Bio Key International: securities offering (amended)

Cover page 12 changes

bkyi20231023_s1a.htm

As filed with the Securities and Exchange Commission on October 16, 25, 2023

Registration No. 333- 333-275003

35 unchanged paragraphs

PRELIMINARY PROSPECTUS, SUBJECT TO COMPLETION, DATED OCTOBER 16, , 2023

Up to [●] 45,454,545 Units consisting of

[●] 45,454,545 Shares of Common Stock or [●] 45,454,545 Pre-Funded Warrants to purchase

[●] 45,454,545 Shares of Common Stock and

[●] 45,454,545 Common Warrants to purchase up to [●] 45,454,545 Shares of Common Stock

Up to [●] 45,454,545 Shares of Common Stock Underlying the Pre-Funded Warrants

Up to [●] 45,454,545 Shares of Common Stock Underlying the Common Warrants

We are offering on a reasonable best efforts basis up to [●] 45,454,545 units, each unit consisting of one share of common stock and one common warrant to purchase one share of common stock, at an assumed offering price of $[●] $0.22 per unit, which is equal to the closing price of our common stock on the Nasdaq Capital Market on October [●], 20, 2023 for gross proceeds of up to $10,000,000. The common warrants included in the units will have an exercise price of $[●] $0.22 per share (equal to 100% of the public offering price of each unit sold in this offering), will be exercisable immediately and will expire five (5) years from the date of issuance. We are also offering the shares of our common stock that are issuable from time to time upon the exercise of the common warrants included in the units.

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Our common stock is listed on the Nasdaq Capital Market under the symbol "BKYI." On October [ ● ], 20, 2023, the closing price of our common stock on the Nasdaq Capital Market was $[ ● ] $0.22 per share. The actual public offering price per unit or pre-funded unit, as the case may be, will be determined through negotiation among us, the placement agent and the investors in the offering based on market conditions at the time of pricing, and may be at a discount to the current market price of our common stock. Therefore, the assumed public offering price used throughout this prospectus may not be indicative of the final offering price. There is no established trading market for the pre-funded warrants or the common warrants, and we do not expect a market to develop. We do not intend to apply for a listing of the units, the pre-funded units, the pre-funded warrants, or the common warrants on any securities exchange or other nationally recognized trading system. Without an active trading market, the liquidity of the pre-funded warrants and the common warrants will be limited.

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Prospectus summary 9 changes

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We recently disclosed the following results of operation for the three and nine months ended September 30, 2023 and balance sheet data at September 30, 2023.

Revenues in the quarter ended September 30, 2023 rose 33% to $1.8 million as compared to $1.4 million the third quarter of 2022 reflecting increased services, software license, and hardware revenue. Third quarter service revenue was driven by custom service installations for new and existing customer deployments and upgrades, hardware revenue from new contract activity, and progress in reducing hardware inventories. For the first nine months of 2023, total revenues rose 30% to $6.8 million as compared to $5.3 million for the first nine months of 2022, reflecting growth in service and license revenue and a decline in hardware revenue.

Gross profit grew 43% to $1.4 million in the third quarter of 2023 from $1.0 million in third quarter of 2022, reflecting an increase in gross margin to 77% from 71% in the third quarter of 2022. Gross profit and gross margin benefitted from a year-over-year increase in higher margin services and software license revenue and a decrease in third-party software costs, due principally to the seasonal, vacation-related slowdown in third quarter business activity in Europe.

Third quarter 2023 operating expenses decreased 36% to $2.2 million from $3.3 million in the corresponding period in 2022 due primarily to lower selling, general and administrative expenses reflecting progress in our expense reduction initiatives as well as lower research and development investments. We continue to focus on expense reductions to further benefit operating results.

Reflecting higher gross profit and lower operating costs, we reduced our third quarter net loss to $749,000 as compared to $2.4 million in the third quarter of 2022. Similarly, we reduced our year-to-date 2023 net loss to $2.5 million from a net loss of $5.1 million for the first nine months of 2022.

At September 30, 2023, we had current assets of $7.9 million, including $0.3 million of cash and cash equivalents, $2.9 million of accounts receivable, and $4.3 million of inventory.

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Up to [ ● ] 45,454,545 units, each unit consisting of one share of common stock and one common warrant to purchase one share of common stock.

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Up to [ ● ] 54,893,439 shares (assuming the sale of the maximum number of units covered by this prospectus, no sale of pre-funded units, and no exercise of the common warrants issued in this offering).

Assuming the maximum number of units are sold in this offering at an assumed public offering price of $[●] $0.22 per unit, which represents the closing price of our common stock on the Nasdaq Capital Market on October [●], 20, 2023, and assuming no issuance of pre-funded warrants in connection with this offering, we estimate that the net proceeds from our sale of units in this offering will be approximately $[●], $9,120,000, after deducting the placement agent fees and estimated offering expenses payable by us. However, this is a reasonable best efforts offering with no minimum number of securities or amount of proceeds as a condition to closing, and we may not sell all or any of these securities offered pursuant to this prospectus; as a result, we may receive significantly less in net proceeds. We currently intend to use the net proceeds from this offering (i) to repay up to $2.2 million of outstanding indebtedness as determined by the Company, and (ii) the balance, if any, will be used for general corporate and working capital purposes and to fund ongoing operations and expansion of our business. For additional information please refer to the section entitled " Use of Proceeds " on page 10 of this prospectus.

Risk factors 7 changes

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The number of shares of our common stock to be outstanding after this offering is based on 9,438,894 shares of our common stock outstanding as of October [ ● ], 20, 2023 and excludes as of such date:

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If we do not realize in excess of $2.2 million of net proceeds in this offering sufficient to repay our $2.2 million principal amount note in full, unless we may generate sufficient cash flow from operations we will need to obtain additional financing to operate our business, which may not be available. If we are unable to raise additional capital or generate sufficient revenue, we may not be able to continue operations.

We have historically financed our operations through access to the capital markets by issuing secured and convertible debt securities, convertible preferred stock, common stock, and through factoring receivables. During 2022 and the first six months of 2023, we did not generate sufficient revenues to cover operating expenses. Our $2.2 million principal amount note is due December 22, 2023 and we intend to use certain of the proceeds from this offering to repay all or part of the note. If we do not realize net proceeds in this offering sufficient to repay the note in full and are unable to generate sufficient revenue to repay the balance of the note and cover operating expenses in future periods, we will need to obtain additional third-party financing. We may, therefore, need to obtain additional financing through the issuance of debt or equity securities. We cannot assure you that we will be able to secure any such additional financing on terms acceptable to us or at all. If we cannot obtain such financing, we will not be able to execute our business plan, will be required to reduce operating expenses, and in the extreme case, discontinue operations.

You will experience immediate and substantial dilution in the net tangible book value per share of the common stock you purchase, and may experience additional dilution in the future.

Because the effective price per share of common stock included in the units or issuable upon exercise of the warrants or pre-funded warrants being offered may be substantially higher than the net tangible book value per share of our common stock, you may experience substantial dilution to the extent of the difference between the effective offering price per share of common stock you pay in this offering and the net tangible book value per share of our common stock immediately after this offering. Assuming the sale of [ ● ] 45,454,545 units at a public offering price of $[ ● ] $0.22 per unit and our net tangible book value as of June 30, 2023, and assuming no sale of any pre-funded units in this offering, no exercise of any of the common warrants being offered in this offering, and after deducting the placement agent fees and estimated offering expenses payable by us, you will incur immediate dilution in as adjusted net tangible book value of approximately $[ ● ] $0.01 per share. As a result of the dilution to investors purchasing securities in this offering, investors may receive significantly less than the purchase price paid in this offering, if anything, in the event of the liquidation of our company. See the section entitled " Dilution " below for a more detailed discussion of the dilution you will incur if you participate in this offering.

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Each common warrant has an exercise price of $[●] ● ] per share (equal to 100% of the public offering price of each unit sold in this offering), and may also be exercised in certain circumstances by way of a cashless exercise, meaning that the holder may not pay a cash purchase price upon exercise, but instead would receive upon such exercise the net number of shares of our common stock determined according to the formula set forth in the warrant. Accordingly, we may not receive any additional funds, or any significant additional funds, upon the exercise of the warrants.

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The common warrants represent the right to acquire shares of common stock at a fixed price. Specifically, commencing on the date of issuance, holders of the common warrants may acquire the shares of common stock issuable upon exercise of such warrants at an exercise price of $[●] ● ] per share of common stock (equal to 100% of the public offering price of each unit sold in this offering). Moreover, following this offering, the market value of the common warrants is uncertain and there can be no assurance that the market value of the common warrants will equal or exceed the public offering price. There can be no assurance that the market price of the shares of common stock will ever equal or exceed the exercise price of the common warrants, and consequently, whether it will ever be profitable for holders of common warrants to exercise the common warrants.

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Forward-looking statements 1 change

All statements other than statements of historical facts contained in this prospectus, including statements regarding our future financial position, business strategy and plans and objectives of management for future operations, are forward-looking statements. The words "anticipate," "believe," "should," "estimate," "will," "may," "future," "plan," "intend" and "expect" and similar expressions generally identify forward-looking statements. These statements are not guarantees of future performance or events and are subject to risks and uncertainties that may cause actual results to differ materially from those included within or implied by such forward-looking statements. These risks and uncertainties include, without limitation, our history of losses and limited revenue; our ability to raise additional capital to satisfy debt repayment obligations and working capital needs; our ability to protect our intellectual property; changes in business conditions; changes in our sales strategy and product development plans; changes in the marketplace; continued services of our executive management team; security breaches; competition in the biometric technology and identity access management industries; market acceptance of biometric products generally and our products under development; our ability to execute and deliver on convert sales opportunities to customer contracts; in Africa; our ability to expand into Asia, Africa and other foreign markets; our ability to integrate the operations and personnel of Swivel Secure into our business; fluctuations in foreign currency exchange rates; the duration and extent of continued hostilities in Ukraine and its impact on our European customers; delays in the development of products, statements of assumption underlying any of the foregoing, and numerous other matters of national, regional and global scale, including those set forth under the caption " Risk Factors " in this prospectus and other filings with the SEC. These factors are not intended to represent a complete list of the general or specific factors that may affect us. It should be recognized that other factors, including general economic factors and business strategies, may be significant, presently or in the future.

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Use of proceeds 5 changes

We estimate that the net proceeds from this offering will be approximately $[ ● ] $9,120,000 (assuming the sale of all units offered hereby at the assumed public offering price of $[ ● ] $0.22 per unit, which represents the closing sale price of our common stock on the Nasdaq Capital Market on October [ ● ], 20, 2023, and assuming no issuance of pre-funded warrants), after deducting placement agent fees and estimated offering expenses payable by us, and assuming no sale of any pre-funded units offered hereunder. However, because this is a reasonable best efforts offering with no minimum number of securities or amount of proceeds as a condition to closing, the actual offering amount, placement agent fees and net proceeds to us are not presently determinable and may be substantially less than the maximum amounts set forth on the cover page of this prospectus, and we may not sell all or any of the securities we are offering. As a result, we may receive significantly less in net proceeds. Based on the assumed offering price set forth above, we estimate that our net proceeds from the sale of 75% 50% or 25% 50% of the units offered in this offering would be approximately $[ ● ] million, $[ ● ] million $6,795,000 and $[ ● ] million, $4,470,000, respectively, after deducting placement agent fees and estimated offering expenses payable by us.

A $0.10 $0.05 increase or decrease in the assumed public offering price of $[ ● ] $0.22 per unit would increase or decrease the net proceeds from this offering by approximately $[ ● ], $2,113,636, assuming that the number of units offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting placement agent fees and estimated offering expenses payable by us, and assuming no sale of any pre-funded units offered hereunder.

We currently intend to use the net proceeds of this offering as follows: (i) the first up to $2.2 million will be used to repay indebtedness due under a $2.2 million principal amount secured convertible note due December 22, 2023 (the "Note"), as described below; determined by the Company; and (ii) the balance, if any, will be used for general corporate and working capital purposes and to fund ongoing operations and expansion of our business. We cannot currently allocate specific percentages of the net proceeds to us from this offering that we may use for these purposes and our management will have broad discretion in the allocation of such net proceeds.

The Note accrues interest at the rate of 10% per annum in months one through six and 12% per annum in months seven through twelve, payable monthly. The Note is secured by a lien on substantially all of our assets and properties and can be prepaid in whole or in part without penalty at any time. Proceeds were used for general working capital and corporate purposes.

If we do not realize in excess of $2.2 million of net proceeds from this offering sufficient to repay the Note in full, unless we are able to extend the maturity date of the Note or generate sufficient positive cash flow from operations or liquidation of existing inventory to repay the Note in full and fund operations, we will need to obtain additional financing during the next twelve months to operate. To the extent that we require such additional financing, no assurance can be given that any form of additional financing will be available on terms acceptable to us, that adequate financing will be obtained to meet our needs, or that such financing would not be dilutive to existing stockholders. See " Risk Factors ."

Dilution 3 changes

If you purchase securities in this offering, your ownership interest will be diluted immediately to the extent of the difference between the assumed public offering price per unit and as adjusted, net tangible book value per share of common stock immediately after this offering. Tangible assets equal our total assets less goodwill and intangible assets. Our historical net tangible book value per share is equal to our total tangible assets, less total liabilities, divided by the number of outstanding shares of common stock as of June 30, 2023. As of June 30, 2023, our historical net tangible book value was $1,882,941 or $0.20 per share of common stock. Historical net tangible book value per share represents the amount of our total tangible assets less total liabilities, divided by the number of shares of our common stock outstanding as of June 30, 2023.

After giving effect to (i) the sale by us in this offering of [ ● ] 45,454,545 units at an assumed public offering price of $[ ● ] $0.22 per unit (the closing sale price of our common stock on the Nasdaq Capital Market on October [ ● ], 20, 2023), assuming no sale of any pre-funded units in this offering and no exercise of any of the common warrants being offered in this offering and deducting the placement agent fees and estimated offering expenses payable by us and (ii) the repayment of the Note, our pro forma as adjusted net tangible book value as of June 30, 2023, would have been $[ ● ], $11,301,721, or $[ ● ] $0.21 per share of common stock. This amount represents an immediate increase in net tangible book value of $[ ● ] $.01 per share to our existing shareholders and an immediate dilution of $[ ● ] $0.01 per share to purchasers of our securities in this offering. We determine dilution per share to investors participating in this offering by subtracting the pro forma as adjusted net tangible book value per share after this offering from the offering price per share paid by investors participating in this offering.

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Increase in pro forma as adjusted net tangible book value per share attributable to this offering $ ● ] 0.01 Pro forma as adjusted net tangible book value per share after giving effect to this offering $ ● ] 0.21 Dilution per share to investors purchasing securities in this offering $ ● ] 0.01 If we only sell 75% 50% or 25% 50% of the maximum offering amount, our pro forma as adjusted net tangible book value per share after this offering would be $[ ● ], $[ ● ] $0.207, or $[ ● ], $0.208, respectively, and the dilution per share to investors purchasing securities in this offering would be $[ ● ], $[ ● ] $.013 or $[ ● ], $.012, respectively, assuming no pre-funded warrants are issued and no warrants are exercised, and after deducting placement agent fees and estimated offering expenses payable by us.

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Capitalization 4 changes

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on a pro forma as adjusted basis, giving effect to (i) the sale of the securities in this offering at the assumed public offering price of $[ ● ] $0.22 per unit, which represents the closing sale price of our common stock on the Nasdaq Capital Market on October [ ● ], 20, 2023, and an aggregate offering amount of $10,000,000, and assuming no issuance of pre-funded units, after deducting placement agent's fees and estimated offering expenses, and excluding the proceeds, if any, from the subsequent exercise of the common warrants issued pursuant to this offering; and (ii) repayment of the Note.

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Pro forma as adjusted (1)

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Common stock, $0.0001 par value, 170,000,000 shares authorized, 9,262,853, issued and outstanding, and [•] 54,317,398 issued and outstanding, pro forma as adjusted 5,472 Additional paid in capital 122,191,310 131,306,764 Accumulated other comprehensive loss (150,572 ) (150,572 ) Accumulated deficit (118,196,573 ) (117,897,793 ) Total stockholders' equity 3,845,091 13,263,871 Total capitalization 6,734,398 13,654,398 (1) A decrease in the number of units offered by us to [ ● ] 34,090,908 units (resulting in gross proceeds of approximately $[ ● ]) $4,595,000) would decrease cash, increase decrease stockholders' deficit, equity, and decrease total capitalization on a pro forma as adjusted basis by approximately $[ ● ] $2,325,000 from the amounts presented in the table above, assuming the assumed offering price of $[ ● ] $0.22 per unit remains the same, and after deducting placement agent's fees and estimated offering expenses payable by us. A decrease in the number of units offered by us to [ ● ] 22,727,272 units (resulting in gross proceeds of approximately $[ ● ]) $2,270,000) would decrease cash, increase decrease total stockholders' deficit, equity, and decrease total capitalization on a pro forma as adjusted basis by approximately $[ ● ] $4,650,000 from the amounts presented in the table above, assuming the assumed offering price of $[ ● ] $0.22 per unit remains the same, and after deducting placement agent's fees and commissions and estimated offering expenses payable by us. The Company has not completed its review of the accounting treatment and fair value of the common warrants and pre-funded warrants offered hereby. The table above assumes the common warrants and pre-funded warrants are accounted for within equity. If the Company determines the warrants are to be accounted for as liabilities, the fair value of the warrants will be recognized as a liability and subsequently recorded at fair value each reporting period with the change in fair value recognized within income.

The proforma amount of total debt gives effect to the repayment of the Note in the amount of $2.2million and the recognition of the decrease in the fair value of the associated debt liability.

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Description of the securities 3 changes

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Authorized . We currently have authority to issue up to 170,000,000 shares of common stock, $0.0001 par value per share. As of October [ ● ], 20, 2023, we had 9,438,894, shares of common stock outstanding. From time to time we may amend our certificate of incorporation to increase the number of authorized shares of common stock. Any such amendment would require the approval of the holders of a majority of the voting power of the shares entitled to vote thereon.

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The common warrants will be issued in registered form under a warrant agency agreement between our transfer agent or other warrant agent and us. The common warrants will initially be represented only by one or more global warrants deposited with the warrant agent, as custodian on behalf of The Depository Trust Company, or DTC, and registered in the name of [ ● Cede & Co, a nominee of DTC, or as otherwise directed by DTC.

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The pre-funded warrants will be issued in registered form under a warrant agency agreement between our transfer agent or other warrant agent and us. The pre-funded warrants will initially be represented only by one or more global warrants deposited with the warrant agent, as custodian on behalf of The Depository Trust Company, or DTC, and registered in the name of [ ● Cede & Co., a nominee of DTC, or as otherwise directed by DTC.

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Plan of distribution 3 changes

We are offering on a reasonable best efforts basis up to [ ● ] 45,454,545 units, based on an assumed public offering price of $[ ● ] $0.22 per unit, which represents the closing price of our common stock on the Nasdaq Capital Marked on October [ ● ], 20, 2023, for gross proceeds of up to approximately $10,000,000 before deduction of placement agent fees and offering expenses. There is no minimum amount of proceeds that is a condition to closing of this offering. The actual amount of gross proceeds, if any, in this offering could vary substantially from the gross proceeds from the sale of the maximum amount of securities being offered in this prospectus.

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We estimate that the total expenses of the offering, including registration and filing fees, printing fees and legal and accounting expenses, but excluding the placement agent fees, will be approximately $[ ● ], $180,000, all of which are payable by us. This figure includes, among other things, the placement agent's expenses (including the legal fees, costs and expenses for the placement agent's legal counsel) that we have agreed to reimburse.

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If within nine (9) months following the closing of this offering, we complete any financing of equity, equity-linked, convertible or debt or other capital-raising activity for which Maxim is not acting as underwriter or placement agent (other than the exercise by any person or entity of any options, warrants or other convertible securities) with any up to 20 of the institutional investors with whom the Company had at least one in-person or telephonic meeting and who was not previously known to were contacted, introduced or participated in the Company, offering, then we shall will pay to Maxim upon the closing of such financing or receipt of such proceeds the compensation described in this Plan of Distribution, in each case only with respect to the portion of such financing received from such investors.

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Incorporation of certain information by reference 8 changes

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[●] Shares of Common Stock or [●] Pre-Funded Warrants to purchase

[●] Shares of Common Stock and

[●] Common Warrants to purchase up to [●] Shares of Common Stock

Up to [●] Shares of Common Stock Underlying the Pre-Funded Warrants

Up to [●] Shares of Common Stock Underlying the Common Warrants

INFORMATION NOT REQUIRED IN PROSPECTUS

Up to [●] 45,454,545 Units consisting of

45,454,545 Shares of Common Stock or 45,454,545 Pre-Funded Warrants to purchase [ ● ] Shares of Common Stock and 45,454,545 Common Warrants to purchase up to 45,454,545 Shares of Common Stock Up to 45,454,545 Shares of Common Stock Underlying the Pre-Funded Warrants Up to 45,454,545 Shares of Common Stock Underlying the Common Warrants PROSPECTUS [ • ], 2023 PART II INFORMATION NOT REQUIRED IN PROSPECTUS

Other Expenses of Issuance and Distribution 1 change

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Registrant Legal Fees and Expenses*

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Exhibits 3 changes

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Stock Purchase Agreement by and among the Company, Thomas J. Hoey, and PistolStar, Inc. dated June 6, 2020 (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K, filed with the SEC on July 7, 2020) 2.2 Stock Purchase Agreement by and among the Company, Alex Rocha and Swivel Secure Europe, SA dated February 2, 2022 (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K, filed with the SEC on February 3, 2022) 2.3 Amendment No. 1 to Stock Purchase Agreement by and among the Company, Alex Rocha and Swivel Secure Europe, SA dated March 4, 2022 (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K, filed with the SEC on March 9, 2022) 3.1 Certificate of Incorporation of BIO-key International, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.1 to the current report on Form 8-K, filed with the SEC on January 5, 2005) 3.2 Bylaws (incorporated by reference to Exhibit 3.3 to the current report on Form 8-K, filed with the SEC on January 5, 2005) 3.3 Certificate of Amendment to Certificate of Incorporation (incorporated by reference to Appendix A to the definitive proxy statement, filed with the SEC on January 18, 2006) 3.4 Certificate of Amendment of Certificate of Incorporation of Bio-key International, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.4 to the annual report on Form 10-K, filed with the SEC on March 31, 2015) 3.5 Certificate of Elimination of the Series A 7% Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, and Series D 7% Convertible Preferred Stock of BIO-key International, Inc. filed October 6, 2015 (incorporated by reference to Exhibit 3.5 to the registration statement on Form S-1 File No. 333-208747 filed with the SEC on December 23, 2015) 3.6 Certificate of Designation of Preferences, Rights and Limitations of Series A-1 Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the current report on Form 8-K, filed with the SEC on November 2, 2015) 3.7 Certificate of Designation of Preferences, Rights and Limitations of Series B-1 Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the quarterly report on Form 10-Q, filed with the SEC on November 16, 2015) 3.8 Certificate of Amendment of Certificate of Incorporation of Bio-key International, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.1 to the current report on Form 8-K, filed with the SEC on December 28, 2016) 3.9 Certificate of Amendment of Certificate of Incorporation of Bio-Key International, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.1 to the current report on Form 8-K, filed with the SEC on November 19, 2020) 4.1 Specimen Stock Certificate (incorporated by reference to Exhibit 4.1 to the registration statement on Form SB-2, File No. 333-16451) 4.2 Common Stock Purchase Warrant dated July 10, 2019 (incorporated by reference to Exhibit 10.5 to the quarterly report on Form 10-Q, filed with the SEC on August 14, 2019) 4.3 Common Stock Purchase Warrant dated May 6, 2020 (incorporated by reference to Exhibit 10.7 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 4.4 Common Stock Purchase Warrant dated June 29, 2020 (incorporated by reference to Exhibit 10.3 to the current report on Form 8-K, filed with the SEC on July 1, 2020) 4.5 Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.2 to Amendment No. 1 to the Registration Statement on Form S-1/A, filed with the SEC on July 17, 2020) 4.6 Form of Warrant (incorporated by reference to Exhibit 4.3 to Amendment No. 1 to the Registration Statement on Form S-1/A, filed with the SEC on July 17, 2020) 4.7 Form of Warrant Agency Agreement (incorporated by reference to Exhibit 4.4 to Amendment No. 2 to the Registration Statement on Form S-1/A, filed with the SEC on July 20, 2020) 4.8 Common Stock Purchase Warrant, dated December 22, 2022 (incorporated by reference to Exhibit 10.3 to the current report on Form 8-K filed with the SEC on December 23, 2022) 4.9* Form of Common Warrant 4.10* Form of Pre-Funded Warrant 4.11* Form of Warrant Agency Agreement 5.1* Opinion of Fox Rothschild LLP 10.1*** Employment Agreement by and between BIO-key International, Inc. and Mira LaCous dated November 20, 2001 (incorporated by reference to Exhibit 10.39 to the current report on Form 8-K, filed with the SEC on January 22, 2002) 10.2*** BIO-key International, Inc. 2004 Stock Incentive Plan (incorporated by reference to Exhibit 10.48 to amendment no. 1 the registrant ' s registration statement on Form SB-2, File No. 33-120104, filed with the SEC on December 14, 2004) 10.3*** Employment Agreement, effective March 25, 2010, by and between the Company and Michael W. DePasquale (incorporated by reference to Exhibit 10.93 to the annual report on Form 10-K, filed with the SEC on March 26, 2010) 10.4*** Employment Agreement by and between BIO-key International, Inc. and Cecilia Welch dated May 15, 2013 (incorporated by reference to Exhibit 10.42 to the annual report on Form 10-K, filed with the SEC on March 31, 2014) 10.5*** Employment Agreement by and between BIO-key International, Inc. and James Sullivan dated April 5, 2017 (incorporated by reference to Exhibit 10.42 to the annual report on Form 10-K, filed with the SEC on March 29, 2021) 10.6 First Amendment to Lease Agreement by and between BIO-key International, Inc. and BRE/DP MN LLC dated September 12, 2013 (incorporated by reference to Exhibit 10.44 to the annual report on Form 10-K, filed with the SEC on March 31, 2014) 10.7*** BIO-key International, Inc. 2015 Equity Incentive Plan (incorporated by reference to Appendix B to the definitive proxy statement filed with the SEC on December 15, 2015) 10.8** Software License Purchase Agreement Dated November 11, 2015 by and among BIO-key Hong Kong Limited, Shining Union Limited, WWTT Technology China, Golden Vast Macao Commercial Offshore Limited, Giant Leap International Limited (incorporated by reference to Exhibit 10.36 to the registration statement on Form S-1 File No. 333-208747 filed with the SEC on December 23, 2015) 10.9*** Form Non-Plan Option Agreement between the Company and certain of its directors, officers, employees and contractors (incorporated by reference to Exhibit 10.4 to the quarterly report on Form 10-Q filed with the SEC on May 15, 2017) 10.10 Securities Purchase Agreement dated May 23, 2018 by and between the Registrant and Giant Leap International Limited (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K, filed with the SEC on May 30, 2018) 10.11 Securities Purchase Agreement dated May 23, 2018 by and between the Registrant and Micron Technology Development Limited (incorporated by reference to Exhibit 10.2 to the current report on Form 8-K, filed with the SEC on May 30, 2018) 10.12 Securities Purchase Agreement dated May 31, 2018 by and between the Registrant and Wong Kwok Fong (Kelvin) (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K, filed with the SEC on June 4, 2018) 10.13 Underwriting Agreement dated August 22, 2018 by and between the Registrant and Maxim Group LLP (incorporated by reference to Exhibit 1.1 to the current report on Form 8-K, filed with the SEC on August 27, 2018) 10.14 GLP 2 nd Amendment to Lease dated July 27, 2018 (incorporated by reference to Exhibit 10.26 to the annual report on Form 10-K, filed with the SEC on April 1, 2019) 10.15 Marlen 4 th Amendment to Lease dated June 2, 2018 (incorporated by reference to Exhibit 10.27 to the annual report on Form 10-K, filed with the SEC on April 1, 2019) 10.16 Sales Incentive Agreement with Technology Transfer Institute dated March 25, 2020. (incorporated by reference to Exhibit 10.1 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 10.17 Form of Technology Transfer Institute Warrant. (incorporated by reference to Exhibit 10.2 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 10.18 Amended and Restated Senior Secured Convertible Promissory Note, due April 13, 2020 issued by the Company to Lind Global Macro Fund, LP. (incorporated by reference to Exhibit 10.3 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 10.19 Amendment to Amended and Restated Senior Secured Convertible Promissory Note, due April 13, 2020 by and between the Company and Lind Global Macro Fund, LP dated April 12, 2020. (incorporated by reference to Exhibit 10.4 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 10.20 Securities Purchase Agreement dated May 6, 2020 by and between the Company and Lind Global Macro Fund, LP. (incorporated by reference to Exhibit 10.5 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 10.21 $2,415,000 Senior Secured Convertible Promissory Note dated May 6, 2020. (incorporated by reference to Exhibit 10.6 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 10.22 Amended and Restated Security Agreement dated May 6, 2020 by and between the Company and Lind Global Macro Fund, LP. (incorporated by reference to Exhibit 10.8 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 10.23 Amendment No. 2 to Amended and Restated Senior Secured Convertible Promissory Note, due April 13, 2020 by and between the Company and Lind Global Macro Fund, LP dated May 13, 2020. (incorporated by reference to Exhibit 10.9 to the quarterly report on Form 10-Q, filed with the SEC on June 8, 2020) 10.24 Securities Purchase Agreement dated June 29, 2020 by and between the Company and Lind Global Macro Fund, LP (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K, filed with the SEC on July 1, 2020) 10.25 $1,811,250 Senior Secured Convertible Promissory Note dated June 29, 2020. (incorporated by reference to Exhibit 10.2 to the current report on Form 8-K, filed with the SEC on July 1, 2020) 10.26 Second Amended and Restated Security Agreement dated June 29, 2020 by and between the Company and Lind Global Macro Fund, LP (incorporated by reference to Exhibit 10.4 to the current report on Form 8-K, filed with the SEC on July 1, 2020) 10.27 $500,000 Promissory note, dated June 30, 2020 (Incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K, filed with the SEC on July 7, 2020) 10.28*** Form of Restricted Stock Award Agreement under the BIO-key International, Inc. Amended & Restated 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K, filed with the SEC on August 28, 2020) 10.29 BIO-key International, Inc. 2021 Employee Stock Purchase Plan (incorporated by reference to Appendix A to the definitive proxy statement filed with the SEC on May 4, 2021) 10.30 BIO-key International, Inc. Amended and Restated 2015 Equity Incentive Plan (incorporated by reference to Appendix B to the definitive proxy statement filed with the SEC on May 4, 2021) 10.31 Management Services Agreement dated March 8, 2022 by and among Swivel Aman-FZCO, Swivel Secure Europe, SA, and Alex Rocha (incorporated by reference to Exhibit 10.1 to the quarterly report on Form 10-Q filed with the SEC on May 23, 2022) 10.32 Option Agreement dated March 8, 2022 by and between the Company and Alex Rocha (incorporated by reference to Exhibit 10.2 to the quarterly report on Form 10-Q filed with the SEC on May 23, 2022) 10.33+ Distribution Agreement dated October 23, 2020 by and between Swivel Secure Europe, SA and Swivel Secure Limited (incorporated by reference to Exhibit 10.3 to the quarterly report on Form 10-Q filed with the SEC on May 23, 2022) 10.34+ Deed of Variation dated January 26, 2022 by and between Swivel Secure Europe, SA and Swivel Secure Limited (incorporated by reference to Exhibit 10.4 to the quarterly report on Form 10-Q filed with the SEC on May 23, 2022) 10.35 Securities Purchase Agreement dated December 22, 2022 by and between the Company and AJB Capital Investments, LLC (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K filed with the SEC on December 23, 2022) 10.36 $2,200,000 Senior Secured Promissory Note, dated December 22, 2022 (incorporated by reference to Exhibit 10.2 to the current report on Form 8-K filed with the SEC on December 23, 2022) 10.37 Security Agreement dated December 22, 2022 by and between the Company and AJB Capital Investments, LLC (incorporated by reference to Exhibit 10.4 to the current report on Form 8-K filed with the SEC on December 23, 2022) 10.38 Waiver and Amendment No. 1 to Securities Purchase Agreement dated June 22, 2023 by and between the Company and AJB Capital Investments, LLC (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K filed with the SEC on June 27, 2023) 10.39* Form of Securities Purchase Agreement 16.1 Letter to Securities and Exchange Commission from Rotenberg Meril Solomon Bertinger & Guttilla, P.C., dated July 26, 2022 (incorporated by reference to Exhibit 16.1 to the current report on Form 8-K filed with the SEC on July 26, 2022) 21.1 List of subsidiaries of BIO-key International, Inc. (incorporated by reference to Exhibit 21.1 to the annual report on Form 10-K filed with the SEC on June 1, 2023) 23.1* Consent of Marcum LLP (filed herewith) 23.2* Consent of Rotenberg Meril Solomon Bertiger & Guttilla, P.C. (filed herewith) 23.3* Consent of Fox Rothschild LLP (included as part of Exhibit 5.1) 24.1 Power of Attorney (included on the signature page to this Registration Statement) Filing Fee Table (filed herewith) * To be filed by amendment.

Consent of Fox Rothschild LLP (included as part of Exhibit 5.1)

Power of Attorney (included on the signature page to this Registration Statement) Filing Fee Table (previously filed) * Filed herewith.

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Undertakings 1 change

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Pursuant to the requirements of the Securities Act 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Holmdel, State of New Jersey, on October 16, 25, 2023.

14 unchanged paragraphs