Securities Registration Statement (simplified Form) (s-3/a)
17 November 2022 - 10:01PM
Edgar (US Regulatory)
As filed with the Securities
and Exchange Commission on November 16, 2022
Registration No. 333-268214
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Akoya
Biosciences, Inc.
(Exact name of registrant
as specified in its charter)
| Delaware |
|
47-5586242 |
|
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
100 Campus Drive, 6th Floor
Marlborough, MA 01752
(855) 896-8401
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Brian McKelligon
Chief Executive Officer
Akoya Biosciences, Inc.
100 Campus Drive, 6th Floor
Marlborough, MA 01752
(855) 896-8401
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy
to:
Patrick O’Malley, Esq.
DLA Piper LLP (US)
4365 Executive Drive, Suite 1100
San Diego, CA 92121
Tel: (858) 677-1400
Fax: (858) 677-1401
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box: ¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering: ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ¨
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 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 |
|
x |
|
Smaller reporting company |
|
x |
| |
|
|
|
Emerging growth company |
|
x |
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 7(a)(2)(B) of the Securities Act. ¨
The Registrant hereby
amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file
a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Akoya Biosciences, Inc. is filing this
Pre-Effective Amendment No. 1 (“Amendment No. 1”) to its Registration Statement on Form S-3 (333-268214), originally
filed on November 7, 2022 (the “Registration Statement”), as an exhibit-only filing solely to file an updated auditor
consent as Exhibit 23.1. This Amendment No. 1 consists only of the facing page, this explanatory note, Part II of the Registration
Statement, the signature page to the Registration Statement, the exhibit index and the exhibit being filed with this Amendment No. 1.
Part I of the Registration Statement is unchanged and has been omitted.
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
| Item 14. |
Other Expenses of Issuance and Distribution |
The following table sets
forth the fees and expenses incurred or expected to be incurred by Akoya Biosciences, Inc. (the “Registrant”) in connection
with the issuance and distribution of the securities being registered hereby. All the amounts shown are estimates, except for the SEC
registration fee and Financial Industry Regulatory Authority, Inc. (FINRA) filing fee.
| SEC registration fee | |
$ | 16,530 | |
| Nasdaq listing fee | |
| 23,000 | |
| FINRA filing fees | |
| * | |
| Accounting fees and expenses | |
| * | |
| Legal fees and expenses | |
| * | |
| Transfer agent fees and expenses | |
| * | |
| Printing and miscellaneous expenses | |
| * | |
| Total | |
| * | |
| * |
These fees or expenses cannot be estimated at this time, as they are calculated based on the securities offered and the number of issuances. |
| Item 15. |
Indemnification of Directors and Officers |
Section 145 of the Delaware General Corporation
Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently
broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising
under the Securities Act. Our Certificate of Incorporation requires us to indemnify our directors and officers to the maximum extent permitted
by the Delaware General Corporation Law, our Bylaws provide that we will indemnify our directors and officers and permit us to indemnify
our employees and other agents, in each case to the maximum extent permitted by the Delaware General Corporation Law.
We have entered into indemnification agreements
with our directors and officers, whereby we have agreed to indemnify our directors and officers to the fullest extent permitted by law,
including indemnification against expenses and liabilities incurred in legal proceedings to which the director or officer was, or is threatened
to be made, a party by reason of the fact that such director or officer is or was a director, officer, employee or agent of the Registrant,
provided that such director or officer acted in good faith and in a manner that the director or officer reasonably believed to be in,
or not opposed to, our best interest. At present, there is no pending litigation or proceeding involving a director or officer regarding
which indemnification is sought, nor are we aware of any threatened litigation that may result in claims for indemnification.
We maintain insurance policies that indemnify
our directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by
any director or officer in his or her capacity as such.
Item 16. Exhibits and Financial Statement
Schedules.
(a) Exhibits
| * | To be filed by amendment or as exhibit(s) to a Current Report of the registrant on Form 8-K and incorporated herein by reference,
as applicable. |
| † | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as applicable. |
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
Provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering; |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (A) | Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (B) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose
of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document immediately prior to such effective date; and |
| (5) | That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | The undersigned registrant hereby undertakes that, for the purpose of determining liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference into the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue. |
| (d) | The undersigned registrant hereby undertakes that: |
| (1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective. |
| (2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (e) | The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Act. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Marlborough, State of Massachusetts on November 16, 2022.
| |
akoya biosciences, inc. |
| |
|
| |
By: |
/s/ Brian McKelligon |
| |
|
Brian McKelligon |
| |
|
President and Chief Executive
Officer |
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
| Name |
|
Title |
|
Date |
| |
|
|
|
|
| * |
|
President, Chief Executive
Officer and Director |
|
November 16,
2022 |
| Brian McKelligon |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| * |
|
Chief Financial Officer
|
|
November 16,
2022 |
| Joseph Driscoll |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| * |
|
Chairman of the Board |
|
November 16,
2022 |
| Robert G. Shepler |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
November 16,
2022 |
| Garry Nolan, PhD |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
November 16,
2022 |
| Thomas Raffin, MD |
|
|
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|
| |
|
|
|
|
| * |
|
Director |
|
November 16,
2022 |
| Thomas P. Schnettler |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
November 16,
2022 |
| Scott Mendel |
|
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| |
|
|
|
|
| * |
|
Director |
|
November 16, 2022 |
| Matthew Winkler, PhD |
|
|
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| |
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|
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| * |
|
Director |
|
November 16, 2022 |
| Myla Lai-Goldman, MD |
|
|
|
|
| *By |
/s/ Joseph Driscoll |
|
| Joseph Driscoll |
|
| Attorney-in-fact |
|
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