Form S-3/A - Registration statement under Securities Act of 1933: [Amend]

 

As filed with the Securities and Exchange Commission on December 30, 2024

 

Registration No. 333-284003

 

 

 

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

 

AINOS, INC.

(Exact name of registrant as specified in its charter)

 

Texas		75-1974352
(State or other jurisdiction of		(I.R.S. Employer
incorporation or organization)		Identification Number)

 

8880 Rio San Diego Drive, Ste. 800

San Diego, CA 92108

[phone]

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

CT Corporation System

1999 Bryan St., Suite 900

Dallas, TX 75201-3136

[phone]

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:

Joseph M. Lucosky, Esq.

Steven A. Lipstein, Esq.

Lucosky Brookman LLP

101 Wood Avenue South, 5th Floor

Woodbridge, NJ 08830

[phone]

 

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. ☒

 

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 on 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, or 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. (Check one):

 

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☒	Smaller reporting company	☒
		Emerging growth company	☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 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 which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

 

EXPLANATORY NOTE

 

We are filing this Amendment No. 1 (this “Amendment”) to its registration statement on Form S-3 (file No. 333-284003) as an exhibit-only filing. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature page to the registration statement and the filed exhibits. The remainder of the registration statement is unchanged and has therefore been omitted.

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution.

 

The following is an estimate of the expenses (all of which are to be paid by the registrant) that we may incur in connection with the securities being registered hereby.

 

SEC registration fee		$	465
Legal fees and expenses*		$	15,000
Accounting fees and expenses*		$	1,500
Total*		$	16,965

 

__________________

*These fees are estimates.

 

Item 15. Indemnification of Directors and Officers.

 

Section 8.101 of the Texas Business Organizations Code allows a Texas corporation to indemnify a person who was, is, or is threatened to be made a defendant or respondent in a proceeding because the person is or was a director or officer if it is determined that the person (1) acted in good faith, (2) reasonably believed that his conduct in his official capacity as director was in the best interest of the corporation and in all other cases was at least not opposed to the corporation’s best interest, and (3) in the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. Indemnification under section 8.101 may be made for judgments, penalties, fines, settlements, and reasonable expenses actually incurred by the person in connection with the proceeding, subject to limitations provided therein. Section 8.051(A) requires indemnification of a defendant / respondent director or officer against reasonable expenses incurred by him in connection with a proceeding in which he has been wholly successful, on the merits or otherwise, in the defense of the proceeding. Our Bylaws provide for such limitation of liability.

 

Item 16. Exhibits.

 

(a) Exhibits

A list of exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.

 

Item 17. Undertakings.

 

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 a 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.

 

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(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, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.

 

(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.

 

(6) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the provisions described in Item 14 above, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

 

(7) The undersigned Registrant hereby undertakes:

 

(i) That for purposes of determining any liability under the Securities Act, 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.

 

(ii)That for the purpose of determining any liability under the Securities Act, 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 this offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-2

 

EXHIBIT INDEX

 

Exhibit No.		Exhibit Description
5.1*		Opinion of Lucosky Brookman LLP
10.1		Ainos, Inc. 2021 Stock Incentive Plan (incorporated by reference to Exhibit 4.1 to Ainos Inc.’s registration statement on Form S-8 filed with the SEC on July 7, 2022).
10.2		Ainos, Inc. 2023 Stock Incentive Plan (incorporated by reference to Exhibit 4.1 to Ainos Inc.’s registration statement on Form S-8 filed with the SEC on June 14, 2023).
23.1**		Consent of KCCW Accountancy Corp.
23.2*		Consent of Lucosky Brookman LLP (reference is made to Exhibit 5.1)
24.1**		Power of Attorney (included on the signature page of this Registration Statement)
107 **		Filing Fee Table

 

 

*Filed herewith.

**Previously filed.

 

II-3

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Taipei, Taiwan (R.O.C.), on December 30, 2024.

 

AINOS, INC.
By:	/s/ Chun-Hsien Tsai
	Chun-Hsien Tsai, Chairman of the Board,
	President, and Chief Executive Officer

 

POWER OF ATTORNEY

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ Chun-Hsien Tsai		Chairman of the Board, President and Chief Executive Officer		December 30, 2024
Chun-Hsien Tsai
*		Chief Financial Officer		December 30, 2024
Christopher Hsin-Liang Lee
*		Director		December 30, 2024
Wen-Han Chang
*		Director		December 30, 2024
Yao-Chung Chiang
*		Director		December 30, 2024
Pao-Sheng Wei
*		Director		December 30, 2024
Ting-Chuan Lee
*		Director		December 30, 2024
Chun-Jung Tsai
*		Director		December 30, 2024
Chung-Yi Tsai

 

* By:	/s/ Chun-Hsien Tsai
	Chun-Hsien Tsai
	Attorney-in-fact

 

II-4

 

 

Exhibit 5.1

 

	LUCOSKY BROOKMAN LLP 101 Wood Avenue South 5th Floor Woodbridge, NJ 08830 T - [phone] F- [phone]
	111 Broadway Suite 807 New York, NY 10006 T - [phone] F - [phone]
	www. lucbro.com

 

December 30, 2024

 

Ainos, Inc.

8880 Rio San Diego Drive, Ste. 800

San Diego, CA 92108

 

RE:	Registration Statement on Form S-3
	6,737,731 Shares of Common Stock of
	Ainos, Inc., par value $0.01 per share

 

Ladies and Gentlemen:

 

We are acting as counsel for Ainos, Inc., a Texas corporation (the “Company”), in connection with the registration for resale from time to time by certain selling shareholders (the “Selling Shareholders”) named in the Prospectus (as defined below) of up to 6,737,731 shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”), consisting of (1) 5,500,000 Shares issued to Taiwan Carbon Nano Technology Corporation (“TCNT”) pursuant to a patent license agreement, dated August 6, 2024, by and between the Company and TCNT (the “TCNT Shares”), (2) 247,500 restricted stock units (“RSUs”) granted to directors, officers, and employees of the Company as special stock awards on November 22, 2024 and vested on November 26 2024 (the “2024 Special Stock Awards Shares”), (3) 500,000 Shares issuable upon exercise of the warrants issued to ASE Test, Inc. pursuant to the Warrant Purchase Agreement (the “ASE Test Warrants”), dated May 3, 2024 (the “AST Test Warrant Shares”), (4) 12,231 Shares issued to Ting-Chuan Lee, a director of the Company, pursuant to a purchase and sale agreement relating to the Company’s acquisition of a vehicle with a purchase price of $48,559, dated April 26, 2023 (the “Purchase and Sale Agreement Shares”), and (5) 478,000 RSUs granted to directors, officers, and employees of the Company as special stock awards on October 11, 2023 and vested on November 24, 2023 (the “2023 Special Stock Awards Shares”). The Shares are included in a registration statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), and the related prospectus included in the Registration Statement (the “Prospectus”), filed with the Securities and Exchange Commission (the “Commission”) on December 20, 2024, as amended.

 

This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related Prospectus, other than as expressly stated herein with respect to the issuance of the Warrant Shares. It is understood that the opinions set forth below are to be used only in connection with the offer while the Registration Statement is in effect.

 

 

 

 

In rendering these opinions, we have examined the certificate of formation of the Company, as amended, and bylaws, both as amended and currently in effect, the Registration Statement, and the exhibits thereto, and such other records, instruments and documents as we have deemed advisable in order to render these opinions. In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photo static copies and the authenticity of the originals of such latter documents. In providing these opinions, we have further relied as to certain matters on information obtained from officers of the Company. We are opining herein as to the federal laws of the United States and Texas Business Organizations Code, and we express no opinion with respect to any other laws.

 

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof:

 

	1.	With respect to the TCNT Shares, 2024 Special Stock Awards Shares, Purchase and Sale Agreement Shares, and 2023 Special Stock Awards Shares, which have already been issued, are validly issued, fully paid and non-assessable shares of Common Stock; and
	2.	When the AST Test Warrant Shares are issued upon exercise of the ASE Test Warrants, they will be validly issued, fully paid, and non-assessable.

 

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Prospectus under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

	Very Truly Yours,
	/s/ Lucosky Brookman LLP
	Lucosky Brookman LLP

 

 

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