UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
(Amendment No. 1)
Proxy Statement Pursuant to
Section 14(a) of the Securities Exchange Act of 1934
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| [ ] | Soliciting Material Pursuant to §240.14a-12 |
AKERS BIOSCIENCES, INC.
(Name of Registrant as Specified In Its Charter)
N/A
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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December 4, 2019
February 5, 2019
Dear Stockholder:
ToWe are writing to notify you of important information about the Shareholders2019 annual meeting of Akers Biosciences, Inc.:
You are cordially invited to attend the Special Meeting of the Shareholders (the “Special Meeting”)stockholders of Akers Biosciences, Inc. (the “Company”“Company”).
We previously filed and mailed to our stockholders our definitive proxy statement and related proxy materials on November 12, 2019 (the “Proxy Statement”) for our 2019 annual meeting of stockholders, which contained two proposals. The enclosed supplementary proxy material (the “Supplement”) is being sent to you because we have determined to (i) add a new Proposal 3 to the original Proxy Statement in order to approve an amendment to our Amended and Restated Certificate of Incorporation, as amended, to increase the number of authorized shares of our common stock from 2,604,167 to 100,000,000 shares, and (ii) postpone the 2019 annual meeting of stockholders, which was originally scheduled for December 16, 2019, to December 30, 2019 in order to provide additional time for stockholders to review the additional proposal and cast their vote. The Board believes the availability of additional authorized shares will allow us to perform activities in the ordinary course of business.
Accordingly, we are furnishing to you, together with this letter, an Amended Notice of the 2019 Annual Meeting and the Supplement to the previously furnished Proxy Statement, which reflect the revised agenda for the annual meeting and describe the new proposal to be voted on at the annual meeting, as well as a new proxy card for purposes of casting your vote on all of the proposals to be voted on at the annual meeting and our annual report on Form 10-K, filed by the Company with the Securities and Exchange Commission on April 1, 2019. The annual meeting will now be held on March 5,Monday, December 30, 2019, at the offices of Ellenoff Grossman & Schole LLP at 1345 6th Ave, 11th floor,Avenue of the Americas. New York, NYNew York 10105 at 1011:00 AM (EST). Accordingly, due to the change in the annual meeting date to Monday, December 30, 2019, shareholder notice of a nomination or proposal for the Company’s 2020 annual meeting, must now be delivered to us no later than October 31, 2020 and no earlier than October 1, 2020.
The item of business forPlease read the Special Meeting is listed in the following Notice of Special Meeting of the Shareholders and is more fully addressed in the attached Proxy Statement. It relates, in summary, to the Board of Directors’ proposal to cancel the listing of the Company’s common stock, no par value (the “Common Stock”) on AIM, a market operated by the London Stock Exchange plc (“London Stock Exchange”), resulting in the transfer of the approximately one percent (1%) of Shareholders affected over to the Company’s US Register such that their shares will thereafter trade on NASDAQ alongside all other Shareholders.
The Company has been bearing the costs associated with maintaining two stock market listings. The practicalities of adhering to both sets of stock market regulations creates an additional burden in the form of regulatory complexities, expense and management time. The Board of Directors believes that the proportion of the Common Stock on the Jersey (Channel Islands) Branch Register (AIM) in comparison to that on the US Register (NASDAQ),Statement and the relatively low liquidity of the Common Stock on AIM, does not justify the ongoing expense and regulatory complexities associated with maintaining the AIM listing.
The Board of Directors has determined that it isSupplement in the interests oftheir entirety as together they contain all of the Shareholders of the Companyinformation that is important to cancel the listing of the Common Stock on AIM, such that the Common Stock will thereafter trade only on NASDAQ alongside all other Shareholders. Accordingly, the Company is asking for its Shareholders’ approval for the cancellation of admission of the Common Stock to trading on AIMyour decisions in voting at the Special Meeting.annual meeting.
CANCELLING THE COMPANY’S AIM LISTING WILL SAVE THE COMPANY UP TO AN ESTIMATED $0.4 MILLION IN ANNUALIZED COSTS COMPARED TO 2018.
TheWhen you have finished reading the Proxy Statement is first being mailed to Shareholders of the Company on or about February 8, 2019.
Your vote is important —and Supplement, please date, sign and returnpromptly submit your proxy by completing the enclosed new proxy card in its entirety, signing, dating and returning it in the enclosed envelope (or following the instructions to vote by Internet or vote online as soon as possibleprovided by your broker). We encourage you to ensuresubmit your proxy so that your shares will be represented and voted at the Special Meeting even ifmeeting, whether or not you cannotcan attend. The enclosed new proxy card permits you to submit your vote on all three of the proposals included in the Proxy Statement and the Supplement, and will replace any previously submitted proxy in connection with the annual meeting.
If you attendhave already submitted your proxy and do not submit a new proxy, your previously submitted proxy will be voted at the Special Meetingannual meeting with respect to Proposals 1 and are2 contained in the Proxy Statement; however, the Company strongly encourages you to submit a Shareholder of record, you maynew proxy so that your vote your shares in person even though you have previously signed and returned your proxy.will be considered on Proposal 3.
If you have any questions regarding this material, please do not hesitate to emailinvestors@akersbio.com for assistance.By Order of the Board,
| /s/ Christopher C. Schreiber | |
| Christopher C. Schreiber | |
| Executive Chairman of the Board of Directors |
WHETHER OR NOT YOU EXPECT TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE THE ENCLOSED PROXY CARD AND PROMPTLY MAIL IT IN THE ENCLOSED ENVELOPE OR VOTE ONLINE IN ORDER TO ASSURE REPRESENTATION OF YOUR SHARES AT THE SPECIAL MEETING.December 4,
If you need assistance with voting, please contact our proxy solicitor Advantage Proxy, Inc. toll free at 1-877-870-8565, collect at 1-206-870-8565 or by email atksmith@advantageproxy.com. 2019
AKERS BIOSCIENCES, INC.
201 Grove Road
Thorofare, NJ 08086
(856) 848-2116
AMENDED NOTICE OF SPECIAL2019 ANNUAL MEETING OF SHAREHOLDERS
To be held on March 5, 2019STOCKHOLDERS
The SpecialTO BE HELD ONDECEMBER30, 2019
To the Stockholders of Akers Biosciences, Inc.:
This amended notice (this “Amended Notice”) is to notify you that you are cordially invited to attend the 2019 Annual Meeting of ShareholdersStockholders (the “Special Meeting”“Annual Meeting”) of Akers Biosciences Inc. (the “Company”“Company”) will, to be held on March 5,Monday, December 30, 2019, at the offices of Ellenoff Grossman & Schole LLP at 1345 6th Ave, 11th floor,Avenue of the Americas, New York, NYNew York 10105 at 1011:00 AM (EST), forto consider and vote upon the following purpose:proposals:
| 1. | To elect four (4) directors to hold office for a one year term and until their successors are elected and qualified or until their earlier incapacity, removal or resignation (“Proposal 1”); | |
| 2. | To ratify the appointment of Morison Cogen LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2019 (“Proposal 2”); | |
| 3. | To approve an amendment (the “Certificate of Amendment”) to our Amended and Restated Certificate of Incorporation, as amended (our “Certificate”), to increase the | |
| 4. | Such other matters as may properly come before the |
InTHE BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE ELECTION OF EACH OF THE NOMINEES FOR DIRECTOR, “FOR” THE RATIFICATION OF APPOINTMENT OF THE COMPANY’S AUDITOR AND “FOR” THE APPROVAL OF THE AMENDMENT TO THE CERTIFICATE.
The preceding items of business were described in our original Proxy Statement on Schedule 14A dated November 12, 2019 (the “Proxy Statement”), with the eventexception of Proposal 3, which is described in the Company does not receiveattached supplement (the “Supplement,”) to the requisite numberProxy Statement.
Holders of votes to approve the Cancellation Proposal, the Company may adjourn the meeting in order to solicit additional votes. Shareholders are cordially invited to attend the Special Meeting in person.However, to assure your representationrecord of our common stock, no par value per share (the “Common Stock”), at the Specialclose of business on November 1, 2019 (the “Record Date”) will be entitled to notice of and to vote at the Annual Meeting please completeor any adjournment or postponement thereof. Each share of Common Stock entitles the holder thereof to one vote.
The enclosed Supplement describes the new Proposal 3 and sign the enclosedincludes an amended and restated proxy card and return it promptly. Even if you have previously submitted a proxy card, you may choose to votewhich covers the two proposals included in person at the Special Meeting. Whether or not you expect to attend the Special Meeting, please read the attached Proxy Statement and then promptly complete,adds the new Proposal 3. If you wish to vote on this new Proposal 3, you must sign, date sign and return the enclosed proxy card in order(or follow the instructions to ensure your representation at the Special Meeting. If you hold your shares through a brokerage firm, you can vote by telephone, internetInternet or mail. For telephone voting please callprovided by your broker). Signing and submitting this new proxy card will revoke any prior proxy in its entirety. Therefore, if you submit the toll-free number shown on the front of your voting instruction form. Tonew proxy card (or vote by internet please goInternet or provided by your broker), in addition to voting on Proposal 3, you must mark the website shown on your voting instruction form. There is a control number onnew proxy card in the front of your voting instruction form. Please have the control number ready when you call or log on and thenappropriate place (or follow the easy step-by-step instructions. If you are a registered Shareholder, you may cast yourinstructions to vote by visitinghttp://www.vstocktransfer.com/proxy.You may also have access to the materials for the Special MeetingInternet or provided by visiting the websitehttp://www.akersbio.com/.
The Board of Directors unanimously recommends a vote “FOR” the approval of the proposal to be submitted at the Special Meeting.
February 5, 2019
TABLE OF CONTENTS
AKERS BIOSCIENCES, INC.
201 Grove Road
Thorofare, NJ 08086
(856) 848-2116
SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON MARCH 5, 2019
GENERAL INFORMATION ABOUT THE PROXY
General
This Proxy Statement is being furnished to the Shareholders of Akers Biosciences, Inc. (together with its subsidiaries, the “Company”, “we”, “us” or “our”) in connection with the solicitation of proxies by our Board of Directors (the “Board of Directors” or the “Board”) for use at the special meeting of Shareholders to be held on March 5, 2019, at the offices of Ellenoff Grossman & Schole LLP at 1345 6th Ave, 11thFloor, New York, NY 10105 at 10 AM (EST), and at any and all adjournments or postponements thereof (the “Special Meeting”), for the purposes set forth in the accompanying Notice of Special Meeting of Shareholders. Accompanying this Proxy Statement is a proxy/voting instruction form (the “Proxy”) for the Special Meeting, which you may useyour broker) to indicate your vote as toon Proposals 1 and 2.
A copy of the proposal described in this Proxy Statement. It is contemplated that this Proxy Statement and the accompanying form of Proxy will be firstwas mailed to the Company’s Shareholdersour stockholders on or about February 8,November 13, 2019.
The Company will solicit Shareholders We have elected to mail the Supplement, this Amended Notice, a new proxy card reflecting all three proposals to be voted on at the annual meeting, and our annual report on Form 10-K, filed by mail through its regular employees and will request banks and brokers and other custodians, nominees and fiduciaries, to solicit their customers who have stock of the Company registered inwith the names of such personsSecurities and will reimburse themExchange Commission (the “Commission”) on April 1, 2019 for reasonable, out-of-pocket costs. In addition, the Company may use the service of its officers and directors to solicit proxies, personally or by telephone, without additional compensation.
Voting Securitiesyear ended December 31, 2018 (the “Annual Report”).
Only ShareholdersThe affirmative vote of record asa majority of the close of business on January 28, 2019 (the “Record Date”) will be entitled to vote at the Special Meeting and any adjournment or postponement thereof. As of the Record Date, there were approximately 12,482,708 shares of common stock, no par value, of the Company (the “Common Stock”), issued and outstanding and entitled to vote. Shareholders may vote in person orvotes cast by proxy. Each holder of shares of Common Stock is entitled to one vote for each share of Common Stock held on the proposal presented in this Proxy Statement. The Company’s amended and restated by-laws (the “Amended and Restated By-laws”) provide that at least 33.34% of the sharesholders of Common Stock entitled to vote whether present in person or represented by proxy, shall constitute a quorum for the transaction of businesson such proposal at the Special Meeting. The enclosed Proxy reflects the number of shares of Common Stock that you are entitledAnnual Meeting to vote. Shares of Common Stock may not be voted cumulatively.approve Proposal 3.
VotingA complete list of Proxies
All valid Proxies received prior to the Special Meeting will be voted. The Boardstockholders of Directors recommends that you vote by proxy even if you plan to attend the Special Meeting. You can vote your shares by proxy via Internet or mail. To vote via Internet, go to www.vstocktransfer.com/proxy and follow the instructions. To vote by mail, fill out the enclosed Proxy, sign and date it, and return it in the enclosed postage-paid envelope. Voting by proxy will not limit your right to vote at the Special Meeting if you attend the Special Meeting and vote in person. However, if your shares are held in the name of a bank, broker or other holder of record you must obtain a legal proxy executed in your favor, from the holder of record to be able to vote in person at the Special Meeting.
Revocability of Proxies
All Proxies which are properly completed, signed and returned prior to the Special Meeting, and which have not been revoked, will be voted in favor of the proposal described in this Proxy Statement unless otherwise directed. A Shareholder may revoke his or her Proxy at any time before it is voted either by filing with the Chief Executive Officer of the Company, at its principal executive offices located at 201 Grove Road, Thorofare, New Jersey 08086, a written notice of revocation or a duly-executed Proxy bearing a later date or by attending the Special Meeting and voting in person.
Voting Procedures and Vote Required
The presence, in person or by proxy, of at least 33.34% of the issued and outstanding shares of Common Stock entitled to vote at the Special Meeting is necessary to establish a quorum for the transaction of business. Shares represented by proxies which contain an abstention, as well as “broker non-vote” shares (described below) are counted as present for purposes of determining the presence or absence of a quorum for the Special Meeting.
All properly executed proxies delivered pursuant to this solicitation and not revoked will be voted at the Special Meeting as specified in such proxies.
Vote Required for the Cancellation Proposal.
In accordance with Rule 41 of the AIM Rules for Companies (“AIM Rules”), the Company has informed London Stock Exchange of the proposed cancellation of admission of the Common Stock to trading on AIM. Under the AIM Rules, it is a requirement that the Cancellation Proposal is approved by not less than seventy-five percent (75%) of the votes cast at the Special Meeting.
If you hold shares beneficially in street name and do not provide your broker with voting instructions, your shares may constitute “broker non-votes.” Generally, broker non-votes occur on a matter when a broker is not permitted to vote on that matter without instructions from the beneficial owner and instructions are not given. Brokers that have not received voting instructions from their clients cannot vote on their clients’ behalf on “non-routine” proposals. Broker non-votes are counted for the purposes of obtaining a quorum for the Special Meeting and, in tabulating the voting result for any particular proposal, shares that constitute broker non-votes will be counted for routine matters in the calculation of the vote. The vote on the Cancellation Proposal is considered “routine,” and broker non-votes will count in the calculation of the vote. Abstentions are counted as “shares present” at the Special Meeting for purposes of determining the presence of a quorum but are not counted in the calculation of the vote.
Votes at the SpecialAnnual Meeting will be tabulated by one or more inspectors of election appointed byavailable for 10 days before the Board.
Shareholders will not be entitled to dissenter’s rights with respect to the matter to be considered at the Special Meeting.
In the event the Company does not receive the requisite number of votes to approve the Cancellation Proposal, the Company may adjourn the meeting in order to solicit additional votes.
Shareholders List
For a period of at least ten days prior to the SpecialAnnual Meeting a complete list of Shareholders entitled to vote at the Special Meeting will be available at the principal executive offices of the Company, located at 201 Grove Road, Thorofare, NJ 08086, so that Shareholders of record may inspectfor inspection by stockholders during ordinary business hours for any purpose germane to the list only for proper purposes.Annual Meeting.
Expenses of SolicitationEven if you plan to attend the Annual Meeting in person, it is strongly recommended you complete and return your proxy card before the Annual Meeting date, to ensure that your shares will be represented at the Annual Meeting if you are unable to attend.
The solicitation of proxies from our Shareholders is made on behalf of our Board of Directors. The costsYou are urged to review carefully the information contained in the enclosed Amendment and expenses of printing and mailing this proxy statement shall be paid by us. We will pay the costs of soliciting and obtaining proxies from our Shareholders, including the costs of reimbursing brokers, banks and other financial institutions for forwarding proxy materialspreviously mailed Proxy Statement prior to their customers. Proxies may be solicited, without extra compensation, by our directors, officers and employees by mail, telephone, fax, personal interviews or other methods of communication. We have also made arrangements with Advantage Proxy, Inc.deciding how to assist us in soliciting proxies and have agreed to pay Advantage Proxy $10,000, plus reasonable expenses for these services.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENTvote your shares.
The following table sets forth, asBy Order of the Record Date, information regarding beneficial ownership of our capital stock by:Board,
| /s/ Christopher C. Schreiber | |
| Christopher C. Schreiber | |
| Executive Chairman of the Board of Directors |
December 4, 2019
IF YOU RETURN YOUR PROXY CARD WITHOUT AN INDICATION OF HOW YOU WISH TO VOTE, YOUR SHARES WILL BE VOTED “FOR” THE ELECTION OF EACH OF THE NOMINEES FOR DIRECTOR AND “FOR” THE RATIFICATION OF APPOINTMENT OF THE COMPANY’S AUDITOR AND “FOR” THE APPROVAL OF THE AMENDEMNT TO THE CERTIFICATE.
| General Information about this Supplement and the Annual Meeting | ||
This Supplement describes new Proposal 3, which is added to the agenda for the Annual Meeting and therefore is not described in the original Proxy Statement. Information about Proposals 1 and 2, each of which will also be presented to stockholders at the Annual Meeting, can be found in the Proxy Statement as originally filed with the SEC and mailed to our stockholders on or | ||
| What is the purpose of | We previously filed and mailed to | |
| How will the Supplement and proxy materials be delivered? | Most of our Unless we have received contrary instructions, we may send a single copy of this Supplement to any household at which two or more stockholders reside if we believe the stockholders are members of the same family. This process, known as “householding,” reduces the volume of duplicate information received at any one household and helps to reduce our expenses. However, if stockholders prefer to receive multiple sets of our disclosure documents at the same address this year or in future years, the stockholders should contact the Company at 201 Grove Road, Thorofare, NJ 08086 or if a bank, broker or other nominee holds the shares, the stockholder should contact the bank, broker or other nominee directly. | |
| How are votes counted for Proposal 3? | The affirmative vote of a majority of the votes cast by holders of Common Stock entitled to vote on such proposal at the Annual Meeting will be required to approve Proposal 3. Abstentions, which are not votes cast, will have no effect on the outcome of this Proposal 3. Such proposal is a “routine” matter on which brokers and nominees have the discretion to vote on behalf of their clients even if the clients do not furnish voting instructions. | |
| How do I cast or revoke my proxy? | Because this Supplement describes Proposal 3 to be voted on at the Annual Meeting that was not reflected or described in the original Proxy Statement, proxies submitted before the date of | |
Beneficial ownership is determined according to the rules of the Securities and Exchange Commission (the “SEC”) and generally means that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power of that security, including options that are currently exercisable or exercisable within sixty (60) days of the Record Date. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons named in the table below have sole voting and investment power with respect to all shares of Common Stock shown that they beneficially own, subject to community property laws where applicable.
Common Stock subject to stock options currently exercisable or exercisable within sixty (60) days of the Record Date are deemed to be outstanding for computing the percentage ownership of the person holding these options and the percentage ownership of any group of which the holder is a member but are not deemed outstanding for computing the percentage of any other person.
Unless otherwise indicated, the address of each beneficial owner listed in the table below is c/o Akers Biosciences, Inc., 201 Grove Road, Thorofare, New Jersey USA 08086.
| ||||
* Less than 1%.
Background to and Reasons for the Cancellation Proposal
On May 22, 2002, the Common Stock of the Company commenced trading on AIM, a market operated by London Stock Exchange, following a placing of the Common Stock. On January 23, 2014, the Common Stock also commenced trading on the NASDAQ Capital Market (“NASDAQ”) following a public offering of the Common Stock. Since that time, the Company has undertaken further stock issuances on NASDAQ resulting in the ratio of Shareholders whose shares are registered on the Jersey Branch Register (AIM) (the “Jersey (Channel Islands) Register”) decreasing over the past five years to only approximately one percent (1%), while the ratio of Shareholders registered on the US Register (NASDAQ) (the “US Register”) has increased to ninety-nine percent (99%). Additionally, the liquidity of the shares on AIM is relatively low, with less than one quarter of one percent (0.25%) of the overall trading volume in the Common Stock in 2018 occurring on AIM.
Despite this, the Company has been bearing the costs associated with maintaining two stock market listings. The practicalities of adhering to both sets of stock market regulations creates an additional burden in the form of regulatory complexities, expense and management time. The Board of Directors believes that the proportion of Common Stock on the Jersey (Channel Islands) Register in comparison to that on the US Register, and the relatively low liquidity of the Common Stock on AIM, does not justify the ongoing expense and regulatory complexities associated with maintaining the AIM listing.
CANCELLING THE COMPANY’S AIM LISTING WILL SAVE THE COMPANY UP TO AN ESTIMATED $0.4 MILLION IN ANNUALIZED COSTS COMPARED TO 2018.
Over the past five years, NASDAQ has become the primary market in the Company’s Common Stock and the Board of Directors believes that maintaining the AIM listing, in addition to NASDAQ, is no longer justifiable; particularly as only approximately one percent (1%) of the Common Stock remains on the Jersey (Channel Islands) Register and these shares could be transferred to the Company’s US Register and trade on NASDAQ alongside all other Shareholders.
The Board of Directors believes that cancelling the AIM listing will contribute to reducing unnecessary corporate expenses, streamlining corporate processes and freeing up management time to focus on the Company’s business, placing the Company in a stronger position from which to maximize shareholder value.
Accordingly, the Board of Directors has determined that it is in the interests of all the Shareholders of the Company to cancel the listing of the Common Stock on AIM, such that the Common Stock will thereafter trade only on NASDAQ. Therefore, the Company is asking for its Shareholders’ approval for the cancellation of admission of the Common Stock to trading on AIM at the Special Meeting.
THE APPROVAL OF THE CANCELLATION PROPOSAL WILL HAVE NO EFFECT ON THE LISTING OF THE COMPANY’S SHARES ON NASDAQ WHICH WILL CONTINUE AS USUAL.
As at the date of this document, the Company’s outstanding share capital was split between the two registers as follows:
| Register | Number of Shares | Percentage of Total Shares Outstanding | ||||||
| US Register | 12,356,136 | 99 | % | |||||
| Jersey (Channel Islands) Register* | 126,572 | 1 | % | |||||
*including Depositary Interests held in CREST
Process of Delisting from AIM
The Cancellation Proposal is made in accordance with Rule 41 of the AIM Rules. Rule 41 of the AIM Rules requires that an AIM company which wishes London Stock Exchange to cancel admission of its AIM securities must notify such intended cancellation and must separately inform London Stock Exchange of its preferred cancellation date at least twenty (20) business days prior to such date and the cancellation shall be conditional upon the consent of not less than seventy-five percent (75%) of votes cast by its Shareholders given in a shareholder meeting.
IN VIEW OF THE SIGNIFICANT COST SAVINGS, THE RELATIVELY LOW LIQUIDITY IN THE COMPANY’S COMMON STOCK ON AIM, THE SMALL PERCENTAGE OF THE COMPANY’S SHARES REMAINING ON THE JERSEY (CHANNEL ISLANDS) REGISTER AND THE OTHER BENEFITS DESCRIBED ABOVE, THE BOARD OF DIRECTORS ENCOURAGES ALL SHAREHOLDERS TOVOTE IN FAVOR OF THE CANCELLATION PROPOSAL IN ORDER TO ACHIEVE THEseventy-five percent (75%) VOTING REQUIREMENT.
Accordingly, the Board of Directors seeks the Shareholders’ approval of the Cancellation Proposal set forth in the Notice of the Special Meeting of Shareholders. Subject to the Cancellation Proposal being approved at the Special Meeting of Shareholders, it is anticipated that trading in the Common Stock on AIM will cease, and the delisting will take effect, from 7.00 a.m. (GMT) on March 29, 2019.
Upon the approval of the Cancellation Proposal and the delisting becoming effective, finnCap Limited will cease to be the nominated adviser and broker to the Company in the UK and the Company will no longer be required to comply with the rules and corporate governance requirements to which companies admitted to trading on AIM are subject, including the AIM Rules. The Company will remain subject to the rules and corporate governance requirements promulgated by the SEC and NASDAQ.
Effects of Delisting on Shareholders
The principal effect of the Cancellation Proposal will be that Shareholders will no longer be able to buy or sell the Common Stock on AIM. Upon approval of the Cancellation Proposal the Common Stock, including the Common Stock that would have previously been trading on AIM, will continue to trade on NASDAQ therefore maintaining liquidity in the Common Stock. Shareholders with access to a service for trading NASDAQ-listed securities will be able to continue to buy or sell the Common Stock on NASDAQ as usual.
As a NASDAQ-listed company, the Company is subject to reporting and continuous disclosure obligations in the United States, including those promulgated by the United States Securities and Exchange Commission and NASDAQ.
The Cancellation Proposal will only affect the approximately one percent (1%) of Shareholders whose Common Stock is currently held on the Jersey (Channel Islands) Register; or who are holders of depositary interests held in CREST (the “Depositary Interests”) (a relevant system (as defined in the CREST Regulations) in respect of which Euroclear UK & Ireland is the Operator (as defined in the CREST Regulations) in accordance with which securities may be held and transferred in uncertificated form) by Link Market Services Trustees Limited, the Depositary for the Company’s Depositary Interests. No other Shareholders will be affected by the proposed delisting.
Subject to Shareholders’ approval of the Cancellation Proposal, the Depositary Interests will cease to be eligible to settle in CREST with effect from close of business (GMT) on March 28, 2019 and Link Market Services Trustees Limited will terminate the Trust Deed Poll governing the Depositary Interests and they will cease to exist. Shareholders of Common Stock registered on the Jersey (Channel Islands) Register will have their shareholding transferred to the US Register on or shortly after March 29, 2019, following which the Jersey (Channel Islands) Register will cease to exist and Link Asset Services will cease to provide transfer agent services on behalf of the Company in respect of the Jersey (Channel Islands) Register.
The Cancellation Proposal may have personal taxation consequences for Shareholders on the Jersey (Channel Islands) Register. Shareholders affected by the Cancellation Proposal who are in any doubt about their tax position should consult their own professional independent tax adviser.
Holders of Depositary Interests Held in CREST
Holders of Depositary Interests held in CREST (the central securities depositary for markets in the United Kingdom) will shortly receive a letter from Link Market Services Trustees Limited giving notice that, subject to Shareholders’ approval of the Cancellation Proposal, the Depositary Interests will cease to be eligible to settle in CREST with effect from close of business (GMT) on March 28, 2019; Link Market Services Trustees Limited will terminate the Trust Deed Poll governing the Depositary Interests; and the Depositary Interests will cease to exist.
Holders of Depositary Interests held in CREST who wish to receive a stock certificate representing their Common Stock before the date of expiry of the Depositary Interests in CREST (conditional on Shareholders’ approval of the Cancellation Proposal) should submit a stock withdrawal request without delay and in accordance with established CREST procedures. The Common Stock represented by the stock certificates will then be dealt with in accordance with the paragraph titled ‘Common Shareholders with Jersey (Channel Islands) Register Stock Certificates’ below.
Holders of Depositary Interests held in CREST who wish to transfer their holding to the Company’s US Register (including to a DTCC facility (the facility providing clearing and settlement services to the United States financial markets)) before the date of expiry of the Depositary Interests in CREST (conditional on Shareholders’ approval of the Cancellation Proposal) may do so using the transfer form that will be enclosed with Link Market Services Trustees Limited’s letter. Subject to Shareholders’ approval of the Cancellation Proposal, any Depositary Interests that are still outstanding as at close of business (GMT) on March 28, 2019 will automatically be withdrawn from CREST, the holder will be entered onto the register of Shareholders of Common Stock on the Jersey (Channel Islands) Register and a stock certificate representing their ownership of Common Stock will be sent to them at their last known address by the UK transfer agent. The Common Stock represented by the stock certificates will then be dealt with in accordance with the paragraph titled ‘Common Shareholders with Jersey (Channel Islands) Register Stock Certificates’ below.
Common Shareholders with Jersey (Channel Islands) Register Stock Certificates
Subject to Shareholders’ approval of the Cancellation Proposal, Shareholders of Common Stock registered on the Jersey (Channel Islands) Register will have their shareholding transferred to the US Register on or shortly after March 29, 2019. Existing stock certificates for Common Stock on the Jersey (Channel Islands) Register will remain valid on the US Register. However, subject to shareholders’ approval of the Cancellation Proposal, Shareholders who wish to exchange their Jersey (Channel Islands) Register stock certificate for a US Register stock certificate at any time after March 29, 2019 may do so by contacting the Company’s US transfer agent (whose contact details are set out below). This process may be subject to transfer agent fees.
V Stock Transfer, LLC (US Transfer Agent)
18 Lafayette Place
Woodmere, NY 11598
United States
Phone: +1 (212) 828 8436
Email:info@vstocktransfer.com
Common Shareholders on the Jersey (Channel Islands) Register with stock certificates who have access to - and wish to deposit their Common Stock electronically in - a DTCC facility prior to March 29, 2019 should contact the Company’s UK transfer agent, Link Asset Services (whose contact details are set out below), to obtain a Removal Request form. This process may be subject to transfer agent fees.
Link Asset Services (UK Transfer Agent)
Phone (from within the UK): 0871 664 0300 (Premium calling charges may apply)
From outside the UK: +44 (0) 371 664 0300
Email: shareholder.services@linkgroup.co.uk
Subject to Shareholders’ approval of the Cancellation Proposal, Shareholders who have access to - and wish to deposit their Common Stock electronically in - a DTCC facility after March 29, 2019 should contact the Company’s US transfer agent (whose contact details are set out above) for information regarding the process for doing so. This process may be subject to transfer agent fees.
The Board of Directors is aware that certain Shareholders on the Jersey (Channel Islands) Register may be unable to continue to hold Common Stock in the event that the delisting becomes effective. Such Shareholders should consult their stockbroker, bank manager, accountant or other independent financial adviser as relevant.
Shareholders on the Jersey (Channel Islands) Register Who Have Lost Their Stock Certificates
Although the last known information which is currently held in respect of Shareholders of Common Stock on the Jersey (Channel Islands) Register will, subject to Shareholders’ approval of the Cancellation Proposal, be entered onto the US Register on or shortly after March 29, 2019, Shareholders who wish to sell their Common Stock in the future, or to deposit them electronically, may be required to present a stock certificate.
Shareholders of Common Stock on the Jersey (Channel Islands) Register who have lost their stock certificate and wish to obtain a replacement stock certificate at any time prior to March 29, 2019 may do so by contacting the Company’s UK transfer agent (whose contact details are set out above) and following the UK transfer agent’s replacement stock certificate procedure. This process may be subject to transfer agent fees.
Shareholders of Common Stock on the Jersey (Channel Islands) Register who have lost their stock certificate are encouraged to obtain a replacement stock certificate by contacting the Company’s UK transfer agent (whose contact details are set out above) before March 29, 2019 as the process for obtaining a replacement stock certificate in the future through the US transfer agent may be more complex and transfer agent fees may be higher.
Subject to Shareholders’ approval of the Cancellation Proposal, Shareholders of Common Stock on the Jersey (Channel Islands) Register who have lost their stock certificate and wish to obtain a replacement stock certificate at any time after March 29, 2019 may do so by contacting the Company’s US transfer agent (whose contact details are set out above) and following the US transfer agent’s replacement stock certificate procedure. This process may be subject to transfer agent fees.
Shareholders who have failed to notify the UK transfer agent of any change of address or other relevant information, if applicable, are encouraged to do so WITHOUT DELAY in order to ensure the information stored on the Jersey (Channel Islands) Register is current at the point of transfer to the US Register and to avoid future additional administrative burden or expense in applying for a change of address or other relevant information.
Recommendation of the Board
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT ITS SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE CANCELLATION PROPOSAL.
PROPOSAL NUMBER THREE—APPROVAL OF AN AMENDMENT TO THE COMPANY’S AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
ADDITIONAL INFORMATIONIntroduction
On November 25, 2019, our Board authorized and approved an amendment to our Amended and Restated Certificate of Incorporation, as amended (“Certificate”), in order to increase the number of authorized shares of our common stock from 2,604,167 to 100,000,000 (the “Certificate of Amendment”). We are not proposing any change to the authorized number of shares of preferred stock. Under the 2018 New Jersey Revised Statutes, we are required to obtain the affirmative vote of a majority of the votes cast by holders ofCommon Stock entitled to vote on such proposal at the Annual Meeting in order to amend the Certificate to increase the number of shares of authorized common stock. Our Board determined that the Certificate of Amendment is advisable and in the best interests of the Company and our stockholders, and recommends that our stockholders approve the Certificate of Amendment.
We are subject to the information and reporting requirementsForm of the Securities Exchange ActCertificate of 1934, as amended, and in accordance therewith, we file periodic reports, documents and other information with the SEC relating to our business, financial statements and other matters. Such reports and other information may be inspected and are available for copying at the offices of the SEC, 100 F Street, N.E., Washington, D.C. 20549 or may be accessed atwww.sec.gov. Information regarding the operation of the public reference rooms may be obtained by calling the SEC at 1-800-SEC-0330. You are encouraged to review our Annual Report on Form 10-K, together with any subsequent information we filed or will file with the SEC and other publicly available information.Amendment
*************The proposed Certificate of Amendment would amend the Fourth Article of our Certificate to remove the first sentence and insert the following sentence:
It is important that“Capitalization. The total number of shares of stock which the proxies be returned promptly and that your shares be represented. Shareholders can vote by telephone, internet or mail. For telephone voting please call the toll-free number shown on the front of your voting instruction form. To vote by internet please go to the website shown on your voting instruction form. There is a control number on the front of your voting instruction form. PleaseCorporation shall have the control number ready when you call or log onauthority to issue is one hundred fifty million (150,000,000) shares, of which one hundred million (100,000,000) shares shall be common stock, without par value (“Common Stock”), and then follow the easy step-by-step instructions. If you are voting by mail, please vote, sign and date your proxy card and return it in the postage-paid envelope provided.
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PROXYfifty million (50,000,000) shares shall be preferred stock, without par value (“Preferred Stock”).”
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF
AKERS BIOSCIENCES, INC.Description of Common Stock
The Certificate currently authorizes the issuance of 2,604,167 shares of Common Stock, without par value, and 50,000,000 shares of preferred stock, without par value. As of December 3, 2019, there were 523,343 shares of Common Stock issued and outstanding, and no shares of preferred stock issued and outstanding.
In addition, as of December 4, 2019, we had an aggregate of 1,864,771 shares of Common Stock reserved for future issuances pursuant to our equity incentive plans. As of December 4, 2019, an aggregate of 87,947 shares of our Common Stock are reserved for issuance upon exercise of outstanding warrants, 39 shares of our Common Stock are reserved for issuance upon exercise of options and 15,603 shares of our Common Stock are reserved for issuance upon vesting of our restricted stock units under our equity incentive plans.
Purpose of the Certificate of Amendment
Our Board believes that the current number of authorized but unissued shares of Common Stock is not adequate to enable us, as the need may arise, to take advantage of market conditions and favorable opportunities involving the issuance of our Common Stock without the delay and expense associated with the holding of a special meeting of our stockholders.The undersigned hereby appoints Joshua SilvermanCompany is considering conducting a “best efforts” public offering pursuant to a registration statement on Form S-1 filed with the Securities and Christopher C. SchreiberExchange Commission (“SEC”) on November 1, 2019 for the sale of units. The Company will require the availability of additional authorized shares in order to allow it to issue shares of our Common Stock underlying Series C Preferred Stock sold in its public offering.
The availability of additional authorized shares will also provide us with the flexibility in the future to issue shares of our Common Stock for general corporate purposes, such as Proxiesacquisitions and other strategic transactions, raising additional capital, effecting stock splits, sales of stock or securities convertible into or exercisable for common stock, providing equity incentives to employees, officers and directors, and other general corporate purposes. We believe that the Certificate of Amendment will provide us with full poweradditional flexibility to meet business and financing needs as and when they may arise. Our Board will determine whether, when and on what terms the issuance of substitutionshares of our Common Stock may be warranted in connection with any future actions. No further action or authorization by our stockholders will be necessary before issuance of the additional shares of our Common Stock authorized under the Certificate of Amendment, except as may be required for a particular transaction by applicable law or regulatory agencies or by the rules of the Nasdaq Stock Market or any other stock market or exchange on which our common stock may then be listed.
Rights of Additional Authorized Shares of Common Stock
Any newly authorized shares of Common Stock will be identical to vote all the shares of Common Stock whichnow authorized and outstanding. The Amendment will not alter the undersignedvoting powers or relative rights of the common stock.
Potential Adverse Effects of the Certificate of Amendment
Any future issuance of additional authorized shares of Common Stock may, among other things, dilute the earnings per share of Common Stock and the equity and voting rights of those holding Common Stock at the time the additional shares are issued. Additionally, this potential dilutive effect may cause a reduction in the market price of the Common Stock. Further, theCertificate of Amendment could adversely affect the ability of third parties to take us over or change our control by, for example, permitting issuances that would bedilute the stock ownership of a person seeking to effect a change in the composition of our Board or contemplating a tender offer or other transaction for the combination of us with another company that our Board determines is not in the Company’s best interests or in the best interests of our stockholders. Our Board however, does not intend or view the Certificate of Amendment as an anti-takeover measure, nor does it contemplate its use in this manner at any time in the foreseeable future.
Neither the 2018 New Jersey Revised Statutes, the Certificate, nor our Amended and Restated Bylaws provides for appraisal or other similar rights for dissenting stockholders in connection with this proposal. Accordingly, our stockholders will have no right to dissent and obtain payment for their shares.
Effectiveness of Certificate of Amendment
If the Certificate of Amendment is approved by the stockholders at the Annual Meeting, it will become effective upon the filing of the Certificate of Amendment with the Secretary of State of New Jersey. If approved, the Board expects to file the Certificate of Amendment with the Secretary of State of New Jersey immediately thereafter. In accordance with the 2018 New Jersey Revised Statutes, however, our Board may elect to abandon the Certificate of Amendment without further action by the stockholders at any time prior to the effectiveness of the filing of the Certificate of Amendment with the Secretary of State of New Jersey, notwithstanding stockholder approval of the Certificate of Amendment.
Required Vote
The affirmative vote of a majority of the votes cast by holders of Common Stock entitled to vote if personally presenton such proposal at the SpecialAnnual Meeting will be required to approve Proposal 3. Abstentions will have no effect on the outcome of Shareholdersthis proposal. Such proposal is a “routine” matter, on which brokers and nominees have the discretion to vote on behalf of their clients even if the clients do not furnish voting instructions.
Recommendation of the Board of Directors
Our Board unanimously recommends that stockholders voteFOR the approval of the Certificate of Amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended, in order to increase the number of authorized shares of common stock from 2,604,167 to 100,000,000.
OTHER MATTERS
The Company knows of no other matters to be submitted to the shareholders at the Annual Meeting. If any other matters properly come before the shareholders at the Annual Meeting, it is the intention of the persons named on the proxy to vote the shares represented thereby on such matters in accordance with their best judgment.
Stockholder Proposals
In addition, our Amended and Restated Bylaws provide notice procedures for stockholders to nominate a person as a director and to propose business to be considered by stockholders at a meeting. Notice of a nomination or proposal must be delivered to us not less than 60 days and not more than 90 days prior to the anniversary date of the immediately preceding annual meeting, or if the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, to be timely, notice by the stockholder must be so received not later than the close of business on the tenth (10th) day following the day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting is first given or made (which for this purpose shall include any and all filings of the Company made on the EDGAR system of the SEC or any similar public database maintained by the SEC), whichever first occurs. Accordingly, for our 2020 annual meeting, notice of a nomination or proposal must be delivered to us no later than October 31, 2020 and no earlier than October 1, 2020. Nominations and proposals also must satisfy other requirements set forth in the Amended and Restated Bylaws. If a stockholder fails to comply with the foregoing notice provision or with certain additional procedural requirements under SEC rules, the Company will have authority to vote shares under proxies we solicit when and if the nomination or proposal is raised at the annual meeting of stockholders and, to the extent permitted by law, on any other business that may properly come before the annual meeting of stockholders and any adjournments or postponements. The Executive Chairman of the Board may refuse to acknowledge the introduction of any stockholder proposal not made in compliance with the foregoing procedures.
NASDAQ Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
On May 10, 2019, the Company received notification (the “Letter”) from the Nasdaq Listing Qualifications Department of The Nasdaq Stock Market LLC indicating that the Company’s common stock was subject to potential delisting from NASDAQ because, for a period of thirty (30) consecutive business days, the bid price of the common stock had closed below the minimum $1.00 per share requirement for continued inclusion under Nasdaq Marketplace Rule 5550(a)(2) (the “Bid Price Rule”). The notification had no immediate effect on the listing or trading of the common stock on NASDAQ.
NASDAQ stated in its Letter that in accordance with the Nasdaq Listing Rules the Company was provided an initial period of 180 calendar days, or until November 6, 2019, to regain compliance. The Letter stated that the NASDAQ staff will provide written notification that the Company has achieved compliance with the minimum bid price listing requirement if at any time before November 6, 2019, the bid price of the common stock closes at $1.00 per share or more for a minimum of ten (10) consecutive business days.
On November 7, 2019, the Company received a written notification from NASDAQ notifying the Company that it is not eligible for a second 180 calendar day period to regain compliance due to the fact the Company fails to comply with Nasdaq’s Marketplace Rule 5550(b)(1) because the Company’s stockholders’ equity as of June 30, 2019 fell below the required minimum of $5,000,000.
NASDAQ indicated in its letter that the Company may appeal the staff’s determination to a Nasdaq hearings panel pursuant to the procedures set forth in the Nasdaq Listing Rule 5800 Series before 4:00 p.m. Eastern Time on or prior to November 14, 2019. On November 13, 2019, the Company filed such appeal and requested the staff grant a hearing (the “Hearing”) and stay any delisting or suspension action by the staff pending the issuance of the hearings panel’s decision. On November 14, 2019, the Company received a written letter from the NASDAQ Hearings Panel indicating that the requested hearing will be held on March 5,December 12, 2019, at 9:00 a.m. Eastern Time at the offices of Ellenoff Grossman & Schole LLP at 1345 6th Ave, 11th Floor, New York, NY 10105 at 10 AM (EST), or at any postponement or adjournment thereof, and upon any and all matters which may properly be brought beforeNASDAQ. On November 22, 2019, the Special Meeting or any postponement or adjournments thereof, hereby revoking all former proxies.Company submitted its plan of compliance with the NASDAQ Hearings Panel.
We have not regained compliance as of the date of this Supplement. On November 25, 2019, we amended our amended and restated certificate of incorporation, as amended, to effect a 1-for-24 reverse split of our authorized and outstanding and issued shares of our common stock. The primary purpose of the reverse stock split was to increase the per share trading price of our common stock in order to regain compliance with the Bid Price Rule and maintain eligibility of our common stock for listing on the NASDAQ. Although we expect that the reverse stock split will result in an increase in the market price of our common stock, the reverse stock split may not result in a permanent increase in the market price of our common stock, which is dependent on many factors, including general economic, market and industry conditions and other factors detailed from time to time in the reports we file with the SEC. We believe effectuation of the reverse stock split and the pendency of this offering may be viewed favorably by the NASDAQ Hearings Panel and help us avoid delisting of our common stock from the NASDAQ; however, we can provide no assurances that the NASDAQ Hearings Panel will accept our plan of compliance. If the NASDAQ Hearings Panel does not accept our plan of compliance or if we fail to regain compliance during any subsequent compliance period granted by NASDAQ Hearings Panel, our common stock |
The shares represented by this proxy, when properly executed, will be voted as specifiedsubject to delisting by NASDAQ, which could seriously decrease or eliminate the undersigned Shareholder(s). If this card contains no specific voting instructions, the shares will be votedFOR the proposal described on this card.value of an investment in our common stock.
Please sign exactly as the name appears below. When shares are held by joint tenants, both should sign. When signing as attorney, executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign the corporate name by the president or other authorized officer. If a partnership, please sign in the partnership name by an authorized person.