which the securities may be listed. |
The
offer and sale of the securities described in this prospectus by us, the underwriters or the third parties described above may be effected
from time to time in one or more transactions, including privately negotiated transactions, either:
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at
a fixed price or prices, which may be changed; |
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in
an “at the market” offering within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, or the Securities
Act; |
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at
prices related to such prevailing market prices; or |
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at
negotiated prices. |
Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
Underwriters
and Agents; Direct Sales
If
underwriters are used in a sale, they will acquire the offered securities for their own account and may resell the offered securities
from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. We may offer the securities to the public through underwriting syndicates represented by managing underwriters
or by underwriters without a syndicate.
Unless
the prospectus supplement states otherwise, the obligations of the underwriters to purchase the securities will be subject to the conditions
set forth in the applicable underwriting agreement. Subject to certain conditions, the underwriters will be obligated to purchase all
of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering
price and any discounts or concessions allowed or re-allowed 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 securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale
of securities, 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 securities from us at
the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
Dealers
We
may sell the offered securities to dealers as principals. The dealer may then resell such securities to the public either at varying
prices to be determined by the dealer or at a fixed offering price agreed to with us at the time of resale.
Institutional
Purchasers
We
may authorize agents, dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed
delivery basis pursuant to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable prospectus
supplement or other offering materials, as the case may be, will provide the details of any such arrangement, including the offering
price and commissions payable on the solicitations.
We
will enter into such delayed contracts only with institutional purchasers that we approve. These institutions may include commercial
and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Indemnification;
Other Relationships
We
may provide agents, underwriters, dealers and remarketing firms with indemnification against certain civil liabilities, 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, underwriters, dealers and remarketing firms, and their affiliates, may engage in transactions with, or perform services for,
us in the ordinary course of business. This includes commercial banking and investment banking transactions.
Market-Making;
Stabilization and Other Transactions
There
is currently no market for any of the offered securities, other than our common stock, which is quoted on the Nasdaq Capital Market.
If the offered securities are traded after their initial issuance, they may trade at a discount from their initial offering price, depending
upon prevailing interest rates, the market for similar securities and other factors. While it is possible that an underwriter could inform
us that it intends to make a market in the offered securities, such underwriter would not be obligated to do so, and any such market-making
could be discontinued at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop
for the offered securities. We have no current plans for listing of the debt securities, preferred stock, warrants or subscription rights
on any securities exchange or quotation system; any such listing with respect to any particular debt securities, preferred stock, warrants
or subscription rights will be described in the applicable prospectus supplement or other offering materials, as the case may be.
Any
underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation
M under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Over-allotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing
bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities,
either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions.
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 stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any
underwriters or agents that are qualified market makers on the Nasdaq Capital Market may engage in passive market making transactions
in our common stock on the Nasdaq Capital Market in accordance with Regulation M under the Exchange Act, during the business day prior
to the pricing of the offering, before the commencement of offers or sales 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 such security; 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.
Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open
market and, if commenced, may be discontinued at any time.
Fees
and Commissions
If
5% or more of the net proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating
in the offering or affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA Rule
5121.
DESCRIPTION
OF SECURITIES WE MAY OFFER
General
This
prospectus describes the general terms of our capital stock. The following description is not complete and may not contain all the information
you should consider before investing in our capital stock. For a more detailed description of these securities, you should read the applicable
provisions of Delaware law and our certificate of incorporation, as amended, referred to herein as our certificate of incorporation,
and our amended and restated bylaws, referred to herein as our bylaws. When we offer to sell a particular series of these securities,
we will describe the specific terms of the series in a supplement to this prospectus. Accordingly, for a description of the terms of
any series of securities, you must refer to both the prospectus supplement relating to that series and the description of the securities
described in this prospectus. To the extent the information contained in the prospectus supplement differs from this summary description,
you should rely on the information in the prospectus supplement.
We have authorized capital
stock consisting of 100,000,000 shares of common stock, par value $0.0001 per share, and 5,000,000 shares of preferred stock, par value
$0.0001 per share. As of November 25, 2022, we had 25,538,844 shares of common stock and no shares of preferred stock issued
and outstanding.
We,
directly or through agents, dealers or underwriters designated from time to time, may offer, issue and sell, together or separately,
up to $25,000,000 in the aggregate of:
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● |
common
stock; |
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● |
preferred
stock; |
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● |
warrants
to purchase common stock, preferred stock, debt securities, other securities or any combination of those securities; |
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● |
subscription
rights to purchase common stock, preferred stock, debt securities, other securities or any combination of those securities; |
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● |
secured
or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness which may be senior debt securities,
senior subordinated debt securities or subordinated debt securities, each of which may be convertible into equity securities; or |
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units
comprised of, or other combinations of, the foregoing securities. |
We
may issue the debt securities as exchangeable for or convertible into shares of common stock, preferred stock or other securities that
may be sold by us pursuant to this prospectus or any combination of the foregoing. The preferred stock may also be exchangeable for and/or
convertible into shares of common stock, another series of preferred stock or other securities that may be sold by us pursuant to this
prospectus or any combination of the foregoing. When a particular series of securities is offered, a supplement to this prospectus will
be delivered with this prospectus, which will set forth the terms of the offering and sale of the offered securities.
Common
Stock
The
holders of outstanding shares of common stock are entitled to receive dividends out of assets or funds legally available for the payment
of dividends of such times and in such amounts as the board from time to time may determine. Holders of common stock are entitled to
one vote for each share held on all matters submitted to a vote of stockholders. There is no cumulative voting of the election of directors
then standing for election. The common stock is not entitled to pre-emptive rights and is not subject to conversion or redemption. Upon
liquidation, dissolution or winding up of our company, the assets legally available for distribution to stockholders are distributable
ratably among the holders of the common stock after payment of liquidation preferences, if any, on any outstanding payment of other claims
of creditors.
Market,
Symbol and Transfer Agent
Our
common stock is listed for trading on the Nasdaq Capital Market under the symbol “BSFC”. The transfer agent and registrar
for our common stock is VStock Transfer, LLC, at 18 Lafayette Place, Woodmere, New York 11598, and its telephone number is (212) 828-8436.
Preferred
Stock
Our
Board of Directors may issue preferred stock in one or more series without stockholder approval. Our Board of Directors may determine
the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges
and liquidation preferences, of each series of preferred stock.
Our
Board of Directors has designated 10,000 shares of preferred stock as “8% Series A Convertible Preferred Stock” (the “Series
A Stock”).
The
Series A Stock has no maturity and is not subject to any sinking fund or redemption and will remain outstanding indefinitely unless and
until converted by the holder or the Company redeems or otherwise repurchases the Series A Stock.
Ranking.
The Series A Stock ranks, with respect to the payment of dividends and/or the distribution of assets in the event of any liquidation,
dissolution or winding up of the Company, (i) senior to all classes or series of common stock, and to all other equity securities issued
by the Company; (ii) on parity with all equity securities issued by the Company with terms specifically providing that those equity securities
rank on parity with the Series A Stock; (iii) junior to all equity securities issued by the Company with terms specifically providing
that those equity securities rank senior to the Series A Stock; and (iv) effectively junior to all existing and future indebtedness (including
indebtedness convertible into our common stock or preferred stock) of the Company.
Dividends.
Cumulative dividends shall accrue on each share of Series A Stock at the rate of 8% (the “Dividend Rate”) of the purchase
price of $1,000.00 per share, commencing on the date of issuance. Dividends are payable quarterly, when and if declared by the Board,
beginning on September 30, 2018 (each a “Dividend Payment Date”) and are payable in shares of common stock (a “PIK
Dividend”) with such shares being valued at the daily volume weighted average price (“VWAP”) of the common stock for
the thirty trading days immediately prior to each Dividend Payment Date or if not traded or quoted as determined by an independent appraiser
selected in good faith by the Company. Any fractional shares of a PIK Dividend will be rounded to the nearest one-hundredth of a share.
All shares of common stock issued in payment of a PIK Dividend will be duly authorized, validly issued, fully paid and non-assessable.
Dividends will accumulate whether or not the Company has earnings, there are funds legally available for the payment of those dividends
and whether or not those dividends are declared by the Board. No dividends on shares of Series A Stock shall be authorized, paid or set
apart for payment at any time when the terms and provisions of any agreement of the Company prohibit the authorization, payment or setting
apart for payment thereof or provide that the authorization, payment or setting apart for payment thereof would constitute a breach of
the agreement or a default under the agreement, or if the authorization, payment or setting apart for payment is restricted or prohibited
by law. No dividends will be declared or paid or set aside for payment and no other distribution will be declared or made upon shares
of common stock or preferred stock that rank junior to the Series A Stock as to the payment of dividends, or upon liquidation, dissolution,
or winding up of the Company, and (iii) any shares of common stock and preferred stock that the Company may issue ranking junior to the
Series A Stock as to the payment of dividends, or the distribution of assets upon liquidation, dissolution, or winding up, shall not
be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any such shares) by the Company (except by conversion into or exchange for other capital stock of the Company that
it may issue ranking junior to the Series A Stock as to the payment of dividends, or the distribution of assets upon liquidation, dissolution,
or winding up).
In
the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of Series A Stock
will be entitled to be paid out of the assets the Company has legally available for distribution to its shareholders, subject to the
preferential rights of the holders of any class or series of capital stock of the Company it may issue ranking senior to the Series A
Stock with respect to the distribution of assets upon liquidation, dissolution or winding up, a liquidation preference of the Purchase
Price, before any distribution of assets is made to holders of common stock or any other class or series of capital stock of the Company
that it may issue that ranks junior to the Series A Stock as to liquidation rights. The liquidation preference shall be proportionately
adjusted in the event of a stock split, stock combination or similar event so that the aggregate liquidation preference allocable to
all outstanding shares of Series A Stock immediately prior to such event is the same immediately after giving effect to such event.
Liquidation
Preference. In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets
of the Company are insufficient to pay the amount of the liquidating distributions on all outstanding shares of the Series A Stock and
the corresponding amounts payable on all shares of other classes or series of capital stock of the Company that it may issue ranking
on a parity with the Series A Stock in the distribution of assets, then the holders of the Series A Stock and all other such classes
or series of capital stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions
to which they would otherwise be respectively entitled. The consolidation or merger of the Company with or into any other entity or the
sale, lease, transfer or conveyance of all or substantially all of the property or business the Company, will not be deemed a liquidation,
dissolution or winding up of the Company.
Conversion.
Each share of Series A Stock is convertible at any time and in the sole discretion of the holder thereof, into shares of common stock
at a conversion rate of 500 shares of common stock per each share of Series A Stock (the “Conversion Rate”), subject to adjustment
from time to time as follows: if the Company declares or pays any dividend or makes any distribution on common stock payable in shares
of common stock, or effects a subdivision or split or a combination, consolidation or reverse split of the outstanding shares of common
stock then in each such case the Conversion Ratio will be adjusted, so that the holder of any shares of Series A Stock will be entitled
to receive upon conversion thereof the number of shares of common stock or other securities or property that such holder would have owned
or have been entitled to receive upon the happening of such event had such Series A Stock been converted immediately prior to the relevant
record date or the effective date of such event.
Upon
a merger, share exchange or consolidation of the Company, the sale, lease, exchange, mortgage, pledge, transfer or other disposition
or encumbrance, of all or substantially all of the Company’s assets, or any agreement providing for any of the foregoing, each
share of Series A Stock will remain outstanding and will thereafter be convertible into, or will be converted into a security which shall
be convertible into, the kind and amount of securities or other property to which a holder of the number of shares of common stock of
the Company deliverable upon conversion of such share of Series A Stock immediately prior to such business combination would have been
entitled upon such business combination.
Share
Reservation. The Company is obligated to at all times reserve and keep available out of its authorized but unissued shares of common
stock, a sufficient number of its shares of common stock as shall from time to time be to effect the conversion of all outstanding shares
of the Series A Stock.
Voting.
Holders of Series A Stock have no voting rights, except (i) the affirmative vote of at least two-thirds of the Series A Stock outstanding
will be required to authorize or create, or increase the authorized or issued amount of capital stock ranking senior to the Series A
Stock with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding up or reclassify any
of the authorized capital stock of the Company into such shares, or create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such shares, or amend the Certificate of Incorporation which would have a material adverse
effect on the rights, preferences, privileges or voting powers of the Series A Stock or (ii) as otherwise required by law. On each matter
on which holders of Series A Stock are entitled to vote, each share of Series A Stock will be entitled to one vote.
While
we do not currently have any plans for the issuance of additional preferred stock, the issuance of such preferred stock could adversely
affect the rights of the holders of common stock and, therefore, reduce the value of the common stock. It is not possible to state the
actual effect of the issuance of any shares of preferred stock on the rights of holders of the common stock until the board of directors
determines the specific rights of the holders of the preferred stock; however, these effects may include:
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● |
Restricting
dividends on the common stock; |
|
|
|
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● |
Diluting
the voting power of the common stock; |
|
|
|
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● |
Impairing
the liquidation rights of the common stock; or |
|
|
|
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● |
Delaying
or preventing a change in control of the Company without further action by the stockholders. |
On
June 30, 2021, all of the 1,413 shares of Series A Stock then issued and outstanding were converted into an aggregate of 706,500 shares
of common stock of the Company.
We
will fix the rights, preferences, privileges and restrictions of the preferred stock of each series in the certificate of designation
relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate
by reference from a current report on Form 8-K that we file with the SEC, the form of any certificate of designation that describes the
terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. This description
will include any or all of the following, as required:
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● |
the
title and stated value; |
|
● |
the
number of shares we are offering; |
|
● |
the
liquidation preference per share; |
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● |
the
purchase price; |
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● |
the
dividend rate, period and payment date and method of calculation for dividends; |
|
● |
whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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● |
any
contractual limitations on our ability to declare, set aside or pay any dividends; |
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● |
the
procedures for any auction and remarketing, if any; |
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● |
the
provisions for a sinking fund, if any; |
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● |
the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase
rights; |
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● |
any
listing of the preferred stock on any securities exchange or market; |
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● |
whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated,
and the conversion period; |
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● |
whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated,
and the exchange period; |
|
● |
voting
rights, if any, of the preferred stock; |
|
● |
preemptive
rights, if any; |
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● |
restrictions
on transfer, sale or other assignment, if any; |
|
● |
whether
interests in the preferred stock will be represented by depositary shares; |
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● |
a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock; |
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● |
the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our
affairs; |
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● |
any
limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock
as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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● |
any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock. |
If
we issue shares of preferred stock under this prospectus, after receipt of payment therefor, the shares will be fully paid and non-assessable.
The
Delaware General Corporation Law provides that the holders of preferred stock will have the right to vote separately as a class on any
proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition to any voting rights
provided for in the applicable certificate of designation.
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. Preferred stock could be issued quickly with terms designed to delay or prevent
a change in control of our Company or make removal of management more difficult. Additionally, the issuance of preferred stock could
have the effect of decreasing the market price of our common stock.
Warrants
We
may issue warrants to purchase our securities or other rights, including rights to receive payment in cash or securities based on the
value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants
may be issued independently or together with any other securities that may be sold by us pursuant to this prospectus or any combination
of the foregoing and may be attached to, or separate from, such securities. To the extent warrants that we issue are to be publicly-traded,
each series of such warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current
report on Form 8-K that we file with the SEC, forms of the warrant and warrant agreement, if any. The prospectus supplement relating
to any warrants that we may offer will contain the specific terms of the warrants and a description of the material provisions of the
applicable warrant agreement, if any. These terms may include the following:
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● |
the
title of the warrants; |
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● |
the
price or prices at which the warrants will be issued; |
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● |
the
designation, amount and terms of the securities or other rights for which the warrants are exercisable; |
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● |
the
designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued
with each other security; |
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the
aggregate number of warrants; |
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● |
any
provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of
the warrants; |
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● |
the
price or prices at which the securities or other rights purchasable upon exercise of the warrants may be purchased; |
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● |
if
applicable, the date on and after which the warrants and the securities or other rights purchasable upon exercise of the warrants
will be separately transferable; |
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● |
a
discussion of any material U.S. federal income tax considerations applicable to the exercise of the warrants; |
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● |
the
date on which the right to exercise the warrants will commence, and the date on which the right will expire; |
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the
maximum or minimum number of warrants that may be exercised at any time; |
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information
with respect to book-entry procedures, if any; and |
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any
other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Exercise
of Warrants. Each warrant will entitle the holder of warrants to purchase the amount of securities or other rights, at the exercise
price stated or determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of
business on the expiration date shown in the applicable prospectus supplement, unless otherwise specified in such prospectus supplement.
After the close of business on the expiration date, if applicable, unexercised warrants will become void. Warrants may be exercised in
the manner described in the applicable prospectus supplement. When the warrant holder makes the payment and properly completes and signs
the warrant certificate at the corporate trust office of the warrant agent, if any, or any other office indicated in the prospectus supplement,
we will, as soon as possible, forward the securities or other rights that the warrant holder has purchased. If the warrant holder exercises
less than all of the warrants represented by the warrant certificate, we will issue a new warrant certificate for the remaining warrants.
We
issued warrants to purchase an aggregate of 1,500,000 shares of common stock to investors in an offering from June 17, 2021 through July
14, 2021, in which the Company entered into subscription agreements with certain “accredited investor” (as defined in Regulation
D under the Securities Act). As of October 20, 2022, warrants to purchase 142,500 shares of common stock have been exercised,
and warrants to purchase 1,357,500 shares of common stock remain outstanding. Each Warrant entitles the holder to purchase shares
of common stock at an exercise price of $2.00 per share and will expire three years from the date of issuance. Prior to exercise, the
warrants do not confer upon holders any voting or any other rights as a stockholder. The warrants contain provisions that protect the
holders against dilution by adjustment of the purchase price in certain events such as stock dividends, stock splits and other similar
events.
On
November 5, 2021, we issued a warrant to purchase an aggregate of 56,000 shares of common stock at an exercise price of $5.00 per share
to Newbridge Securities Corporation. Such warrant is exercisable on a date which is 180 days from the closing of the Company’s
a firm commitment underwritten public offering and expires on November 11, 2024.
On
January 24, 2022, we issued to Lind Global Fund II LP (“Lind”), a Delaware limited partnership, a five-year warrant to purchase
1,000,000 shares of common stock of the Company at an exercise price of $4.50 per share, subject to customary adjustments. The warrant
provides for cashless exercise and for full ratchet anti-dilution if the Company issues securities at less than $4.50 per share.
Subscription
Rights
We
may issue rights to purchase our securities. The rights may or may not be transferable by the persons purchasing or receiving the rights.
In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or
other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after
such rights offering. In connection with a rights offering to holders of our capital stock a prospectus supplement will be distributed
to such holders on the record date for receiving rights in the rights offering set by us.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current
report on Form 8-K that we file with the SEC, forms of the subscription rights, standby underwriting agreement or other agreements, if
any. The prospectus supplement relating to any rights that we offer will include specific terms relating to the offering, including,
among other matters:
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the
date of determining the security holders entitled to the rights distribution; |
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the
aggregate number of rights issued and the aggregate amount of securities purchasable upon exercise of the rights; |
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the
exercise price; |
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the
conditions to completion of the rights offering; |
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the
date on which the right to exercise the rights will commence and the date on which the rights will expire; and |
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any
applicable federal income tax considerations. |
Each
right would entitle the holder of the rights to purchase the principal amount of securities at the exercise price set forth in the applicable
prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided
in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will become void.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent, if any, or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the securities purchasable upon exercise of the rights. If less than all of the
rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders,
to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements,
as described in the applicable prospectus supplement.
Debt
Securities
As
used in this prospectus, the term “debt securities” means the debentures, notes, bonds and other evidences of indebtedness
that we may issue from time to time. The debt securities will either be senior debt securities, senior subordinated debt or subordinated
debt securities. We may also issue convertible debt securities. Debt securities may be issued under an indenture (which we refer to herein
as an Indenture), which are contracts entered into between us and a trustee to be named therein. The Indenture has been filed as an exhibit
to the registration statement of which this prospectus forms a part. We may issue debt securities and incur additional indebtedness other
than through the offering of debt securities pursuant to this prospectus. It is likely that convertible debt securities will not be issued
under an Indenture.
The
debt securities may be fully and unconditionally guaranteed on a secured or unsecured senior or subordinated basis by one or more guarantors,
if any. The obligations of any guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting
a fraudulent conveyance under applicable law. In the event that any series of debt securities will be subordinated to other indebtedness
that we have outstanding or may incur, the terms of the subordination will be set forth in the prospectus supplement relating to the
subordinated debt securities.
We
may issue debt securities from time to time in one or more series, in each case with the same or various maturities, at par or at a discount.
Unless indicated in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the
holders of the debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together
with all other outstanding debt securities of that series, will constitute a single series of debt securities under the applicable Indenture
and will be equal in ranking.
Should
an Indenture relate to unsecured indebtedness, in the event of a bankruptcy or other liquidation event involving a distribution of assets
to satisfy our outstanding indebtedness or an event of default under a loan agreement relating to secured indebtedness of our company
or its subsidiaries, the holders of such secured indebtedness, if any, would be entitled to receive payment of principal and interest
prior to payments on the unsecured indebtedness issued under an Indenture.
Each
prospectus supplement will describe the terms relating to the specific series of debt securities. These terms will include some or all
of the following:
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the
title of debt securities and whether the debt securities are senior or subordinated; |
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any
limit on the aggregate principal amount of debt securities of such series; |
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● |
the
percentage of the principal amount at which the debt securities of any series will be issued; |
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the
ability to issue additional debt securities of the same series; |
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● |
the
purchase price for the debt securities and the denominations of the debt securities; |
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● |
the
specific designation of the series of debt securities being offered; |
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● |
the
maturity date or dates of the debt securities and the date or dates upon which the debt securities are payable and the rate or rates
at which the debt securities of the series shall bear interest, if any, which may be fixed or variable, or the method by which such
rate shall be determined; |
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the
basis for calculating interest; |
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the
date or dates from which any interest will accrue or the method by which such date or dates will be determined; |
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the
duration of any deferral period, including the period during which interest payment periods may be extended; |
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whether
the amount of payments of principal of (and premium, if any) or interest on the debt securities may be determined with reference
to any index, formula or other method, such as one or more currencies, commodities, equity indices or other indices, and the manner
of determining the amount of such payments; |
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● |
the
dates on which we will pay interest on the debt securities and the regular record date for determining who is entitled to the interest
payable on any interest payment date; |
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● |
the
place or places where the principal of (and premium, if any) and interest on the debt securities will be payable, where any securities
may be surrendered for registration of transfer, exchange or conversion, as applicable, and notices and demands may be delivered
to or upon us pursuant to the applicable Indenture; |
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the
rate or rates of amortization of the debt securities; |
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● |
any
terms for the attachment to the debt securities of warrants, options or other rights to purchase or sell our securities; |
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● |
if
the debt securities will be secured by any collateral and, if so, a general description of the collateral and the terms and provisions
of such collateral security, pledge or other agreements; |
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● |
if
we possess the option to do so, the periods within which and the prices at which we may redeem the debt securities, in whole or in
part, pursuant to optional redemption provisions, and the other terms and conditions of any such provisions; |
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● |
our
obligation or discretion, if any, to redeem, repay or purchase debt securities by making periodic payments to a sinking fund or through
an analogous provision or at the option of holders of the debt securities, and the period or periods within which and the price or
prices at which we will redeem, repay or purchase the debt securities, in whole or in part, pursuant to such obligation, and the
other terms and conditions of such obligation; |
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● |
the
terms and conditions, if any, regarding the option or mandatory conversion or exchange of debt securities; |
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● |
the
period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series
may be redeemed, in whole or in part at our option and, if other than by a board resolution, the manner in which any election by
us to redeem the debt securities shall be evidenced; |
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● |
any
restriction or condition on the transferability of the debt securities of a particular series; |
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● |
the
portion, or methods of determining the portion, of the principal amount of the debt securities which we must pay upon the acceleration
of the maturity of the debt securities in connection with any event of default; |
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the
currency or currencies in which the debt securities will be denominated and in which principal, any premium and any interest will
or may be payable or a description of any units based on or relating to a currency or currencies in which the debt securities will
be denominated; |
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provisions,
if any, granting special rights to holders of the debt securities upon the occurrence of specified events; |
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any
deletions from, modifications of or additions to the events of default or our covenants with respect to the applicable series of
debt securities, and whether or not such events of default or covenants are consistent with those contained in the applicable Indenture; |
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any
limitation on our ability to incur debt, redeem stock, sell our assets or other restrictions; |
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the
application, if any, of the terms of the applicable Indenture relating to defeasance and covenant defeasance (which terms are described
below) to the debt securities; |
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what
subordination provisions will apply to the debt securities; |
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the
terms, if any, upon which the holders may convert or exchange the debt securities into or for our securities or property; |
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whether
we are issuing the debt securities in whole or in part in global form; |
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any
change in the right of the trustee or the requisite holders of debt securities to declare the principal amount thereof due and payable
because of an event of default; |
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the
depositary for global or certificated debt securities, if any; |
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any
material federal income tax consequences applicable to the debt securities, including any debt securities denominated and made payable,
as described in the prospectus supplements, in foreign currencies, or units based on or related to foreign currencies; |
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any
right we may have to satisfy, discharge and defease our obligations under the debt securities, or terminate or eliminate restrictive
covenants or events of default in the Indentures, by depositing money or U.S. government obligations with the trustee of the Indentures; |
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the
names of any trustees, depositories, authenticating or paying agents, transfer agents or registrars or other agents with respect
to the debt securities; |
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to
whom any interest on any debt security shall be payable, if other than the person in whose name the security is registered, on the
record date for such interest, the extent to which, or the manner in which, any interest payable on a temporary global debt security
will be paid; |
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if
the principal of or any premium or interest on any debt securities is to be payable in one or more currencies or currency units other
than as stated, the currency, currencies or currency units in which it shall be paid and the periods within and terms and conditions
upon which such election is to be made and the amounts payable (or the manner in which such amount shall be determined); |
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the
portion of the principal amount of any debt securities which shall be payable upon declaration of acceleration of the maturity of
the debt securities pursuant to the applicable Indenture; |
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if
the principal amount payable at the stated maturity of any debt security of the series will not be determinable as of any one or
more dates prior to the stated maturity, the amount which shall be deemed to be the principal amount of such debt securities as of
any such date for any purpose, including the principal amount thereof which shall be due and payable upon any maturity other than
the stated maturity or which shall be deemed to be outstanding as of any date prior to the stated maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be determined); and |
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any
other specific terms of the debt securities, including any modifications to the events of default under the debt securities and any
other terms which may be required by or advisable under applicable laws or regulations. |
Unless
otherwise specified in the applicable prospectus supplement, we do not anticipate the debt securities will be listed on any securities
exchange. Holders of the debt securities may present registered debt securities for exchange or transfer in the manner described in the
applicable prospectus supplement. Except as limited by the applicable Indenture, we will provide these services without charge, other
than any tax or other governmental charge payable in connection with the exchange or transfer.
Debt
securities may bear interest at a fixed rate or a variable rate as specified in the prospectus supplement. In addition, if specified
in the prospectus supplement, we may sell debt securities bearing no interest or interest at a rate that at the time of issuance is below
the prevailing market rate, or at a discount below their stated principal amount. We will describe in the applicable prospectus supplement
any special federal income tax considerations applicable to these discounted debt securities.
We
may issue debt securities with the principal amount payable on any principal payment date, or the amount of interest payable on any interest
payment date, to be determined by referring to one or more currency exchange rates, commodity prices, equity indices or other factors.
Holders of such debt securities may receive a principal amount on any principal payment date, or interest payments on any interest payment
date, that are greater or less than the amount of principal or interest otherwise payable on such dates, depending upon the value on
such dates of applicable currency, commodity, equity index or other factors. The applicable prospectus supplement will contain information
as to how we will determine the amount of principal or interest payable on any date, as well as the currencies, commodities, equity indices
or other factors to which the amount payable on that date relates and certain additional tax considerations.
On
January 24, 2022, we issued to Lind a secured, two-year, interest free convertible promissory note in the principal amount of $5,750,000.
The outstanding principal under the note is payable commencing July 24, 2022, in 18 consecutive monthly installments of $333,333, at
the Company’s option, in cash or shares of common stock at a price (the “Repayment Share Price”) based on 90% of the
five lowest volume weighted average prices (“VWAP”) during the 20-days prior to the payment date with a floor price of $1.50
per share (the “Floor Price”), or a combination of cash and stock provided that if at any time the Repayment Share Price
is deemed to be the Floor Price, then in addition to shares, the Company will pay Lind an additional amount in cash as determined pursuant
to a formula contained in the note.
In
connection with the issuance of the note, we granted Lind a first priority security interest and lien on all of our assets, including
a pledge on our shares in Keeler & Co., our wholly-owned subsidiary, pursuant to a security agreement and a stock pledge
agreement with Lind, dated January 24, 2022. Each subsidiary of the Company also granted a second priority security interest in all of
its respective assets.
The
note is mandatorily payable prior to maturity if the Company issues any preferred stock (with certain exceptions described in the note)
or, if the Company or its subsidiaries issues any indebtedness other than certain amounts under the current line of credit facility with
Lighthouse Financial Corp. The Company also agreed not to issue or sell any securities with a conversion, exercise or other price based
on a discount to the trading prices of the Company’s stock or to grant an investor the right to receive additional securities based
on future transactions of the Company on terms more favorable than those granted to Lind, with certain exceptions.
If
the Company engages in capital raising transactions, Lind has the right to purchase up to 10% of the new securities.
The
note is convertible into common stock at $5.00 per share, subject to certain adjustments, at any time after the earlier of six months
from issuance or the date the registration statement is effective; provided that no such conversion may be made that would result in
beneficial ownership by Lind and its affiliates of more than 4.99% of the Company’s outstanding shares of common stock. If shares
are issued by the Company at less than the conversion price, the conversion price will be reduced to such price.
Upon
a change of control of the Company, as defined in the note, Lind has the right to require the Company to prepay 10% of the outstanding
principal amount of the note.
The
Company may prepay the outstanding principal amount of the note, provided Lind may convert up to 25% of the principal amount of the note
at a price per share equal to the lesser of the Repayment Share Price or the conversion price.
The
note contains certain negative covenants, including restricting the Company from certain distributions, stock repurchases, borrowing,
sale of assets, loans and exchange offers.
Upon
an event of default as described in the note, the note will become immediately due and payable at a default interest rate of 125% of
the then outstanding principal amount. Upon a default, all or a portion of the outstanding principal amount may be converted into shares
of common stock by Lind at the lower of the conversion price and 80% of the average of the three lowest daily VWAPs.
Units
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We
may evidence each series of units by unit certificates that we may issue under a separate agreement. We may enter into unit agreements
with a unit agent. Each unit agent, if any, may be a bank or trust company that we select. We will indicate the name and address of the
unit agent, if any, in the applicable prospectus supplement relating to a particular series of units. Specific unit agreements, if any,
will contain additional important terms and provisions. We will file as an exhibit to the registration statement of which this prospectus
is a part, or will incorporate by reference from a current report that we file with the SEC, the form of unit and the form of each unit
agreement, if any, relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without
limitation, the following, as applicable:
|
● |
the
title of the series of units; |
|
● |
identification
and description of the separate constituent securities comprising the units; |
|
● |
the
price or prices at which the units will be issued; |
|
● |
the
date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
|
● |
a
discussion of certain United States federal income tax considerations applicable to the units; and |
|
● |
any
other material terms of the units and their constituent securities. |
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus will be passed
upon for us by The Crone Law Group, P.C., New York, New York. If legal matters in connection with offerings made by this prospectus are
passed on by counsel for the underwriters, dealers or agents, if any, that counsel will be named in the applicable prospectus supplement.
EXPERTS
Our
consolidated financial statements as of and for the years ended December 31, 2021 and 2020, included in our Annual Report on Form 10-K
for the year ended December 31, 2021, have been audited
by MaloneBailey, LLP, independent registered public accounting firm, as set forth in their report, and have been incorporated herein
by reference in reliance upon the report of such firm given on their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
file annual, quarter and periodic reports, proxy statements and other information with the Securities and Exchange Commission using the
Commission’s EDGAR system. The Commission maintains a web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission. The address of such site is http//www.sec.gov.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
are “incorporating by reference” in this prospectus certain documents we file with the SEC, which means that we can disclose
important information to you by referring you to those documents. The information in the documents incorporated by reference is considered
to be part of this prospectus. 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 or may file the following documents with the SEC and they are incorporated
herein by reference as of their respective dates of filing.
1.
Our Annual Report on Form 10-K for the year ended December 31, 2021, as filed with the SEC on March 31, 2022;
2.
Our Quarterly Reports on Form 10-Q for the quarters ended March
31, 2022, June
30, 2022, and September
30, 2022, as filed with the SEC on May 13, 2022, August 15, 2022, and November 14, 2022, respectively; and
3.
Our Current Reports on Form 8-K as filed with the SEC on January
28, 2022, February
9, 2022, April
25, 2022, August
16, 2022, November
15, 2022, and November 23, 2022.
All
documents that we filed with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this
registration statement and prior to the filing of a post-effective amendment to this registration statement that indicates that all securities
offered under this prospectus have been sold, or that deregisters all securities then remaining unsold, will be deemed to be incorporated
in this registration statement by reference and to be a part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed modified,
superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any subsequently
filed document that also is deemed to be incorporated by reference in this prospectus, modifies, supersedes or replaces such statement.
Any statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a
part of this prospectus. None of the information that we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K or any corresponding
information, either furnished under Item 9.01 or included as an exhibit therein, that we may from time to time furnish to the SEC will
be incorporated by reference into, or otherwise included in, this prospectus, except as otherwise expressly set forth in the relevant
document. Subject to the foregoing, all information appearing in this prospectus is qualified in its entirety by the information appearing
in the documents incorporated by reference.
If
you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the
information incorporated by reference into this prospectus. Any such request should be directed to:
Blue
Star Foods Corp.
3000
NW 109th Avenue
Miami,
Florida 33172
(305)
836-6858
Our
website address is https://bluestarfoods.com/. Except for any documents that are incorporated by reference into this prospectus
that may be accessed from our website, the information available on or through our website is not part of this prospectus.
The
information in this prospectus is not complete and may be changed. We may not sell the securities until the Registration Statement filed
with the Securities and Exchange Commission, of which this prospectus is a part, is effective. This prospectus is not an offer to sell
these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to Completion, dated November 25, 2022
Prospectus
BLUE
STAR FOODS CORP.
Up
to $3,000,000
Common
Stock
We
have entered into a sales agreement with Roth Capital Partners, LLC (which we refer to herein as Roth Capital Partners or, the sales
agent) relating to the issuance and sale of our common stock offered by this prospectus. In accordance with the terms of the sales agreement,
we may offer and sell shares of our common stock under this prospectus having an aggregate offering price of up to $3,000,000
from time to time through or to Roth Capital Partners, as sales agent or principal.
Our
common stock is traded on the Nasdaq Capital Market, or NASDAQ, under the symbol “BSFC.” On November 23, 2022, the
closing sale price of our common stock on NASDAQ was $0.78 per share. The aggregate market value of our outstanding common stock
held by non-affiliates is $9,690,595 based on 25,538,844 shares of outstanding common stock, of which 9,888,362
shares are held by non-affiliates, and a per share price of $0.98, which was the closing sale price of our common stock as quoted
on the Nasdaq Capital Market on November 3, 2022. Pursuant to General Instruction I.B.6 of Form S-3, 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 our common stock held by non-affiliates
in any 12-month period, so long as the aggregate market value 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, we have not sold any securities pursuant to General Instruction
I.B.6 of Form S-3.
Sales
of shares of our common stock under this prospectus, if any, may be made by any method deemed to be an “at the market offering”
as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act.
The
sales agent is not required to sell any specific number of shares of our common stock. The sales agent has agreed to use its commercially
reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between the sales agent and us. There
is no arrangement for funds to be received in any escrow, trust or similar arrangement. The sales agent will be entitled to compensation
under the terms of the sales agreement at a commission rate equal to 3.0% of the gross proceeds of the sales price of common stock that
they sell. The net proceeds from any sales under this prospectus will be used as described under “Use of Proceeds.” The proceeds
we receive from sales of our common stock, if any, will depend on the number of shares actually sold and the offering price of such shares.
In
connection with the sale of common stock on our behalf, Roth Capital Partners will be deemed to be an underwriter within the meaning
of the Securities Act, and its compensation as the sales agent will be deemed to be underwriting commissions or discounts. We have agreed
to provide indemnification and contribution to Roth Capital Partners with respect to certain liabilities, including liabilities under
the Securities Act.
Investing
in our securities is highly speculative and involves a high degree of risk. You should read carefully and consider the information contained
in and incorporated by reference under “Risk Factors” beginning on page 7 of this prospectus, and the risk factors contained
in other documents incorporated by reference.
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.
Roth
Capital Partners
The
date of this prospectus is ________________, 2022
TABLE
OF CONTENTS
You
should rely only on the information we have provided or incorporated by reference in this prospectus or in any prospectus supplement.
We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus
or in any prospectus supplement.
This
prospectus and any prospectus supplement is an offer to sell only the securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so.
You
should assume that the information contained in this prospectus and in any prospectus supplement is accurate only as of their respective
dates and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus or any prospective supplement for any sale of securities.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a shelf registration
process. Under the shelf registration process, we may offer shares of our common stock having an aggregate offering price of up to $3,000,000
from time to time under this prospectus at prices and on terms to be determined by market conditions at the time of offering.
This
prospectus describes the specific terms of the common stock we are offering and also adds to, and updates information contained in the
documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this
prospectus, on the one hand, and the information contained in any document incorporated by reference into this prospectus that was filed
with the SEC before the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement
in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated
by reference into this prospectus—the statement in the document having the later date modifies or supersedes the earlier statement.
You
should rely only on the information contained in, or incorporated by reference into this prospectus and in any free writing prospectus
that we may authorize for use in connection with this offering. We have not, and Roth Capital Partners has not, authorized any other
person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely
on it. We are not, and Roth Capital Partners is not, making an offer to sell or soliciting an offer to buy our securities in any jurisdiction
in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so
or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus,
the documents incorporated by reference into this prospectus, and in any free writing prospectus that we may authorize for use in connection
with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations
and prospects may have changed since those dates. You should read this prospectus, the documents incorporated by reference into this
prospectus, and any free writing prospectus that we may authorize for use in connection with this offering, in their entirety before
making an investment decision. You should also read and consider the information in the documents to which we have referred you in the
sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation by Reference.”
We
are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The
distribution of this prospectus and the offering of the common stock in certain jurisdictions may be restricted by law. Persons outside
the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to,
the offering of the common stock and the distribution of this prospectus outside the United States. This prospectus does not constitute,
and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus
by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference into the prospectus and accompanying prospectus were made solely for the benefit of the parties to
such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreement, and should not be deemed
to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of
the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the
current state of our affairs.
Unless
otherwise stated, all references to “us,” “our,” “we,” the “Company” and similar designations
refer to Blue Star Foods Corp. and its consolidated subsidiaries. Our logo, trademarks and service marks are the property of Blue Star
Foods Corp. and its consolidated subsidiaries. Other trademarks or service marks appearing in this prospectus are the property of their
respective holders.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein contains forward-looking statements that reflect our current expectations
and views of future events. The forward-looking statements are contained principally in the sections included or incorporated by reference
herein entitled “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of
Operations.” Readers are cautioned that known and unknown risks, uncertainties and other factors, including those over which we
may have no control and others listed in the “Risk Factors” section of this prospectus, may cause our actual results, performance
or achievements to be materially different from those expressed or implied by the forward-looking statements.
You
can identify some of these forward-looking statements by words or phrases such as “may,” “will,” “expect,”
“anticipate,” “aim,” “estimate,” “intend,” “plan,” “believe,”
“is/are likely to,” “potential,” “continue” or other similar expressions. We have based these forward-looking
statements largely on our current expectations and projections about future events that we believe may affect our financial condition,
results of operations, business strategy and financial needs. These forward-looking statements include statements relating to:
|
● |
the
fact that a significant portion of our revenues are derived from a single product, crab meat, and therefore we are highly susceptible
to changes in market demand, which may be affected by factors over which we have limited or no control;
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our
exposure to the risk of product contamination and product liability claims; |
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● |
our
vulnerability to declines in discretionary consumer spending; |
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● |
our
vulnerability to a shutdown, damage to any of our farms, or lack of availability of power, fuel, oxygen, eggs, water, or other key
components needed for our operations; |
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the
difficulty of efficiently and cost-effectively producing and sell salmon at large commercial scale; |
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the
fact that we do not have long-term agreements with many of our customers and suppliers; |
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the
fact that our competitors include companies with brand names that have better market recognition than ours or have stronger marketing
and distribution channels than we do; |
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our
exposure to increased regulation of the fishing industry; |
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our
dependence upon international supply chains; |
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● |
difficulties
with managing foreign and geographically dispersed operations; |
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● |
having
to comply with various U.S. and international laws, including export control laws and the FCPA, and anti-money laundering laws; |
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changes
in uncertainties relating to foreign rules and regulations; |
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● |
tariffs,
export or import restrictions, restrictions on remittances abroad, imposition of duties or taxes that limit our ability to import
product; |
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● |
limitations
on our ability to enter into cost-effective arrangements with distributors, or at all; |
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fluctuations
in foreign currency exchange rates; |
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● |
imposition
of limitations on production, sale or export in foreign countries; |
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imposition
of limitations on or increase of withholding and other taxes on remittances and other payments by foreign processors or joint ventures; |
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imposition
of differing labor laws and standards; |
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economic,
political or social instability in foreign countries and regions; |
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an
inability, or reduced ability, to protect our intellectual property, including any effect of compulsory licensing imposed by government
action; |
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● |
availability
of government subsidies or other incentives that benefit competitors in their local markets that are not available to us; |
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difficulties
in recruiting and retaining personnel, and managing international operations; and |
|
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● |
less
developed infrastructure in foreign markets. |
|
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|
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other
risks and uncertainties inherent in our business, including those described under Item 1A. “Risk Factors” in our Annual
Report on Form 10-K for the fiscal year ended December 31, 2021, and those risks and uncertainties that may be identified in our
Quarterly Reports on Form 10-Q and our other filings with the SEC and/or press releases from time to time. |
These
forward-looking statements involve numerous risks and uncertainties. Although we believe that our expectations expressed in these forward-looking
statements are reasonable, our expectations may later be found to be incorrect. Our actual results of operations or the results of other
matters that we anticipate could be materially different from our expectations. Important risks and factors that could cause our actual
results to be materially different from our expectations are generally set forth in “Risk Factors,” “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” “Business,” “Regulation” and
other sections included or incorporated by reference in this prospectus. You should thoroughly read this prospectus and the documents
incorporated herein by reference with the understanding that our actual future results may be materially different from and worse than
what we expect. We qualify all of our forward-looking statements by these cautionary statements.
The
forward-looking statements made in this prospectus relate only to events or information as of the date on which the statements are made
in or incorporated by reference in this prospectus. Except as required by law, we undertake no obligation to update or revise publicly
any forward-looking statements, whether as a result of new information, future events or otherwise, after the date on which the statements
are made or to reflect the occurrence of unanticipated events. You should read this prospectus, the documents incorporated by reference
into this prospectus and the documents we have filed as exhibits to the registration statement, of which this prospectus forms a part,
completely and with the understanding that our actual future results may be materially different from what we expect.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information that
you should consider before investing in our Company. You should carefully read the entire prospectus, including all documents incorporated
by reference herein. In particular, attention should be directed to our “Risk Factors,” “Information With Respect to
the Company,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the
financial statements and related notes thereto contained herein or otherwise incorporated by reference hereto, before making an investment
decision.
Overview
We
are an international sustainable marine protein company that owns and operates several portfolio companies with an emphasis on environmental,
social and governance values. We seek to create a vertically integrated seafood company that offers customers high quality products while
maintaining a focus on our core values of delivering food safety, traceability and certified resource sustainability. Our companies include:
John
Keeler & Co. Inc. (“Keeler & Co.”), doing business as Blue Star Foods, which imports, packages and sells
refrigerated pasteurized crab meat sourced primarily from Southeast Asia and other premium seafood products;
Coastal Pride
Seafood LLC (“Coastal Pride”), which imports pasteurized and fresh crab meat sourced primarily from Mexico
and Latin America and sells premium branded label crab meat throughout North America; and
Taste of
BC Aquafarms, Inc. (“TOBC”), a land-based recirculating aquaculture systems (“RAS”) salmon farming operation,
which sells its steelhead salmon to distributors in Canada.
Our
long-term strategy is to create a vertically integrated seafood company that offers customers high quality products while maintaining
a focus on our core values of delivering food safety, traceability and certified resource sustainability.
We
plan to grow the Company organically by continuing to grow our customer base and introducing new high-value product lines and categories,
as well as strategically acquiring companies that focus on additional species and proprietary technologies that we believe we can integrate
into a larger, diversified company.
Implications
of Being an Emerging Growth Company and Smaller Reporting Company
We
qualify as an “emerging growth company” under the Jumpstart our Business Startups Act (“JOBS Act”). As a result,
we are permitted to, and intend to, rely on exemptions from certain disclosure requirements. For so long as we are an emerging growth
company, we will not be required to:
|
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have
an auditor report on our internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act; |
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comply
with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation
or a supplement to the auditor’s report providing additional information about the audit and the financial statements (i.e.,
an auditor discussion and analysis); |
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submit
certain executive compensation matters to shareholder advisory votes, such as “say-on-pay,” “say-on-frequency”
and pay ratio; and |
|
|
|
|
● |
disclose
certain executive compensation related items such as the correlation between executive compensation and performance and comparisons
of the CEO’s compensation to median employee compensation. |
In
addition, Section 107 of the JOBS Act also provides that an emerging growth company can take advantage of the extended transition period
provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards.
In
other words, an emerging growth company can delay the adoption of certain accounting standards until those standards would otherwise
apply to private companies. We have elected to take advantage of the benefits of this extended transition period. Our financial statements
may therefore not be comparable to those of companies that comply with such new or revised accounting standards.
We
will remain an “emerging growth company” for up to five years from the date of the first sale of our common stock of the
issuer pursuant to an effective registration statement, or until the earliest of (i) the last day of the first fiscal year in which our
total annual gross revenues exceed $1.07 billion, (ii) the date that we become a “large accelerated filer” as defined in
Rule 12b-2 under the Exchange Act, which would occur if the market value of our common stock that is held by non-affiliates exceeds $700
million as of the last business day of our most recently completed second fiscal quarter, or (iii) the date on which we have issued more
than $1 billion in non-convertible debt during the preceding three year period.
Additionally,
we are a “smaller reporting company” as defined in Item 10(f)(1) of Regulation S-K. Smaller reporting companies may take
advantage of certain reduced disclosure obligations, including, among other things, providing only two years of audited financial statements.
We will remain a smaller reporting company until the last day of the fiscal year in which (1) the market value of our common stock held
by non-affiliates equals or exceeds $250 million as of the end of that year’s second fiscal quarter, or (2) our annual revenues
equaled or exceeded $100 million during such completed fiscal year and the market value of our common stock held by non-affiliates equals
or exceeds $700 million as of the end of that year’s second fiscal quarter.
Corporate
Information
We
were incorporated on October 17, 2017 in the State of Delaware as a blank check company to be used as a vehicle to pursue a business
combination. Prior to the Merger, we engaged in organizational efforts. Following the Merger, we discontinued our prior activities of
seeking a business for a merger or acquisition and acquired the business of John Keeler & Co. Inc., d/b/a Blue Star Foods, a Florida
corporation formed on May 5, 1995. Our executive offices are located at 3000 NW 109th Avenue, Miami, Florida 33172 and our telephone
number is (305) 836-6858. Our website address is https://bluestarfoods.com/. Except for any documents that are incorporated by
reference into this prospectus that may be accessed from our website, the information available on or through our website is not part
of this prospectus.
THE
OFFERING
Common
stock offered by us: |
|
Shares
of our common stock having an aggregate offering price of up to $3,000,000. |
|
|
|
Common
stock to be outstanding after the offering |
|
29,384,997,
assuming the sale of the full $3,000,000
worth of our common stock in this offering (which is 3,846,153 at an assumed sales price of $0.78 per share, which
was the closing price of our common stock on the Nasdaq Capital Market on November 23, 2022). The actual number of shares
issued in this offering will vary depending on the number of shares sold in this offering and the sales price at which shares may
be sold from time to time during this offering. |
|
|
Manner
of offering |
|
“At
the market offering” as defined in Rule 415(a)(4) under the Securities Act that may be made from time to time through or to,
Roth Capital Partners, LLC, as our sales agent or principal. See “Plan of Distribution” on page 10 of this prospectus. |
|
|
Use
of Proceeds |
|
We
intend to use the net proceeds from these sales for general corporate purposes, including working
capital, operating expenses, and capital expenditures. In addition, 20% of the net proceeds of this offering will be used to repay
the Note (as defined herein). We may also use a portion of the net proceeds to acquire or make investments in businesses, products,
and offerings, although we do not have agreements or commitments for any material acquisitions or investments at this time.
See “Use of Proceeds” on page 8 of this prospectus. |
|
|
|
Risk
Factors
|
|
An
investment in our securities is highly speculative and subject to substantial risks. You should consider the “Risk
Factors” and the “Cautionary Note Regarding Forward-Looking Statements” included and incorporated by reference
in this prospectus and the accompanying prospectus, including the risk factors incorporated by reference from our filings with the
SEC. |
|
|
Nasdaq
Capital Market symbol |
|
“BSFC” |
RISK
FACTORS
Investing
in our securities is highly speculative and involves a high degree of risk. Before deciding whether to invest in our securities, you
should carefully consider the risk factors we describe in this prospectus and in any related free writing prospectus that we may authorize
to be provided to you or in any report incorporated by reference into this prospectus, including our Annual Report on Form 10-K for the
year ended December 31, 2021, or any Annual Report on Form 10-K or Quarterly Report on Form 10-Q that is incorporated by reference into
this prospectus after the date of this prospectus. Although we discuss key risks in those risk factor descriptions, additional risks
not currently known to us or that we currently deem immaterial also may impair our business. Our subsequent filings with the SEC may
contain amended and updated discussions of significant risks. We cannot predict future risks or estimate the extent to which they may
affect our financial performance.
Risks
Related to This Offering
You
may experience immediate and substantial dilution as a result of this offering.
The
offering price per share in this “at the market” offering program may exceed the net tangible book value per share of our
common stock. Assuming that an aggregate of 3,846,153 shares of our common stock are sold under the program at a price of $0.78
per share pursuant to this prospectus, which was the last reported sale price of our common stock on The Nasdaq Capital Market on
November 23, 2022, for aggregate proceeds of $3,000,000 after deducting commissions and estimated aggregate offering expenses
payable by us, you would experience immediate dilution of $0.62 per share, representing a difference between our as adjusted net
tangible book value per share as of September 30, 2022 after giving effect to this offering and the assumed offering price. The
exercise of outstanding stock options or warrants may result in further dilution of your investment. See the section entitled “Dilution”
on page 8 of this prospectus for a more detailed illustration of the dilution you would incur if you participate in this offering.
Management
will have broad discretion as to the use of the proceeds from this offering and may not use the proceeds effectively.
Because
we have not designated the amount of net proceeds from this offering to be used for any particular purpose, our management will have
broad discretion as to the application of the net proceeds from this offering and could use them for purposes other than those contemplated
at the time of the offering. Our management may use the net proceeds for corporate purposes that may not improve our financial condition
or market value.
Future
sales of substantial amounts of our common stock, or the possibility that such sales could occur, could adversely affect the market price
of our common stock.
We
may issue up to $3,000,000 of common stock from time to time in this offering. The issuance from time to time of shares in this
offering, as well as our ability to issue such shares in this offering, could have the effect of depressing the market price or increasing
the market price volatility of our common stock. See “Plan of Distribution” on page 10 of this prospectus for more information
about the possible adverse effects of our sales under the sales agreement.
It
is not possible to predict the actual number of shares we will sell under the sales agreement, or the gross proceeds resulting from those
sales.
Subject
to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice
to the sales agent at any time throughout the term of the sales agreement. The number of shares that are sold through the sales agent
after delivering a placement notice will fluctuate based on a number of factors, including the market price of the common stock during
the sales period, the limits we set with the sales agent in any applicable placement notice, and the demand for our common stock during
the sales period. Because the price per share of each share sold will fluctuate during the sales period, it is not currently possible
to predict the number of shares that will be sold or the gross proceeds to be raised in connection with those sales. Further, we are
not obligated to sell any shares under the sales agreement, so you should not invest in our securities in reliance on the fact that we
will actually raise new capital via the at the market sales program covered by this prospectus.
The
common stock offered hereby will be sold in an “at the market offering,” and investors who buy shares at different times
will likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different levels of dilution
and different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and
numbers of shares sold in this offering. In addition, there is no minimum or maximum sales price for shares to be sold in this offering.
Investors may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower
than the prices they paid.
USE
OF PROCEEDS
We
may issue and sell shares of common stock having aggregate sales proceeds of up to $3,000,000 from time to time, before deducting
sales agent commissions and expenses. The amount of proceeds from this offering will depend upon the number of shares of our common stock
sold and the market price at which they are sold. There can be no assurance that we will be able to sell any shares under or fully utilize
the sales agreement with Roth Capital Partners. We intend to use the net proceeds of this offering for general
corporate purposes, including working capital, operating expenses, and capital expenditures. In addition, 20% of the net proceeds
of this offering will be used to repay the Note (as defined below).
On January 24, 2022, we entered
into a Securities Purchase Agreement with Lind Global Fund II LP, a Delaware limited partnership (“Lind”), pursuant to which
we issued to Lind a secured, two-year, interest-free convertible promissory note in the principal amount of $5,750,000 (the “Note”)
and a common stock purchase warrant (the “Warrant”) to acquire 1,000,000 shares of common stock of the Company. The Note
matures on January 24, 2024. The proceeds from the sale of the Note and Warrant are for general working capital.
We may also use a portion of the net proceeds
to acquire or make investments in businesses, products, and offerings, although we do not have agreements or commitments for any material
acquisitions or investments at this time.
However,
the nature, amounts and timing of our actual expenditures may vary significantly depending on numerous factors. As a result, our management
has and will retain broad discretion over the allocation of the net proceeds from this offering. We may find it necessary or advisable
to use the net proceeds from this offering for other purposes, and we will have broad discretion in the application of net proceeds from
this offering.
DIVIDEND
POLICY
We
have never paid any cash dividends on our capital stock and do not anticipate paying any cash dividends on our common stock in the foreseeable
future. We intend to retain future earnings to fund ongoing operations and future capital requirements. Any future determination to pay
cash dividends will be at the discretion of our board of directors and will be dependent upon financial condition, results of operations,
capital requirements and such other factors as the board of directors deems relevant.
DILUTION
If
you invest in our common stock, your interest will be diluted immediately to the extent of the difference between the public offering
price per share and the adjusted net tangible book value per share of our common stock after this offering.
Our net tangible book value
on September 30, 2022 was approximately $1,958,341, or $0.08
per share. “Net tangible book value” is total assets minus the sum of liabilities and intangible assets. “Net tangible
book value per share” is net tangible book value divided by the total number of shares outstanding.
After
giving effect to the sale of shares of our common stock in the aggregate amount of $3,000,000 in this offering at an assumed offering
price of $0.78 per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on November
23, 2022, and after deducting estimated offering commissions and expenses payable by us, our net tangible book value as of September
30, 2022 would have been approximately $4,800,586, or $0.16 per share of common stock. This represents an immediate
increase in net tangible book value of $0.08 per share to our existing stockholders and an immediate dilution of $0.62 per share to investors participating in this offering. The following table illustrates this dilution per share
to investors participating in this offering:
Assumed offering price per share | |
| | | |
$ | 0.78 | |
Net tangible book value per share as of September 30, 2022 | |
$ | 0.08 | | |
| | |
Increase per share attributable to new investors | |
$ | 0.08 | | |
| | |
Net tangible book value per share after giving effect to this offering | |
$ | 0.16 | | |
| | |
Dilution per share to new investors | |
| | | |
$ | 0.62 | |
The
table above assumes, for illustrative purposes, that an aggregate of 3,846,153 shares of our common stock are sold at a price
of $0.78 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on November 23, 2022,
for aggregate gross proceeds of $3,000,000. The shares sold in this offering, if any, will be sold from time to time at various
prices.
The
above discussion and table are based on 25,522,727 shares of our common stock outstanding as of September 30, 2022.
To
the extent that any of our outstanding options or warrants are exercised, we grant additional options or other awards under our stock
incentive plan or issue additional warrants, or we issue additional shares of common stock in the future, there may be further dilution.
DESCRIPTION
OF SECURITIES WE ARE OFFERING
Common
Stock
As
of November 23, 2022, there were 25,538,844 shares of common stock issued and outstanding, held of record by approximately
140 stockholders. Subject to preferential rights with respect to any outstanding preferred stock, all outstanding shares of common
stock are of the same class and have equal rights and attributes.
The
holders of outstanding shares of common stock are entitled to receive dividends out of assets or funds legally available for the payment
of dividends of such times and in such amounts as the board from time to time may determine. Holders of common stock are entitled to
one vote for each share held on all matters submitted to a vote of stockholders. There is no cumulative voting of the election of directors
then standing for election. The common stock is not entitled to pre-emptive rights and is not subject to conversion or redemption. Upon
liquidation, dissolution or winding up of our company, the assets legally available for distribution to stockholders are distributable
ratably among the holders of the common stock after payment of liquidation preferences, if any, on any outstanding payment of other claims
of creditors.
Market,
Symbol and Transfer Agent
Our
common stock is listed for trading on the Nasdaq Capital Market under the symbol “BSFC”. The transfer agent and registrar
for our common stock is VStock Transfer, LLC, at 18 Lafayette Place, Woodmere, New York 11598, and its telephone number is (212) 828-8436.
PLAN
OF DISTRIBUTION
We
have entered into a sales agreement with Roth Capital Partners on November 25, 2022, which we filed as an exhibit to the registration
statement of which this prospectus forms a part. Under the terms of the sales agreement, we may offer and sell up to $3,000,000
of shares of our common stock under this prospectus (the “Offering”), from time to time through or to Roth Capital Partners,
as sales agent or principal. Sales of shares of our common stock, if any, under this prospectus may be made by any method deemed to be
an “at the market offering” as defined in Rule 415 under the Securities Act. We may instruct the sales agent not to sell
common stock if the sales cannot be effected at or above the price designated by us from time to time. We or the sales agent may suspend
the offering of common stock upon notice and subject to other conditions.
The
sales agent will offer our common stock subject to the terms and conditions of the sales agreement as agreed upon by us and the sales
agent. Each time we wish to issue and sell common stock under the sales agreement, we will notify the sales agent of the number or dollar
value of shares to be issued, the time period during which such sales are requested to be made, any limitation on the number of shares
that may be sold in one day, any minimum price below which sales may not be made and other sales parameters as we deem appropriate. Once
we have so instructed the sales agent, unless the sales agent declines to accept the terms of the notice, the sales agent has agreed
to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount
specified on such terms. The obligations of the sales agent under the sales agreement to sell our common stock are subject to a number
of conditions that we must meet.
We
will pay the sales agent commissions for its services in acting as agent in the sale of our common stock at a commission rate equal to
3.0% of the gross sale price per share sold. We estimate that the total expenses for the offering, excluding compensation and reimbursement
payable to the sales agent under the sales agreement, will be approximately $50,000. We have also agreed to reimburse the sales agent
for its reasonable out-of-pocket expenses, including attorney’s fees, for this Offering, in an amount not to exceed $65,000, in
addition to $7,500 per quarterly due diligence update session for Roth Capital Partners’ counsel’s fees.
Settlement
for sales of common stock will occur on the second business day following the date on which any sales are made, or on some other date
that is agreed upon by us and the sales agent in connection with a particular transaction, in return for payment of the net proceeds
to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In
connection with the sale of the common stock on our behalf, Roth Capital Partners will be deemed to be an underwriter within the meaning
of the Securities Act, and its compensation as sales agent will be deemed to be underwriting commissions or discounts. We have agreed
to provide indemnification and contribution to Roth Capital Partners against certain civil liabilities, including liabilities under the
Securities Act.
The
offering pursuant to the sales agreement will terminate upon the earlier of (1) the issuance and sale of all shares of our common stock
subject to the sales agreement; and (2) the termination of the sales agreement as permitted therein.
The
sales agent and its affiliates have in the past and may in the future provide various investment banking and other financial services
for us and our affiliates, for which services it has received and may in the future receive customary fees.
The
prospectus for the offering in electronic format may be made available on websites maintained by the sales agent. To the extent required
by Regulation M, the sales agent will not engage in any market making activities involving our common stock while the offering is ongoing
under this prospectus. This summary of the material provisions of the sales agreement does not purport to be a complete statement of
its terms and conditions. A copy of the sales agreement is filed as an exhibit to the registration statement of which this prospectus
forms a part and is incorporated by reference in this prospectus.
LEGAL
MATTERS
The
validity of the issuance of the common stock offered by this prospectus will be passed upon for us by The Crone Law Group, P.C., New
York, New York. Roth Capital Partners, LLC is being represented in connection with this offering by Duane Morris LLP, New York, New York.
EXPERTS
Our
consolidated financial statements as of and for the years ended December 31, 2021 and 2020, included in our Annual Report on Form 10-K
for the year ended December 31, 2021, have been audited by MaloneBailey, LLP, independent registered public accounting firm, as set forth
in their report, and have been incorporated herein by reference in reliance upon the report of such firm given on their authority as
experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all
the information set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements
or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement
or the exhibits to the reports or other documents incorporated by reference into this prospectus for a copy of such contract, agreement
or other document. Because we are subject to the information and reporting requirements of the Securities Exchange Act of 1934, as amended,
or the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings
are available to the public over the Internet at the SEC’s website at http://www.sec.gov.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
are “incorporating by reference” certain documents we file with the SEC, which means that we can disclose important information
to you by referring you to those documents. The information in the documents incorporated by reference is considered to be part of this
prospectus. 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 or may file the following documents with the SEC and they are incorporated herein by reference as of their
respective dates of filing:
1.
Our Annual Report on Form 10-K for the year ended December 31, 2021, as filed with the SEC on March 31, 2022;
2.
Our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2022,
June 30, 2022, and September
30, 2022, as filed with the SEC on May 13, 2022, August 15, 2022, and November 14, 2022, respectively; and
3.
Our Current Reports on Form 8-K as filed with the SEC on
January 28, 2022,
February 9, 2022,
April 25, 2022, August
16, 2022, November
15, 2022, and November 23, 2022.
All
documents that we filed with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this
registration statement and prior to the filing of a post-effective amendment to this registration statement that indicates that all securities
offered under this prospectus have been sold, or that deregisters all securities then remaining unsold, will be deemed to be incorporated
in this registration statement by reference and to be a part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed modified,
superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any subsequently
filed document that also is deemed to be incorporated by reference in this prospectus, modifies, supersedes or replaces such statement.
Any statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a
part of this prospectus. None of the information that we disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K or any corresponding
information, either furnished under Item 9.01 or included as an exhibit therein, that we may from time to time furnish to the SEC will
be incorporated by reference into, or otherwise included in, this prospectus, except as otherwise expressly set forth in the relevant
document. Subject to the foregoing, all information appearing in this prospectus is qualified in its entirety by the information appearing
in the documents incorporated by reference.
If
you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the
information incorporated by reference into this prospectus. Any such request should be directed to:
Blue
Star Foods Corp.
3000
NW 109th Avenue
Miami,
Florida 33172
(305)
836-6858
Our
website address is https://bluestarfoods.com/. Except for any documents that are incorporated by reference into this prospectus
that may be accessed from our website, the information available on or through our website is not part of this prospectus.
Up
to $3,000,000
Blue
Star Foods Corp.
Common
Stock
PROSPECTUS
Roth
Capital Partners
,
2022
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
We
are paying all expenses of the offering. The following table sets forth all expenses to be paid by the registrant. All amounts shown
are estimates except for the registration fee.
|
|
Amount |
|
SEC
registration fee |
|
$ |
2,755 |
|
Accounting
fees and expenses |
|
|
* |
|
Legal
fees and expenses |
|
|
* |
|
Miscellaneous
fees and expenses |
|
|
* |
|
|
|
|
|
|
Total |
|
|
* |
|
*
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
The applicable prospectus supplement will set forth the estimated amount of expenses of any offering of securities.
Item
15. Indemnification of Directors and Officers.
Our
certificate of incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest extent
permitted by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for
any breach of fiduciary duties as directors, except liability for:
|
● |
any
breach of the director’s duty of loyalty to us or our stockholders; |
|
|
|
|
● |
any
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
|
|
|
|
● |
unlawful
payments of dividends in violation of the Delaware General Corporation Law; or |
Our
certificate of incorporation and bylaws provide that we are required to indemnify our directors and officers, in each case to the fullest
extent permitted by Delaware law and provide for the advancement of expenses incurred by a director or officer in advance of the final
disposition of any action or proceeding, and permit us to secure insurance on behalf of any director or officer for any liability arising
out of his, her or its actions in that capacity.
We
believe that these provisions in our certificate of incorporation and bylaws are necessary to attract and retain qualified persons as
directors and officers.
The
limitation of liability and indemnification provisions in our certificate of incorporation and bylaws may discourage stockholders from
bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation
against directors and officers, even though an action, if successful, might benefit us and our stockholders. A stockholder’s investment
may be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification
provisions.
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.
There
is no pending litigation or proceeding naming any of our directors, officers or employees as to which indemnification is being sought,
nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any director, officer or employee.
We
have directors’ and officers’ liability insurance insuring our directors and officers against liability for acts or omissions
in their capacities as directors or officers.
Item
16. Exhibits.
The
following exhibits are filed with this Registration Statement.
The
agreements included or incorporated by reference as exhibits to this registration statement contain representations and warranties by
each of the parties to the applicable agreement. These representations and warranties were made solely for the benefit of the other parties
to the applicable agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating
the risk to one of the parties if those statements prove to be inaccurate; (ii) may have been qualified in such agreement by disclosures
that were made to the other party in connection with the negotiation of the applicable agreement; (iii) may apply contract standards
of “materiality” that are different from “materiality” under the applicable securities laws; and (iv) were made
only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement.
The
undersigned registrant acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for
considering whether additional specific disclosures of material information regarding material contractual provisions are required to
make the statements in this registration statement not misleading.
Exhibit
Number |
|
Description
of Document |
1.1 |
|
Form
of Underwriting Agreement** |
1.2 |
|
Sales Agreement, dated November 25, 2022, between the Company and Roth Capital Partners, LLC* |
2.1 |
|
Agreement
and Plan of Merger, dated as of November 8, 2018, by and among the Company, Blue Star, Acquisition Sub and John Keeler (incorporated
by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 14, 2018) |
2.2 |
|
Articles
of Merger between Blue Star and Acquisition Sub (incorporated by reference to Exhibit 2.2 to the Company’s Current Report on
Form 8-K filed with the SEC on November 14, 2018) |
3.1 |
|
Amended
and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Company’s Form 10/A filed with the
SEC on May 17, 2018) |
3.2 |
|
Amended
and Restated By-Laws (incorporated by reference to Exhibit 3.4 to the Company’s Form 10/A filed with the SEC on May 17, 2018) |
3.3 |
|
Certificate
of Amendment, dated November 5, 2018 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K
filed with the SEC on November 9, 2018) |
3.4 |
|
Certificate
of Designation of 8% Series A Convertible Preferred Stock incorporated by reference to Exhibit 3.2 to the Company’s Current
Report on Form 8-K filed with the SEC on November 9, 2018) |
4.1 |
|
Form
of Common Stock Certificate** |
4.2 |
|
Form
of Preferred Stock Certificate** |
4.3 |
|
Form
of Warrant Agreement and Form of Warrant Certificate** |
4.4 |
|
Form
of Subscription Rights Agreement and Form Subscription Rights Certificate** |
4.5 |
|
Form of Indenture* |
4.6 |
|
Form
of Note** |
4.7 |
|
Form
of Debt Securities** |
4.8 |
|
Form
of Promissory Note with TOBC (incorporated by reference to 4.1 to the Company’s Current Report on Form 8-K filed with the SEC
on June 30, 2021) |
4.9 |
|
Form
of Underwriters Warrant, issued November 5, 2021 (incorporated by reference to Exhibit 4.1 to the Company’s Current Report
on Form 8-K filed with the SEC on November 8, 2021) |
4.10 |
|
$5,750,000
Senior Secured Convertible Promissory Note, dated January 24, 2022, issued to Lind Global Fund II LP (incorporated by reference to
Exhibit 4.2 to the Company’s Current Report on Form 8-K filed with the SEC on January 28, 2022) |
5.1 |
|
Opinion
of The Crone Law Group, P.C.* |
23.1 |
|
Consent
of MaloneBailey, LLP* |
23.2 |
|
Consent of The Crone Law Group, P.C. (included in Exhibit 5.1)* |
24.1 |
|
Power
of Attorney (included in Part II of this Registration Statement)* |
25.1 |
|
Statement
of Eligibility of trustee on Form T-1**+ |
107 |
|
Filing Fee Table* |
|
|
|
* |
Filed
herewith. |
** |
If
applicable, to be filed by an amendment or as an exhibit to a report pursuant to section 13(a) or section 15(d) of the Exchange Act
and incorporated by reference |
+ |
To
be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act, as amended. |
Item
17. Undertakings.
(a)
The undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(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% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided, however , that paragraphs (1)(i), (1)(ii)
and (1)(iii) 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.
(2)
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.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
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
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability 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.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability of the registrant under the Securities Act
of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in 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.
(c)
The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth
the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed
securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters
is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to
set forth the terms of such offering.
(d)
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 foregoing provisions, 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 Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
(e)
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 Commission
under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of Miami, State of Florida on November 25, 2022.
|
|
BLUE
STAR FOODS CORP. |
|
|
|
|
By: |
/s/
John Keeler |
|
|
John
Keeler
Chief
Executive Officer and Executive Chairman (Principal Executive Officer) |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John Keeler and Silvia Alana,
and each and either of them, his or her true and lawful attorney-in-fact and agent, each with full power of substitution and resubstituting,
for him or her and in his or her name, place, and stead, in any and all capacities, to (i) act on, sign and file with the Securities
and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all
schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933,
as amended, together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and
other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included
in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and (iv) take any and all actions which may be necessary or appropriate to be done, as fully for
all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and
on the dates indicated.
November
25, 2022 |
By: |
/s/
John Keeler |
|
|
John
Keeler
Chief
Executive Officer and Executive Chairman and director |
|
|
(Principal
Executive Officer) |
|
|
|
November
25, 2022 |
By: |
/s/
Silvia Alana |
|
|
Silvia
Alana
Chief
Financial Officer and director
(Principal
Financial and Accounting Officer) |
|
|
|
November
25, 2022 |
By: |
/s/
Jeffrey J. Guzy |
|
|
Jeffrey
J. Guzy
Director |
|
|
|
November
25, 2022 |
By: |
/s/
Nubar Herian |
|
|
Nubar
Herian
Director |
|
|
|
November
25, 2022 |
By: |
/s/
Timothy McLellan |
|
|
Timothy
McLellan |
|
|
Director |
|
|
|
November
25, 2022 |
By: |
/s/
Trond Ringstad |
|
|
Trond
Ringstad |
|
|
Director |
|
|
|
November
25, 2022 |
By: |
/s/
Juan Carlos Dalto |
|
|
Juan
Carlos Dalto |
|
|
Director |
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