As
filed with the Securities and Exchange Commission on September 25, 2024
Registration
No. 333- 277065
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT NO. 1
TO
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BTCS
Inc.
(Exact
name of registrant as specified in its charter)
| Nevada |
|
90-1096644 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
9466
Georgia Avenue, No. 124, Silver Spring, Maryland 20910
(202)
430-6576
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Charles
Allen
Chief
Executive Officer
BTCS
Inc.
9466
Georgia Avenue, No. 124, Silver Spring, Maryland 20910
(202)
430-6576
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Brian
S. Bernstein, Esq.
Nason,
Yeager, Gerson, Harris & Fumero, P.A.
3001
PGA Blvd., Suite 305
Palm
Beach Gardens, Florida 33410
(561)
686-3307
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, other than securities offering 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, 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, or a smaller reporting
company.
| Large
accelerated filer ☐ |
Accelerated
filer ☐ |
|
| Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
|
| |
Emerging
growth company ☐ |
|
If
an emerging growth company, indicate by checkmark if the registrant has not elected to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission of which this prospectus is a part becomes effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to Completion, dated September 25, 2024
PROSPECTUS
$250,000,000
Common
Stock
Preferred
Stock
Warrants
Units
BTCS
Inc. intends to offer and sell from time to time the securities described in this prospectus. The total offering price of the securities
described in this prospectus will not exceed a total of $250,000,000.
This
prospectus describes some of the general terms that apply to the securities. We will provide specific terms of any securities we may
offer in supplements to this prospectus. You should read this prospectus and any applicable prospectus supplement carefully before you
invest. The prospectus supplement also may add, update or change information contained or incorporated in this prospectus.
We
may offer and sell these securities to or through one or more underwriters, brokers or agents, or directly to purchasers on a continuous
or delayed basis. The prospectus supplement for each offering of securities will describe the plan of distribution for that offering.
For general information about the distribution of securities offered, see “Plan of Distribution” in this prospectus. The
prospectus supplement also will set forth the price to the public of the securities and the net proceeds that we expect to receive from
the sale of such securities.
Our common stock is traded
on The Nasdaq Capital Market under the symbol “BTCS.” On July 29, 2024, the last reported sales price of our common
stock on The Nasdaq Capital Market was $1.64 per share, 11,119,905 shares of our outstanding common stock were held by
non-affiliates (our “public float”), and the aggregate market value of our public float based on the aforementioned price
was $18,236,644. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this Registration
Statement in a public primary offering for an aggregate offering amount exceeding one-third of our public float in any 12-month period
so long as our public float remains below $75 million, in each case calculated in accordance with such instruction. If the aggregate
market value of our common stock computed pursuant to such instruction equals or exceeds $75 million subsequent to the effective date
of this Registration Statement, then the one-third limitation on sales specified therein shall not apply to additional sales made pursuant
to this Registration Statement on or subsequent to such date, and instead this Registration Statement shall be considered filed pursuant
to General Instruction I.B.1. of Form S-3. During the 12 calendar months prior to and including the date of this prospectus, we have
offered 1,348,294 shares of common stock pursuant to General Instruction I.B.6 of Form S-3.
Our
common stock is quoted on The Nasdaq Capital Market under the symbol “BTCS.” On September 25, 2024, the last reported
sales price of our common stock on The Nasdaq Capital Market was $1.13 per share.
Investing
in our securities involves risks. You should read carefully and consider “Risk Factors” included in our most recent Annual
Report on Form 10-K and on page 2 of this prospectus and in the applicable prospectus supplement before investing in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
whether this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is _________, 2024
TABLE
OF CONTENTS
You
should rely only on information contained in this prospectus. We have not authorized anyone to provide you with information that is different
from that contained in this prospectus. We are not offering to sell or seeking offers to buy shares of common stock or other securities
in jurisdictions where offers and sales are not permitted. The information contained in this prospectus is accurate only as of the date
of this prospectus, regardless of the time of delivery of this prospectus or of any sale of our common stock or other securities. We
are responsible for updating this prospectus to ensure that all material information is included and will update this prospectus to the
extent required by law.
PROSPECTUS
SUMMARY
This
summary only highlights the more detailed information appearing elsewhere in this prospectus or incorporated by reference in this prospectus.
It may not contain all of the information that is important to you. You should carefully read the entire prospectus and the documents
incorporated by reference in this prospectus before deciding whether to invest in our securities. Unless otherwise indicated or the context
requires otherwise, in this prospectus and any prospectus supplement hereto references “BTCS,” the “Company,”
“we,” “us,” and “our” refer to BTCS Inc.
About
This Prospectus
This
prospectus is part of a “shelf” registration statement that we have filed with the Securities and Exchange Commission (the
“Commission”). By using a shelf registration statement, we may sell, at any time and from time to time, in one or more offerings,
any combination of the securities described in this prospectus. The exhibits to our registration statement contain the full text of certain
contracts and other important documents we have summarized in this prospectus. Since these summaries may not contain all the information
that you may find important in deciding whether to purchase the securities we offer, you should review the full text of these documents.
The registration statement and the exhibits can be obtained from the Commission as indicated under the section entitled “Incorporation
of Certain Information by Reference.”
This
prospectus only provides you with a general description of the securities we may offer. Each time we sell securities, we will provide
a prospectus supplement that contains specific information about the terms of those securities. The prospectus supplement also may add,
update or change information contained in this prospectus. If there is an inconsistency between the information in this prospectus and
any prospectus supplement, you should rely on the information in the prospectus supplement. You should read carefully both this prospectus
and any prospectus supplement together with the additional information described below under the section entitled “Incorporation
of Certain Information by Reference.”
We
are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information
in this prospectus or a prospectus supplement is accurate as of any date other than the date on the front of the document.
Our
Company
BTCS Inc. (“BTCS”
or the “Company”), a Nevada corporation listed on Nasdaq, has operated in the blockchain technology sector since 2014 with
a primary focus on blockchain infrastructure. The Company secures and operates validator nodes (as a “Validator”) on various
proof-of-stake (“PoS”) and delegated proof-of-stake (“dPoS”) based blockchain networks earning native token rewards
by staking our proof-of-stake crypto assets (also referred to “cryptocurrencies”, “crypto”, “crypto assets”,
“digital assets”, or “tokens”), with an emphasis on Ethereum.
The Company’s non-custodial
Staking-as-a-Service (“StaaS”) business allows crypto asset holders to earn staking rewards by participating in network consensus
mechanisms through staking (or “delegating”) their crypto assets to BTCS-operated validator nodes (or “nodes”).
As a non-custodial Validator, BTCS may charge a validator node fee, typically determined as a percent of the crypto asset rewards earned
on crypto assets delegated to its node, creating the opportunity for potential scalable revenue and business growth with limited additional
costs.
The internally developed
“StakeSeeker” platform is a personal finance software that allows crypto asset holders to monitor and analyze their portfolios
across exchanges and wallets. It includes tracking capabilities utilizing application programming interfaces (APIs) as well as educational
features, offering users guidance on the delegation of their crypto assets to our non-custodial validator nodes, along with the ability
to monitor such delegation activities through data analysis. StakeSeeker is an informational monitoring tool and does not facilitate
trading, delegation or custody of crypto assets on the platform.
The Company developed
“Builder+”, an Ethereum block builder (“Builder”) that utilizes algorithms to optimize block construction for
on-chain validation and to maximize gas fees.
The Company’s business
is subject to various risks, including regulatory uncertainties, crypto asset price volatility, and the adoption of blockchain technology.
Future success depends on the growth of the crypto asset market and the Company’s ability to effectively grow its StaaS and blockchain
infrastructure operations.
Corporate
Information
Our
address is 9466 Georgia Avenue, No. 124, Silver Spring, Maryland, 20910, and our telephone number is (202) 430-6576. Our website address
is http: www.btcs.com. Our website and the information contained on, or that can be accessed through, our website is not deemed to
be incorporated by reference into this prospectus.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus including the documents incorporated by reference contains forward-looking statements. All statements other than statements
of historical facts, including statements regarding our future financial position, liquidity, business strategy and plans and objectives
of management for future operations, are forward-looking statements. The words “believe,” “may,” “estimate,”
“continue,” “anticipate,” “intend,” “should,” “plan,” “could,”
“target,” “potential,” “is likely,” “will,” “expect” and similar expressions,
as they relate to us, are intended to identify forward-looking statements. We have based these forward-looking statements largely on
our current expectations and projections about future events and financial trends that we believe may affect our financial condition,
results of operations, business strategy and financial needs.
The
results anticipated by any or all of these forward-looking statements might not occur. Important factors, uncertainties and risks that
may cause actual results to differ materially from these forward-looking statements are contained in the risk factors that follow and
elsewhere in this prospectus and the documents incorporated by reference. We undertake no obligation to publicly update or revise any
forward-looking statements, whether as the result of new information, future events or otherwise. For more information regarding some
of the ongoing risks and uncertainties of our business, see the risk factors that follow and or that are disclosed in our incorporated
documents.
RISK
FACTORS
Investing
in our securities involves risks. Before purchasing the securities offered by this prospectus you should consider carefully the risk
factors incorporated by reference in this prospectus from our Annual Report on Form 10-K for the year ended December 31, 2023
filed with the SEC on March 21, 2024, as well as the risks, uncertainties and additional information set forth in the other
documents incorporated by reference in this prospectus that we file with the Commission after the date of this prospectus and which are
deemed incorporated by reference in this prospectus, and the information contained in any applicable prospectus supplement. For a description
of these reports and documents, and information about where you can find them, see “Incorporation of Certain Information by Reference.”
The risks and uncertainties we discuss in this prospectus and in the documents incorporated by reference in this prospectus are those
that we currently believe may materially affect our company. Additional risks not presently known, or currently deemed immaterial, also
could materially and adversely affect our financial condition, results of operations, business and prospects.
USE
OF PROCEEDS
Unless
we specify otherwise in an accompanying prospectus supplement, we intend to use the net proceeds from the sale of the securities by us
to provide additional funds for purchasing digital assets, working capital, and other general corporate purposes. Any specific allocation
of the net proceeds of an offering of securities will be determined at the time of such offering and will be described in the accompanying
supplement to this prospectus.
DESCRIPTION
OF CAPITAL STOCK
We
are authorized to issue 975,000,000 shares of common stock, par value $0.001 per share, and 20,000,000 shares of preferred stock, par
value $0.001 per share.
Common
Stock
We
are authorized to issue 975,000,000 shares of common stock, par value $0.001 per share. The holders of common stock are entitled to one
vote per share on all matters submitted to a vote of stockholders, including the election of directors. There is no cumulative voting
in the election of directors. In the event of our liquidation or dissolution, holders of common stock are entitled to share ratably in
all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred stock. Holders
of common stock have no preemptive rights and have no right to convert their common stock into any other securities and there are no
redemption provisions applicable to our common stock.
The
holders of common stock are entitled to any dividends that may be declared by the Company’s Board of Directors (the “Board”)
out of funds legally available for payment of dividends subject to the prior rights of holders of preferred stock and any contractual
restrictions we have against the payment of dividends on common stock. We have not paid dividends on our common stock since inception
and do not plan to pay dividends on our common stock in the foreseeable future.
As of September 25,
2024, we had 16,522,893 shares of common stock outstanding. In addition, as of that date, there were 3,821,373 shares underlying
our outstanding warrants, restricted stock units and stock options.
Preferred
Stock
We
are authorized to issue 20,000,000 shares of “blank check” preferred stock with designations, rights and preferences as may
be determined from time to time by our Board. As the date of this prospectus, we had 14,567,829 shares of Series V preferred stock outstanding.
Preferred
stock is available for possible future financings or acquisitions and for general corporate purposes without further authorization of
our stockholders unless such authorization is required by applicable law, or the rules of any securities exchange or market on which
our stock is then listed or admitted or trading.
Our
Board 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 common stock. The issuance of preferred stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying, deferring or preventing a change
in control of the Company. For a description of how future issuances of our preferred stock could affect the rights of our stockholders,
see “Certain Provisions of Nevada Law and of Our Charter and Bylaws – Articles of Incorporation and Bylaws,” below.
A
prospectus supplement relating to any series of preferred stock being offered will include specific terms relating to the offering. Such
prospectus supplement will include:
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the
title and stated or par value of the preferred stock; |
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the
number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock; |
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the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the preferred stock; |
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whether
dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall accumulate; |
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the
provisions for a sinking fund, if any, for the preferred stock; |
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any
voting rights of the preferred stock; |
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the
provisions for redemption, if applicable, of the preferred stock; |
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any
listing of the preferred stock on any securities exchange; |
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the
terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the conversion
price or the manner of calculating the conversion price and conversion period; |
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if
appropriate, a discussion of federal income tax consequences applicable to the preferred stock; and |
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any
other specific terms, preferences, rights, limitations or restrictions of the preferred stock. |
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of common stock. Warrants may be issued independently or together with other securities and may be
attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement. Set forth
below is a brief summary of the general terms and provisions of the warrants that we may issue from time to time. Additional terms of
the warrants and the applicable warrant agreement will be described in the applicable prospectus supplement.
The
following descriptions, and any description of the warrants included in a prospectus supplement, may not be complete and is subject to
and qualified in its entirety by reference to the terms and provisions of the applicable warrant agreement, which we will file with the
Commission in connection with any offering of warrants.
General
The
prospectus supplement relating to a particular issue of warrants will describe the terms of the warrants, including the following:
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the
title of the warrants; |
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the
offering price of the warrants, if any; |
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the
aggregate number of the warrants; |
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the
terms of the security that may be purchased upon exercise of the warrants; |
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if
applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with
each security; |
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if
applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
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the
dates on which the right to exercise the warrants commences and expires; |
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
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if
applicable, a discussion of material United States federal income tax considerations; |
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anti-dilution
provisions of the warrants, if any; |
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redemption
or call provisions, if any, applicable to the warrants; and |
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any
additional 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 the warrant to purchase the securities that we specify in the applicable prospectus supplement at
the exercise price that we describe in the applicable prospectus supplement. Holders may exercise warrants at any time up to the close
of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date,
unexercised warrants will be void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being
offered. Until a holder exercises the warrants to purchase any securities underlying the warrants, the holder will not have any rights
as a holder of the underlying securities by virtue of ownership of warrants.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus or any prospectus supplement in any combination.
Each unit will be issued so that the holder of the unit is also the holder, with the rights and obligations of a holder, of each security
included in the unit. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be
held or transferred separately, at any time or at any times before a specified date or upon the occurrence of a specified event or occurrence.
The
applicable prospectus supplement will describe:
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the
designation and the terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately; |
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any
unit agreement under which the units will be issued; |
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
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whether
the units will be issued in fully registered or global form. |
Transfer
Agent
We
have appointed Equity Stock Transfer as our stock transfer agent. Its address is 237 W 37th Street, Suite 602, New York, NY 10018 and
its telephone number is (212) 575-5757 and email address is: info@equitystock.com
CERTAIN
PROVISIONS OF NEVADA LAW AND OF OUR CHARTER AND BYLAWS
Anti-Takeover
Effects of Nevada Law
We
may currently be, or in the future become, subject to the provisions of the Nevada Revised Statutes regarding the acquisition of controlling
interest (the “Controlling Interest Law”). A corporation is subject to the Controlling Interest Law if it has more than 200
stockholders of record, at least 100 of whom are residents of Nevada, and if the corporation does business in Nevada, directly or through
an affiliated corporation. The Controlling Interest Law may have the effect of discouraging corporate takeovers. As of September 25,
2024, we had no stockholders of record who are residents of Nevada.
The
Controlling Interest Law focuses on the acquisition of a “controlling interest,” which means the ownership of outstanding
voting shares that would be sufficient, but for the operation of law, to enable the acquiring person to exercise the following proportions
of the voting power of the corporation in the election of directors: (1) one-fifth or more but less than one-third; (2) one-third or
more but less than a majority; or (3) a majority or more. The ability to exercise this voting power may be direct or indirect, as well
as individual or in association with others.
The
effect of the Controlling Interest Law is that an acquiring person, and those acting in association with such person, will obtain only
such voting rights in the controlling interest as are conferred by a resolution of (1) a majority of the stockholders of the corporation
and, if applicable (2) a majority of each class or series of outstanding shares of which the acquisition would adversely affect or alter
a preference or relative or other right, approved at a special or annual stockholders’ meeting. The Controlling Interest Law contemplates
that voting rights will be considered only once by the other stockholders. Thus, there is no authority to take away voting rights from
the control shares of an acquiring person once those rights have been approved in accordance with the Controlling Interest Law. However,
if the stockholders do not grant voting rights to the shares acquired by an acquiring person, those shares do not become permanent non-voting
shares. The acquiring person is free to sell the shares to others, and so long as the subsequent buyer or buyers of those shares themselves
do not acquire a controlling interest, those shares would not be governed by the Controlling Interest Law.
If
control shares are accorded full voting rights and the acquiring person has acquired control shares with a majority or more of the voting
power, a stockholder of record, other than the acquiring person, who did not vote in favor of approval of voting rights, is entitled
to dissent to the acquisition and demand fair value for such stockholder’s shares pursuant to applicable provisions of Chapter
92 of the Nevada Revised Statutes governing rights and procedures for dissenting stockholders.
In
addition to the Controlling Interest Law, Nevada has a business combination law, which prohibits certain business combinations between
Nevada publicly traded corporations and any “interested stockholder” for two years after the interested stockholder first
becomes an interested stockholder, unless the board of directors of the corporation approved the combination before the person became
an interested stockholder or the corporation’s board of directors approves the transaction and at least 60% of the corporation’s
disinterested stockholders approve the combination at an annual or special meeting thereof. For purposes of Nevada law, an interested
stockholder is any person who is: (a) the beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding
voting shares of the corporation, or (b) an affiliate or associate of the corporation and at any time within the previous two years was
the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then-outstanding shares of the corporation. The
definition of “combination” contained in the statute is sufficiently broad to cover virtually any kind of transaction that
would allow a potential acquirer to use the corporation’s assets to finance the acquisition or otherwise to benefit its own interests
rather than the interests of the corporation and its other stockholders.
The
effect of Nevada’s business combination law is to potentially discourage parties interested in taking control of the Company from
doing so if they cannot obtain the approval of our Board or stockholders.
In
addition, under Nevada law directors may be removed only by the vote of stockholders representing not less than two-thirds of the voting
power of the issued and outstanding stock entitled to vote, which could also have an anti-takeover effect.
Articles
of Incorporation and Bylaws
Provisions
of our articles of incorporation, as amended, and amended and restated bylaws may delay or discourage transactions involving an actual
or potential change in our control or change in our management, including transactions in which stockholders might otherwise receive
a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these
provisions could adversely affect the price of our common stock. Among other things, our articles of incorporation and bylaws:
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permit
our Board to issue up to 20,000,000 shares of preferred stock, without further action by the stockholders, with any rights, preferences
and privileges as our Board may designate, including the right to approve an acquisition or other change in control; |
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provide
that the authorized number of directors may be changed only by a resolution adopted by the Board; |
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provide
that, for interim periods before the next meeting of the stockholders held for the election of directors, all vacancies, including
newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a majority of directors
then in office, even if less than a quorum; |
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do
not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to
vote in any election of directors to elect all of the directors standing for election, if they should so choose); |
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provide
that special meetings of stockholders may be called only by the Chairman of the Board, the Chief Executive Officer or the Board; |
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provide
advance notice provisions applicable to a stockholder who wishes to nominate a director or propose other business to be considered
at a stockholders’ meeting. |
PLAN
OF DISTRIBUTION
We
may sell the securities offered by this prospectus from time to time in one or more transactions, including without limitation:
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through
underwriters or brokers; |
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directly
to purchasers; |
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in
a rights offering; |
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in
“at-the-market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act to or through a market maker or
into an existing trading market on an exchange or otherwise; |
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through
agents; |
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in
block trades; |
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through
a combination of any of these methods; or |
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through
any other method permitted by applicable law and described in a prospectus supplement. |
In
addition, we may issue the securities as a dividend or distribution to our existing stockholders or other security holders.
The
prospectus supplement with respect to any offering of securities will include the following information:
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the
terms of the offering; |
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the
names of any underwriters or agents; |
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the
name or names of any managing underwriter or underwriters; |
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the
purchase price or initial public offering price of the securities; |
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the
net proceeds from the sale of the securities; |
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any
delayed delivery arrangements; |
| ● |
any
underwriting discounts, commissions and other items constituting underwriters’ compensation; |
| ● |
any
discounts or concessions allowed or re-allowed or paid to brokers; |
| ● |
any
commissions paid to agents; and |
| ● |
any
securities exchange on which the securities may be listed. |
Sale
through Underwriters or Brokers
If
underwriters are used in the sale, the underwriters may resell the 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. Underwriters may offer
securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or
more firms acting as underwriters. Unless we inform you otherwise in the applicable prospectus supplement, the obligations of the underwriters
to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all of the offered
securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts
or concessions allowed or re-allowed or paid to brokers.
We
will describe the name or names of any underwriters, brokers or agents and the purchase price of the securities in a prospectus supplement
relating to the securities.
In
connection with the sale of the securities, underwriters may receive compensation from us or from purchasers of the securities, for whom
they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through brokers,
and these brokers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents, which is not expected to exceed that customary in the types of transactions involved.
Underwriters, brokers and agents that participate in the distribution of the securities may be deemed to be underwriters, and any discounts
or commissions they receive from us, and any profit on the resale of the securities they realize may be deemed to be underwriting discounts
and commissions, under the Securities Act. The prospectus supplement will identify any underwriter or agent and will describe any compensation
they receive from us.
Underwriters
could make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an “at-the-market”
offering, sales made directly on The Nasdaq Capital Market, the existing trading market for our common stock, or sales made to or through
a market maker other than on The Nasdaq Capital Market. The name of any such underwriter or agent involved in the offer and sale of our
securities, the amounts underwritten, and the nature of its obligations to take our securities will be described in the applicable prospectus
supplement.
Unless
otherwise specified in the prospectus supplement, each series of the securities will be a new issue with no established trading market,
other than our shares of common stock, which are currently traded on The Nasdaq Capital Market. It is possible that one or more underwriters
may make a market in a series of the securities, but underwriters will not be obligated to do so and may discontinue any market making
at any time without notice. Therefore, we can give no assurance about the liquidity of the trading market for any of the securities.
Under
agreements we may enter into, we may indemnify underwriters, brokers, and agents who participate in the distribution of the securities
against certain liabilities, including liabilities under the Securities Act, or contribute with respect to payments that the underwriters,
brokers or agents may be required to make.
Any
compensation we pay underwriters or brokers will be subject to the guidelines of the Financial Industry Regulatory Authority, Inc. We
will disclose the compensation in any applicable prospectus supplement or pricing supplement, as the case may be.
To
facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain,
or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the
sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover
such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any.
In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open
market or by imposing penalty bids, whereby selling concessions allowed to brokers participating in the offering may be reclaimed if
securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize
or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions
may be discontinued at any time.
From
time to time, we may engage in transactions with these underwriters, brokers, and agents in the ordinary course of business.
Direct
Sales and Sales through Agents
We
may sell the securities directly. In this case, no underwriters or agents would be involved. We also may sell the securities through
agents designated by us from time to time. In the applicable prospectus supplement, we will name any agent involved in the offer or sale
of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the applicable
prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. We will describe the terms of any sales of these securities in the applicable
prospectus supplement.
Remarketing
Arrangements
Securities
also may be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase,
in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals
for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreements, if any, with us
and its compensation will be described in the applicable prospectus supplement.
Delayed
Delivery Contracts
If
we so indicate in the applicable prospectus supplement, we may authorize agents, underwriters or brokers to solicit offers from certain
types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. These contracts would
provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described
in the applicable prospectus supplement. The applicable prospectus supplement will describe the commission payable for solicitation of
those contracts.
General
Information
We
may have agreements with the underwriters, brokers, agents and remarketing firms to indemnify them against certain civil liabilities,
including liabilities under the Securities Act, or to contribute with respect to payments that the underwriters, brokers, agents or remarketing
firms may be required to make. Underwriters, brokers, agents and remarketing firms may be customers of, engage in transactions with or
perform services for us in the ordinary course of their businesses.
LEGAL
MATTERS
The
validity of the securities offered hereby will be passed upon for us by Nason, Yeager, Gerson, Harris & Fumero, P.A., Palm Beach
Gardens, Florida.
EXPERTS
The
consolidated financial statements of the Company as of and for the fiscal years ended December 31, 2023 and 2022 incorporated
by reference in this prospectus and elsewhere in the registration statement have been so incorporated in reliance on the report of RBSM
LLP.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
documents listed below are incorporated by reference into this registration statement:
| |
● |
Our annual report on Form 10-K for the year ended
December 31, 2023 filed on March
21, 2024; |
| |
|
|
| |
● |
Our quarterly reports on Form 10-Q filed
on May 14,
2024 and August
19, 2024 ; |
| |
|
|
| |
● |
Our current reports on Form 8-K (including 8-K/A)
filed on January
2, 2024, January
12, 2024, January
24, 2024 , January
31, 2024 , April
1, 2024, April
18, 2024, July
5, 2024, July
8, 2024, September
6, 2024, and September
18, 2024 (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits that are related to
such item); |
| |
|
|
| |
● |
Our definitive proxy statement on Schedule 14A
filed on April 29, 2024; |
| |
|
|
| |
● |
The description of our Common Stock in our registration statement on Form 8-A filed with the SEC on September 14, 2021, as updated by any amendments and reports filed for the purpose of updating such description; and |
| |
|
|
| |
● |
All documents subsequently filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) prior to the termination of the offering, other than information furnished pursuant to Items 2.02 and 7.01 of Form 8-K and any related exhibits, shall be deemed to be incorporated by reference into the prospectus. |
All
reports and other documents that we file with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act before the
completion or termination of the offering of the securities hereunder, including all such reports and documents we may file with the
Commission after the date of the initial filing of and prior to the effectiveness of the registration statement, will also be considered
to be incorporated by reference into this prospectus from the date of the filing of these reports and documents, and will supersede the
information herein; provided, however, that all reports or portions thereof that we “furnish” to the Commission will not
be considered incorporated by reference into this prospectus.
We
undertake to provide without charge to each person (including any beneficial owner) who receives a copy of this prospectus, upon written
or oral request, a copy of all of the preceding documents that are incorporated by reference (other than exhibits, unless the exhibits
are specifically incorporated by reference into these documents). You may request a copy of these materials by contacting us at:
BTCS
Inc.
9466
Georgia Avenue No. 124
Silver
Spring, Maryland 20910
(202)
430-6576
We
are an Exchange Act reporting company and are required to file periodic reports on Form 10-K and 10-Q and current reports on Form 8-K.
The Commission maintains an Internet website that contains reports, proxy and information statements, and other information regarding
issuers that file electronically with the Commission, including the Company at www.sec.gov. You may also access our Exchange Act reports
and proxy statements free of charge at our website, https://www.btcs.com/sec-filings/.
$250,000,000
Common
Stock
Preferred
Stock
Warrants
Units
PROSPECTUS
,
2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Other
Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses payable by us in connection with the issuance and distribution of the securities being
registered hereunder. All of the amounts shown are estimates, except for the SEC Registration Fees.
| SEC registration fees | |
$ | 22,257.24 | |
| Printing expenses | |
$ | (1 | ) |
| Accounting fees and expenses | |
$ | (1 | ) |
| Legal fees and expenses | |
$ | (1 | ) |
| Miscellaneous | |
$ | (1 | ) |
| Total | |
$ | (1 | ) |
| (1)
|
These
fees are dependent on the type and number of securities offered and cannot be determined at this time. Additional information regarding
estimated fees and expenses will be provided at the time that such information is required to be included in a prospectus supplement. |
Indemnification
of Directors and Officers.
Neither
our Articles of Incorporation nor Bylaws prevent us from indemnifying our officers, directors and agents to the extent permitted under
the NRS. NRS Section 78.7502 provides that a corporation shall indemnify any director, officer, employee or agent of a corporation against
expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with any the defense to the extent that
a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to NRS Section 78.7502(1) or 78.7502(2), or in defense of any claim, issue or matter therein.
NRS
Section 78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit or proceeding if he: (a) is not liable pursuant to NRS Section
78.138; or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
NRS
Section 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses,
including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection with the defense
or settlement of the action or suit if he: (a) is not liable pursuant to NRS Section 78.138; or (b) acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any
claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals
there from, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that
the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of
all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
NRS
Section 78.747 provides that except as otherwise provided by specific statute, no director or officer of a corporation is individually
liable for a debt or liability of the corporation, unless the director or officer acts as the alter ego of the corporation. The court
as a matter of law must determine the question of whether a director or officer acts as the alter ego of a corporation.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable. 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed hereby
in the Securities Act and we will be governed by the final adjudication of such issue.
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, the Company has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Exhibits
and Financial Statement Schedules.
| *
|
Filed
herewith. |
| ** |
To
be filed by amendment or by Current Report on Form 8-K. |
| *** |
Previously filed. |
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 percent 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 in such information in the registration statement;
provided,
however, that paragraphs (i), (ii) and (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 Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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 a 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 the 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 registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or 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)
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 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
(d)
The undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Amendment No. 1 to Form S-3 and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the Town of Wayne, State of Pennsylvania, on September 25, 2024.
| |
BTCS
INC. |
| |
|
|
| |
By: |
/s/
Charles Allen |
| |
|
Charles
Allen |
| |
|
Chief
Executive Officer |
Pursuant
to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and
on the date indicated.
| Signatures |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Charles Allen |
|
Chief
Executive Officer (Principal Executive Officer) |
|
September
25, 2024 |
| Charles
Allen |
|
and
Director |
|
|
| |
|
|
|
|
| /s/
Michael Prevoznik |
|
Chief
Financial Officer (Principal Financial Officer) and Chief |
|
September
25, 2024 |
| Michael
Prevoznik |
|
Accounting Officer (Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Michal Handerhan |
|
Chief
Operating Officer |
|
September
25, 2024 |
| Michal
Handerhan |
|
(Principal
Operating Officer) and Director |
|
|
| |
|
|
|
|
| /s/
Melanie Pump |
|
Director |
|
September
25, 2024 |
| Melanie
Pump |
|
|
|
|
| |
|
|
|
|
| /s/ Charles Lee |
|
Director |
|
September 25, 2024 |
| Charles Lee |
|
|
|
|
| |
|
|
|
|
| /s/ Ashley DeSimone |
|
Director |
|
September 25, 2024 |
| Ashley DeSimone |
|
|
|
|
Exhibit
23.1
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We
consent to the incorporation by reference in this Registration Statements of BTCS, Inc. on Form S-3 Amendment -1 (File No. 333-277065)
of our report dated March 21, 2024, with respect to our audits of the financial statements of BTCS, Inc., as of December 31, 2023
and 2022 and for each of the years in the two-year period ended December 31, 2023, which report is included in the Annual Report on Form
10-K of BTCS, Inc., for the year ended December 31, 2023.
We
also consent to the reference to us under the caption “Experts” in the prospectus which is part of this Registration Statement.
/s/
RBSM LLP
RBSM
LLP
Las
Vegas, Nevada
September
25, 2024
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