Prospectus
Supplement |
|
Filed
pursuant to Rule 424(b)(5) |
(To
Prospectus Dated April 7, 2020) |
|
Registration
No. 333-234449 |
766,667
Shares

AKERS
BIOSCIENCES, INC.
Common
Stock
Pursuant
to this prospectus supplement and the accompanying prospectus, we
are offering 766,667 shares of common stock, no par value per
share, to certain institutional investors at an offering price of
$6.00 per share.
Our
common stock is currently listed on the Nasdaq Capital Market
(“NASDAQ”) under the symbol “AKER”. On April 6, 2020, the last
reported sale price for our common stock on NASDAQ was $4.69 per
share.
Investing
in our securities involves a high degree of risk. You should
purchase our securities only if you can afford a complete loss of
your investment. See “Risk Factors” beginning on page S-5 of
this prospectus supplement and “Risk Factors” beginning on page 6
of the accompanying prospectus.
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.
|
|
Per Share |
|
|
Total |
|
Offering Price |
|
$ |
6.00 |
|
|
$ |
4,600,002 |
|
Placement agent fees (1) |
|
$ |
0.45 |
|
|
$ |
345,000 |
|
Proceeds, before expenses, to us
(2) |
|
$ |
5.55 |
|
|
$ |
4,255,002 |
|
(1)
In addition, we have agreed to reimburse the placement agent for
certain offering-related expenses, pay a management fee of 1.0% of
the gross proceeds raised in this offering and to issue the
placement agent or its designees warrants to purchase a number of
shares of common stock equal to 8.0% of the shares of common stock
sold in this offering. See “Plan of Distribution” beginning on page
S-10 for more information regarding the placement agent’s
compensation.
(2)
The amount of the offering proceeds to us presented in this table
does not give effect to the sale or exercise, if any, of the
warrants being used to the placement agent.
We
have retained H.C. Wainwright & Co., LLC (“Wainwright” or the
“placement agent”) to act as our exclusive placement agent in
connection with this offering. The placement agent is not
purchasing the shares of common stock offered by us in this
offering and is not required to sell any specific number or dollar
amount of securities, but will assist us in this offering on a
reasonable best efforts basis.
As of
April 7, 2020, the aggregate market value of our outstanding common
stock held by non-affiliates is $13,804,372 based on 2,945,240
shares of outstanding common stock, of which 2,943,363 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
on April 6, 2020. Pursuant to General Instruction I.B.6 of Form
S-3, in no event will we sell the securities covered hereby in a
public primary offering with a value exceeding more than one-third
of the aggregate market value of our common stock in any 12-month
period so long as the aggregate market value of our outstanding
common stock held by non-affiliates remains below $75 million.
Following the sale of shares in this offering, we will have sold
securities with an aggregate market value of $4,600,002 pursuant to
General Instruction I.B.6 of Form S-3 during the 12-month calendar
period that ends on and includes the date hereof.
Delivery
of the shares of common stock offered hereby is expected to take
place on or about April 8, 2020, subject to satisfaction of certain
customary closing conditions.
H.C.
Wainwright & Co.
The
date of this prospectus supplement is April 7, 2020
TABLE
OF CONTENTS
Prospectus
Supplement
Prospectus
ABOUT THIS PROSPECTUS
SUPPLEMENT
This
prospectus supplement and the accompanying prospectus are part of a
registration statement that we filed with the U.S. Securities and
Exchange Commission utilizing a “shelf” registration process. This
document is in two parts. The first part is this prospectus
supplement, which describes the specific terms of this offering and
also adds to and updates information contained in the accompanying
prospectus and the documents incorporated by reference herein. The
second part, the accompanying prospectus, provides more general
information. Generally, when we refer to this prospectus, we are
referring to both parts of this document combined. To the extent
there is a conflict between the information contained in this
prospectus supplement and the information contained in the
accompanying prospectus or any document incorporated by reference
therein filed prior to the date of this prospectus supplement, you
should rely on the information in this prospectus supplement;
provided that if any statement in one of these documents is
inconsistent with a statement in another document having a later
date—for example, a document incorporated by reference in the
accompanying prospectus—the statement in the document having the
later date modifies or supersedes the earlier statement.
We
further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference herein were made solely
for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to
such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when
made. Accordingly, such representations, warranties and covenants
should not be relied on as accurately representing the current
state of our affairs.
You
should rely only on the information contained in this prospectus
supplement or the accompanying prospectus, or incorporated by
reference herein. We have not authorized, and the placement agent
has not authorized, anyone to provide you with information that is
different. The information contained in this prospectus supplement
or the accompanying prospectus, or incorporated by reference herein
or therein is accurate only as of the respective dates thereof,
regardless of the time of delivery of this prospectus supplement
and the accompanying prospectus or of any sale of our common stock.
It is important for you to read and consider all information
contained in this prospectus supplement and the accompanying
prospectus, including the documents incorporated by reference
herein and therein, in making your investment decision. You should
also read and consider the information in the documents to which we
have referred you in the sections entitled “Where you can find more
information; Information incorporated by reference” in this
prospectus supplement and in the accompanying prospectus,
respectively.
We
are offering to sell, and seeking offers to buy, the securities
offered by this prospectus supplement only in jurisdictions where
offers and sales are permitted. The distribution of this prospectus
supplement and the accompanying prospectus and the offering of the
securities offered by this prospectus supplement in certain
jurisdictions may be restricted by law. Persons outside the United
States who come into possession of this prospectus supplement and
the accompanying prospectus must inform themselves about, and
observe any restrictions relating to, the offering of the common
stock and the distribution of this prospectus supplement and the
accompanying prospectus outside the United States. This prospectus
supplement and the accompanying prospectus do not constitute, and
may not be used in connection with, an offer to sell, or a
solicitation of an offer to buy, any securities offered by this
prospectus supplement and the accompanying prospectus by any person
in any jurisdiction in which it is unlawful for such person to make
such an offer or solicitation.
Unless
we have indicated otherwise, or the context otherwise requires,
references in this prospectus supplement and the accompanying
prospectus to “AKERs” the “Company,” “we,” “us” and “our” or
similar terms refer to Akers Biosciences, Inc., a New Jersey
corporation, and its consolidated subsidiaries.
PROSPECTUS SUPPLEMENT
SUMMARY
This
summary highlights selected information about us, this offering and
information appearing elsewhere in this prospectus supplement, in
the accompanying prospectus and in the documents incorporated by
reference herein and therein. This summary is not complete and does
not contain all the information you should consider before
investing in our securities pursuant to this prospectus supplement
and the accompanying prospectus. Before making an investment
decision, to fully understand this offering and its consequences to
you, you should carefully read this entire prospectus supplement
and the accompanying prospectus, including “Risk Factors,” the
financial statements, and related notes, and the other information
incorporated by reference herein and therein.
Our
Company
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. We are currently
pursuing the development of a newly acquired license to a
coronavirus vaccine candidate.
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 Biotech PVT Ltd. (“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. The achievement of this milestone
triggers an obligation by us to pay Premas $250,000 pursuant to the
terms of the License Agreement.
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 acquired 100% of the membership
interests (the “Membership Interests”) of Cystron Biotech, LLC
(“Cystron”). Approximately one-third of Cystron was owned by two
entities, each of which is controlled by an associated person of
the Placement Agent (collectively, the “Associated Persons”). The
Associated Persons were paid approximately one-third of the
consideration paid at closing and are entitled to the same
percentage of any future consideration under the MIPA.
As
consideration for the Membership Interests at closing, we delivered
to the Sellers: (1) 411,403 shares of our common stock and 211,353
shares of “common stock equivalent” shares of preferred stock with
a customary 4.9% blocker (with such common stock and preferred
stock collectively referred to as “Common Stock Consideration”),
which collectively represented that number of newly issued shares
of our common stock and preferred 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, and (2) $1,000,000 in cash.
Consequently, as consideration for the Membership Interests
purchased from the Associated Persons, we have delivered to the
Associated Persons, collectively: (x) 142,259 shares of our common
stock and 65,369 shares of our preferred stock, and (y)
approximately $333,333.
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; It is expected that we will pay the Seller
$250,000 out of the net proceeds of this (including approximately
$83,333 to be paid to the Associated Persons in connection with
this offering), 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. 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.
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. 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 supplement and is not incorporated in this
prospectus supplement, unless otherwise stated, and the inclusion
of our website address in this prospectus is an inactive textual
reference only.
THE OFFERING
Common
stock offered by us pursuant to this prospectus
supplement
|
|
766,667
shares |
|
|
|
Common
stock to be outstanding immediately after this offering
(1)
|
|
3,711,907
shares (assuming that we sell the maximum number of shares of
common stock offered in this offering and excluding shares issuable
upon the exercise of the warrants to be issued to the placement
agent). |
|
|
|
Offering
price per share |
|
$6.00
per share
|
|
|
|
Use
of proceeds |
|
We
expect to receive net proceeds from this offering of approximately
$4.1 million after deducting the placement agent fees and the
estimated offering expenses payable by us.
We
intend to use $250,000 of the net proceeds from this offering to
pay the former members of Cystron pursuant to the MIPA
(approximately one-third of which is payable to the Associated
Persons), and the remaining net proceeds from this offering for
working capital and general corporate purposes. See “Use of
Proceeds” on page S-9 of this prospectus supplement.
|
|
|
|
Dividend
policy |
|
We
have never paid cash dividends on our common stock. We do not
anticipate paying any cash dividends on our common stock in the
foreseeable future but intend to retain our capital resources for
reinvestment in our business. See “Dividend Policy.”
|
|
|
|
Risk
factors |
|
Investing
in our securities involves a high degree of risk. You should read
the “Risk Factors” section on page S-5 of this prospectus
supplement and page 6 of the accompanying prospectus and in the
documents incorporated by reference in this prospectus supplement
for a discussion of factors to consider before deciding to invest
in our securities.
|
|
|
|
NASDAQ
symbol
|
|
AKER |
(1)
The number of shares of common stock to be outstanding immediately
after this offering is based on 2,945,240 shares of our common
stock outstanding as of April 6, 2020, and excludes, as of such
date:
|
● |
2,237,215
shares of common stock issuable upon the exercise of warrants
outstanding at a weighted average exercise price of $6.00 per
share; |
|
● |
40
shares of common stock issuable upon the exercise of options
outstanding at a weighted average exercise price of $236.16 per
share; |
|
● |
15,603
shares of common stock issuable upon the vesting of restricted
stock units; |
|
● |
67,959
shares of common stock available for future issuance under our
equity compensation plans; |
|
● |
211,353
shares of common stock issuable upon the conversion of the Series D
Convertible Preferred Stock; and |
|
● |
61,333
shares of common stock issuable upon exercise of the placement
agent warrants with an exercise price of $7.50 to be issued to the
placement agent as compensation in connection in this
offering. |
Unless
otherwise indicated, all information contained in this prospectus
supplement assumes no exercise of the placement agent warrants to
be issued to the placement agent in connection with this
offering.
RISK FACTORS
Investing
in our common stock involves a high degree of risk. Before you make
a decision to invest in our securities, you should consider
carefully the risks described below, together with other
information in this prospectus supplement, the accompanying
prospectus and the information incorporated by reference herein and
therein. You should also consider the risks, uncertainties and
assumptions discussed under the heading “Risk Factors” included in
our most recent annual report on Form 10-K and other reports that
we file with the SEC which are on file with the SEC and are
incorporated herein by reference, and which may be amended,
supplemented or superseded from time to time by other reports we
file with the SEC in the future. If any of the following events
actually occur, our business, operating results, prospects or
financial condition could be materially and adversely affected.
This could cause the trading price of our common stock to decline
and you may lose all or part of your investment. The risks
described below are not the only ones that we face. Additional
risks not presently known to us or that we currently deem
immaterial may also significantly impair our business operations
and could result in a complete loss of your investment. Please also
read carefully the section entitled “Cautionary Note Regarding
Forward-Looking Statements” in this prospectus
supplement.
RISKS
RELATED TO THIS OFFERING AND OUR COMMON STOCK
The market price for our common stock may be volatile, and your
investment in our common stock could decline in
value.
The
stock market in general has experienced extreme price and volume
fluctuations. The market prices of the securities of biotechnology
and specialty pharmaceutical companies, particularly companies like
ours without product revenues and earnings, have been highly
volatile and may continue to be highly volatile in the future. This
volatility has often been unrelated to the operating performance of
particular companies. The following factors, in addition to other
risk factors described in this section, may have a significant
impact on the market price of our common stock:
|
● |
announcements
of technological innovations or new products by us or our
competitors; |
|
● |
announcement
of FDA approval or disapproval of our product candidates or other
product-related actions; |
|
● |
developments
involving our discovery efforts and clinical studies; |
|
● |
developments
or disputes concerning patents or proprietary rights, including
announcements of infringement, interference or other litigation
against us or our potential licensees; |
|
● |
announcements
concerning our competitors, or the biotechnology, pharmaceutical or
drug delivery industry in general; |
|
● |
public
concerns as to the safety or efficacy of our products or our
competitors’ products; |
|
● |
changes
in government regulation of the pharmaceutical or medical
industry; |
|
● |
changes
in the reimbursement policies of third party insurance companies or
government agencies; |
|
● |
actual
or anticipated fluctuations in our operating results; |
|
● |
changes
in financial estimates or recommendations by securities
analysts; |
|
● |
developments
involving corporate collaborators, if any; |
|
● |
changes
in accounting principles; and |
|
● |
the
loss of any of our key scientific or management
personnel. |
Moreover,
on March 12, 2020, the World Health Organization declared COVID-19
to be a pandemic, and the COVID-19 pandemic has resulted in
significant financial market volatility and uncertainty in recent
weeks. A continuation or worsening of the levels of market
disruption and volatility seen in the recent past could have an
adverse effect on our ability to access capital, on our business,
results of operations and financial condition, and on the market
price of our common stock.
In
the past, securities class action litigation has often been brought
against companies that experience volatility in the market price of
their securities. Whether or not meritorious, litigation brought
against us could result in substantial costs and a diversion of
management’s attention and resources, which could adversely affect
our business, operating results and financial condition.
Our failure to meet the continued listing requirements of The
NASDAQ Capital Market could result in a delisting of our common
stock. The delisting could adversely affect the market liquidity of
our common stock and the market price of our common stock could
decrease.
Our
common stock is listed on NASDAQ. In order to maintain our listing,
we must meet minimum financial and other requirements, including
requirements for a minimum amount of capital and a minimum price
per share. We cannot assure you that we will continue to meet the
continued listing requirements in the future.
If
NASDAQ delists our common stock from trading on its exchange, due
to failure to meet its continued listing requirements, and we are
not able to list our common stock on another national securities
exchange, we expect our securities could be quoted on an
over-the-counter market. If this were to occur, we could face
significant material adverse consequences, including:
|
● |
a
limited availability of market quotations for our common
stock; |
|
● |
reduced
liquidity for our common stock; |
|
● |
a
determination that our common stock is a “penny stock” which will
require brokers trading in our common stock to adhere to more
stringent rules and possibly result in a reduced level of trading
activity in the secondary trading market for our common
stock; |
|
● |
a
limited amount of news and analyst coverage; and |
|
● |
a
decreased ability to issue additional securities or obtain
additional financing in the future. |
Our management team may invest or spend the proceeds raised in this
offering in ways with which you may not agree or which may not
yield a significant return.
Our
management will have broad discretion over the use of proceeds from
this offering. We intend to use $250,000 of the net proceeds from
this offering to pay the former members of Cystron pursuant to the
MIPA (approximately one-third of which is payable to the Associated
Persons), and the remaining net proceeds of this offering for
working capital and general corporate purposes. We have not
allocated specific amounts of the net proceeds from this offering
for any specific purpose other than the payment to the former
members of Cystron. Accordingly, subject to any agreed upon
contractual restrictions under the terms of the securities purchase
agreement, our management will have broad discretion in the
application of the net proceeds from this offering and could spend
the proceeds in ways that do not improve our results of operations
or enhance the value of our common stock. You will be relying on
the judgment of our management with regard to the use of these net
proceeds, and subject to any agreed upon contractual restrictions
under the terms of the purchase agreement, you will not have the
opportunity, as part of your investment decision, to assess whether
the proceeds are being used appropriately. It is possible that the
net proceeds will be invested in a way that does not yield a
favorable, or any, return for us. The failure of our management to
use such funds effectively could have a material adverse effect on
our business, financial condition, operating results and cash
flow.
There
may be future sales or other dilution of our equity, which may
adversely affect the market price of our common
stock.
We
may from time to time issue additional shares of common stock at a
discount from the current market price of our common stock. As a
result, our stockholders would experience immediate dilution upon
the purchase of any shares of our common stock sold at such
discount. We are generally not restricted from issuing additional
common stock, including any securities that are convertible into or
exchangeable for, or that represent the right to receive, common
stock. We cannot assure you that we will be able to sell shares or
other securities in any other offering at a price per share that is
equal to or greater than the price per share paid by investors in
this offering from time to time, and investors purchasing shares or
other securities in the future could have rights superior to
existing shareholders. The price per share at which we sell
additional common stock or other securities convertible into or
exchangeable for our common stock in future transactions may be
higher or lower than the price per share in this offering. In
addition, as opportunities present themselves, we may enter into
financing or similar arrangements in the future, including the
issuance of debt securities, preferred stock or common stock. The
market price of our common stock could decline as a result of sales
of common stock or securities that are convertible into or
exchangeable for, or that represent the right to receive, common
stock after this offering or the perception that such sales could
occur.
Future sales of our common stock, or the perception that future
sales may occur, may cause the market price of our common stock to
decline, even if our business is doing well.
Sales
by our stockholders of a substantial number of shares of our common
stock in the public market could occur in the future. These sales,
or the perception in the market that the holders of a large number
of shares of common stock intend to sell shares, could reduce the
market price of our common stock.
We do not anticipate paying dividends on our common stock and,
accordingly, stockholders must rely on stock appreciation for any
return on their investment.
We
have never declared or paid cash dividends on our common stock and
do not expect to do so in the foreseeable future. The declaration
of dividends is subject to the discretion of our Board of Directors
and limitations under applicable law, and will depend on various
factors, including our operating results, financial condition,
future prospects and any other factors deemed relevant by our Board
of Directors. You should not rely on an investment in our company
if you require dividend income from your investment in our company.
The success of your investment will likely depend entirely upon any
future appreciation of the market price of our common stock, which
is uncertain and unpredictable. There is no guarantee that our
common stock will appreciate in value.
CAUTIONARY NOTE ON FORWARD LOOKING
STATEMENTS
This prospectus supplement and the accompanying prospectus and the
documents incorporated by reference herein and therein contain
forward looking statements that involve risks and uncertainties.
All statements other than statements of historical fact contained
in this prospectus supplement and the accompanying prospectus and
the documents incorporated by reference herein and therein,
including statements regarding future events, our future financial
performance, business strategy, and plans and objectives of
management for future operations, are 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. Forward-looking statements are based on
information we have when those statements are made or our
management’s good faith belief as of that time with respect to
future events, and are subject to risks and uncertainties that
could cause actual performance or results to differ materially from
those expressed in or suggested by the forward-looking statements.
Important factors that could cause such differences include, but
are not limited to:
●
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 litigation or other proceedings to which we are subject
as described in the “Legal Proceedings” section of this Annual
Report 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;
and
● our
ability to achieve the expected benefits and costs of the
transactions related to the acquisition of Cystron,
including,
|
● |
the
timing of, and our ability to, obtain and maintain regulatory
approvals for clinical trials of our vaccine product
candidate; |
|
● |
the
timing and results of our planned clinical trials for our vaccine
product candidate; |
|
● |
the
amount of funds we require for our vaccine product candidate;
and |
|
● |
our
ability to maintain our existing license with Premas Biotech PVT
Ltd. |
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. For a more detailed
discussion of such risks and other important factors that could
cause actual results to differ materially from those in such
forward-looking statements and forward-looking information, please
see “Risk Factors” on page S-5 of this prospectus supplement and on
page 6 of the accompanying base prospectus as well as the risk
factors included in the documents incorporated herein and therein
by reference. Although we have attempted to identify important
factors that could cause actual results to differ materially from
those described in forward-looking statements and forward-looking
information, there may be other factors that cause results not to
be as anticipated, estimated or intended. There can be no assurance
that these statements will prove to be accurate as actual results
and future events could differ materially from those anticipated in
the statements. Except as required by law, we assume no obligation
to publicly update any forward-looking statements and
forward-looking information, whether as a result of new
information, future events or otherwise. We qualify all
forward-looking statements by these cautionary statements. For all
forward-looking statements, we claim the protection of the safe
harbor for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995.
INFORMATION REGARDING THE MARKET FOR
OUR COMMON STOCK
Our
common stock trades on the NASDAQ Capital Market under the symbol
“AKER.” The last reported sale price for our common stock on April
6, 2020, was $4.69 per share. As of April 6, 2020, we had
approximately 760 holders of record of our common stock. The number
of record holders was determined from the records of our transfer
agent and does not include beneficial owners of common stock whose
shares are held in the names of various security brokers, dealers,
and registered clearing agencies.
DIVIDEND POLICY
We
have not declared or paid any cash or other dividends on our
capital stock, and we do not expect to declare or pay any cash or
other dividends in the foreseeable future. We expect to retain our
future earnings, if any, for use in the operation and expansion of
our business. Subject to the foregoing, the payment of cash
dividends in the future, if any, will be at the discretion of our
board of directors and will depend upon such factors as earnings
levels, contractual restrictions, capital requirements, our overall
financial condition and any other factors deemed relevant by our
board of directors.
USE OF PROCEEDS
We
estimate that the net proceeds from this offering will be
approximately $4.1 million, after deducting the placement agent
fees and estimated offering expenses payable by us.
We
intend to use $250,000 of the net proceeds from this offering to
pay the former members of Cystron, pursuant to the MIPA
(approximately one-third of which is payable to the Associated
Persons) and, the remaining net proceeds from offering for working
capital and general corporate purposes.
Except
as noted above, we have not determined the amounts we plan to spend
on any of the areas listed above or the timing of these
expenditures. As a result, our management will have broad
discretion to allocate the net proceeds from this
offering.
PLAN OF DISTRIBUTION
We
engaged H.C. Wainwright & Co., LLC to act as our exclusive
placement agent to solicit offers to purchase the shares of our
common stock offered by this prospectus supplement and the
accompanying base prospectus. Wainwright is not purchasing or
selling any such shares, nor is it required to arrange for the
purchase and sale of any specific number or dollar amount of such
shares, other than to use its “reasonable best efforts” to arrange
for the sale of such shares by us. Therefore, we may not sell all
of the shares of our common stock being offered. The terms of this
offering were subject to market conditions and negotiations between
us, Wainwright and prospective investors. Wainwright will have no
authority to bind us by virtue of the engagement letter. We have
entered into securities purchase agreements directly with certain
institutional and accredited investors who have agreed to purchase
shares of our common stock in this offering. We will only sell to
investors who have entered into securities purchase
agreements.
Delivery
of the shares of common stock offered hereby is expected to take
place on or about April 8, 2020, subject to satisfaction of certain
customary closing conditions.
We
have agreed to pay the placement agent (i) a total cash fee equal
to 7.5% of the aggregate gross proceeds of this offering, (ii) a
management fee equal to 1.0% of the aggregate gross proceeds of
this offering, (iii) a non-accountable expense allowance of
$50,000, and (iv) $12,900 for the clearing expenses of the
placement agent in connection with this offering.
We
estimate the total expenses of this offering paid or payable by us
will be approximately $137,400. After deducting the fees due to the
placement agent and our estimated expenses in connection with this
offering, we expect the net proceeds from this offering will be
approximately $4.1 million.
Placement
Agent Warrants
In
addition, we have agreed to issue to the placement agent, at the
closing of this offering, warrants to purchase 8.0% of the number
of shares of our common stock sold in this offering (or warrants to
purchase up to 61,333 shares of our common stock), at an exercise
price of $7.50 per share (representing 125% of the offering price
per share in this offering). Neither the placement agent’s warrants
nor the shares of our common stock issuable upon exercise thereof
are being registered hereby.
The
placement agent warrants will be exercisable immediately and for
five years from the effective date of this offering. Pursuant to
Rule 5110(g) of the Financial Industry Regulatory Authority, or
FINRA, the placement agent’s warrants and any shares issued upon
exercise thereof will not be sold, transferred, assigned, pledged
or hypothecated, or be the subject of any hedging, short sale,
derivative, put or call transaction that would result in the
effective economic disposition of the securities by any person, for
a period of 180 days immediately following the date of
effectiveness or commencement of sales in this offering, except:
(i) the transfer of any security by operation of law or by reason
of our reorganization; (ii) the transfer of any security to any
FINRA member firm participating in the offering and the officers or
partners thereof, if all securities so transferred remain subject
to the lock-up restriction set forth above for the remainder of the
time period; (iii) the transfer of any security if the aggregate
amount of our securities held by the placement agent or related
persons do not exceed 1% of the securities being offered; (iv) the
transfer of any security that is beneficially owned on a pro-rata
basis by all equity owners of an investment fund, provided that no
participating member manages or otherwise directs investments by
the fund and the participating members in the aggregate do not own
more than 10% of the equity in the fund; or (v) the exercise or
conversion of any security, if all securities remain subject to the
lock-up restriction set forth above for the remainder of the time
period.
Indemnification
We
have agreed to indemnify the placement agent against certain
liabilities, including liabilities under the Securities Act of
1933, as amended (the “Securities Act”) and liabilities arising
from breaches of representations and warranties contained in our
engagement letter with the placement agent. We have also agreed to
contribute to payments the placement agent may be required to make
in respect of such liabilities.
In
addition, we will indemnify the purchaser of shares of our common
stock in this offering against liabilities arising out of or
relating to (i) any breach of any of the representations,
warranties, covenants or agreements made by us in the securities
purchase agreement or related documents or (ii) any action
instituted against a purchaser by a third party (other than a third
party who is affiliated with such purchaser) with respect to the
securities purchase agreement or related documents and the
transactions contemplated thereby, subject to certain
exceptions.
Right
of First Refusal
We
have also granted Wainwright, subject to certain exceptions, a
right of first refusal for a period of nine months following the
closing of this offering to act (a) as our exclusive financial
advisor for disposition or acquisition of business units or acquire
any of our outstanding securities or make any exchange or tender
offer or enter into a merger, consolidation or other business
combination or any recapitalization, reorganization, restructuring
or other similar transactions and we decide to retain a financial
advisor for such transaction and (b) as sole book-running manager,
sole underwriter, sole placement agent or sole agent for each and
every future debt financing or refinancing and public or private
equity offering by us or any of our successors or
subsidiaries.
Tail
Financing Payments
We
have also agreed to pay Wainwright, subject to certain exceptions,
a tail fee equal to the cash and warrant compensation in this
offering, if any investor, who was contacted or introduced to the
Company by Wainwright during the term of its engagement or
introduced to us by Wainwright during the term of its engagement,
provides us with capital in any public or private offering or other
financing or capital raising transaction during the 12-month period
following the expiration or termination of the engagement
letter.
Other
Relationships
From
time to time, Wainwright may provide in the future various
advisory, investment and commercial banking and other services to
us in the ordinary course of business, for which they have received
and may continue to receive customary fees and commissions.
Approximately one-third of Cystron was owned by two entities, each
of which is controlled by an associated person of the Placement
Agent and therefore were paid approximately one-third of the
consideration that we paid in connection with our acquisition of
Cystron at closing and are entitled to the same percentage of any
future consideration under the MIPA. The Associated Persons
beneficially own, in the aggregate, less than 4.9% of our
outstanding common stock as of the date of this prospectus
supplement. In addition, the Placement Agent acted as our placement
agent for the public offering we consummated in December 2019, for
which it received compensation. However, except as disclosed in
this prospectus supplement, we have no present arrangements with
Wainwright for any further services.
Regulation
M Compliance
The
placement agent may be deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act, and any
commissions received by it and any profit realized on the sale of
our shares of common stock offered hereby by it while acting as
principal might be deemed to be underwriting discounts or
commissions under the Securities Act. The placement agent will be
required to comply with the requirements of the Securities Act and
the Exchange Act, including, without limitation, Rule 10b-5 and
Regulation M under the Exchange Act. These rules and regulations
may limit the timing of purchases and sales of our securities by
the placement agent. Under these rules and regulations, the
placement agent may not (i) engage in any stabilization activity in
connection with our securities; and (ii) bid for or purchase any of
our securities or attempt to induce any person to purchase any of
our securities, other than as permitted under the Exchange Act,
until they have completed their participation in the
distribution.
Trading
Market
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “AKER.”
LEGAL MATTERS
The validity of the securities offered by this prospectus
supplement has been passed upon for us by Haynes and Boone, LLP,
New York, New York.
EXPERTS
The
consolidated financial statements of Akers Biosciences, Inc. and
subsidiaries as of December 31, 2019 and December 31, 2018, and for
each of the two years in the period ended December 31, 2019,
incorporated in this prospectus supplement by reference to the
Annual Report on Form 10-K for the year ended December 31, 2019,
have so incorporated in reliance on the report of Morison Cogen
LLP, independent registered public accounting firm, and upon the
authority of said firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE
INFORMATION;
INFORMATION
INCORPORATED BY REFERENCE
Available
Information
We
have filed with the SEC a registration statement on Form S-3 under
the Securities Act, of which this prospectus supplement forms a
part. The rules and regulations of the SEC allow us to omit from
this prospectus supplement and the accompanying prospectus certain
information included in the registration statement. For further
information about us and the securities we are offering under this
prospectus supplement, you should refer to the registration
statement and the exhibits and schedules filed with the
registration statement. With respect to the statements contained in
this prospectus supplement and the accompanying prospectus
regarding the contents of any agreement or any other document, in
each instance, the statement is qualified in all respects by the
complete text of the agreement or document, a copy of which has
been filed as an exhibit to the registration statement.
We
file reports, proxy statements and other information with the SEC.
The SEC maintains a website that contains reports, proxy and
information statements and other information regarding issuers that
file electronically with the SEC. The address of the SEC’s website
is www.sec.gov.
We
make available free of charge on or through our website at
www.AkersBio.com, our Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and amendments to
those reports filed or furnished pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended, as soon as
reasonably practicable after we electronically file such material
with or otherwise furnish it to the Securities and Exchange
Commission. The information on, or accessible through, our website
is not part of, and is not incorporated into, this prospectus
supplement or the accompanying prospectus and should not be
considered part of this prospectus supplement or the accompanying
prospectus.
Incorporation
by Reference
The
SEC’s rules allow us to “incorporate by reference” information into
this prospectus supplement, which means that we can disclose
important information to you by referring you to another document
filed separately with the SEC. The information incorporated by
reference is deemed to be part of this prospectus supplement and
the accompanying prospectus, and subsequent information that we
file with the SEC will automatically update and supersede that
information. Any statement contained in a previously filed document
incorporated by reference will be deemed to be modified or
superseded for purposes of this prospectus supplement and
accompanying prospectus to the extent that a statement contained in
this prospectus supplement or the accompanying prospectus modifies
or replaces that statement.
We
incorporate by reference our documents listed below and any future
filings made by us with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act in this prospectus supplement, between
the date of this prospectus supplement and the termination of the
offering of the securities described in this prospectus supplement.
We are not, however, incorporating by reference any documents or
portions thereof, whether specifically listed below or filed in the
future, that are not deemed “filed” with the SEC, including our
Compensation Committee report and performance graph or any
information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or
related exhibits furnished pursuant to Item 9.01 of Form
8-K.
This
prospectus supplement and the accompanying prospectus incorporate
by reference the documents set forth below that have previously
been filed with the SEC:
|
● |
our
Annual Report on Form 10-K for the year ended December 31, 2019,
filed with the SEC on March 24, 2020; |
|
● |
Current
Reports on Form 8-K filed on with the SEC on January 6, 2020,
January 31, 2020, March 24, 2020, April 7, 2020 and April 8, 2020;
and |
|
● |
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
reports and other documents we subsequently file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of this offering, including, but excluding any
information furnished to, rather than filed with, the SEC, will
also be incorporated by reference into this prospectus supplement
and the accompanying prospectus and deemed to be part of this
prospectus supplement and the accompanying prospectus from the date
of the filing of such reports and documents.
You
should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to
provide you with different information. You should not assume that
the information in this prospectus supplement is accurate as of any
date other than the date of this prospectus supplement or the date
of the documents incorporated by reference in this prospectus
supplement.
You
may request a free copy of any of the documents incorporated by
reference in this prospectus supplement and the accompanying
prospectus (other than exhibits, unless they are specifically
incorporated by reference in the documents) by writing or
telephoning us at the following address:
Akers
Biosciences, Inc.
201 Grove Road, Thorofare
New Jersey USA 08086
(856) 848-8698
Attn:
Investor Relations
You
may also access the documents incorporated by reference in this
prospectus through our website at www.AkersBio.com. Except for the
specific incorporated documents listed above, no information
available on or through our website shall be deemed to be
incorporated in this prospectus or the registration statement of
which it forms a part.
Prospectus

$25,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
DEBT SECURITIES
UNITS
|
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common
stock; |
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preferred
stock; |
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warrants
to purchase our securities; |
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secured
or unsecured debt securities consisting of notes, debentures or
other evidences of indebtedness which may be senior debt
securities, senior subordinated debt securities or subordinated
debt securities, each of which may be convertible into equity
securities; or |
|
● |
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 April 7, 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:
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changes in the market acceptance of our products
and services; |
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challenges we may face in identifying, acquiring
and operating new business opportunities; |
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the outcome of ongoing litigation or other
proceedings or which we may become subject to in the
future; |
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increased levels of competition; |
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changes in political, economic or regulatory
conditions generally and in the markets in which we
operate; |
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our relationships with our key
customers; |
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adverse conditions in the industries in which our
customers operate; |
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our ability to retain and attract senior
management and other key employees; |
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our ability to quickly and effectively respond to
new technological developments; |
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delisting of our common stock from the NASDAQ
capital market; |
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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; |
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our ability to achieve the expected benefits and
costs of the transactions related to the acquisition of Cystron
Biotech, LLC; and |
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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:
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we have a
history of operating losses and we cannot guarantee that we can
ever achieve sustained profitability; |
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● |
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; |
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● |
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; |
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● |
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; |
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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; |
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● |
the
Company’s business would suffer if the Company were unable to
acquire adequate sources of supply; |
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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 |
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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:
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a block
trade in which a broker-dealer will attempt to sell as agent, but
may position or resell a portion of the block, as principal, in
order to facilitate the transaction; |
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● |
purchases by
a broker-dealer, as principal, and resale by the broker-dealer for
its account; or |
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● |
ordinary
brokerage transactions and transactions in which a broker solicits
purchasers. |
A prospectus
supplement or supplements with respect to each series of securities
will describe the terms of the offering, including, to the extent
applicable:
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● |
the terms of
the offering; |
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● |
the name or
names of the underwriters or agents and the amounts of securities
underwritten or purchased by each of them, if any; |
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● |
the public
offering price or purchase price of the securities or other
consideration therefor, and the proceeds to be received by us from
the sale; |
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● |
any delayed
delivery requirements; |
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● |
any
over-allotment options under which underwriters may purchase
additional securities from us; |
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any
underwriting discounts or agency fees and other items constituting
underwriters’ or agents’ compensation; |
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● |
any
discounts or concessions allowed or re-allowed or paid to dealers;
and |
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● |
any
securities exchange or market on which the securities may be
listed. |
The offer
and sale of the securities described in this prospectus by us, the
underwriters or the third parties described above may be effected
from time to time in one or more transactions, including privately
negotiated transactions, either:
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● |
at a fixed
price or prices, which may be changed; |
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● |
in an “at
the market” offering within the meaning of Rule 415(a)(4) of the
Securities Act; |
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● |
at prices
related to such prevailing market prices; or |
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at
negotiated prices. |
Only
underwriters named in the prospectus supplement will be
underwriters of the securities offered by the prospectus
supplement.
Underwriters and
Agents; Direct Sales
If
underwriters are used in a sale, they will acquire the offered
securities for their own account and may resell the offered
securities from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. We may offer the
securities to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a
syndicate.
Unless the
prospectus supplement states otherwise, the obligations of the
underwriters to purchase the securities will be subject to the
conditions set forth in the applicable underwriting agreement.
Subject to certain conditions, the underwriters will be obligated
to purchase all of the securities offered by the prospectus
supplement, other than securities covered by any over-allotment
option. Any public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may change from time to
time. We may use underwriters with whom we have a material
relationship. We will describe in the prospectus supplement, naming
the underwriter, the nature of any such relationship.
We may sell
securities directly or through agents we designate from time to
time. We will name any agent involved in the offering and sale of
securities, and we will describe any commissions we will pay the
agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the
conditions to these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus
supplement.
Dealers
We may sell
the offered securities to dealers as principals. The dealer may
then resell such securities to the public either at varying prices
to be determined by the dealer or at a fixed offering price agreed
to with us at the time of resale.
Institutional
Purchasers
We may
authorize agents, dealers or underwriters to solicit certain
institutional investors to purchase offered securities on a delayed
delivery basis pursuant to delayed delivery contracts providing for
payment and delivery on a specified future date. The applicable
prospectus supplement or other offering materials, as the case may
be, will provide the details of any such arrangement, including the
offering price and commissions payable on the
solicitations.
We will
enter into such delayed contracts only with institutional
purchasers that we approve. These institutions may include
commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable
institutions.
Indemnification;
Other Relationships
We may
provide agents, underwriters, dealers and remarketing firms with
indemnification against certain civil liabilities, including
liabilities under the Securities Act, or contribution with respect
to payments that the agents or underwriters may make with respect
to these liabilities. Agents, underwriters, dealers and remarketing
firms, and their affiliates, may engage in transactions with, or
perform services for, us in the ordinary course of business. This
includes commercial banking and investment banking
transactions.
Market-Making;
Stabilization and Other Transactions
There is
currently no market for any of the offered securities, other than
our common stock, which is quoted on the NASDAQ Capital Market. If
the offered securities are traded after their initial issuance,
they may trade at a discount from their initial offering price,
depending upon prevailing interest rates, the market for similar
securities and other factors. While it is possible that an
underwriter could inform us that it intends to make a market in the
offered securities, such underwriter would not be obligated to do
so, and any such market-making could be discontinued at any time
without notice. Therefore, no assurance can be given as to whether
an active trading market will develop for the offered securities.
We have no current plans for listing of the debt securities,
preferred stock 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:
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common
stock; |
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preferred
stock; |
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warrants to
purchase our securities; |
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secured or
unsecured debt securities consisting of notes, debentures or other
evidences of indebtedness which may be senior debt securities,
senior subordinated debt securities or subordinated debt
securities, each of which may be convertible into equity
securities; or |
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units
comprised of, or other combinations of, the foregoing
securities. |
We may issue
the debt securities 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:
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the title
and stated value; |
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the number
of shares we are offering; |
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the
liquidation preference per share; |
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the purchase
price; |
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● |
the dividend
rate, period and payment date and method of calculation for
dividends; |
|
● |
whether
dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate; |
|
● |
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; |
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● |
any change
in the right of the trustee or the requisite holders of debt
securities to declare the principal amount thereof due and payable
because of an event of default; |
|
● |
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.
766,667
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AKERS
BIOSCIENCES, INC.
Common
Stock
PROSPECTUS
H.C.
Wainwright & Co.
April
7, 2020
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