bkti_s3a
As filed with the Securities and Exchange Commission on December
21, 2020
Registration No. 333-251307
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
BK Technologies Corporation
(Exact name of registrant as specified in its charter)
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Nevada
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83-4064262
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. employer
identification number)
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7100 Technology Drive
West Melbourne, FL 32904
(321) 984-1414
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive
offices)
William P. Kelly
Executive Vice President & Chief Financial Officer
7100 Technology Drive
West Melbourne, FL 32904
(321) 984-1414
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
The Commission is requested to send copies of all communications
to:
Alexander Pearson, Esq.
S. Chase Dowden, Esq.
Kirton McConkie PC
50 E. South Temple, Suite 400
Salt Lake City, UT 84111
(801) 328-3600 (telephone)
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.
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Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[X]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[ ]
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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
BK
Technologies Corporation, a Nevada corporation, is filing this
Amendment No. 1 to its Registration Statement on Form S-3
(333-251307) (“Amendment No. 1”) 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 II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the various costs and expenses to be
paid by us in connection with the sale and distribution of the
securities being registered, other than underwriting discounts and
commissions. All amounts shown are estimates except for the
registration fee required by the Securities and Exchange Commission
(“SEC”).
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SEC registration
fee
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$5,455
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Accounting fees and
expenses
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(1)
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FINRA filing
fees
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(1)
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Legal fees and
expenses
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(1)
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Fees and expenses
of the trustee
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(1)
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Transfer agent fees
and expenses
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(1)
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Depositary fees and
expenses
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(1)
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Warrant agent fees
and expenses
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(1)
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Printing
expenses
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(1)
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Miscellaneous
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(1)
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Total
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(1)
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(1)
These
fees are calculated based on the securities offered and the number
of issuances and accordingly cannot be estimated at this
time.
Item 15. Indemnification of
Directors and Officers
The Company is incorporated
under the laws of the State of Nevada. Section 78.138 of the Nevada
Revised Statutes (“NRS”) provides that, subject to
certain exceptions under Nevada law, or unless the Articles of
Incorporation or an amendment thereto provide for greater
individual liability, a director or officer is not individually
liable to the Company or its stockholders or creditors for any
damages as a result of any act or failure to act in his or her
capacity as a director or officer unless it is proven that (i) the
director’s or officer’s act or failure to act
constituted a breach of his or her fiduciary duties as a director
or officer and (ii) the breach of those duties involved intentional
misconduct, fraud or a knowing violation of law. The
Company’s Bylaws further provide that a director shall not be
personally liable for monetary damages for any action taken, or
failure to take any action, unless (i) the director breached or
failed to perform the duties of his or her office as provided in
the NRS; and (ii) the breach or failure to perform constituted
self-dealing, willful misconduct or recklessness. In addition, the
Company’s Articles of Incorporation provide that the personal
liability of the directors of the Company is eliminated to the
fullest extent permitted by the NRS.
Under
Section 78.7502 of the NRS, the Company may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an
action by or in the right of the Company, by reason of the fact
that the person is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses, including attorneys’ fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
person in connection with the action, suit or proceeding, if such
person: (i) is not liable pursuant to Section 78.138 of the NRS; or
(ii) acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe the conduct was unlawful.
Further, the Company may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to
procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses, including amounts paid in settlement and attorneys’
fees actually and reasonably incurred by the person in connection
with the defense or settlement of the action or suit, if such
person: (i) is not liable pursuant to NRS Section 78.138; or (ii)
acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Company. However, indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction to be liable to the Company or for
amounts paid in settlement to the Company, unless and only to the
extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as
the court deems proper. Under Section 78.751 of the NRS, to the
extent that a director, officer, employee or agent of the Company
has been successful on the merits or otherwise in defense of any
action, suit or proceeding subject to the Nevada indemnification
laws, or otherwise in defense of any such claim, issue or matter,
the Company is required to indemnify him or her against expenses,
including attorneys’ fees, actually and reasonably incurred
by him or her in connection with the defense. The Company’s
Articles of Incorporation and Bylaws comply with the Nevada law as
set forth above.
As
permitted by Nevada law, the Company’s Bylaws authorize the
Company to advance expenses (including attorneys’ fees)
incurred by a director or officer in defending any civil or
criminal action or proceeding in advance of the final disposition
of the action or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is
ultimately determined that the director or officer is not entitled
to be indemnified by the Company.
Indemnification,
unless ordered by a court pursuant to Section 78.7502 of the NRS or
for the advancement of expenses as described above, may not be made
to or on behalf of any director or officer if a final adjudication
establishes that the director’s or officer’s acts or
omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of
action.
The
Company is authorized under Nevada law to purchase and maintain
insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, for any
liability asserted against him or her and liability and expenses
incurred by him or her in his or her capacity as a director,
officer, employee or agent, or arising out of his or her status as
such, whether or not the Company has the authority to indemnify him
or her against such liability and expenses.
Under
the terms of the Company’s directors’ and
officers’ liability and company reimbursement insurance
policies, directors and officers of the Company are insured against
certain liabilities, including liabilities arising under the
Securities Act. We may in the future enter into agreements with our
directors and officers to provide contractual indemnification in
addition to the indemnification provided in our
Bylaws.
Fundamental
Global Investors, LLC (“Fundamental Global”), together
with its affiliates, is the largest stockholder of the Company. D.
Kyle Cerminara, a member of our Board of Directors, is Chief
Executive Officer, Co-Founder and Partner of Fundamental Global,
and Lewis M. Johnson, a member of our Board of Directors, is
President, Co-Founder and Partner of Fundamental Global. In
addition, John W. Struble, Chairman of the Board of Directors,
serves as a consultant to Fundamental Global Management, LLC, an
affiliate of Fundamental Global. The funds managed by Fundamental
Global, including the funds that directly own shares of our Common
Stock, have agreed to indemnify Fundamental Global and its
principals, including Messrs. Cerminara and Johnson, or any other
person designated by Fundamental Global, for claims arising from
Messrs. Cerminara’s and Johnson’s service on our Board
of Directors, provided that a fund’s indemnity obligations
are secondary to any obligations we may have with respect to
Messrs. Cerminara’s and Johnson’s service on our board
of directors.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have 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.
Item 16. Exhibits
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Exhibit Number
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Description
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1.1*
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Form of
Underwriting Agreement.
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4.2*
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Form of
Certificate of Designations of Preferred Stock.
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4.3**
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Form
of Indenture.
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4.4*
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Form of
Debt Security.
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4.5*
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Form of
Warrant Agreement (including form of warrant
certificate).
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4.6*
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Form of
Deposit Agreement (including form of depositary share
certificate).
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4.7*
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Form of
Unit Purchase Contract Agreement (including form of unit
certificate).
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5.1**
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Opinion
of Kirton McConkie PC.
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23.2**
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Consent of Kirton McConkie PC (included in Exhibit 5.1 to the
Registration Statement).
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24.1**
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Power of Attorney (included on the signature page to the
Registration Statement).
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25.1***
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Statement
of Eligibility and Qualification on Form T-1 of the Trustee under
the Indenture pursuant to the Trust Indenture Act of 1939, as
amended.
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*
To be
filed by amendment or as an exhibit to a document incorporated by
reference into this registration statement at a later date in
connection with a specific offering.
***
To be
filed separately pursuant to Section 305(b)(2) of the Trust
Indenture Act of 1939, as amended, if applicable.
Item 17. Undertakings
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 SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement;
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) of this section do not apply if the registration
statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC 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:
i.
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
ii.
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.
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 purposes of
determining any 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 in 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 SEC 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.
If and
when applicable, 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 SEC under Section 305(b)(2) of the Trust
Indenture 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 Amendment No. 1 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of West Melbourne, State of
Florida, on December 21, 2020.
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BK Technologies Corporation
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By:
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/s/ William P. Kelly
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William
P. Kelly
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Executive
Vice President & Chief Financial Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Amendment
No. 1 has been signed by the following persons in the capacities
and on the dates indicated.
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Signature
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Title
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Date
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/s/ Timothy A. Vitou
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President
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December
21, 2020
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Timothy
A. Vitou
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(Principal
Executive Officer)
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/s/ William P. Kelly
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Executive
Vice President & Chief Financial Officer
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December
21, 2020
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William
P. Kelly
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(Principal
Financial Officer and Principal Accounting Officer)
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*
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Director,
Chairman of the Board of Directors
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December
21, 2020
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John W.
Struble
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*
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Director
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December
21, 2020
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D. Kyle
Cerminara
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*
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Director
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December
21, 2020
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Michael
R. Dill
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Director
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December
21, 2020
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Lewis
M. Johnson
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*
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Director
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December
21, 2020
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Charles
T. Lanktree
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*
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Director
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E. Gray
Payne
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December
21, 2020
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*By:
/s/ Timothy A.
Vitou
Name:
Timothy A. Vitou
Title:
Attorney-in-fact