Abvc Biopharma, Inc 10-K/A, filed Mar 15, 2024
Abvc Biopharma, Inc. (ABVC)
About this 10-K/A
Abvc Biopharma, Inc filed this 10-K/A on March 15, 2024, covering the fiscal year ended December 31, 2023.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
Amendment No.1
For the fiscal year ended:
OR
For the transition period from to
Commission file number:
(Exact name of Company in its charter)
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification) |
(Address of principal executive offices, including zip code)
Registrant’s Telephone number, including
area code:
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol | Name of each exchange on which registered | ||
| The |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a
well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐
Indicate by check mark if the registrant is not
required to file reports pursuant to Section 13 or 15(d) of the Exchange Act. Yes ☐
Indicate by check mark whether the registrant
(1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act during the preceding 12 months (or
such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for at
least the part 90 days.
Indicate by check mark whether the registrant
has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (section 232.405
of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |
| ☒ | Smaller Reporting Company | |||
| Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant
has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial
reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or
issued its audit report.
If securities are registered pursuant to Section
12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction
of an error to previously issued financial statements.
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant
is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No
The aggregate market value of the common stock
held by non-affiliates of the registrant, based on the closing price of registrant’s common stock as quoted on the Nasdaq Stock
Market as of June 30, 2023 was $
As of March 12, 2024, the registrant had
DOCUMENTS INCORPORATED BY REFERENCE
| Auditor Name: | Auditor Location: | Auditor Firm ID: | ||
EXPLANATORY NOTE
ABVC BioPharma, Inc. (the “Company”) is filing this Amendment No. 1 to Annual Report on Form 10-K (the “Amended 10-K”) to amend its Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the Securities and Exchange Commission (“SEC”) on March 13, 2024 (the “Original 10-K”). The sole purpose of this Amended 10-K is to file Exhibit 19.1 and Exhibit 97. Accordingly, this Amended 10-K consists solely of the cover page, this explanatory note, the exhibit index and the exhibits filed herewith.
The Company has made no attempt in this Amended 10-K to modify or update the disclosures presented in the Original 10-K other than as noted in the previous paragraph. Except as noted above, this Amended 10-K does not reflect events occurring after the filing of the Original 10-K. Accordingly, this Amended 10-K should be read in conjunction with the Original 10-K, and the Company’s other filings with the SEC subsequent to the filing of the Original 10-K, including any amendments thereto.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
(a)(1) List of Financial statements included in Part II hereof
| Report of Independent Registered Public Accounting Firm (PCAOB ID 1171) | F-2 |
| Balance Sheets as of December 31, 2023 | F-3 |
| Statements of Operations for the years ended December 31, 2023 and 2022 | F-4 |
| Statements of Stockholders’ Equity (Deficit) for the years ended December 31, 2023 and 2022 | F-6 |
| Statements of Cash Flows for the years ended December 31, 2023 and 2022 | F-5 |
| Notes to the Financial Statements | F-7 |
Financial Statements are not included in this Exhibits Only 10-K/A
(a)(2) List of Financial Statement schedules included in Part IV hereof: None.
(a)(3) Exhibits
The following exhibits are included herewith:
1
| + | Filed herewith |
| ++ | Furnished herewith |
| (1) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on February 16, 2016. |
| (2) | Incorporated by reference to Exhibit 3.01 to the Company’s Form SB-2 filed on June 28, 2002 |
| (3) | Incorporated by reference to Exhibit 3.6 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2021. |
2
| (4) | Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed on March 28, 2016. |
| (5) | Incorporated by reference to Exhibit 3.4 to the Company’s Form S-1, filed on September 13, 2016. |
| (6) | Incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K, filed on April 7, 2020 |
| (7) | Incorporated by reference to Exhibit 4.1 the Company’s Current Report on Form 8-K, filed on April 24, 2020 |
| (8) | Incorporated by reference to Exhibit 10.2 the Company’s Current Report on Form 8-K, filed on February 16, 2016. |
| (9) | Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed on June 9, 2016. |
| (10) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on June 21, 2022. |
| (11) | Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed on February 22, 2017. |
| (12) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on July 24, 2017. |
| (13) | Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed on May 30, 2017. |
| (14) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on September 20, 2017. |
| (15) | Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed on September 20, 2017. |
| (16) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on February 1, 2019. |
| (17) | Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on February 1, 2019. |
| (18) | Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed on February 1, 2019. |
| (19) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on April 24, 2020. |
| (20) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed April 14, 2020. |
| (21) | Incorporated by reference to Exhibit 10.15 to the Company’s Annual Report on Form 10-K, filed May 15, 2020. |
| (22) | Incorporated by reference to Exhibit 10.16 to the Company’s Annual Report on Form 10-K, filed May 15, 2020 |
| (23) | Incorporated by reference to Exhibit 14.1 to the Company’s Amendment No.1 to Form S-1, filed on November 14, 2016. |
| (24) | Incorporated by reference to Exhibit 16.1 to the Company’s Current Report on Form 8-K, filed on October 21, 2022. |
3
| (25) | Incorporated by reference to Exhibit 1.1 to the Company’s Current Report on Form 8-K, filed May 12, 2022. |
| (26) | Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on October 8, 2021. |
| (27) | Incorporated by reference to Exhibit 4.2 to the Company’s Annual Report on Form 10-K, filed March 16, 2021. |
| (28) | Incorporated by reference to Exhibit 10.17 to the Company’s Annual Report on Form 10-K, filed March 16, 2021. |
| (29) | Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on June 21, 2022. |
| (30) | Incorporated by reference to the Company’s Current Report on Form 8-K, filed on February 24, 2023. |
| (31) | Incorporated by reference to the Company’s Current Report on Form 8-K, filed on June 23, 2023. |
| (32) | Incorporated by reference to the Company’s Current Report on Form 8-K, filed on November 20, 2023. |
| (33) | Incorporated by reference to the Company’s Current Report on Form 8-K, filed on January 17, 2024. |
| (34) | Incorporated by reference to the Amendment No.1 to Form S-1, filed on February 9, 2024. |
| (35) | Incorporated by reference to the Company’s Annual Report on Form 10-K/A, filed June 6, 2022 |
| (36) | Incorporated by reference to the Company’s Current Report on Form 8-K, filed on July 24, 2023. |
| (37) | Incorporated by reference to the Company’s Current Report on Form 8-K, filed on January 17, 2024. |
| (38) | Incorporated by reference to the Company’s Current Report on Form 8-K, filed on February 29, 2024. |
| (39) | Incorporated by reference to the Company’s Current Report on Form 8-K, filed on February 29, 2024. |
| (40) | Incorporated by reference to the Company’s Annual Report on Form 10-K, filed on March 13, 2024. |
Item 16. Form 10-K Summary
Not applicable.
4
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on March 14, 2024.
| ABVC BioPharma, Inc. | ||
| By: | /s/ Uttam Patil | |
| Uttam Patil | ||
| Chief Executive Officer (Principal Executive Officer) | ||
| By: | /s/ Leeds Chow | |
| Leeds Chow | ||
| Chief Financial Officer (Principal Financial Officer) | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated:
| Signature | Title | Date | ||
| /s/ Uttam Patil | Chief Executive Officer (Principal Executive Officer) | March 14, 2024 | ||
| Uttam Patil | ||||
| /s/ Leeds Chow | Chief Financial Officer (Principal Financial Officer) | March 14, 2024 | ||
| Leeds Chow | ||||
| /s/ Eugene Jiang | Chairman of the Board of Directors | March 14, 2024 | ||
| Eugene Jiang | ||||
| /s/ Yen-Hsin Chou | Director | March 14, 2024 | ||
| Yen-Hsin Chou | ||||
| /s/ Hsin-Hui Miao | Director | March 14, 2024 | ||
| Hsin-Hui Miao | ||||
| /s/ Tsang-Ming Jiang | Director | March 14, 2024 | ||
| Tsang-Ming Jiang | ||||
| /s/ Shuling Jiang | Director | March 14, 2024 | ||
| Shuling Jiang | ||||
| /s/ Norimi Sakamoto | Director | March 14, 2024 | ||
| Norimi Sakamoto | ||||
| /s/ Tsung-Shann Jiang | Director | March 14, 2024 | ||
| Tsung-Shann Jiang | ||||
| /s/ Chang-Jen Jiang | Director | March 14, 2024 | ||
| Chang-Jen Jiang | ||||
| /s/ Yoshinobu Odaira | Director | March 14, 2024 | ||
| Yoshinobu Odaira | ||||
| /s/ Che-Wei Hsu | Director | March 14, 2024 | ||
| Che-Wei Hsu | ||||
| /s/ Yu-Min (Francis) Chung | Director | March 14, 2024 | ||
| Yu-Min (Francis) Chung |
5
Exhibit 19.1
ABVC BIOPHARMA, INC.
INSIDER TRADING POLICY
Effective December 1, 2023
| A. | INTRODUCTION |
ABVC BIOPHARMA, INC., a Nevada corporation (the “Company”), recognizes that its directors, officers, and other employees may invest from time to time in the common stock of the Company. However, all of the Company’s employees must exercise caution to conduct these transactions in compliance with applicable securities laws. In particular, all employees must avoid trading in the Company’s securities while in possession of material, non-public information about the Company.
This policy governs trading in the Company’s securities by the following persons (“Covered Persons”): all executive officers, directors, employees, and agents of the Company, and its subsidiaries, and the Immediate Family Members (as defined below) of executive officers, directors and employees of the Company. The policy is designed to assist persons in possession of material non- public information (so-called “insiders”) in determining when trading in the Company’s securities is appropriate. The policy also restricts trading by Covered Persons in certain circumstances in order to avoid any transaction that might result in a violation of applicable securities laws. These guidelines cover not only the purchase and sale of common stock, but also the purchase and sale of options, warrants, puts, calls, and other convertible securities.
These guidelines also address additional obligations of the following persons under Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Section 16 Insiders”): the Company’s directors, executive officers and holders of more than 10% of the outstanding shares of any class of the Company’s securities registered under Section 12 of the Exchange Act. Section 16(b) requires Section 16 Insiders to disgorge “short-swing” profits realized from the purchase and sale of the Company’s securities within a six-month period. Section 16(a) imposes extensive reporting obligations.
| B. | WHAT IS MATERIAL, NON-PUBLIC INFORMATION? |
This policy relates primarily to “material, non-public information” about the Company. Material information is information that could be expected to affect the investment decision of a reasonable investor or to alter significantly the market price of the Company’s common stock or other securities. Examples of such information include proposed mergers or acquisitions, changes in dividends, changes in expected operating results (favorable or unfavorable), quarterly and annual earnings announcements, and any other important business developments.
Material information is “non-public” if it has not been widely disseminated to the public. Such dissemination occurs when the information is reported in the Company’s annual or quarterly reports, is the subject of a prior widely-disseminated press release, or is widely reported in the media through market letters, analysts’ reports, statistical services or other means.
| C. | THE COMPANY’S BASIC POLICY |
The Company’s basic policy regarding the use of material, non-public information is as follows:
| 1. | No Unauthorized Disclosure of Material Non-Public Information |
All Covered Persons have an obligation to maintain the confidentiality of material information about the Company and its activities as well as any other material non-public information obtained, including, but not limited to, non-public material information relating to other companies obtained in the course of their employment and/or affiliation with the Company. Covered Persons may not disclose any material, non-public information to third parties, including friends, relatives, or acquaintances. Such information may only be disclosed to the Company’s other employees and agents who have a clear right to know the information in order to fulfill their responsibilities to the Company.
Any Covered Person who participates in an unauthorized disclosure of material information will be subject to disciplinary action by the Company, and will be liable to the Company for any losses caused by such disclosure.
In order to avoid any unintentional disclosures of material information, all Covered Persons (except the Company’s Spokesperson, as defined below) should avoid discussions with third parties with respect to Company matters that might be considered material and confidential. Inquiries received from third parties relating to Company information that may be material or confidential should be referred to the Company’s Spokesperson. See “Compliance With SEC Regulation FD,” below. If an employee believes he or she has inadvertently disclosed material confidential information to a third party, he or she should contact the Chief Executive Officer immediately.
| 2. | No Trading on Material Information Prior To Disclosure |
No Covered Person of the Company may trade in the Company’s securities if he or she is in possession of material, non-public information, except for: (a) the exercise of any stock option previously granted to such person by the Company (but not the sale of the underlying common stock); or (b) any sale of securities to, or purchase of securities from, the Company that either would not constitute a purchase or sale under Section 16(b) of the Exchange Act or would constitute an exempt transaction under Section 16(b); or (c) any transaction with the Company that has been approved by the Board of Directors (the “Board”); or (d) purchases or sales made pursuant to a Qualified Trading Program (as defined in Section C.4. below). The transactions described in subsections (a) through (d) above are referred to herein as “Exempt Trades”.
A Covered Person who uses material, non-public information to trade in the Company’s securities will violate civil and criminal provisions of federal securities laws. This liability may also extend to outsiders who receive such information and use it to trade in the Company’s securities. If the Covered Person is uncertain whether the information is material, or whether it has been disclosed to the public, he or she must discuss the matter with the Company’s Chief Executive Officer, President or Chief Operating Officer.
| 3. | No Trading on Material Information Until Two Trading Days After Disclosure |
Except for Exempt Trades, no Covered Person may trade in the Company’s securities until two trading days after the date of the public release of the material information by the Company. This delay is necessary to permit the dissemination of this information to the investing public.
| 4. | Qualified Trading Program |
Any Covered Person may request that a written contract, instruction or plan for the purchase or sale of Company securities (a “Trading Program”) be designated a “Qualified Trading Program” by submitting such trading program to the Chief Operating Officer, or such other officer as the Board may determine from time to time (each, a “Designated Officer”), together with a certification that such Covered Person was not aware of any material, non-public information concerning the Company or the Company securities at the time of entering into such Trading Program (other than information which will be made public before the execution of the first transaction thereunder). Upon receipt of such a request, the Designated Officer shall determine whether to designate the Trading Program as a Qualified Trading Program for purposes of this policy, taking into account all factors that he or she shall deem relevant in his or her sole discretion (after consultation with the Company’s legal counsel), including whether the Trading Program appears on its face to be responsive to the requirements of SEC Rule 10b5-1. A Trading Program shall cease to be a Qualified Trading Program for purposes of this policy: (a) at any time that the Designated Officer so determines;(b) if there is a deviation in any transaction from the terms specified in such Trading Program; or (c) if the person entering into such Trading Program hedges or seeks to offset the consequence of any transaction pursuant to such Trading Program.
2
| 5. | Prohibited Transactions |
The following transactions in the Company’s securities are prohibited:
| (a) | Short-term trading. Section 16 Insiders who purchase Company securities may not sell any Company securities of the same class for at least six months after the purchase in violation of Section 16(b) of the Exchange Act; |
| (b) | Short sales. Covered Persons may not sell the Company’s securities short; |
| (c) | Options trading. Covered Persons may not buy or sell puts or calls or other derivative securities on the Company’s securities, unless advance approval is obtained from the Designated Officer; |
| (d) | Trading on margin or pledging. Covered Persons may not hold Company securities in a margin account or pledge Company securities as collateral for a loan, unless advance approval is obtained from the Designated Officer; and |
| (e) | Hedging. Covered Persons may not enter into hedging or monetization transactions or similar arrangements with respect to Company securities. |
| D. | OTHER TRADING RESTRICTIONS |
In addition to the Company’s basic policy, the Company has adopted the following specific trading restrictions in order to implement its policy. These restrictions do not apply to Exempt Trades, as described in Section C.2. above.
| 1. | Trading Restrictions Based on Quarterly Results |
No Covered Person may trade in the Company’s securities during the period starting fifteen (15) calendar days prior to the filing of the 10-Q until two (2) trading days after filing the 10-Q (10-Q filings). This restriction applies even if the insider is not in possession of material, non- public information.
| 2. | Trading Restrictions Based on Annual Results |
No Covered Person may trade in the Company’s securities during the period starting forty-five (45) calendar days prior to the filing of the 10-K until two (2) trading days after filing the 10-K (10-K filing). This restriction applies even if the insider is not in possession of material, non-public information.
| 3. | Trading Restrictions Related to Proxy Statements and Registration Statements |
No Covered Person may trade in the Company’s securities for a period of two trading days after any material filings made by the Company with the Securities and Exchange Commission. Such filings might include proxy statements, registration statements, and Current Reports on Form 8-K.
| 4. | Trading Restrictions Related to General News Release |
No Covered Person may trade in the Company’s securities for a period of two trading days after any press release of a general nature (i.e., regarding new contracts, plant openings, staff appointments, etc.).
3
| 5. | Trading Restrictions Announced by the Company |
No Covered Person may trade in the Company’s securities during any restricted period announced by the Company. The Company may make announcements from time to time due to pending negotiations regarding acquisition and financing, or other material corporate developments that have not yet been disclosed to the public.
| 6. | Trading Restrictions Relating To Pension Plans |
Directors and executive officers of the Company are prohibited from, trading in the Company’s equity securities during a blackout period imposed under an “individual account” retirement or pension plan of the Company, during which at least 50% of the plan participants are unable to purchase, sell or otherwise acquire or transfer an interest in equity securities of the Company, due to a temporary suspension of trading by the Company or the plan fiduciary.
| E. | CERTAIN IMMEDIATE FAMILY MEMBERS ARE SUBJECT TO POLICY |
This policy shall apply to purchases and sales of Company securities by or for the account of an Immediate Family Member of an executive officer or director of the Company to the same extent as to such transactions by or for the account of such officer or director. As used in this policy, “Immediate Family Member” means: (a) any parent, child, spouse or sibling of an executive officer or director of the Company, other than adult family members who do not live with or depend financially on such officer or director and who exercise independent control over their personal investment decisions; (b) any trust or similar arrangement for the benefit of an executive officer or director or a person who is otherwise an Immediate Family Member; and (c) any personal charitable foundation or similar arrangement established by an executive officer or director or a person who is otherwise an Immediate Family Member.
| F. | SUMMARY |
The purpose of these guidelines is to assist Covered Persons in developing an investment strategy that will satisfy their personal needs and comply with applicable securities laws. Its overriding goal is to establish fairness for all segments of the investing public, particularly the shareholders of the Company, and to avoid the appearance of any conflict of interest.
The guidelines are summarized as follows:
| Situation | Policy | |
| Material information | No trading permitted prior to disclosure | |
| Material information after disclosure | No trading until two trading days after disclosure | |
| First, Second and Third Fiscal Quarters | No trading starting fifteen (15) calendar days prior to the filing of the 10-Q until two (2) trading days after filing the 10-Q (10-Q filings). | |
| Fiscal year | No trading starting forty-five (45) calendar days prior to the filing of the 10-K until two (2) trading days after filing the 10-K (10-K filing). | |
| Securities filings | No trading for two trading days after filing | |
| General news releases | No trading for two trading days after the release | |
| Restricted trading periods |
No trading without written permission of Chief Executive Officer or Chief Operating Officer |
4
| G. | SHORT SWING PROFITS |
The Company’s Section 16 Insiders are also subject to Section 16(b) of the Exchange Act and the rules promulgated thereunder. Section 16(b) provides for disgorgements of profits by these persons in connection with sales and purchases of the Company’s equity securities within a six-month period. The rules under Section 16(b) are very complicated and often are broadly construed. If you have any questions regarding its application, you should promptly discuss them with the Company’s Chief Operating Officer and/or outside legal counsel.
Under Section 16(a) of the Exchange Act, most changes in a Section 16 Insider’s beneficial ownership of equity securities of the Company must be filed electronically with the SEC on Form 4 before the end of the second business day following the day on which a transaction resulting in a change of beneficial ownership is executed. In addition to purchases and sales, the two-day requirement applies to many transactions that formerly were reportable after the end of the Company’s fiscal year on Form 5, including stock and option grants, restricted stock grants, and most other equity compensation transactions. A very limited number of transactions still will be reportable on Form 5 at the end of the year, including gifts, inheritances and certain purchases (which, when combined with other purchases in the preceding six months, amount to less than $10,000).
Any late or delinquent Form 4 filings by Section 16 Insiders are required to be reported in the Company’s proxy statement in a separate captioned section. The SEC has been granted broad authority by the Sarbanes-Oxley Act of 2002 to seek “any equitable relief that may be appropriate or necessary for the benefit of investors” for violations of any of these (or any other) provisions of the securities laws. Consequently, it is important to both you and the Company that such filings are made on a timely basis. Again, if you have any questions concerning the application of Section 16(a), please promptly contact the Company’s Chief Operating Officer and/or outside legal counsel.
| H. | COMPLIANCE WITH SEC REGULATION FD |
The following provisions govern communications by employees of the Company with securities analysts, fund managers, reporters, shareholders, and others who are not bound by a duty of confidentiality to the Company (generically referred to herein as “analysts”), whether direct, at investment conferences, on conference calls, or otherwise.
| (a) | The only employees authorized to discuss the Company’s affairs with analysts are the Company’s Chairman, Chief Executive Officer, President, Chief Operating Officer, and the Executive Vice Presidents (each referred to as a “Spokesperson”). Any other employee who is contacted by an analyst must refer the analyst to a Spokesperson. The Company’s Chairman, Chief Executive Officer, President, or Chief Operating Officer may authorize another employee to speak with an analyst with respect to a particular topic or on a particular occasion. |
5
| (b) | It is the Company’s policy that all Company communications to analysts comply with applicable law, including Regulation FD under the Securities Exchange Act of 1934. A Spokesperson may not provide material information to an analyst unless such information shall have been previously or is simultaneously disclosed in a manner intended to provide broad, non-exclusionary distribution of the information to the public. In the event of an inadvertent disclosure of information that might be material, the disclosing Spokesperson shall consult with counsel as to whether prompt public dissemination of such information is required. |
| (c) | A Spokesperson may discuss with analysts the Company’s technology, products, and markets, as well as other factual corporate information, such as headcount, facilities, and the like, provided such information is not material or has previously been disclosed publicly. |
| (d) | A Spokesperson may discuss with analysts financial results of operations for completed quarters once those results have been publicly disclosed, but shall not disclose any material information regarding those results that have not been publicly disseminated. |
| (e) | A Spokesperson shall not disclose to analysts any material information regarding the Company’s internal projections of future operating results, pending transactions, customer or supplier developments or other matters that have not been publicly disseminated. A Spokesperson shall not endorse or ratify revenue or earnings projections made by an analyst or express comfort with “the range”. |
| (f) | A Spokesperson may review a draft of an analyst’s report, if requested by the analyst to do so, solely for the purpose of correcting any objective factual errors in the report. A Spokesperson who engages in such a review shall make clear to the analyst that the Company does not comment on any forward-looking information contained in the report or otherwise endorse the analyst’s forecasts or financial models. |
| (g) | A Spokesperson will not circulate externally copies of any analyst reports, but rather should refer any such requests to the analyst’s firm. |
| (h) | In appropriate circumstances, a Spokesperson shall consult with securities counsel to determine compliance with this policy, Regulation FD, and the safe harbor for forward-looking information. |
| (i) | A Spokesperson may not depart from the principles set forth in this policy without the explicit prior approval of the Company’s Chairman, Chief Executive Officer or President and the Chief Operating Officer. |
| (j) | Any violation of this policy shall be brought to the attention of the Company’s senior management and may constitute “cause” for immediate termination of employment. |
6
| I. | VIOLATIONS OF INSIDER TRADING LAWS |
Penalties for trading on or communicating material non-public information can be severe, both for individuals involved in such unlawful conduct and their employers and supervisors, and may include jail terms, criminal fines, civil penalties and civil enforcement injunctions. Given the severity of the potential penalties, compliance with this Policy is absolutely mandatory.
(a) Legal Penalties. A person who violates insider trading laws by engaging in transactions in a company’s securities when he or she has material non-public information can be sentenced to a substantial jail term and required to pay a criminal penalty of several times the amount of profits gained or losses avoided.
In addition, a person who tips others may also be liable for transactions by the tippees to whom he or she has disclosed material non-public information. Tippers can be subject to the same penalties and sanctions as the tippees, and the SEC has imposed large penalties even when the tipper did not profit from the transaction.
The SEC can also seek substantial civil penalties from any person who, at the time of an insider trading violation, “directly or indirectly controlled the person who committed such violation,” which would apply to the Company and/or management and supervisory personnel. These control persons may be held liable for up to the greater of $1 million or three times the amount of the profits gained or losses avoided. Even for violations that result in a small or no profit, the SEC can seek penalties from a company and/or its management and supervisory personnel as control persons.
(b) Company-imposed Penalties. Employees who violate this Policy may be subject to disciplinary action by the Company, including dismissal for cause. Any exceptions to the Policy, if permitted, may only be granted by the Designated Officer and must be provided before any activity contrary to the above requirements takes place.”
7
The undersigned “Covered Person” hereby acknowledges that he or she has read this Insider Trading Policy and agrees to comply with the policies and procedures set forth herein. To the extent such Covered Person is an Officer or Director of ABVC BIOPHARMA, INC., he/she further agrees that they will inform their immediate family members of these restrictions.
| COVERED PERSON: | ||||
| By | Date | |||
| Name | ||||
| Position with ABVC BIOPHARMA, INC. (check one) | ||||
| ____ Employee ____ Officer ____Director ____ Agent | ||||
8
Exhibit 31.1
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Uttam Patil, certify that:
| 1. | I have reviewed this report on Form 10-K/A of ABVC BioPharma, Inc., for the fiscal period ended December 31, 2023; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| c) | evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and |
| d) | disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting. |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function): |
| a) | all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: March 14, 2024
| /s/ Uttam Patil | |
| Uttam Patil | |
| Chief Executive Officer (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF THE CHIEF FINANCIAL OFFICER PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Leeds Chow, certify that:
| 1. | I have reviewed this report on Form 10-K/A of ABVC BioPharma, Inc., for the fiscal period ended December 31, 2023; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| c) | evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and |
| d) | disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting. |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function): |
| a) | all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
Date: March 14, 2024
| /s/ Leeds Chow | |
| Leeds Chow | |
| Chief Financial Officer (Principal Financial Officer) |
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
The undersigned hereby certifies, in his capacity as an officer of ABVC BioPharma, Inc. (the “Company”), for the purposes of 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of his knowledge:
| (1) | The Annual Report of the Company on Form 10-K/A for the fiscal year ended December 31, 2023 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: March 14, 2024
| /s/ Uttam Patil | |
| Uttam Patil | |
| Chief Executive Officer (Principal Executive Officer) |
The foregoing certification is being furnished solely pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code) and is not being filed as part of a separate disclosure document.
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
The undersigned hereby certifies, in her capacity as an officer of ABVC BioPharma, Inc. (the “Company”), for the purposes of 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of her knowledge:
| (1) | The Annual Report of the Company on Form 10-K/A for the fiscal year ended December 31, 2023 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: March 14, 2024
| /s/ Leeds Chow | |
| Leeds Chow | |
| Chief Financial Officer (Principal Financial Officer) |
The foregoing certification is being furnished solely pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code) and is not being filed as part of a separate disclosure document.
Exhibit 97
ABVC BioPharma, Inc.
Policy for RECOVERY OF ERRONEOUSLY AWARDED Incentive Compensation
Effective December 1, 2023
1. INTRODUCTION
ABVC BioPharma, Inc. (the “Company”) is adopting this policy (this “Policy”) to provide for the Company’s recovery of certain Incentive Compensation (as defined below) erroneously awarded to Affected Officers (as defined below) under certain circumstances.
This Policy is administered by the Compensation Committee (the “Committee”) of the Company’s Board of Directors (the “Board”). The Committee shall have full and final authority to make any and all determinations required or permitted under this Policy. Any determination by the Committee with respect to this Policy shall be final, conclusive and binding on all parties. The Board may amend or terminate this Policy at any time.
This Policy is intended to comply with Section 10D of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), Rule 10D-1 thereunder and the applicable rules of any national securities exchange on which the Company’s securities are listed (the “Exchange”) and will be interpreted and administered consistent with that intent.
2. EFFECTIVE DATE
This Policy shall apply to all Incentive Compensation paid or awarded on or after the date of adoption of this Policy, and to the extent permitted or required by applicable law.
3. DEFINITIONS
For purposes of this Policy, the following terms shall have the meanings set forth below:
“Affected Officer” means any current or former “officer” as defined in Exchange Act Rule 16a-1, and any other senior executives as determined by the Committee.
“Erroneously Awarded Compensation” means the amount of Incentive Compensation received that exceeds the amount of Incentive Compensation that otherwise would have been received had it been determined based on the Restatement, computed without regard to any taxes paid. In the case of Incentive Compensation based on stock price or total shareholder return, where the amount of Erroneously Awarded Compensation is not subject to mathematical recalculation directly from the information in the Restatement, the amount shall reflect a reasonable estimate of the effect of the Restatement on the stock price or total shareholder return upon which the Incentive Compensation was received, as determined by the Committee in its sole discretion. The Committee may determine the form and amount of Erroneously Awarded Compensation in its sole discretion.
“Financial Reporting Measure” means any measure that is determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and any measures that are derived wholly or in part from such measures, whether or not such measure is presented within the financial statements or included in a filing with the Securities and Exchange Commission. Stock price and total shareholder return are Financial Reporting Measures.
“Incentive Compensation” means any compensation that is granted, earned or vested based in whole or in part on the attainment of a Financial Reporting Measure. For purposes of clarity, base salaries, bonuses or equity awards paid solely upon satisfying one or more subjective standards, strategic or operational measures, or continued employment are not considered Incentive Compensation, unless such awards were granted, paid or vested based in part on a Financial Reporting Measure.
“Restatement” means an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, including any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements (i.e., a “Big R” restatement), or that would result in a material misstatement if the error was corrected in the current period or left uncorrected in the current period (i.e., a “little r” restatement).
4. RECOVERY
If the Company is required to prepare a Restatement, the Company shall seek to recover and claw back from any Affected Officer reasonably promptly the Erroneously Awarded Compensation that is received by the Affected Officer:
| (i) | after the person begins service as an Affected Officer; |
| (ii) | who serves as an Affected Officer at any time during the performance period for that Incentive Compensation; |
| (iii) | while the Company has a class of securities listed on the Exchange; and |
| (iv) | during the three completed fiscal years immediately preceding the date on which the Company was required to prepare the Restatement (including any transition period within or immediately following those years that results from a change in the Company’s fiscal year, provided that a transition period of nine to 12 months will be deemed to be a completed fiscal year). |
For purposes of this Policy:
| ● | Erroneously Awarded Compensation is deemed to be received in the Company’s fiscal year during which the Financial Reporting Measure specified in the Incentive Compensation is attained, even if the payment or grant of the Incentive Compensation occurs after the end of that period; and |
| ● | the date the Company is required to prepare a Restatement is the earlier of (x) the date the Board, the Committee or any officer of the Company authorized to take such action concludes, or reasonably should have concluded, that the Company is required to prepare the Restatement, or (y) the date a court, regulator, or other legally authorized body directs the Company to prepare the Restatement. |
For purposes of clarity, in no event shall the Company be required to award any Affected Officers an additional payment or other compensation if the Restatement would have resulted in the grant, payment or vesting of Incentive Compensation that is greater than the Incentive Compensation actually received by the Affected Officer. The recovery of Erroneously Awarded Compensation is not dependent on if or when the Restatement is filed.
2
5. SOURCES OF RECOUPMENT
To the extent permitted by applicable law, the Committee may, in its discretion, seek recoupment from the Affected Officer(s) through any means it determines, which may include any of the following sources: (i) prior Incentive Compensation payments; (ii) future payments of Incentive Compensation; (iii) cancellation of outstanding Incentive Compensation; (iv) direct repayment; and (v) non-Incentive Compensation or securities held by the Affected Officer. To the extent permitted by applicable law, the Company may offset such amount against any compensation or other amounts owed by the Company to the Affected Officer.
6. LIMITED EXCEPTIONS TO RECOVERY
Notwithstanding the foregoing, the Committee, in its discretion, may choose to forgo recovery of Erroneously Awarded Compensation under the following circumstances, provided that the Committee (or a majority of the independent members of the Board) has made a determination that recovery would be impracticable because:
| (i) | The direct expense paid to a third party to assist in enforcing this Policy would exceed the recoverable amounts; provided that the Company has made a reasonable attempt to recover such Erroneously Awarded Compensation, has documented such attempt and has (to the extent required) provided that documentation to the Exchange; |
| (ii) | Recovery would violate home country law where the law was adopted prior to November 28, 2022, and the Company provides an opinion of home country counsel to that effect to the Exchange that is acceptable to the Exchange; or |
| (iii) | Recovery would likely cause an otherwise tax-qualified retirement plan to fail to meet the requirements of the Internal Revenue Code of 1986, as amended. |
7. NO INDEMNIFICATION OR INSURANCE
The Company will not indemnify, insure or otherwise reimburse any Affected Officer against the recovery of Erroneously Awarded Compensation.
8. NO IMPAIRMENT OF OTHER REMEDIES
This Policy does not preclude the Company from taking any other action to enforce an Affected Officer’s obligations to the Company, including termination of employment, institution of civil proceedings, or reporting of any misconduct to appropriate government authorities. This Policy is in addition to the requirements of Section 304 of the Sarbanes-Oxley Act of 2002 that are applicable to the Company’s Chief Executive Officer and Chief Financial Officer.
3