Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-281283
PROSPECTUS
OCEAN
POWER TECHNOLOGIES, INC.
2,864,808
Shares of Common Stock
The
selling stockholders identified in this prospectus (which term as used in this prospectus includes their respective partners, pledgees,
donees (including charitable organizations), transferees or other successors-in-interest) may offer this common stock from time to time
through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated
prices.
Although
we will incur expenses in connection with the registration of the securities, we will not receive any of the proceeds from the sale of
the shares of common stock by the selling stockholders.
Our
common stock is quoted on the NYSE American under the symbol “OPTT.” The last reported sale price of our common stock on
September 5, 2024 was $0.18 per share.
Investing
in our securities involves significant risks that are described in the “Risk Factors” section beginning on page 4 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is September 11, 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the Commission. Under this
registration statement, the selling stockholders named in this prospectus or any supplement to this prospectus may sell from time to
time the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of
the securities the selling stockholders may offer. To the extent appropriate, we may provide a prospectus supplement that contains specific
information about the terms of the offering. A prospectus supplement may also add, update or change information contained in this prospectus.
Any statement that we make in this prospectus will be modified or superseded by any inconsistent statement made by us in a prospectus
supplement. You should read both this prospectus and any prospectus supplement together with the information incorporated herein by reference
as described under the heading “Incorporation of Certain Documents By Reference” and the additional information described
under the heading “Where You Can Find More Information,” before buying any of the securities being offered.
You
should rely only on the information contained in or incorporated by reference into this prospectus or any prospectus supplement. We have
not authorized anyone to provide you with additional or different information. The selling stockholders are offering to sell, and seeking
offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted.
This
prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond our
control. Please read “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”
Neither
the delivery of this prospectus nor any sale made under it implies that there has been no change in our affairs or that the information
in this prospectus is correct as of any date after the date of this prospectus. You should assume that the information 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 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, any applicable prospectus supplement or any related free writing prospectus, or
any sale of a security.
ocean
power technologies, Inc.
As
used in this prospectus, unless otherwise indicated, “we,” “our,” “us,” “Company” or
similar terms refer collectively to Ocean Power Technologies, Inc., and not the subsidiaries of Ocean Power Technologies, Inc.
Our
solutions focus on three major service areas: Data as a Service (“DaaS”), which includes data collected by our Wave Adaptive
Modular Vessel (WAM-V®) autonomous vehicles or our PowerBuoy® product lines; Robotics as a Service (“RaaS”), which
provides a lower cost subscription model for our customers to access use of our WAM-V’s®; and Power as a Service (“PaaS”),
which includes our PowerBuoy® products.
Our
mission is to provide intelligent maritime solutions and services that enable more secure and more productive utilization of our oceans
and waterways, provide clean energy power services, and offer sophisticated surface and subsea maritime domain awareness solutions. The
Company achieves this through our proprietary, state-of-the-art technologies that are at the core of our clean and renewable energy platforms,
autonomous systems, solutions and services.
The
Company provides ocean data collection and reporting, marine power, offshore communications, and Maritime Domain Awareness System (“MDAS”)
products, integrated solutions, and consulting services. The Company offers our products and services to a wide range of customers, including
those in government and offshore energy, oil and gas, construction, wind power and other industries. The Company is involved in the entire
life cycle of product development, from product design through manufacturing, testing, deployment, maintenance and upgrades, while working
closely with partners across our supply chain. The Company also works closely with our third-party partners that provide us with, among
other things, software, controls, sensors, integration services, and marine installation services. Our solutions are based on proprietary
technologies that enable autonomous, zero or low carbon emitting, and cost-effective data collection, analysis, transportation and communication.
Our solutions are primarily suited to ocean and other offshore environments, and support generation of actionable intelligence on a standalone
basis or working with other data sources. We channel the information we collect, and other communications, through control equipment
linked to edge computing and cloud hosting environments.
On
November 15, 2021, we entered into a stock purchase agreement with the sellers named therein (the “Sellers”) pursuant to
which we acquired from the Sellers all of the outstanding equity interest of Marine Advanced Robotics, Inc. (“MAR”). MAR
is a Richmond, California based company that is the developer of Wave Adaptive Modular Vessel technology, which enables roaming capabilities
for unmanned equipment in waters around the world. In consideration for the purchase, we paid $4,000,000 in cash to the Sellers and issued
3,330,162 shares of our common stock to the Sellers. Pursuant to registration rights that we granted under such stock purchase agreement,
we previously filed a registration statement to register the resale of the 3,330,162 shares of our common stock that we issued to the
Sellers. On July 29, 2023, we issued an additional 2,403,846 shares of our common stock to the Sellers and to certain employees of MAR
pursuant to the earnout provisions of such stock purchase agreement, as well as additional shares related to performance bonuses for
MAR employees, and registered the resale of such additional shares. On July 30, 2024, we issued an additional 2,864,808 shares
of our common stock to the Sellers and to certain employees of MAR pursuant to the earnout provisions of such stock purchase agreement,
as well as additional shares related to performance bonuses for MAR employees, and further agreed to register the resale of such additional
shares in the registration statement of which this prospectus forms a part. As such, the Sellers and those employees are the selling
stockholder under this prospectus.
We
were incorporated under the laws of the State of New Jersey in April 1984 and began commercial operations in 1994. On April 23, 2007,
we reincorporated in the State of Delaware. Our principal executive offices are located at 28 Engelhard Drive, Suite B, Monroe Township,
New Jersey. Our telephone number is (609) 730-0400. We maintain a website at www.oceanpowertechnologies.com where general information
about us is available. We are not incorporating the contents of the website into this prospectus.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
The
information discussed in this prospectus, our filings with the SEC and our public releases include “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Private Securities Litigation Reform Act of 1995 (the
“PSLRA”), or in releases made by the SEC. Such forward-looking statements involve known and unknown risks, uncertainties
and other important factors that could cause the actual results, performance or achievements of us to differ materially from any future
results, performance or achievements expressed or implied by such forward-looking statements. Statements that are not historical fact
are forward-looking statements. Forward-looking statements can be identified by, among other things, the use of forward-looking language,
such as the words “plan,” “believe,” “expect,” “anticipate,” “intend,” “estimate,”
“project,” “may,” “will,” “would,” “could,” “should,” “seeks,”
or “scheduled to,” or other similar words, or the negative of these terms or other variations of these terms or comparable
language, or by discussion of strategy or intentions. These cautionary statements are being made pursuant to the Securities Act, the
Exchange Act and the PSLRA with the intention of obtaining the benefits of the “safe harbor” provisions of such laws.
The
forward-looking statements contained in or incorporated by reference into this prospectus are largely based on our expectations, which
reflect estimates and assumptions made by our management. These estimates and assumptions reflect our best judgment based on currently
known market conditions and other factors. Although we believe such estimates and assumptions to be reasonable, they are inherently uncertain
and involve a number of risks and uncertainties that are beyond our control, including:
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our
ability to improve, market and commercialize our products, and achieve and sustain profitability; |
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our
continued improvement of our proprietary technologies, and expected continued use of cash from operating activities unless or until
we achieve positive cash flow from the commercialization of our products and services; |
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our
ability to obtain additional funding, as and if needed, which will be subject to several factors, including market conditions, and
our operating performance; |
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our
history of operating losses, which we expect to continue for at least the short term and possibly longer; |
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substantial
doubt about our ability to continue as a going concern; |
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our
ability to manage challenges and expenses associated with communications and disputes with activist shareholders, including litigation; |
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our
ability to manage and mitigate risks associated with our internal cyber security protocols and protection of the data we collect
and distribute; |
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our
ability to protect our intellectual property portfolio; |
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the
impact of inflation related to the U.S. dollar on our business, operations, customers, suppliers, manufacturers, and personnel; |
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our
ability to meet product enhancement, manufacturing and customer delivery deadlines and the potential impact due to disruptions to
our supply chain or our ability to identify vendors that can assist with the prefabrication elements of our products, as a result
of, among other things, staff shortages, order delays, and increased pricing from vendors and manufacturers; |
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our
estimates regarding future expenses, revenue, and capital requirements; |
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our
ability to identify and penetrate markets for our products, services, and solutions; |
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our
ability to effectively respond to competition in our targeted markets; |
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our
ability to establish relationships with our existing and future strategic partners which may not be successful; |
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our
ability to maintain the listing of our common stock on the NYSE American; |
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the
reliability of our technology, products and solutions; |
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our
ability to increase or more efficiently utilize the synergies available from our product lines: |
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changes
in current legislation, regulations and economic conditions that affect the demand for, or restrict the use of our products; |
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our
ability to expand markets across geographic boundaries; |
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our
ability to be successful with Federal government work which is complex due to various statutes and regulations applicable to doing
business with the Federal government; |
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our
ability to be successful doing business internationally which requires strict compliance with applicable import, export, ITAR, anti-bribery
and related statutes and regulations; |
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the
current geopolitical world uncertainty, including Russia’s invasion of Ukraine, the Israel/Palestine conflict and recent attacks
on merchant ships in the Red Sea; |
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our
ability to hire and retain key personnel, including senior management, to achieve our business objectives; and |
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our
ability to establish and maintain commercial profit margin. |
Many
of these factors are beyond our ability to control or predict. These factors are not intended to represent a complete list of the general
or specific factors that may affect us.
In
addition, management’s assumptions about future events may prove to be inaccurate. All readers are cautioned that the forward-looking
statements contained in this prospectus and in the documents incorporated by reference into this prospectus are not guarantees of future
performance, and we cannot assure any reader that such statements will be realized or that the forward-looking events and circumstances
will occur. Actual results may differ materially from those anticipated or implied in the forward-looking statements due to factors described
in “Risk Factors” included elsewhere in this prospectus and in the documents that we include in or incorporate by reference
into this prospectus, including our Annual Report on Form 10-K for the fiscal year ended April 30, 2024 and our subsequent SEC filings.
All forward-looking statements speak only as of the date they are made. We do not intend to update or revise any forward-looking statements
as a result of new information, future events or otherwise, except as required by law. These cautionary statements qualify all forward-looking
statements attributable to us or persons acting on our behalf.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus forms a part of a registration statement on Form S-3 we filed with the SEC. This prospectus does not contain all of the information
found in the registration statement. For further information regarding us and our securities, you may desire to review the full registration
statement, including its exhibits and schedules, filed under the Securities Act, as well as our proxy statement, annual, quarterly and
other reports and other information we file with the SEC. You may read and copy any document we file with the SEC at the SEC’s
public reference room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference
room by calling the SEC at 1-800-SEC-0330. The SEC maintains a website on the Internet at www.sec.gov that contains reports, proxy
and information statements, and other information regarding companies that file electronically with the SEC. We maintain a website on
the Internet at www.oceanpowertechnologies.com. Our registration statement, of which this prospectus constitutes a part, can be
downloaded from the SEC’s website or from our website at www.oceanpowertechnologies.com. Information on the SEC website,
our website or any other website is not incorporated by reference in this prospectus and does not constitute part of this prospectus.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
following documents, which have previously been filed by us with the SEC under the Exchange Act, are incorporated herein by reference:
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our Annual Report on Form
10-K for the fiscal year ended April 30, 2024, filed with the SEC on July 25, 2024, as amended on August 28, 2024 (File No. 001-33417);
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our Current Reports on Form 8-K and Form 8-K/A, filed with the SEC on May
6, 2024, May
14, 2024, May
30, 2024, June
7, 2024, June
14, 2024, June
17, 2024, June
26, 2024, July
5, 2024, July
10, 2024, July
17, 2024, July
25, 2024, August
1, 2024, August
8, 2024, August
15, 2024, August
23, 2024, August
30, 2024, September 4, 2024 and September 5, 2024 (File No. 001-33417) (excluding any information furnished pursuant to
Item 2.02 or Item 7.01 of any such Current Report on Form 8-K); and
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the description of our common stock set forth in our registration statement on Form 8-A filed on April 18, 2007 (File No. 001-33417)
and in any and all subsequent amendments and reports filed for the purpose of updating that description.
All
documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished pursuant
to Item 2.02 or Item 7.01 on any current report on Form 8-K and any corresponding information furnished under Item 9.01 or included as
an exhibit) after the date of the initial registration statement of which this prospectus forms a part and until the termination of the
offering under this prospectus shall be deemed to be incorporated in this prospectus by reference and to be a part hereof from the date
of filing of such documents. Any statement contained herein, or in a document incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part
of this prospectus.
You
may request a free copy of these filings, other than any exhibits, unless the exhibits are specifically incorporated by reference into
this prospectus, by writing or telephoning us at the following address:
Ocean
Power Technologies, Inc.
28
Engelhard Drive, Suite B
Monroe
Township, New Jersey 08831
Attention:
Chief Financial Officer
(609)
730-0400
RISK
FACTORS
An
investment in our securities involves a high degree of risk. You should carefully consider the risk factors and all of the other information
included in, or incorporated by reference into, this prospectus, including those risk factors included in our Annual Report on Form 10-K
for the year ended April 30, 2024 and our subsequent Commission filings, in evaluating an investment in our securities. If any of these
risks were to occur, our business, financial condition or results of operations could be adversely affected. In that case, the trading
price of our securities could decline and you could lose all or part of your investment. When we offer and sell any securities pursuant
to a prospectus supplement, we may include additional risk factors relevant to such securities in the prospectus supplement.
USE
OF PROCEEDS
We
will not receive any proceeds from the sale of our shares of common stock by the selling stockholders. The selling stockholders named
in this prospectus will pay any underwriting fees, discounts and commissions, along with certain of the selling stockholders’ out-of-pocket
expenses, incurred in connection with their sale of shares registered under this prospectus. We will bear all other costs, fees and expenses
incurred by us, or by the selling stockholders, in effecting the registration, offer and sale of the shares covered by this prospectus.
DESCRIPTION
OF CAPITAL STOCK
In
the discussion that follows, we have summarized selected provisions of our certificate of incorporation and bylaws. You should read our
certificate of incorporation and bylaws as currently in effect for more details regarding the provisions we describe below and for other
provisions that may be important to you. We have filed copies of those documents with the SEC, and they are incorporated by reference
herein. Please read “Where You Can Find More Information.”
Authorized
and Outstanding Capital Stock
The
following description of our common stock and provisions of our certificate of incorporation and bylaws are summaries and are qualified
by reference to our certificate of incorporation and bylaws, which have been incorporated by reference as exhibits to the registration
statement of which this prospectus forms a part.
Our
authorized capital stock consists of 200,000,000 shares of common stock, par value $0.001 per share, and 5,000,000 shares of preferred
stock, par value $0.001 per share, all of which are undesignated. As discussed below, we issued on July 11, 2023 preferred stock purchase
rights which are attached to our common stock in connection with our adoption of a Section 382 Tax Benefits Preservation Plan as described
under Section 382 Tax Benefits Preservation Plan.
As
of August 26, 2024, there were 95,573,789 shares of common stock outstanding,
and no shares of preferred stock were issued or outstanding. As of August 26, 2024, there also were outstanding (i) options
representing the right to purchase a total of 628,131 shares of common stock at a weighted average exercise price of approximately $2.32
per share, and (ii) unvested restricted stock units representing the right to acquire a total of 5,568,424 shares of common stock.
Description
of Common Stock
Voting.
Holders of common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have
cumulative voting rights. Accordingly, holders of a majority of the shares of common stock entitled to vote in any election of directors
may elect all of the directors standing for election.
Dividends.
Holders of common stock are entitled to receive proportionately any dividends that may be declared by our Board, subject to any preferential
dividend rights of outstanding preferred stock.
Liquidation
and Distribution. Upon our liquidation, dissolution or winding up, the holders of common stock are entitled to receive proportionately
our net assets available after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred
stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. Our outstanding shares of common stock
are, and the shares offered by us in this offering will be, when issued and paid for, fully paid and nonassessable. The rights, preferences
and privileges of holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any
series of preferred stock that we may designate and issue in the future.
Anti-Takeover
Effects of Delaware Law, Our Certificate of Incorporation and Our Bylaws
Delaware
law, our certificate of incorporation and our bylaws contain provisions that could have the effect of delaying, deferring or discouraging
another party from acquiring control of us. These provisions, which are summarized below, are intended to discourage coercive takeover
practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first
negotiate with our Board.
Removal
of Directors
Our
certificate of incorporation currently provides that directors may be removed only for cause and only by the affirmative vote of the
holders of 75% of our shares of capital stock present in person or by proxy and entitled to vote. However, our Board of Directors approved
an amendment to our bylaws that became effective on June 17, 2016, which permits our directors to be removed either for cause or without
cause by our stockholders. At our annual meeting of stockholders for the year ended April 30, 2016 that was held on October 21, 2016
(the “2016 Annual Meeting”), we submitted a proposal to stockholders seeking stockholder approval to amend our certificate
of incorporation to delete the reference to “for cause” in Section 6 of Article IX of the certificate of incorporation. This
proposal to amend the certificate of incorporation did not receive the required affirmative vote of the holders of at least 75% of the
outstanding shares of common stock entitled to vote at the meeting, so the proposal did not pass. However, we also submitted a proposal
to stockholders at the 2016 Annual Meeting seeking approval to amend our certificate of incorporation to add a clause that specified
that, to the fullest extent permitted by law, any provision in the Certificate of Incorporation that is contrary to a requirement of
the Delaware General Corporate Law (the “DGCL”) shall be read in conformity with the applicable requirement of the DGCL.
This second proposal only required the affirmative vote of the holders of a majority of the outstanding shares of common stock entitled
to vote at the 2016 Annual Meeting, and it passed.
Our
Board of Directors takes the position that under current Delaware law, the “only for cause” provision in the certificate
of incorporation regarding removal of the company’s directors is not enforceable and is therefore not in conformity with the applicable
requirement of the DGCL. Accordingly, we will comply with the provisions of our bylaws, as amended and as described above, relating to
director removal and will not seek to enforce that provision of our certificate of incorporation relating to stockholder removal of directors
only for cause, as presently in effect. Under our certificate of incorporation and bylaws, any vacancy on the Board, including a vacancy
resulting from an enlargement of the Board, may be filled only by vote of a majority of our directors then in office.
The
limitations on the ability of our stockholders to remove directors and fill vacancies could make it more difficult for a third party
to acquire, or discourage a third party from seeking to acquire, control of us.
Stockholder
Action by Written Consent; Special Meetings
Our
certificate of incorporation provides that any action required or permitted to be taken by our stockholders must be effected at a duly
called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. Our certificate of
incorporation and our bylaws also provide that, except as otherwise required by law, special meetings of our stockholders can only be
called by our chairman of the board, our chief executive officer, our president or the Board.
Advance
Notice Requirements for Stockholder Proposals
Our
bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including
proposed nominations of persons for election to the Board. Stockholders at an annual meeting may only consider proposals or nominations
specified in the notice of meeting or brought before the meeting by or at the direction of the Board of Directors or by a stockholder
of record on the record date for the meeting, that is entitled to vote at the meeting and that has delivered to our secretary a timely
written notice in proper form of the stockholder’s intention to bring such business before the meeting, as well as having met certain
other requirements specified in the bylaws. These provisions could have the effect of delaying until the next stockholder meeting stockholder
actions that are favored by the holders of a majority of our outstanding voting securities.
Delaware
Business Combination Statute
We
are subject to Section 203 of the Delaware General Corporation Law. Subject to certain exceptions, Section 203 prevents a publicly held
Delaware corporation from engaging in a “business combination” with any “interested stockholder” for three years
following the date that the person became an interested stockholder, unless the interested stockholder attained such status with the
approval of our Board of Directors or unless the business combination is approved in a prescribed manner. A “business combination”
includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more
than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of
our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.
Section
382 Tax Benefits Preservation Plan
Our
Board of Directors has approved the adoption of a tax benefits preservation plan in the form of a Section 382 Rights Agreement designed
to protect and preserve our tax assets primarily associated with net operating loss carryforwards (“NOLs”) that could potentially
be utilized in certain circumstances to offset our future taxable income and reduce its federal income tax liability.
Section
382 of the Internal Revenue Code imposes limitations on the future use of a company’s NOLs if it undergoes an “ownership
change.” Our ability to benefit from its tax assets would be substantially limited by Section 382 if an “ownership change”
occurred. A company experiences an “ownership change” for tax purposes if the percentage of stock owned by one or a group
of its 5% stockholders (as defined for tax purposes) increases by more than 50 percentage points over a rolling three-year period over
the lowest percentage of stock of such corporation owned by such stockholders at any time during that period.
Our
tax benefits preservation plan is similar to those adopted by numerous other public companies with significant NOLs. In order to protect
our NOLs from being limited or permanently lost under Section 382, the tax benefits preservation plan is intended to reduce the likelihood
of an unintended “ownership change” occurring through the buying and selling of our common stock. This is accomplished by
deterring any person or group from acquiring beneficial ownership of 4.99% or more of our outstanding common stock without the approval
of the Board. Our tax benefits preservation plan does not, however, block anyone from buying or selling our common stock. Accordingly,
there can be no assurance that the tax benefits preservation plan will prevent an “ownership change.”
Under
the terms of the tax benefits preservation plan, we distributed to our stockholders one preferred stock purchase right for each share
of our common stock held as of the close of business on July 11, 2023. Any shares of common stock issued after the July 11, 2023 record
date will be issued together with associated preferred stock purchase rights.
Under
the tax benefits preservation plan, the rights will initially trade with our common stock. The rights will generally become exercisable
only if a person (or any persons acting as a group) acquires beneficial ownership of 4.99% or more of our outstanding common stock, without
the approval of the Board, after the first public announcement by us of the adoption of the tax benefits preservation plan. A person
or group who acquires, without the approval of the Board, beneficial ownership of 4.99% or more of our outstanding common stock could
be subject to significant dilution. If the preferred stock purchase rights become exercisable, all holders of rights, other than the
person or group triggering the rights, will be entitled to purchase our common stock at a 50% discount. The Board also has the option
to cause the exchange of one share of common stock for each preferred stock purchase right held. Preferred stock purchase rights held
by the person or group triggering the rights will become null and void and will not be exercisable or transferable.
Stockholders
who beneficially owned 4.99% or more of our outstanding common stock prior to the first public announcement by us of the adoption of
the tax benefits preservation plan will not trigger any penalties under the tax benefits preservation plan so long as they do not acquire
beneficial ownership of any additional shares of common stock (other than pursuant to a stock split, stock dividend, reclassification,
or similar transaction effected by us) at a time when they still beneficially own 4.99% or more of such common stock. The Board also
has the discretion to exempt any acquisition of our common stock from the provisions of the tax benefits preservation plan.
The
preferred stock purchase rights and the tax benefits preservation plan will expire no later than June 29, 2026. The preferred stock purchase
rights and the tax benefits preservation plan may also expire on an earlier date upon the occurrence of other events, including a determination
by our Board that (i) the tax benefits preservation plan is no longer necessary for the preservation of our tax attributes, (ii) no tax
attributes may be carried forward (with such expiration occurring as of the beginning of the applicable taxable year), or (iii) prior
to the time any person or group acquires 4.99% or more of our common stock, that the tax benefits preservation plan and the preferred
stock purchase rights are no longer in the best interests of us and our stockholders. The preferred stock purchase rights may also be
redeemed, exchanged, or terminated prior to their expiration.
Amendment
of Certificate of Incorporation and Bylaws
The
Delaware General Corporation Law provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter
is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation
or bylaws, as the case may be, requires a greater percentage. Our bylaws may be amended or repealed by a majority vote of our Board of
Directors or the affirmative vote of the holders of at least 75% of the voting power of our capital stock issued and outstanding and
entitled to vote on the matter.
Limitation
of Liability and Indemnification of Officers and Directors
Our
certificate of incorporation limits the personal liability of directors for breach of fiduciary duty to the maximum extent permitted
by the Delaware General Corporation Law. Our certificate of incorporation provides that no director will have personal liability to us
or to our stockholders for monetary damages for breach of fiduciary duty or other duty as a director. However, these provisions do not
eliminate or limit the liability of any of our directors:
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for
any breach of their duty of loyalty to us or our stockholders; |
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for
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
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for
voting or assenting to unlawful payments of dividends or other distributions; or |
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Any
amendment to or repeal of these provisions will not eliminate or reduce the effect of these provisions in respect of any act or failure
to act, or any cause of action, suit or claim that would accrue or arise prior to any amendment or repeal or adoption of an inconsistent
provision. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors
of corporations, then the personal liability of our directors will be further limited to the greatest extent permitted by the Delaware
General Corporation Law.
In
addition, our certificate of incorporation provides that we must indemnify our directors and officers and we must advance expenses, including
attorneys’ fees, to our directors and officers in connection with legal proceedings, subject to limited exceptions.
Notice
of Share Ownership
Our
bylaws contain a provision requiring any beneficial owner of three percent or more of our outstanding common stock to notify us of his
or her stockholdings, as well as of any change in his or her beneficial ownership of one percent or more of our outstanding common stock.
Our bylaws do not provide for any specific remedy in the event a stockholder does not comply with this provision. We do not intend to
make any such information public, unless required by law or the rules of the SEC or the NYSE American.
Authorized
but Unissued Shares
Our
authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject
to any limitations imposed by the listing standards of the NYSE American. These additional shares may be used for a variety of corporate
finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stock and
preferred stock could make it more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer,
merger or otherwise.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare Trust Company, N.A. Its address is 250 Royall Street, Canton, MA 02021-1011,
and its telephone number is 1-800-662-7232.
Our
common stock is listed on the NYSE American under the symbol “OPTT.”
SELLING
STOCKHOLDERS
The
following table sets forth information relating to the selling stockholders’ beneficial ownership of our shares as of August
26, 2024. This prospectus covers the offering for resale from time to time of up to 2,864,808 shares owned by the selling stockholders.
The shares of common stock were issued to the selling stockholders as part of the acquisition of MAR. As used in this prospectus, “selling
stockholders” includes partners, pledgees, donees (including charitable organizations), assignees, transferees or other successors-in-interest
selling shares received from a named selling stockholder after the date of this prospectus.
No
offer or sale under this prospectus may be made by a stockholder unless that holder is listed in the table below, in a supplement to
this prospectus or in an amendment to the related registration statement that has become effective under the Securities Act. We will
supplement or amend this prospectus to include additional selling stockholders upon request and upon provision of all required information
to us.
The
following table and related footnotes set forth:
| |
● |
the
name of each selling stockholder; |
| |
|
|
| |
● |
if
different, the name of the natural person(s) who exercise(s) sole/shared voting and/or investment power with respect to the shares; |
| |
|
|
| |
● |
the
number of our shares beneficially owned by such stockholder prior to the offering; |
| |
|
|
| |
● |
the
number being offered for the stockholder’s account; and |
| |
|
|
| |
● |
the
number to be owned by such stockholder after completion of the offering (assuming the sale of all shares offered by this prospectus). |
Unless
otherwise indicated, none of the selling stockholders is a broker-dealer registered under Section 15 of the Exchange Act, or an affiliate
of a broker-dealer registered under Section 15 of the Exchange Act.
We
prepared the table based on information supplied to us by the selling stockholders. We have not sought to verify such information. The
percentages of shares beneficially owned and being offered are based on the 95,573,789 shares of common stock that were outstanding
as of August 26, 2024, unless otherwise stated in the footnotes to the table below. Other information about the selling stockholders
may also change over time. The address of each selling stockholder is c/o Marine Advanced Robotics, Inc., 1301 S 46th Street, Building
300A, Richmond, CA 94804.
| Selling Stockholder | |
Common Stock Beneficially Owned Prior to Offering | | |
Number of Shares Which May be Sold in This | | |
Common Stock Beneficially Owned After this Offering(1) | |
| | |
Number | | |
Percent | | |
Offering | | |
Number | | |
Percent | |
| Mark Gundersen | |
| 641,713 | | |
| * | | |
| 641,713 | | |
| - | | |
| - | |
| Isabella Conti and Ugo Conti Living Trust (2) | |
| 1,264,884 | | |
| 1.3 | % | |
| 1,264,884 | | |
| - | | |
| - | |
| Masazumi Ishii | |
| 20,925 | | |
| * | | |
| 20,925 | | |
| - | | |
| - | |
| Pacific Premier Trust, Custodian FBO Mark Gunderson IRA (3) | |
| 33,132 | | |
| * | | |
| 33,132 | | |
| - | | |
| - | |
| Pierluigi Zappacosta | |
| 170,019 | | |
| * | | |
| 170,019 | | |
| - | | |
| - | |
| Attilio Angelini | |
| 52,314 | | |
| * | | |
| 52,314 | | |
| | | |
| - | |
| Laura Watts, Trustee of The Deborah A. Coleman Trust, dated April 26, 2006 (4) | |
| 196,719 | | |
| * | | |
| 117,706 | | |
| 79,013 | | |
| - | |
| Aart J. de Geus Separate Property Trust U/A/D 09/09/99 (5) | |
| 161,882 | | |
| * | | |
| 161,882 | | |
| - | | |
| - | |
| Sundance Living Trust U/A/D 1/17/02 (6) | |
| 214,195 | | |
| * | | |
| 214,195 | | |
| - | | |
| - | |
| The Ezio Valdevit Revocable Trust (7) | |
| 165,950 | | |
| * | | |
| 165,950 | | |
| - | | |
| - | |
| Jones-Wagner Family LLC (8) | |
| 22,088 | | |
| * | | |
| 22,088 | | |
| - | | |
| - | |
*Less
than one percent.
| (1) |
Assumes
that the selling stockholders will sell all of the common stock offered pursuant to this prospectus. |
| |
|
| (2) |
Isabella
and Ugo Conti have voting and investment authority over the shares of common stock to be sold in this offering. |
| |
|
| (3) |
Mark
Gunderson has voting and investment authority over the shares of common stock to be sold in this offering. |
| |
|
| (4) |
Laura
Watts has voting and investment authority over the shares of common stock to be sold in this offering. |
| |
|
| (5) |
Aart
J. De Geus has voting and investment authority over the shares of common stock to be sold in this offering. |
| |
|
| (6) |
David
Hitz has voting and investment authority over the shares of common stock to be sold in this offering. |
| |
|
| (7) |
Ezio
Valdevit has voting and investment authority over the shares of common stock to be sold in this offering. |
| |
|
| (8) |
Michael
Jones has voting and investment authority over the shares of common stock to be sold in this offering. |
PLAN
OF DISTRIBUTION
Each
selling stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any
or all of their securities covered hereby on the principal trading market for such securities or any other stock exchange, market or
trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling
stockholder may use any one or more of the following methods when selling securities:
●
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
●
block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
●
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
●
an exchange distribution in accordance with the rules of the applicable exchange;
●
privately negotiated transactions;
●
settlement of short sales;
●
in transactions through broker-dealers that agree with the selling stockholders to sell a specified number of such securities at a stipulated
price per security;
●
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
●
a combination of any such methods of sale; or
●
any other method permitted pursuant to applicable law.
The
selling stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available,
rather than under this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or
markdown in compliance with FINRA IM-2440.
In
connection with the sale of the securities or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
selling stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each selling stockholder has informed us that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
We
are required to pay certain fees and expenses incurred by us incident to the registration of the securities. We have agreed to indemnify
the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the selling stockholders
without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect
or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar
effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the
common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders
and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
Notwithstanding
anything to the contrary in this plan of distribution, selling stockholders who are also our employees remain subject to the terms, conditions
and restrictions of our corporate policies and procedures, including without limitation, our insider trading policy.
LEGAL
MATTERS
Certain
legal matters in connection with the securities offered hereby will be passed on for us by Porter Hedges LLP, Houston, Texas. Any underwriters
will be advised about other issues relating to any offering by their own legal counsel.
EXPERTS
The
consolidated balance sheets of Ocean Power Technologies, Inc. and subsidiaries as of April 30, 2024 and 2023 and the related consolidated
statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the years then ended, have been
audited by EisnerAmper LLP, independent registered public accounting firm, as stated in their report, which is incorporated herein by
reference, which report includes an explanatory paragraph about the existence of substantial doubt concerning the Company’s ability
to continue as a going concern. Such financial statements have been incorporated herein by reference in reliance on the
report of such firm given upon their authority as experts in accounting and auditing.
OCEAN
POWER TECHNOLOGIES
2,864,808
Shares of Common Stock
PROSPECTUS
SEPTEMBER 11,
2024
Ocean Power Technologies (AMEX:OPTT)
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