UNITEDSTATES
SECURITIESAND EXCHANGE COMMISSION
Washington,D.C. 20549
FORM10-K/A
(AmendmentNo.1)
(MarkOne)
[X]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Forthe fiscal year ended December 31, 2019
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Forthe transition period from ____________ to ____________
Commissionfile number: 001-36268
AkersBiosciences, Inc.
(Exactname of registrant as specified in its charter)
| New Jersey |
22-2983783 |
| (State or other jurisdiction of<br><br> <br>incorporation or organization) |
(I.R.S. Employer<br><br> <br>Identification Number) |
| 201 Grove Road<br><br> <br>Thorofare, NJ |
08086 |
| --- |
--- |
| (Address of principal executive offices) |
(Zip Code) |
Registrant’stelephone number, including area code: (856) 848-8698
Securitiesregistered pursuant to Section 12(b) of the Act:
| Title of Each Class: |
Trading Symbol(s) |
Name of Each Exchange on Which Registered: |
| Shares of common stock, no par value |
AKER |
The NASDAQ Stock Market LLC |
Securitiesregistered 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 [X]
Indicate
by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes
[ ] No [X]
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 of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
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 (§ 232.405 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 [X] No [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer, “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large<br> accelerated filer |
[ ] |
Accelerated<br> filer |
[ ] |
| Non-accelerated<br> filer |
[X] |
Smaller<br> reporting company |
[X] |
| Emerging<br> 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 is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [ ] No
[X]
The
aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant on June 28, 2019, based
on a closing price of $10.80 was $5,835,000. As of March 24, 2020, the registrant had 2,700,240 shares of its common stock, no
par value per share, outstanding.
DOCUMENTSINCORPORATED BY REFERENCE
None.
EXPLANATORYNOTE
This
Amendment No. 1 to the Annual Report on Form 10-K of Akers Biosciences, Inc. (the “Company”) for the
year ended December 31, 2019 as filed with the Securities and Exchange Commission on March 25, 2020 (the “Original Form
10-K”) is being filed only for the purpose of providing a composite list of the Company’s amended and restated
certificate of incorporation and the amendments thereto.
Except
as otherwise expressly noted herein, this Amendment No. 1 does not modify or update in any way the Original Form 10-K, nor does
it reflect events occurring after the filing of the Original Form 10-K. Accordingly, this Amendment No. 1 should be read in conjunction
with the Original Form 10-K.
PARTIV
Item15. Exhibits, Financial Statement Schedules.
| (1) |
Financial<br> Statements |
No
financial statements are filed with this Amendment No. 1. These items were included as part of the Original Form 10-K.
| (2) |
Financial<br> Statements Schedule |
None.
| (3) |
Exhibits |
| Exhibit<br><br> <br>Number |
Description |
| --- |
--- |
| 3.1 |
Amended<br> & Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Registration<br> Statement on Form S-1 filed with the Securities and Exchange Commission on August 7, 2013). |
| 3.2± |
Certificate<br> of Amendment to Certificate of Incorporation dated May 31, 2005. |
| 3.3± |
Certificate<br> of Amendment to Certificate of Incorporation dated December 20, 2006. |
| 3.4 |
Amendment<br> to Certificate of Incorporation dated June 2, 2008 (incorporated herein by reference to Exhibit 3.2 to the Company’s<br> Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 7, 2013). |
| 3.5 |
Amendment<br> to Certificate of Incorporation, Certificate of Designation of Series A Preferred Stock, dated September 21, 2012. (incorporated<br> herein by reference to Exhibit 3.3 to the Company’s Registration Statement on Form S-1 filed with the Securities and<br> Exchange Commission on August 7, 2013). |
| 3.6 |
Amendment<br> to Certificate of Incorporation dated January 22, 2013 (incorporated herein by reference to Exhibit 3.4 to the Company’s<br> Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 7, 2013). |
| 3.7 |
Amended<br> and Restated By-laws dated August 5, 2013 (incorporated herein by reference to Exhibit 3.5 to the Company’s Registration<br> Statement on Form S-1 filed with the Securities and Exchange Commission on August 7, 2013). |
| 3.8 |
Amendment<br> to Restated By-laws dated May 11, 2016 (incorporated herein by reference to Exhibit 3.6 to the Company’s Current Report<br> on Form 8-K filed with the Securities and Exchange Commission on May 18, 2016). |
| 3.9 |
Certificate<br> of Amendment to Certificate of Incorporation, Certificate of Designation of Series B Convertible Preferred Stock, dated December<br> 19, 2017 (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the<br> Securities and Exchange Commission on December 26, 2017). |
| 3.10 |
Amendment<br> to Amended and Restated By-Laws, dated October 19, 2018 (incorporated herein by reference to Exhibit 3.1 to the Company’s<br> Current Report on Form 8-K filed with the Securities and Exchange Commission on October 19, 2018). |
| 3.11 |
Certificate<br> of Amendment (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with<br> the Securities and Exchange Commission on November 9, 2018). |
| 3.12* |
Certificate<br> of Designation of Series C Convertible Preferred Stock, dated December 9, 2019. |
| 3.13± |
Certificate<br> of Amendment to the Certificate of Incorporation. |
| 3.14 |
Certificate<br> of Amendment to Certificate of Incorporation dated November 15, 2019 (incorporated herein by reference to Exhibit 3.1 to the<br> Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 29, 2019). |
| 3.15 |
Certificate of Amendment to Certificate of Incorporation dated November 22, 2019 (incorporated herein by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 29, 2019). |
| 3.16 |
Certificate<br> of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock (incorporated herein by reference<br> to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March<br> 24, 2020). |
| 4.1 |
Form<br> of Underwriters’ Warrant (incorporated by reference to Exhibit 4.1 to the to the Company’s Registration Statement<br> on Form S-1 filed with the Securities Exchange Commission on November 18, 2013). |
| 4.2 |
Form<br> of Warrant (incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the<br> Securities and Exchange Commission on January 10, 2017). |
| --- |
--- |
| 4.3 |
Form<br> of Purchaser Warrant (incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed<br> with the Securities and Exchange Commission on April 5, 2017). |
| 4.4 |
Form<br> of Placement Agent Warrant (incorporated herein by reference to Exhibit 4.2 to the Company’s Current Report on Form<br> 8-K filed with the Securities and Exchange Commission on April 5, 2017). |
| 4.5 |
Form<br> of Purchaser Warrant (incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed<br> with the Securities and Exchange Commission on October 13, 2017). |
| 4.6 |
Form<br> of Underwriter’s Warrant (incorporated herein by reference to Exhibit 4.1 to the Company’s Registration Statement<br> on Form S-1 filed with the Securities and Exchange Commission on December 15, 2017). |
| 4.7 |
Form<br> of Common Stock Purchase Warrant (incorporated herein by reference to Exhibit 4.1 to the Company’s Registration Statement<br> on Form S-1 filed with the Securities and Exchange Commission on December 15, 2017). |
| 4.8 |
Form<br> of Warrant (incorporated herein by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the<br> Securities and Exchange Commission on October 31, 2018). |
| 4.9 |
Form<br> of Series C Convertible Preferred Stock Warrant Certificate (incorporated herein by reference to Exhibit 4.9 to the Company’s<br> Registration Statement on Form S-1/A filed with the Securities and Exchange Commission on November 29, 2019). |
| 4.10 |
Form<br> of Pre-Funded Warrant Certificate (incorporated herein by reference to Exhibit 4.10 to the Company’s Registration Statement<br> on Form S-1/A filed with the Securities and Exchange Commission on November 29, 2019). |
| 4.11 |
Form<br> of Placement Agent Warrant Certificate (incorporated herein by reference to Exhibit 4.11 to the Company’s Registration<br> Statement on Form S-1/A filed with the Securities and Exchange Commission on November 29, 2019). |
| 4.12* |
Description<br> of Securities. |
| 10.1 |
Amended<br> License and Supply Agreement by and between Akers Biosciences, Inc. and Chubeworkx Guernsey Limited (as successor to Sono<br> International Limited) (“Chubeworkx”), (EN)10 (Guernsey) Limited (formerly BreathScan International (Guernsey)<br> Limited) and (EN)10 Limited (formerly BreathScan International Limited), dated June 12, 2013 (incorporated herein by reference<br> to Exhibit 10.4 to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission<br> on August 7, 2013). |
| 10.2 |
Share<br> Purchase Agreement by and between Akers Biosciences, Inc. and Chubeworkx, dated June 12, 2013. (incorporated herein by reference<br> to Exhibit 10.5 to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission<br> on August 7, 2013). |
| 10.3 |
Subscription<br> Agreement by and between Akers Biosciences, Inc. and Chubeworkx, dated June 12, 2013(incorporated herein by reference to Exhibit<br> 10.7 to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August<br> 7, 2013). |
| 10.4 |
Subscription<br> Agreement by and between Akers Biosciences, Inc. and Thomas J. Knox, dated September 14, 2012(incorporated herein by reference<br> to Exhibit 10.8 to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission<br> on August 7, 2013). |
| 10.5 |
Promissory<br> Note entered into by Thomas J Knox issued in favor of Akers Biosciences, Inc., dated September 14, 2012. (incorporated herein<br> by reference to Exhibit 10.9 to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange<br> Commission on August 7, 2013). |
| --- |
--- |
| 10.6 |
License<br> and Supply Agreement by and among the Company, Sono International Limited (“SIL”), BreathScan International (Guersney)<br> Limited and BreathScan International Limited, dated June 19, 2012 (incorporated herein by reference to Exhibit 10.10 to the<br> Company’s Registration Statement on Form S-1/A filed with the Securities and Exchange Commission on October 8, 2013). |
| 10.7 |
Distribution<br> Agreement by and among the Company and Fisher Healthcare, and Amendment thereto, dated June 15, 2010 and May 1, 2012, respectively.<br> (incorporated herein by reference to Exhibit 10.11 to the Company’s Registration Statement on Form S-1/A filed with<br> the Securities and Exchange Commission on October 8, 2013). |
| 10.8 |
National<br> Brand Distribution Agreement by and among the Company and Cardinal Health 2000, and Amendment thereto, dated May 1, 2007 and<br> June 1, 2008, respectively. (incorporated herein by reference to Exhibit 10.12 to the Company’s Registration Statement<br> on Form S-1/A filed with the Securities and Exchange Commission on October 8, 2013). |
| --- |
--- |
| 10.9# |
2013<br> Incentive Stock and Award Plan (incorporated herein by reference to Exhibit 10.14 to the Company’s Registration Statement<br> on Form S-1/A filed with the Securities and Exchange Commission on December 6, 2013). |
| 10.10# |
Form<br> of Nonqualified Stock Option Agreement (Non-Employee) (incorporated herein by reference to Exhibit 10.15 to the Company’s<br> Registration Statement on Form S-1/A filed with the Securities and Exchange Commission on December 6, 2013). |
| 10.11# |
Form<br> of Nonqualified Stock Option Agreement (Employee) (incorporated herein by reference to Exhibit 10.16 to the Company’s<br> Registration Statement on Form S-1/A filed with the Securities and Exchange Commission on December 6, 2013). |
| 10.12# |
Form<br> of Restricted Stock Agreement (incorporated herein by reference to Exhibit 10.17 to the Company’s Registration Statement<br> on Form S-1/A filed with the Securities and Exchange Commission on December 6, 2013). |
| 10.13# |
Form<br> of Incentive Stock Option (incorporated herein by reference to Exhibit 10.18 to the Company’s Registration Statement<br> on Form S-1/A filed with the Securities and Exchange Commission on December 6, 2013). |
| 10.14 |
Letter<br> Agreement, dated December 3, 2013, by and between the Company and Mr. Thomas Knox (incorporated herein by reference to Exhibit<br> 10.19 to the Company’s Registration Statement on Form S-1/A filed with the Securities and Exchange Commission on December<br> 6, 2013). |
| 10.15 |
Joint<br> Venture Agreement, dated October 24, 2014, by and between Akers Biosciences, Inc., Hainan Savy Investment Management Ltd,<br> and Thomas Knox (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed<br> with the Securities and Exchange Commission on October 29, 2014). |
| 10.16 |
Amended<br> and Restated 2013 Incentive Stock and Award Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s<br> Current Report on Form 8-K filed with the Securities and Exchange Commission on January 9, 2015). |
| 10.17 |
Form<br> of Lock Up Agreement (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed<br> with the Securities and Exchange Commission on January 9, 2015). |
| --- |
--- |
| 10.18# |
Employment<br> Agreement between the Company and John J Gormally, dated December 1, 2015. (incorporated herein by reference to Exhibit 10.1<br> to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 3, 2015). |
| 10.19 |
First<br> Amendment to the Amended and Restated 2013 Incentive Stock and Award Plan (incorporated by referenced to Exhibit 10.2 to the<br> Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 12, 2016). |
| 10.20 |
Form<br> of Placement Agency Agreement, dated March 30, 2017, by and between Akers Biosciences, Inc. and Joseph Gunnar and Co., LLC<br> (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Securities<br> and Exchange Commission on April 5, 2017). |
| 10.21 |
Form<br> of Securities Purchase Agreement, dated March 30, 2017, by and between Akers Biosciences, Inc. and various purchasers. (incorporated<br> herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange<br> Commission on April 5, 2017). |
| 10.22 |
Form<br> Registration Rights Agreement, dated March 30, 2017, by and between Akers Biosciences, Inc. and various purchasers (incorporated<br> herein by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange<br> Commission on April 5, 2017). |
| 10.23# |
Akers<br> Biosciences, Inc. 2017 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Current<br> Report on Form 8-K filed with the Securities and Exchange Commission on August 8, 2017). |
| 10.24 |
Form<br> Warrant Exercise Agreement, dated October 12, 2017 by and between Akers Biosciences, Inc. and various holders (incorporated<br> herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange<br> Commission on October 13, 2017). |
| 10.25# |
Form<br> of Resignation Agreement (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K<br> filed with the Securities and Exchange Commission on October 11, 2018). |
| 10.26# |
Offer<br> of Employment, dated October 5, 2018 (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report<br> on Form 8-K filed with the Securities and Exchange Commission on October 11, 2018). |
| 10.27 |
Form<br> of Securities Purchase Agreement, dated October 31, 2018, by and among the Company and the investors signatory thereto (incorporated<br> herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Securities and<br> Exchange Commission on October 31, 2018). |
| 10.28 |
Akers<br> Biosciences, Inc. 2018 Equity Incentive Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Current<br> Report on Form 8-K filed with the Securities and Exchange Commission on December 7, 2018). |
| 10.29 |
Form<br> of Securities Purchase Agreement (incorporated herein by reference to Exhibit 10.29 to the Company’s Registration<br> Statement on Form S-1/A filed with the Securities and Exchange Commission on November 29, 2019). |
| 10.30# |
Offer<br> of Employment, dated January 6, 2020 (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report<br> on Form 8-K filed with the Securities and Exchange Commission on January 6, 2020). |
| 10.31# |
Offer<br> of Employment, dated January 31, 2020 (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report<br> on Form 8-K filed with the Securities and Exchange Commission on January 31, 2020). |
| 10.32 |
Membership<br> Interest Purchase Agreement ((incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form<br> 8-K filed with the Securities and Exchange Commission on March 24, 2020). |
| --- |
--- |
| 10.33 |
Support<br> Agreement (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed with the<br> Securities and Exchange Commission on March 24, 2020). |
| 10.34 |
Registration<br> Rights Agreement (incorporated herein by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed<br> with the Securities and Exchange Commission on March 24, 2020). |
| 10.35 |
License<br> Agreement (incorporated herein by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed with the<br> Securities and Exchange Commission on March 24, 2020). |
| 21.1* |
List<br> of Subsidiaries. |
| 23.1* |
Consent<br> of Morison Cogen LLP, Independent Registered Public Accounting Firm. |
| 31.1± |
Certification<br> of the Principal Executive Officer required by Rule 13a-14(a) or Rule 15d-14(a). |
| 31.2± |
Certification<br> of the Principal Financial Officer required by Rule 13a-14(a) or Rule 15d-14(a). |
| 32.1** |
Certification of the Principal Executive Officer and Principal Financial Officer required by Rule 13a-14(b) or Rule 15d-14(b) and 18 U.S.C. 1350 |
| * |
Previously<br> filed with the Original Form 10-K. |
| --- |
--- |
| ** |
Furnished<br> with the Original Form 10-K. |
| --- |
--- |
| ± |
Filed<br> herewith. |
| # |
Management<br> contract or compensatory plan or arrangement. |
SIGNATURES
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.
|
AKERS BIOSCIENCES, INC. |
|
| Date:<br> October 21, 2020 |
By: |
/S/ Christopher C. Schreiber |
|
Name: |
Christopher<br> C. Schreiber |
|
Title: |
Executive<br> Chairman and President |
|
|
(Principal<br> Executive Officer) |
Exhibit 3.2
Exhibit 3.3
Exhibit 3.13
Exhibit31.1
CERTIFICATIONOF PRINCIPAL EXECUTIVE OFFICER
PURSUANTTO 18 U.S.C. SECTION 1350, AS ADOPTED
PURSUANTTO SECTION 302 OFTHE SARBANES-OXLEY ACT OF 2002
I,
Christopher C. Schreiber, certify that:
1. I
have reviewed this Amendment No. 1 to the report on Form 10-K of Akers Biosciences, Inc.; and
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.
Date:
October 21, 2020
| By: |
/s/ Christopher C. Schreiber |
|
Christopher<br> C. Schreiber<br><br> <br>Executive<br> Chairman and President |
Exhibit31.2
CERTIFICATIONOF PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER
PURSUANTTO 18 U.S.C. SECTION 1350, AS ADOPTED
PURSUANTTO SECTION 302 OFTHE SARBANES-OXLEY ACT OF 2002
I,
Stuart Benson, certify that:
1. I
have reviewed this Amendment No. 1 to the report on Form 10-K of Akers Biosciences, Inc.; and
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.
Date:
October 21, 2020
| By: |
/s/ Stuart Benson |
|
Stuart<br> Benson<br><br> <br>Chief<br> Financial Officer |
