As
filed with the U.S. Securities and Exchange Commission on April 6, 2020
Registration
No. 333-234449
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
Akers
Biosciences, Inc.
(Exact
name of registrant as specified in its charter)
New
Jersey
|
|
22-2983783
|
(State
or other jurisdiction of
incorporation
or organization)
|
|
(I.R.S.
Employer
Identification
Number)
|
201
Grove Road
Thorofare,
NJ 08086
(856)
848-8698
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Christopher
C. Schreiber
Executive
Chairman
Akers
Biosciences, Inc.
201
Grove Road
Thorofare,
New Jersey USA 08086
(856)
848-8698
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all communications, including communications sent to agent for service, should be sent to:
Rick A. Werner,
Esq.
Jayun
Koo, Esq.
Haynes and Boone,
LLP
30
Rockefeller Plaza, 26th Floor
New
York, New York 10112
Tel.
(212) 659-7300
Fax
(212) 884-8234
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box: [ ]
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment
plans, check the following box: [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
|
[ ]
|
Accelerated
filer
|
[ ]
|
|
|
|
|
Non-accelerated
filer
|
[X]
|
Smaller
reporting company
|
[X]
|
|
|
|
|
|
|
Emerging
growth company
|
[ ]
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. [ ]
CALCULATION
OF REGISTRATION FEE
Title
of Each Class of
Securities to be Registered (1)
|
|
Amount
to be
Registered
(2) (3)
|
|
|
Proposed
Maximum Aggregate Offering Price per Security (2) (3)
|
|
|
Proposed
Maximum Aggregate Offering Price (2) (3)
|
|
|
Amount
of Registration Fee (4)
|
|
Common Stock, no par value
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Preferred Stock, no par value
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Warrants to Purchase
common stock, Preferred Stock or other Securities (5)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Debt Securities (which
may be senior or subordinated, convertible or non-convertible, secured or unsecured)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Units (6)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
TOTAL
|
|
|
—
|
|
|
|
—
|
|
|
$
|
25,000,000
|
|
|
$
|
3,245
|
(7)
|
(1)
|
Securities
registered hereunder may be sold separately, together or as units with other securities registered hereunder.
|
(2)
|
Not
specified as to each class of securities to be registered pursuant to Form S-3 General Instruction II.D.
|
(3)
|
The
Registrant is registering an indeterminate aggregate principal amount and number of securities of each identified class of
securities up to a proposed aggregate offering price of $25,000,000, which may be offered from time to time in unspecified
numbers and at indeterminate prices, and as may be issuable upon conversion, redemption, repurchase, exchange, or exercise
of any securities registered hereunder, including under any applicable anti-dilution provisions. In addition, pursuant to
Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder include such indeterminate number
of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as
a result of stock splits, stock dividends or similar transactions.
|
(4)
|
The
registration fee is calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended.
|
(5)
|
Warrants
may represent rights to purchase debt securities, common stock, preferred stock or other securities registered hereunder.
|
(6)
|
Each
Unit consists of any combination of two or more of the securities being registered hereby.
|
(7)
|
Previously paid.
|
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 this Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell the securities until the Registration Statement
filed with the Securities and Exchange Commission, of which this prospectus is a part, is effective. This prospectus is not an
offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is
not permitted.
SUBJECT
TO COMPLETION, DATED APRIL 6, 2020
Prospectus
$25,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
DEBT SECURITIES
UNITS
|
●
|
common
stock;
|
|
●
|
preferred
stock;
|
|
●
|
warrants
to purchase our securities;
|
|
●
|
secured
or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness which may be senior debt securities,
senior subordinated debt securities or subordinated debt securities, each of which may be convertible into equity securities;
or
|
|
●
|
units
comprised of, or other combinations of, the foregoing securities.
|
We
may offer and sell these securities separately or together, in one or more series or classes and in amounts, at prices and on
terms described in one or more offerings. We may offer securities through underwriting syndicates managed or co-managed by one
or more underwriters or dealers, through agents or directly to purchasers. The prospectus supplement for each offering of securities
will describe in detail the plan of distribution for that offering. For general information about the distribution of securities
offered, please see “Plan of Distribution” in this prospectus.
Each
time our securities are offered, we will provide a prospectus supplement containing more specific information about the particular
offering and attach it to this prospectus. The prospectus supplements may also add, update or change information contained in
this prospectus. This prospectus may not be used to offer or sell securities without a prospectus supplement which includes
a description of the method and terms of this offering.
Our
common stock is quoted on the NASDAQ Capital Market under the symbol “AKER.” The last reported sale price of our common
stock on the NASDAQ Capital Market on April 6, 2020, was $4.69 per share. The aggregate market value of our outstanding
common stock held by non-affiliates is $13,663,672 based on 2,915,240 shares of outstanding common stock, of which 2,913,363 shares
are held by non-affiliates, and a per share price of $4.69 which was the closing sale price of our common stock as quoted on the
NASDAQ Capital Market on April 6, 2020. During the 12 calendar month period that ends on, and includes, the date of this prospectus,
we have not offered and sold any of our securities pursuant to General Instruction I.B.6 of Form S-3.
If we decide to seek a listing of any preferred stock, warrants,
debt securities or units offered by this prospectus, the related prospectus supplement will disclose the exchange or market on
which the securities will be listed, if any, or where we have made an application for listing, if any.
Investing
in our securities involves certain risks. See “Risk Factors” beginning on page 6 and the risk factors in our most
recent Annual Report on Form 10-K, which is incorporated by reference herein, as well as in any other recently filed
quarterly or current reports and, if any, in the relevant prospectus supplement. We urge you to carefully read this
prospectus and the accompanying prospectus supplement, together with the documents we incorporate by reference, describing
the terms of these securities before investing.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this Prospectus is ___________, 2020
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC,
utilizing a “shelf” registration process. Under this shelf registration process, we may offer and sell, either individually
or in combination, in one or more offerings, any of the securities described in this prospectus, for total gross proceeds of up
to $25,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer securities
under this prospectus, we will provide a prospectus supplement to this prospectus that will contain more specific information
about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change any of the information contained in this prospectus or in the documents
that we have incorporated by reference into this prospectus.
We
urge you to read carefully this prospectus, any applicable prospectus supplement and any free writing prospectuses we have authorized
for use in connection with a specific offering, together with the information incorporated herein by reference as described under
the heading “Incorporation of Documents by Reference,” before investing in any of the securities being offered. You
should rely only on the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus
supplement, along with the information contained in any free writing prospectuses we have authorized for use in connection with
a specific offering. We have not authorized anyone to provide you with different or additional information. This prospectus is
an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do
so.
The
information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate
only as of the date on the front of the document and any information we have incorporated by reference is accurate only as of
the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus
supplement or any related free writing prospectus, or any sale of a security.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made
to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits
to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below
under the section entitled “Where You Can Find Additional Information.”
This
prospectus contains, or incorporates by reference, trademarks, tradenames, service marks and service names of Akers Biosciences,
Inc.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and any accompanying prospectus supplement and the documents we have filed or will file with the SEC that are or will
be incorporated by reference into this prospectus and the accompanying prospectus supplement contain forward-looking statements,
within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), that involve risks and uncertainties. Any statements contained, or incorporated by reference, in
this prospectus and any accompanying prospectus that are not statements of historical fact may be forward-looking statements.
When we use the words “anticipate,” “believe,” “could,” “estimate,” “expect,”
“intend,” “may,” “plan,” “predict,” “project,” “will”
and other similar terms and phrases, including references to assumptions, we are identifying forward-looking statements. Forward-looking
statements involve risks and uncertainties which may cause our actual results, performance or achievements to be materially different
from those expressed or implied by forward-looking statements.
A
variety of factors, some of which are outside our control, may cause our operating results to fluctuate significantly. They include:
|
●
|
changes in the market acceptance of our products and services;
|
|
|
|
|
●
|
challenges we may face in identifying, acquiring and operating new business opportunities;
|
|
|
|
|
●
|
the outcome of ongoing litigation or other proceedings or which we may become subject
to in the future;
|
|
|
|
|
●
|
increased levels of competition;
|
|
|
|
|
●
|
changes in political, economic or regulatory conditions generally and in the markets in which we operate;
|
|
|
|
|
●
|
our relationships with our key customers;
|
|
|
|
|
●
|
adverse conditions in the industries in which our customers operate;
|
|
|
|
|
●
|
our ability to retain and attract senior management and other key employees;
|
|
|
|
|
●
|
our ability to quickly and effectively respond to new technological developments;
|
|
|
|
|
●
|
delisting of our common stock from the NASDAQ capital market;
|
|
|
|
|
●
|
our ability to protect our trade secrets or other proprietary rights, operate without infringing
upon the proprietary rights of others and prevent others from infringing on our proprietary rights;
|
|
|
|
|
●
|
our ability to achieve the expected benefits and costs of the transactions related to
the acquisition of Cystron Biotech, LLC; and
|
|
|
|
|
●
|
other risks, including those described in the “Risk Factors” discussion of this
prospectus.
|
The
foregoing does not represent an exhaustive list of risks that may impact upon the forward-looking statements used herein or in
the documents incorporated by reference herein. Please see “Risk Factors” in our reports filed with the SEC or in
a prospectus supplement related to this prospectus for additional risks which could adversely impact our business and financial
performance. Moreover, new risks regularly emerge and it is not possible for our management to predict all risks, nor can we assess
the impact of all risks on our business or the extent to which any risk, or combination of risks, may cause actual results to
differ from those contained in any forward-looking statements. All forward-looking statements included in this prospectus and
any accompanying prospectus supplement are based on information available to us on the date hereof or thereof. Except to the extent
required by applicable laws or rules, we undertake no obligation to publicly update or revise any forward-looking statement, whether
as a result of new information, future events or otherwise. All subsequent written and oral forward-looking statements attributable
to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained throughout
(or incorporated by reference in) this prospectus, any accompanying prospectus and the documents we have filed with the SEC.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information
that you should consider before investing in our Company. You should carefully read the entire prospectus, including all documents
incorporated by reference herein. In particular, attention should be directed to our “Risk Factors,” “Information
With Respect to the Company,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
and the financial statements and related notes thereto contained herein or otherwise incorporated by reference hereto, before
making an investment decision.
As
used herein, and any amendment or supplement hereto, unless otherwise indicated, “we,” “us,” “our,”
the “Company,” “Akers” or similar terminology means Akers Biosciences, Inc.
Overview
We
develop, manufacture, and supply rapid, point-of-care screening and testing products designed to bring health-related information
directly to the patient or clinician in a timely and cost-efficient manner. We believe that we have advanced the science of diagnostics
through the development of several proprietary platform technologies. Our current product offerings focus on delivering
diagnostic assistance in a variety of healthcare fields/specialties, including diagnostic rapid manual point-of-care tests for
the detection of allergic reactions to Heparin and for on- and off-the-job alcohol safety initiatives.
Recent Developments
Progress in Our Vaccine Development
for COVID-19
Pursuant to the License
Agreement, as discussed below, as of April 6, 2020, our collaboration with Premas has successfully completed the milestone of
obtaining clones of all three COVID-19 antigens, Spike (S), Envelope (E) and Membrane (M) that we have selected for our vaccine
candidate. The clone development process has four primary steps including first, the design and synthesis of the genes; second,
the selection of the right host; third, the insertion of the gene into the host; and fourth, the verification that the clone has
the right gene, and all characteristics are correct.
Acquisition of Cystron
On March 23, 2020,
we entered into a Membership Interest Purchase Agreement (the “MIPA”) with the members of Cystron Biotech, LLC (individually,
each a “Seller,” and collectively, the “Sellers”), pursuant to which the Company will acquire 100% of
the membership interests (the “Membership Interests”) of Cystron Biotech, LLC (“Cystron”).
As consideration for
the Membership Interests, we will deliver to the Sellers: (1) that number of newly issued shares of our common stock equal to
19.9% of the issued and outstanding shares of our common stock and pre-funded warrants as of the date of the MIPA, but, to the
extent that the issuance of the our common stock would result in any Seller owning in excess of 4.9% of our outstanding common
stock, then, at such Seller’s election, such Seller may receive “common stock equivalent” preferred shares with
a customary 4.9% blocker (with such common stock and preferred stock collectively referred to as “Common Stock Consideration”),
and (2) $1,000,000 in cash.
Additionally, we shall (A) make an initial payment to the Sellers
of up to $1,000,000 upon our receipt of cumulative gross proceeds from the consummation of an initial equity offering after the
date of the MIPA of $8,000,000, and (B) pay to Sellers an amount in cash equal to 10% of the gross proceeds in excess of $8,000,000
raised from future equity offerings after the date of the MIPA until the Sellers have received an aggregate additional cash consideration
equal to $10,000,000. Upon the achievement of certain milestones, including the completion of a Phase 2 study for a COVID-19 Vaccine
that meets its primary endpoints, Sellers will be entitled to receive an additional 750,000 shares of our common stock or, in the
event we are unable to obtain stockholder approval for the issuance of such shares, 750,000 shares of non-voting preferred stock
that are valued following the achievement of such milestones and shall bear a 10% annual dividend (the “Milestone Shares”).
Sellers will also be entitled to contingent payments from us of up to $20,750,000 upon the achievement of certain milestones, including
the approval of a new drug application by the U.S. Food and Drug Administration (“FDA”).
We shall also make
quarterly royalty payments to Sellers equal to 5% of the net sales of a COVID-19 vaccine or combination product by the Company
(the “COVID-19 Vaccine”) for a period of five (5) years following the first commercial sale of the COVID-19 Vaccine;
provided, that such payment shall be reduced to 3% for any net sales of the COVID-19 Vaccine above $500 million.
In addition, Sellers
shall be entitled to receive 12.5% of the transaction value, as defined in the MIPA, of any change of control transaction, as
defined in the MIPA, that occurs prior to the fifth (5th) anniversary of the closing date of the MIPA, provided that the Company
is still developing the COVID-19 Vaccine at that time. Following the consummation of any change of control transaction, the Sellers
shall not be entitled to any payments as described above under the MIPA.
Support Agreement
On March 23, 2020,
as an inducement to enter into the MIPA, and as one of the conditions to the consummation of the transactions contemplated by
the MIPA, the Sellers entered into a shareholder voting agreement with the Company (the “Support Agreement”), pursuant
to which each Seller agreed to vote their shares of our common stock or preferred stock in favor of each matter proposed and recommended
for approval by our management at every meeting of the stockholders and on any action or approval by written consent of the stockholders.
Registration Rights Agreement
To induce the Sellers
to enter into the MIPA, on March 23, 2020, we entered into a registration rights agreement (the “Registration Rights Agreement”)
with the Sellers, pursuant to which we shall by the 30th day following the closing of the transactions contemplated by the MIPA,
file with the United States Securities and Exchange Commission (the “SEC”) an initial Registration Statement on Form
S-3 (if such form is available for use by the Company at such time) or, otherwise, on Form S-1, covering all of the shares of
our common stock issued, or underlying the preferred stock issued, at closing under the MIPA and to subsequently register the
common stock issued or underlying the preferred stock issued at Milestone Shares.
License Agreement
Cystron is a party
to a License and Development Agreement (the “Initial License Agreement”) with Premas Biotech PVT Ltd. (“Premas”).
As a condition to the Company’s entry into the MIPA, Cystron amended and restated the Initial License Agreement on March
19, 2020 (as amended and restated, the “License Agreement”). Pursuant to the License Agreement, Premas granted Cystron,
amongst other things, an exclusive license with respect to Premas’ vaccine platform for the development of a vaccine against
COVID-19 and other corona virus infections.
Upon the
achievement of certain developmental milestones by Cystron, Cystron shall pay to Premas a total of up to $2,000,000. Series
D Convertible Preferred Stock
On March 24, 2020,
we filed the Certificate of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock (the “Certificate
of Designation”) with the Secretary of State of the State of New Jersey. Pursuant to the Certificate of Designation, in
the event of the Company’s liquidation or winding up of its affairs, the holders of our Series D Convertible Preferred Stock
(the “Preferred Stock”) will be entitled to receive the same amount that a holder of our common stock would receive
if the Preferred Stock were fully converted (disregarding for such purposes any conversion limitations set forth in the Certificate
of Designation) to common stock which amounts shall be paid pari passu with all holders of the Company’s common stock. Each
share of Preferred Stock has a stated value equal to $0.01 (the “Stated Value”), subject to increase as set forth
in Section 7 of the Certificate of Designation.
A holder of Preferred
Stock is entitled at any time to convert any whole or partial number of shares of Preferred Stock into shares of our common stock
determined by dividing the Stated Value of the Preferred Stock being converted by the conversion price of $0.01 per share.
A holder of Preferred
Stock will be prohibited from converting Preferred Stock into shares of our common stock if, as a result of such conversion, the
holder, together with its affiliates, would own more than 4.99% of the total number of shares of our common stock then issued
and outstanding (with such ownership restriction referred to as the “Beneficial Ownership Limitation”). However, any
holder may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in
such percentage shall not be effective until 61 days after such notice to us.
Subject to the Beneficial
Ownership Limitation, on any matter presented to our stockholders for their action or consideration at any meeting of our stockholders
(or by written consent of stockholders in lieu of a meeting), each holder of Preferred Stock will be entitled to cast the number
of votes equal to the number of whole shares of our common stock into which the shares of Preferred Stock beneficially owned by
such holder are convertible as of the record date for determining stockholders entitled to vote on or consent to such matter (taking
into account all Preferred Stock beneficially owned by such holder). Except as otherwise required by law or by the other provisions
of our certificate of incorporation, the holders of Preferred Stock will vote together with the holders of our common stock and
any other class or series of stock entitled to vote thereon as a single class.
A holder of Preferred
Stock shall be entitled to receive dividends as and when paid to the holders of our common stock on an as-converted basis.
Production Backlog of PIFA® Heparin/PF4 and PIFA®
Pluss/PF4
We are currently experiencing a production backlog of our PIFA®
Heparin/PF4 and PIFA® Pluss/PF4 rapid assays. While we believe that we will be able to remedy the production backlog, we cannot
be certain what impact this backlog will have on our business and it may have an adverse effect on our 2020 revenues and results
of operation.
Exploration of Strategic Alternatives
On November 7, 2018, we announced that our board of directors had
initiated a process to evaluate strategic alternatives to maximize shareholder value. The Company will continue its strategic alternatives
review and has identified the hemp and minor cannabinoid sectors as potential opportunities that could benefit from our core competencies.
The Company continues to explore how to leverage its 30 years of operational history in its medical device business, where its
current products have FDA clearance, its current operations practice Good Manufacturing Processes (cGMP), its medical device facility
is certified under ISO 13485 – 2016 and the facility carries an Analytical Lab Certification for Schedules 2, 3, 4 and 5
controlled substances issued by the U.S. Drug Enforcement Administration (DEA) and the State of New Jersey. The Company intends
to pursue opportunities in the extraction, testing, purification and formulation of safe cannabinoids within the hemp industry,
including pathways to consumer products with a focus on minor cannabinoids.
Risks
Associated with Our Business
Our
business is subject to many significant risks, as more fully described in the section entitled “Risk Factors”. You
should read and carefully consider these risks, together with all of the other information in this prospectus, including the financial
statements and the related notes included elsewhere in this prospectus, before deciding whether to invest in our securities. If
any of the risks discussed in this prospectus actually occur, our business, financial condition or operating results could be
materially and adversely affected. These risks include, but are not limited to, the following:
|
●
|
we
have a history of operating losses and we cannot guarantee that we can ever achieve sustained profitability;
|
|
●
|
due
to our dependence on a limited number of customers and the loss of any such customer would have a material adverse effect
on our operating results and prospects;
|
|
●
|
because
we may not be able to maintain necessary regulatory clearances for some of our products, we may not generate revenue in the
amounts we expect, or in the amounts necessary to continue our business;
|
|
●
|
we
are subject to regulations of various government agencies and if we are unable to comply with such regulations it would materially
affect our business;
|
|
●
|
modifications
to our devices may require additional FDA approval which could force us to cease marketing and/or recall the modified device
until we obtain new approvals;
|
|
●
|
the
Company’s business would suffer if the Company were unable to acquire adequate sources of supply;
|
|
●
|
our
failure to regain and maintain compliance with the continued listing requirements of the NASDAQ Capital Market could result
in a delisting of our common stock, which could adversely affect the market liquidity of our common stock and the market price
of our common stock could decrease.; and
|
|
●
|
we
are currently subject to a number of litigations and we may be subject to similar other litigation in the future.
|
Corporate
Information
We
were incorporated in 1989 in the state of New Jersey. Our principal executive offices are located at 201 Grove Road, Thorofare,
New Jersey USA 08086 and our telephone number is (856) 848-8698. Our corporate website address is www.akersbio.com. The
information contained on or accessible through our website is not a part of this prospectus, and the inclusion of our website
address in this prospectus is an inactive textual reference only.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider
carefully the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement,
together with all of the other information contained or incorporated by reference in the prospectus supplement
or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions
discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December
31, 2019, which is incorporated herein by reference, as updated or superseded by the risks and uncertainties described
under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this
prospectus and any prospectus supplement related to a particular offering. The risks and uncertainties we have described
are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also affect our operations. Past financial performance may not be a reliable indicator of future performance, and historical
trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business,
business prospects, financial condition or results of operations could be seriously harmed. This could cause the
trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully
the section below entitled “Cautionary Statement Regarding Forward-Looking Statements.”
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, we intend to use the net proceeds from these sales for general corporate purposes
or the acquisition of other businesses and working capital. The amounts and timing of these expenditures will depend on numerous
factors, including the development of our current business initiatives. We have no specific acquisitions contemplated at this
time.
PLAN
OF DISTRIBUTION
We
may sell the securities from time to time to or through underwriters or dealers, through agents, or directly to one or more purchasers.
A distribution of the securities offered by this prospectus may also be effected through the issuance of derivative securities,
including without limitation, warrants, rights to purchase and subscriptions. In addition, the manner in which we may sell some
or all of the securities covered by this prospectus includes, without limitation, through:
|
●
|
a
block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as
principal, in order to facilitate the transaction;
|
|
●
|
purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its account; or
|
|
●
|
ordinary
brokerage transactions and transactions in which a broker solicits purchasers.
|
A
prospectus supplement or supplements with respect to each series of securities will describe the terms of the offering, including,
to the extent applicable:
|
●
|
the
terms of the offering;
|
|
●
|
the
name or names of the underwriters or agents and the amounts of securities underwritten or purchased by each of them, if any;
|
|
●
|
the
public offering price or purchase price of the securities or other consideration therefor, and the proceeds to be received
by us from the sale;
|
|
●
|
any
delayed delivery requirements;
|
|
●
|
any
over-allotment options under which underwriters may purchase additional securities from us;
|
|
●
|
any
underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
|
|
●
|
any
discounts or concessions allowed or re-allowed or paid to dealers; and
|
|
●
|
any
securities exchange or market on which the securities may be listed.
|
The
offer and sale of the securities described in this prospectus by us, the underwriters or the third parties described above may
be effected from time to time in one or more transactions, including privately negotiated transactions, either:
|
●
|
at
a fixed price or prices, which may be changed;
|
|
●
|
in
an “at the market” offering within the meaning of Rule 415(a)(4) of the Securities Act;
|
|
●
|
at
prices related to such prevailing market prices; or
|
|
●
|
at
negotiated prices.
|
Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
Underwriters
and Agents; Direct Sales
If
underwriters are used in a sale, they will acquire the offered securities for their own account and may resell the offered securities
from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying
prices determined at the time of sale. We may offer the securities to the public through underwriting syndicates represented by
managing underwriters or by underwriters without a syndicate.
Unless
the prospectus supplement states otherwise, the obligations of the underwriters to purchase the securities will be subject to
the conditions set forth in the applicable underwriting agreement. Subject to certain conditions, the underwriters will be obligated
to purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option.
Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may change from time to time.
We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter,
the nature of any such relationship.
We
may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering
and sale of securities, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from
us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment
and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in the prospectus supplement.
Dealers
We
may sell the offered securities to dealers as principals. The dealer may then resell such securities to the public either at varying
prices to be determined by the dealer or at a fixed offering price agreed to with us at the time of resale.
Institutional
Purchasers
We
may authorize agents, dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed
delivery basis pursuant to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable
prospectus supplement or other offering materials, as the case may be, will provide the details of any such arrangement, including
the offering price and commissions payable on the solicitations.
We
will enter into such delayed contracts only with institutional purchasers that we approve. These institutions may include commercial
and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Indemnification;
Other Relationships
We
may provide agents, underwriters, dealers and remarketing firms with indemnification against certain civil liabilities, including
liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect
to these liabilities. Agents, underwriters, dealers and remarketing firms, and their affiliates, may engage in transactions with,
or perform services for, us in the ordinary course of business. This includes commercial banking and investment banking transactions.
Market-Making;
Stabilization and Other Transactions
There
is currently no market for any of the offered securities, other than our common stock, which is quoted on the NASDAQ Capital Market.
If the offered securities are traded after their initial issuance, they may trade at a discount from their initial offering price,
depending upon prevailing interest rates, the market for similar securities and other factors. While it is possible that an underwriter
could inform us that it intends to make a market in the offered securities, such underwriter would not be obligated to do so,
and any such market-making could be discontinued at any time without notice. Therefore, no assurance can be given as to whether
an active trading market will develop for the offered securities. We have no current plans for listing of the debt securities,
preferred stock or warrants on any securities exchange or quotation system; any such listing with respect to any particular
debt securities, preferred stock or warrants will be described in the applicable prospectus supplement
or other offering materials, as the case may be.
Any
underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance
with Regulation M under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Over-allotment involves sales in
excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions
involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution
is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when
the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters
may discontinue any of the activities at any time.
Any
underwriters or agents that are qualified market makers on the NASDAQ Capital Market may engage in passive market making transactions
in our common stock on the NASDAQ Capital Market in accordance with Regulation M under the Exchange Act, during the business day
prior to the pricing of the offering, before the commencement of offers or sales of our common stock. Passive market makers must
comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market
maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids
are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when
certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above
that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
Fees
and Commissions
If
5% or more of the net proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating
in the offering or affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA
Rule 5121.
DESCRIPTION
OF SECURITIES WE MAY OFFER
General
This
prospectus describes the general terms of our capital stock. The following description is not complete and may not contain all
the information you should consider before investing in our capital stock. For a more detailed description of these securities,
you should read the applicable provisions of New Jersey law and our certificate of incorporation, as amended, referred to herein
as our certificate of incorporation and our amended and restated bylaws, referred to herein as our bylaws. When we offer to sell
a particular series of these securities, we will describe the specific terms of the series in a supplement to this prospectus.
Accordingly, for a description of the terms of any series of securities, you must refer to both the prospectus supplement relating
to that series and the description of the securities described in this prospectus. To the extent the information contained in
the prospectus supplement differs from this summary description, you should rely on the information in the prospectus supplement.
The
total number of shares of capital stock we are authorized to issue is 150,000,000 shares, of which (a) 100,000,000
are common stock and (b) 50,000,000 are preferred stock.
We,
directly or through agents, dealers or underwriters designated from time to time, may offer, issue and sell, together or separately,
up to $25,000,000 in the aggregate of:
|
●
|
common
stock;
|
|
●
|
preferred
stock;
|
|
●
|
warrants
to purchase our securities;
|
|
●
|
secured
or unsecured debt securities consisting of notes, debentures or other evidences of indebtedness which may be senior debt securities,
senior subordinated debt securities or subordinated debt securities, each of which may be convertible into equity securities;
or
|
|
●
|
units
comprised of, or other combinations of, the foregoing securities.
|
We
may issue the debt securities exchangeable for or convertible into shares of common stock, preferred stock or other securities
that may be sold by us pursuant to this prospectus or any combination of the foregoing. The preferred stock may also be exchangeable
for and/or convertible into shares of common stock, another series of preferred stock or other securities that may be sold by
us pursuant to this prospectus or any combination of the foregoing. When a particular series of securities is offered, a supplement
to this prospectus will be delivered with this prospectus, which will set forth the terms of the offering and sale of the offered
securities.
Common
Stock
As
of April 6, 2020, there were 2,915,240 shares of common stock issued and outstanding, held of record by approximately
760 stockholders. Subject to preferential rights with respect to any outstanding preferred stock, all outstanding shares
of common stock are of the same class and have equal rights and attributes.
Voting
Rights
Each
Stockholder has one vote for each share of common stock held on all matters submitted to a vote of stockholders. A shareholder
may vote in person or by proxy. Elections of directors are determined by a plurality of the votes cast and all other matters are
decided by a majority of the votes cast by those shareholders entitled to vote and present in person or by proxy.
Because
our stockholders do not have cumulative voting rights, stockholders holding a majority of the voting power of our shares of common
stock will be able to elect all of our directors. Our amended and restated certificate of incorporation and bylaws provide that
stockholder actions may be effected at a duly called meeting of stockholders or pursuant to written consent of the majority of
shareholders. A special meeting of stockholders may be called by the President, Chief Executive Officer or the Board of Directors
pursuant to a resolution approved by the majority of the Board of Directors.
Dividend
Rights
The
holders of outstanding shares of common stock are entitled to receive dividends out of funds legally available at the times and
in the amounts that our board may determine, provided that required dividends, if any, on preferred stock have been paid or provided
for. However, to date we have not paid or declared cash distributions or dividends on our common stock and do not currently intend
to pay cash dividends on our common stock in the foreseeable future. We intend to retain all earnings, if and when generated,
to finance our operations. The declaration of cash dividends in the future will be determined by the board based upon our earnings,
financial condition, capital requirements and other relevant factors.
No
Preemptive or Similar Rights
Holders
of our common stock do not have preemptive rights, and common stock is not convertible or redeemable.
Right
to Receive Liquidation Distributions
Upon
our dissolution, liquidation or winding-up, the assets legally available for distribution to our stockholders and remaining after
payment to holders of preferred stock of the amounts, if any, to which they are entitled, are distributable ratably among the
holders of our common stock subject to any senior class of securities.
Preferred
Stock
Our
certificate of incorporation empowers our board of directors, without action by our shareholders, to issue up to 50,000,000
shares of preferred stock from time to time in one or more series, which preferred stock may be offered by this prospectus
and supplements thereto. As of April 6, 2020, there were 10,000,000 shares of preferred stock designated as Series
A Preferred Stock, 1,990,000 shares of preferred stock designated as Series C Convertible Preferred Stock and 211,353 shares of
preferred stock designated as Series D Preferred Stock. As of April 6, 2020, there were no shares of Series A Preferred Stock
and Series C Convertible Stock issued and outstanding and 211,353 shares of Series D Preferred Stock issued and outstanding.
Our board may fix the rights, preferences, privileges, and restrictions of our authorized but undesignated preferred
shares, including:
We
will fix the rights, preferences, privileges and restrictions of the preferred stock of each series in the certificate of designation
relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will
incorporate by reference from a current report on Form 8-K that we file with the SEC, the form of any certificate of designation
that describes the terms of the series of preferred stock we are offering before the issuance of the related series of preferred
stock. This description will include any or all of the following, as required:
|
●
|
the
title and stated value;
|
|
●
|
the
number of shares we are offering;
|
|
●
|
the
liquidation preference per share;
|
|
●
|
the
purchase price;
|
|
●
|
the
dividend rate, period and payment date and method of calculation for dividends;
|
|
●
|
whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
|
|
●
|
any
contractual limitations on our ability to declare, set aside or pay any dividends;
|
|
●
|
the
procedures for any auction and remarketing, if any;
|
|
●
|
the
provisions for a sinking fund, if any;
|
|
●
|
the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and
repurchase rights;
|
|
●
|
any
listing of the preferred stock on any securities exchange or market;
|
|
●
|
whether
the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be
calculated, and the conversion period;
|
|
●
|
whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated,
and the exchange period;
|
|
●
|
voting
rights, if any, of the preferred stock;
|
|
●
|
preemptive
rights, if any;
|
|
●
|
restrictions
on transfer, sale or other assignment, if any;
|
|
●
|
a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock;
|
|
●
|
the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs;
|
|
●
|
any
limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred
stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
|
|
●
|
any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
|
If
we issue shares of preferred stock under this prospectus, after receipt of payment therefor, the shares will be fully paid and
non-assessable.
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect
the voting power or other rights of the holders of our common stock. Preferred stock could be issued quickly with terms designed
to delay or prevent a change in control of our Company or make removal of management more difficult. Additionally, the issuance
of preferred stock could have the effect of decreasing the market price of our common stock.
Warrants
We
may issue warrants to purchase our securities or other rights, including rights to receive payment in cash or securities based
on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the
foregoing. Warrants may be issued independently or together with any other securities that may be sold by us pursuant to this
prospectus or any combination of the foregoing and may be attached to, or separate from, such securities. To the extent warrants
that we issue are to be publicly-traded, each series of such warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a current report on Form 8-K that we file with the SEC, forms of the warrant and warrant agreement, if any. The prospectus supplement
relating to any warrants that we may offer will contain the specific terms of the warrants and a description of the material provisions
of the applicable warrant agreement, if any. These terms may include the following:
|
●
|
the
title of the warrants;
|
|
●
|
the
price or prices at which the warrants will be issued;
|
|
●
|
the
designation, amount and terms of the securities or other rights for which the warrants are exercisable;
|
|
●
|
the
designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants
issued with each other security;
|
|
●
|
the
aggregate number of warrants;
|
|
●
|
any
provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price
of the warrants;
|
|
●
|
the
price or prices at which the securities or other rights purchasable upon exercise of the warrants may be purchased;
|
|
●
|
if
applicable, the date on and after which the warrants and the securities or other rights purchasable upon exercise of the warrants
will be separately transferable;
|
|
●
|
a
discussion of any material U.S. federal income tax considerations applicable to the exercise of the warrants;
|
|
●
|
the
date on which the right to exercise the warrants will commence, and the date on which the right will expire;
|
|
●
|
the
maximum or minimum number of warrants that may be exercised at any time;
|
|
●
|
information
with respect to book-entry procedures, if any; and
|
|
●
|
any
other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
|
Exercise
of Warrants. Each warrant will entitle the holder of warrants to purchase the amount of securities or other rights, at the
exercise price stated or determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time up
to the close of business on the expiration date shown in the applicable prospectus supplement, unless otherwise specified in such
prospectus supplement. After the close of business on the expiration date, if applicable, unexercised warrants will become void.
Warrants may be exercised in the manner described in the applicable prospectus supplement. When the warrant holder makes the payment
and properly completes and signs the warrant certificate at the corporate trust office of the warrant agent, if any, or any other
office indicated in the prospectus supplement, we will, as soon as possible, forward the securities or other rights that the warrant
holder has purchased. If the warrant holder exercises less than all of the warrants represented by the warrant certificate, we
will issue a new warrant certificate for the remaining warrants.
Debt
Securities
As
used in this prospectus, the term “debt securities” means the debentures, notes, bonds and other evidences of indebtedness
that we may issue from time to time. The debt securities will either be senior debt securities, senior subordinated debt or subordinated
debt securities. We may also issue convertible debt securities. Debt securities may be issued under an indenture (which we refer
to herein as an Indenture), which are contracts entered into between us and a trustee to be named therein. The Indenture has been
filed as an exhibit to the registration statement of which this prospectus forms a part. We may issue debt securities and incur
additional indebtedness other than through the offering of debt securities pursuant to this prospectus. It is likely that convertible
debt securities will not be issued under an Indenture.
The
debt securities may be fully and unconditionally guaranteed on a secured or unsecured senior or subordinated basis by one or more
guarantors, if any. The obligations of any guarantor under its guarantee will be limited as necessary to prevent that guarantee
from constituting a fraudulent conveyance under applicable law. In the event that any series of debt securities will be subordinated
to other indebtedness that we have outstanding or may incur, the terms of the subordination will be set forth in the prospectus
supplement relating to the subordinated debt securities.
We
may issue debt securities from time to time in one or more series, in each case with the same or various maturities, at par or
at a discount. Unless indicated in a prospectus supplement, we may issue additional debt securities of a particular series without
the consent of the holders of the debt securities of such series outstanding at the time of the issuance. Any such additional
debt securities, together with all other outstanding debt securities of that series, will constitute a single series of debt securities
under the applicable Indenture and will be equal in ranking.
Should
an Indenture relate to unsecured indebtedness, in the event of a bankruptcy or other liquidation event involving a distribution
of assets to satisfy our outstanding indebtedness or an event of default under a loan agreement relating to secured indebtedness
of our company or its subsidiaries, the holders of such secured indebtedness, if any, would be entitled to receive payment of
principal and interest prior to payments on the unsecured indebtedness issued under an Indenture.
Each
prospectus supplement will describe the terms relating to the specific series of debt securities. These terms will include some
or all of the following:
|
●
|
the
title of debt securities and whether the debt securities are senior or subordinated;
|
|
●
|
any
limit on the aggregate principal amount of debt securities of such series;
|
|
●
|
the
percentage of the principal amount at which the debt securities of any series will be issued;
|
|
●
|
the
ability to issue additional debt securities of the same series;
|
|
●
|
the
purchase price for the debt securities and the denominations of the debt securities;
|
|
●
|
the
specific designation of the series of debt securities being offered;
|
|
●
|
the
maturity date or dates of the debt securities and the date or dates upon which the debt securities are payable and the rate
or rates at which the debt securities of the series shall bear interest, if any, which may be fixed or variable, or the method
by which such rate shall be determined;
|
|
●
|
the
basis for calculating interest;
|
|
●
|
the
date or dates from which any interest will accrue or the method by which such date or dates will be determined;
|
|
●
|
the
duration of any deferral period, including the period during which interest payment periods may be extended;
|
|
●
|
whether
the amount of payments of principal of (and premium, if any) or interest on the debt securities may be determined with reference
to any index, formula or other method, such as one or more currencies, commodities, equity indices or other indices, and the
manner of determining the amount of such payments;
|
|
●
|
the
dates on which we will pay interest on the debt securities and the regular record date for determining who is entitled to
the interest payable on any interest payment date;
|
|
●
|
the
place or places where the principal of (and premium, if any) and interest on the debt securities will be payable, where any
securities may be surrendered for registration of transfer, exchange or conversion, as applicable, and notices and demands
may be delivered to or upon us pursuant to the applicable Indenture;
|
|
●
|
the
rate or rates of amortization of the debt securities;
|
|
●
|
any
terms for the attachment to the debt securities of warrants, options or other rights to purchase or sell our securities;
|
|
●
|
if
the debt securities will be secured by any collateral and, if so, a general description of the collateral and the terms and
provisions of such collateral security, pledge or other agreements;
|
|
●
|
if
we possess the option to do so, the periods within which and the prices at which we may redeem the debt securities, in whole
or in part, pursuant to optional redemption provisions, and the other terms and conditions of any such provisions;
|
|
●
|
our
obligation or discretion, if any, to redeem, repay or purchase debt securities by making periodic payments to a sinking fund
or through an analogous provision or at the option of holders of the debt securities, and the period or periods within which
and the price or prices at which we will redeem, repay or purchase the debt securities, in whole or in part, pursuant to such
obligation, and the other terms and conditions of such obligation;
|
|
●
|
the
terms and conditions, if any, regarding the option or mandatory conversion or exchange of debt securities;
|
|
●
|
the
period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of
the series may be redeemed, in whole or in part at our option and, if other than by a board resolution, the manner in which
any election by us to redeem the debt securities shall be evidenced;
|
|
●
|
any
restriction or condition on the transferability of the debt securities of a particular series;
|
|
●
|
the
portion, or methods of determining the portion, of the principal amount of the debt securities which we must pay upon the
acceleration of the maturity of the debt securities in connection with any event of default;
|
|
●
|
the
currency or currencies in which the debt securities will be denominated and in which principal, any premium and any interest
will or may be payable or a description of any units based on or relating to a currency or currencies in which the debt securities
will be denominated;
|
|
●
|
provisions,
if any, granting special rights to holders of the debt securities upon the occurrence of specified events;
|
|
●
|
any
deletions from, modifications of or additions to the events of default or our covenants with respect to the applicable series
of debt securities, and whether or not such events of default or covenants are consistent with those contained in the applicable
Indenture;
|
|
●
|
any
limitation on our ability to incur debt, redeem stock, sell our assets or other restrictions;
|
|
●
|
the
application, if any, of the terms of the applicable Indenture relating to defeasance and covenant defeasance (which terms
are described below) to the debt securities;
|
|
●
|
what
subordination provisions will apply to the debt securities
|
|
●
|
the
terms, if any, upon which the holders may convert or exchange the debt securities into or for our securities or property;
|
|
●
|
whether
we are issuing the debt securities in whole or in part in global form;
|
|
●
|
any
change in the right of the trustee or the requisite holders of debt securities to declare the principal amount thereof due
and payable because of an event of default;
|
|
●
|
the
depositary for global or certificated debt securities, if any;
|
|
●
|
any
material federal income tax consequences applicable to the debt securities, including any debt securities denominated and
made payable, as described in the prospectus supplements, in foreign currencies, or units based on or related to foreign currencies;
|
|
●
|
any
right we may have to satisfy, discharge and defease our obligations under the debt securities, or terminate or eliminate restrictive
covenants or events of default in the Indentures, by depositing money or U.S. government obligations with the trustee of the
Indentures;
|
|
●
|
the
names of any trustees, depositories, authenticating or paying agents, transfer agents or registrars or other agents with respect
to the debt securities;
|
|
●
|
to
whom any interest on any debt security shall be payable, if other than the person in whose name the security is registered,
on the record date for such interest, the extent to which, or the manner in which, any interest payable on a temporary global
debt security will be paid;
|
|
●
|
if
the principal of or any premium or interest on any debt securities is to be payable in one or more currencies or currency
units other than as stated, the currency, currencies or currency units in which it shall be paid and the periods within and
terms and conditions upon which such election is to be made and the amounts payable (or the manner in which such amount shall
be determined);
|
|
●
|
the
portion of the principal amount of any debt securities which shall be payable upon declaration of acceleration of the maturity
of the debt securities pursuant to the applicable Indenture;
|
|
●
|
if
the principal amount payable at the stated maturity of any debt security of the series will not be determinable as of any
one or more dates prior to the stated maturity, the amount which shall be deemed to be the principal amount of such debt securities
as of any such date for any purpose, including the principal amount thereof which shall be due and payable upon any maturity
other than the stated maturity or which shall be deemed to be outstanding as of any date prior to the stated maturity (or,
in any such case, the manner in which such amount deemed to be the principal amount shall be determined); and
|
|
●
|
any
other specific terms of the debt securities, including any modifications to the events of default under the debt securities
and any other terms which may be required by or advisable under applicable laws or regulations.
|
Unless
otherwise specified in the applicable prospectus supplement, we do not anticipate the debt securities will be listed on any securities
exchange. Holders of the debt securities may present registered debt securities for exchange or transfer in the manner described
in the applicable prospectus supplement. Except as limited by the applicable Indenture, we will provide these services without
charge, other than any tax or other governmental charge payable in connection with the exchange or transfer.
Debt
securities may bear interest at a fixed rate or a variable rate as specified in the prospectus supplement. In addition, if specified
in the prospectus supplement, we may sell debt securities bearing no interest or interest a t a rate that at the time of issuance
is below the prevailing market rate, or at a discount below their stated principal amount. We will describe in the applicable
prospectus supplement any special federal income tax considerations applicable to these discounted debt securities.
We
may issue debt securities with the principal amount payable on any principal payment date, or the amount of interest payable on
any interest payment date, to be determined by referring to one or more currency exchange rates, commodity prices, equity indices
or other factors. Holders of such debt securities may receive a principal amount on any principal payment date, or interest payments
on any interest payment date, that are greater or less than the amount of principal or interest otherwise payable on such dates,
depending upon the value on such dates of applicable currency, commodity, equity index or other factors. The applicable prospectus
supplement will contain information as to how we will determine the amount of principal or interest payable on any date, as well
as the currencies, commodities, equity indices or other factors to which the amount payable on that date relates and certain additional
tax considerations.
Units
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series.
We may evidence each series of units by unit certificates that we may issue under a separate agreement. We may enter into unit
agreements with a unit agent. Each unit agent, if any, may be a bank or trust company that we select. We will indicate the name
and address of the unit agent, if any, in the applicable prospectus supplement relating to a particular series of units. Specific
unit agreements, if any, will contain additional important terms and provisions. We will file as an exhibit to the registration
statement of which this prospectus is a part, or will incorporate by reference from a current report that we file with the SEC,
the form of unit and the form of each unit agreement, if any, relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including,
without limitation, the following, as applicable:
|
●
|
the
title of the series of units;
|
|
●
|
identification
and description of the separate constituent securities comprising the units;
|
|
●
|
the
price or prices at which the units will be issued;
|
|
●
|
the
date, if any, on and after which the constituent securities comprising the units will be separately transferable;
|
|
●
|
a
discussion of certain United States federal income tax considerations applicable to the units; and
|
|
●
|
any
other material terms of the units and their constituent securities.
|
Anti-Takeover
Provisions
The
authorization of undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting
or other rights or preferences that could impede the success of any attempt to change our control.
These
provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and its
policies and to discourage certain types of transactions that may involve an actual or threatened acquisition of us.
These
provisions are also designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics
that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers
for our shares and may have the effect of deterring hostile takeovers or delaying changes in our control or management. As a consequence,
these provisions also may inhibit fluctuations in the market price of our stock that could result from actual or rumored takeover
attempts.
FORMS
OF SECURITIES
Each
security may be represented either by a certificate issued in definitive form to a particular investor or by one or more global
securities representing the entire issuance of securities. Certificated securities in definitive form and global securities will
be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and in order to transfer
or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically
deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary
or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains
a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained
by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered
Global Securities
We
may issue the securities in the form of one or more fully registered global securities that will be deposited with a depositary
or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In
those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the
portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless
and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred
except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors
of the depositary or those nominees.
The
specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security
will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will
apply to all depositary arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the
depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective
principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered
global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by
the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons
holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of
these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered
global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee,
as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security
for all purposes under the applicable indenture, warrant agreement or unit agreement.
Except
as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities
represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery
of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture,
warrant agreement or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the
procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable
indenture, warrant agreement or unit agreement. We understand that under existing industry practices, if we request any action
of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder
is entitled to give or take under the applicable indenture, warrant agreement or unit agreement, the depositary for the registered
global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the
participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments
to holders with respect to securities represented by a registered global security registered in the name of a depositary or its
nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security.
None of the Company, the trustees, the warrant agents, the unit agents or any other agent of the Company, agent of the trustees,
the warrant agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments
made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing
any records relating to those beneficial ownership interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment
of principal, premium, interest or other payment or distribution to holders of that registered global security, will immediately
credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global
security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests
in a registered global security held through participants will be governed by standing customer instructions and customary practices,
as is now the case with the securities held for the accounts of customers or registered in “street name,” and will
be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Exchange Act and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for
the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for
a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant
agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based
upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered
global security that had been held by the depositary.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus will be
passed upon for us by Haynes and Boone, LLP, New York, New York. If legal matters in connection with offerings made by
this prospectus are passed on by counsel for the underwriters, dealers or agents, if any, that counsel will be named in the applicable
prospectus supplement.
EXPERTS
Morison Cogen LLP, independent
registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K
for the year ended December 31, 2019, as filed on March 24, 2020, as set forth in their report which is incorporated
by reference in this prospectus and elsewhere in the registration statement. Our consolidated financial statements are incorporated
by reference in reliance on Morison Cogen LLP’s report, given on their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
file annual, quarter and periodic reports, proxy statements and other information with the Securities and Exchange Commission
using the Commission’s EDGAR system. The Commission maintains a web site that contains reports, proxy and information statements
and other information regarding registrants that file electronically with the Commission. The address of such site is http//www.sec.gov.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
are “incorporating by reference” in this prospectus certain documents we file with the SEC, which means that we can
disclose important information to you by referring you to those documents. The information in the documents incorporated by reference
is considered to be part of this prospectus. Statements contained in documents that we file with the SEC and that are incorporated
by reference in this prospectus will automatically update and supersede information contained in this prospectus, including information
in previously filed documents or reports that have been incorporated by reference in this prospectus, to the extent the new information
differs from or is inconsistent with the old information. We have filed or may file the following documents with the SEC and they
are incorporated herein by reference as of their respective dates of filing.
|
1.
|
Our Annual Report on Form 10-K for the year ended
December 31, 2019, filed with the SEC on March 24, 2020;
|
|
2.
|
Our Current Reports on Form 8-K filed with the SEC
on January 6, 2020, January 31, 2020, and March 24, 2020 (other than any portions thereof deemed furnished
and not filed); and
|
|
3.
|
The
description of our common stock contained in our Registration Statement on Form 8-A, filed on January 17, 2014 pursuant to
Section 12(b) of the Exchange Act, which incorporates by reference the description of the shares of our common stock contained
in the section entitled “Description of Securities” in our Registration Statement on Form S-1 (File No. 333-190456),
as initially filed with the SEC on August 7, 2013, as amended, and any amendment or report filed with the SEC for purposes
of updating such description.
|
All
documents that we filed with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date
of this registration statement and prior to the filing of a post-effective amendment to this registration statement that indicates
that all securities offered under this prospectus have been sold, or that deregisters all securities then remaining unsold, will
be deemed to be incorporated in this registration statement by reference and to be a part hereof from the date of filing of such
documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed modified,
superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any
subsequently filed document that also is deemed to be incorporated by reference in this prospectus, modifies, supersedes or replaces
such statement. Any statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced,
to constitute a part of this prospectus. None of the information that we disclose under Items 2.02 or 7.01 of any Current Report
on Form 8-K or any corresponding information, either furnished under Item 9.01 or included as an exhibit therein, that we may
from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in, this prospectus, except
as otherwise expressly set forth in the relevant document. Subject to the foregoing, all information appearing in this prospectus
is qualified in its entirety by the information appearing in the documents incorporated by reference.
You
may requests, orally or in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits,
unless such exhibits are specifically incorporate by reference), by contacting Akers Biosciences, Inc., at 201 Grove Road, Thorofare,
New Jersey 08086. Our telephone number is (856) 848-8698. Information about us is also available at our website at http://www.akersbio.com.
However, the information in our website is not a part of this prospectus and is not incorporated by reference.
$25,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
DEBT SECURITIES
UNITS
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
Company is paying all expenses of the offering. The following table sets forth all expenses to be paid by the registrant. All
amounts shown are estimates except for the registration fee.
SEC registration fee
|
|
$
|
3,245
|
|
Legal fees and expenses
|
|
$
|
25,000
|
|
Accounting fees and expenses
|
|
$
|
3,500
|
|
Trustees’ Fees and Expenses
|
|
|
*
|
|
Warrant Agent Fees and Expenses
|
|
|
*
|
|
Miscellaneous
|
|
|
*
|
|
Total
|
|
$
|
31,745
|
|
*
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this
time. The applicable prospectus supplement will set forth the estimated amount of expenses of any offering of securities.
Item
15. Indemnification of Directors and Officers.
Section
14A:2-7(3) of the New Jersey Business Corporation Act permits a corporation to provide in its certificate of incorporation that
a director or officer shall not be personally liable, or shall be liable only to the extent therein provided, to the corporation
or its shareholders for damages for breach of any duty owed to the corporation or its shareholders, except that such provision
shall not relieve a director or officer from liability for any breach of duty based upon an act or omission (a) in breach of such
person’s duty of loyalty to the corporation or its shareholders, (b) not in good faith or involving a knowing violation
of law or (c) resulting in receipt by such person of an improper personal benefit. Akers Biosciences, Inc.’s certificate
of incorporation provides for such limitation of liability.
Section
14A:3-5 of the New Jersey Business Corporation Act empowers a corporation to indemnify any current or former director or officer
made a party to a proceeding because he or she is or was a director or officer against liability incurred in the proceeding; provided
that such director or officer acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal proceeding, such director or officer had no reasonable cause to believe his
conduct was unlawful.
Akers
Biosciences, Inc.’s certificate of incorporation provides that the corporation must indemnify its directors and officers
to the fullest extent authorized by law. Akers Biosciences, Inc. is also expressly required to advance certain expenses to its
directors and officers. Akers Biosciences, Inc. believes that these indemnification provisions are useful to attract and retain
qualified directors and executive officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 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, this indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item
16. Exhibits.
The
following exhibits are filed with this Registration Statement.
The
agreements included or incorporated by reference as exhibits to this registration statement contain representations and warranties
by each of the parties to the applicable agreement. These representations and warranties were made solely for the benefit of the
other parties to the applicable agreement and (i) were not intended to be treated as categorical statements of fact, but rather
as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; (ii) may have been qualified
in such agreement by disclosures that were made to the other party in connection with the negotiation of the applicable agreement;
(iii) may apply contract standards of “materiality” that are different from “materiality” under the applicable
securities laws; and (iv) were made only as of the date of the applicable agreement or such other date or dates as may be specified
in the agreement.
The
undersigned registrant acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible
for considering whether additional specific disclosures of material information regarding material contractual provisions are
required to make the statements in this registration statement not misleading.
*
|
Filed
herewith.
|
|
|
**
|
If
applicable, to be filed by an amendment or as an exhibit to a report pursuant to section 13(a) or section 15(d) of the Exchange
Act and incorporated by reference
|
|
|
+
|
To
be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
|
|
|
¥
|
Previously filed.
|
Item
17. Undertakings.
|
(a)
|
The
undersigned Registrant hereby undertakes:
|
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided
, however , that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability of the registrant under the Securities
Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the State of New Jersey, on this April 6, 2020.
|
AKERS
BIOSCIENCES, INC.
|
|
|
|
By:
|
/s/
Christopher C. Schreiber
|
|
|
Christopher
C. Schreiber
|
|
|
Executive
Chairman of the Board and Director
(Principal Executive Officer) and Director
|
KNOW
ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below hereby constitutes and appoints Christopher
C. Schreiber as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments,
to this registration statement, and to sign any registration statement for the same offering covered by this registration statement
that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933 increasing the number
of shares for which registration is sought, and all post-effective amendments thereto, and to file the same, with all exhibits
thereto and all documents in connection therewith, making such changes in this registration statement as such attorney-in-fact
and agent so acting deem appropriate, with the SEC, granting unto said attorney-in-fact and agent, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done with respect to the offering of
securities contemplated by this registration statement, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his, her or their substitute or substitutes,
may lawfully do or cause to be done or by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Howard R. Yeaton
|
|
Interim Chief
Financial Officer
|
|
April 6, 2020
|
Howard
R. Yeaton
|
|
(Principal
Financial Officer and Principal Accounting Officer)
|
|
|
|
|
|
|
|
/s/
Christopher C. Schreiber
|
|
Executive
Chairman of the Board and Director
|
|
April 6, 2020
|
Christopher
C. Schreiber
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
April 6, 2020
|
Joshua
Silverman
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
April 6, 2020
|
Bill J. White
|
|
|
|
|
|
|
|
|
|
/s/
Robert C. Schroeder
|
|
Director
|
|
April 6, 2020
|
Robert
C. Schroeder
|
|
|
|
|
*By:
|
/s/ Christopher C. Schreiber
|
|
|
Christopher C. Schreiber
Attorney-in-Fact
|
|
Akers Biosciences (NASDAQ:AKER)
Historical Stock Chart
From Mar 2024 to Apr 2024
Akers Biosciences (NASDAQ:AKER)
Historical Stock Chart
From Apr 2023 to Apr 2024