10-K/A - ABVC - Equibles

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K/A

☒ ANNUAL REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended: December 31, 2021

☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from to

Commission file number: 333-91436

ABVC BioPharma, Inc.

(Exact name of Company in its charter)

Nevada	26-0014658

| (State or other jurisdiction of <br><br>incorporation or organization) | (I.R.S. Employer <br><br>Identification) |

44370 Old Warm Springs Blvd.

Fremont, CA 94538

(Address of principal executive offices, including zip code)

Registrant’s Telephone number, including area code: (510)-668-0881

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol	Name of each exchange on which registered

| Common Stock, par value $0.001 per share | ABVC | The Nasdaq Stock Market LLC |

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 ☐ No ☒

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 ☐ No ☒

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. Yes ☒ No ☐

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (section 232.406 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☒ No ☐

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	☐

| Non-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. ☐

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 voting and non-voting common equity held by non-affiliates as of March 30, 2022 was $16,488,373 and 0, based on the closing price of $5.05 on June 30, 2021.

As of March 30, 2022, the registrant had 30,307,329 shares of common stock outstanding and 0 shares of convertible preferred stock outstanding.

DOCUMENTS INCORPORATED BY REFERENCE

None.

Explanatory Note

This Amendment (this “Amendment”) to the annual report on Form 10-K (File No.001-40700), initially filed on March 31, 2022 (the “Original 10K”), is being filed as an exhibits-only filing, solely for the purpose of correcting Exhibit 3.2, since the wrong set of Bylaws was inadvertently filed with the Original 10K rather than hyperlinking Exhibit 3.2 to the correct Bylaws that have previously been filed.

Other than as expressly set forth above, this Amendment does not, and does not purport to, amend, update or restate any other items or disclosures contained in the Original 10K and does not reflect events occurring after the date of the Original 10K. This Amendment consists solely of the cover page, this explanatory note, the exhibit index and the exhibits filed herewith.

ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES

(a) List the following documents filed as a part of this Annual Report on Form 10-K:

(1) Financial Statements: The financial statements were included in Part II, Item 8 of the original Annual Report on Form 10-K filed on March 31, 2022.

(2) Financial Statement Schedules: None.

(3) Exhibits

The following exhibits are included herewith:

Exhibit No.	Description
2.1	Share<br> Exchange Agreement, dated February 8, 2016 (1)
3.1	Articles of Incorporation of the Company (2)
3.2	Bylaws of the Company, as amended(3)
3.3	Certificate<br> of Amendment to Articles of Incorporation filed on March 21, 2016 (4)
3.4	Certificate<br> of Amendment to Articles of Incorporation filed on December 30, 2015 (5)
3.5	Certificate<br> of Amendment to Articles of Incorporation filed on March 30, 2020 (6)
4.1	Form<br> of Warrant (7)
4.2	Description of Securities registered under Section 12 of the Exchange Act (28)
10.1	Collaboration<br> Agreement dated December 29, 2015 (8)
10.2	Collaborative<br> Agreement and Milestone Payment Agreement dated May 6, 2016 (9)
10.3	Employment<br> Agreement with Kira Huang (10)
10.4	Addendum<br> to the Collaboration Agreement dated January 12, 2017 (11)
10.5	Collaboration<br> Agreement with BioFirst dated July 24, 2017 (12)
10.6	Co-Development<br> Agreement with Rgene dated May 26, 2017 (13)
10.7	Employment<br> Agreement with Dr. Howard Doong (14)
10.8	Employment<br> Agreement with Dr. Chi-Hsin Richard King (15)
10.9	Employment<br> Agreement with Chihliang An (26)
10.10	Business<br> Loan Agreement entered by and between Cathay Bank and American BriVision (Holding) Corporation (16)
10.11	Promissory<br> Note entered by American BriVision (Holding) Corporation (17)
10.12	Form<br> of Commercial Security Agreement (18)
10.13	Form of Exchange Agreement entered into by and between the Company and non-US persons (19)
10.14	Form of Exchange Agreement entered into by and between the Company and US persons (20)
10.15	Form of Exchange Agreement entered into by and between the Company and non-US person (21)
10.16	Form<br> of Securities Purchase Agreement entered into by and between the Company and U.S. investors (22)
10.17	Form<br> of Securities Purchase Agreement entered into by and between the Company and non-U.S. investors (23)
10.18	Amended<br> and Restated American BriVision (Holding) Corporation 2016 Equity Incentive (29)
10.19	Joint<br> Venture Agreement between the Company, Lucidaim Co., Ltd. And BioLite Japan K.K.(27)
14.1	Code<br> of Ethics (24)
21.1	List<br> of subsidiaries (25)
31.1	Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002+
31.2	Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002+
32.1	Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002++
32.2	Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002++
101.INS	Inline XBRL Instance Document (Previously filed)
101.SCH	Inline XBRL Taxonomy Extension Schema Document.
101.CAL	Inline XBRL Taxonomy Extension Calculation Linkbase<br> Document.
101.DEF	Inline XBRL Taxonomy Extension Definition Linkbase<br> Document.
101.LAB	Inline XBRL Taxonomy Extension Label Linkbase Document.
101.PRE	Inline XBRL Taxonomy Extension Presentation Linkbase<br> Document.
104	Cover Page Interactive Data File (formatted as Inline<br> XBRL and contained in Exhibit 101).
+	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
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(3)	Incorporated by reference to Exhibit 3.02 to the Company’s Form SB-2, filed on June 28, 2002
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(4)	Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed on March 28, 2016.
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(5)	Incorporated by reference to Exhibit 3.4 to the Company’s Form S-1, filed on September 13, 2016. (3.4)
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(6)	Incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K, filed on April 7, 2020
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(7)	Incorporated by reference to Exhibit 4.1 the Company’s Current Report on Form 8-K, filed on April 24, 2020
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(8)	Incorporated by reference to Exhibit 10.2 the Company’s Current Report on Form 8-K, filed on February 16, 2016.
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(9)	Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed on June 9, 2016.
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(10)	Incorporated by reference to Exhibit 10.3 to the Company’s Annual Report on Form 10-K, filed on January 12, 2017.
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(11)	Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed on February 22, 2017.
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(12)	Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on July 24, 2017.
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(13)	Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed on May 30, 2017.
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(14)	Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on September 20, 2017.
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(15)	Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed on September 20, 2017.
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(16)	Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on February 1, 2019.
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(17)	Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on February 1, 2019.
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(18)	Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed on February 1, 2019.
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(19)	Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on April 14, 2020.
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(20)	Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on April 14, 2020.
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(21)	Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed April 24, 2020.
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(22)	Incorporated by reference to Exhibit 10.15 to the Company’s Annual Report on Form 10-K, filed May 15, 2020.
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(23)	Incorporated by reference to Exhibit 10.16 to the Company’s Annual Report on Form 10-K, filed May 15, 2020
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(24)	Incorporated by reference to Exhibit 14.1 to the Company’s Amendment No.1 to Form S-1, filed on November 14, 2016.
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(25)	Incorporated by reference to 21.1 to the Company’s Form S-1, filed on September 13, 2016.
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(26)	Incorporated by reference to Exhibit 10.9 to the Company’s Annual Report on Form 10-K, filed May 15, 2020.
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(27)	Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on October 8, 2021.
(28)	Incorporated by reference to Exhibit 4.2 to the Company’s Annual Report on Form 10-K, filed March 16, 2021.
(29)	Incorporated by reference to Exhibit 10.17 to the Company’s Annual Report on Form 10-K, filed March 16, 2021.

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 June 6, 2022.

ABVC BioPharma, Inc.
By:	/s/ Howard Doong
---	---
	Howard Doong
	Chief Executive 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/ Howard Doong	Chief Executive Officer	June 6, 2022
Howard Doong
/s/ Eugene Jiang	Chairman of the Board of Directors	June 6, 2022
Eugene Jiang
/s/ Chihliang An	Chief Financial Officer	June 6, 2022
Chihliang An
/s/ Yen-Hsin Chou	Director	June 6, 2022
Yen-Hsin Chou
/s/ Hsin-Hui Miao	Director	June 6, 2022
Hsin-Hui Miao
/s/ Tsang-Ming Jiang	Director	June 6, 2022
Tsang-Ming Jiang
/s/ Norimi Sakamoto	Director	June 6, 2022
Norimi Sakamoto
/s/ Tsung-Shann Jiang	Director	June 6, 2022
Tsung-Shann Jiang
/s/ Chang-Jen Jiang	Director	June 6, 2022
Chang-Jen Jiang
/s/ Yoshinobu Odaira	Director	June 6, 2022
Yoshinobu Odaira
/s/ Shuling Jiang	Director	June 6, 2022
Shuling Jiang
/s/ Kuang-Tseng Chen	Director	June 6, 2022
Kuang-Tseng Chen

Exhibit 31.1

CERTIFICATION

I, Howard Doong, certify that:

I have reviewed this report on Form 10-K/A for the year ended December 31, 2021, of ABVC BioPharma, Inc.;
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;
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;
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.

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: June 6, 2022
/s/ Howard Doong
Howard Doong
Chief Executive Officer (Principal Executive Officer)

Exhibit 31.2

CERTIFICATION

I, Chihliang An, certify that:

I have reviewed this report on Form 10-K/A for the year ended December 31, 2021, of ABVC BioPharma, Inc.
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;
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;
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:

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):

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: June 6, 2022
/s/ Chihliang An
Chihliang An
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANTTO

SECTION 906 OF THESARBANES-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 year ended December 31, 2021, (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: June 6, 2022

/s/ Howard Doong
Howard Doong
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