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Item
1.01
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Entry
Into a Material Definitive Agreement
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On
April 7, 2020, Akers Biosciences, Inc. (the “Company”), entered into a Securities Purchase Agreement (the “Purchase
Agreement”) with certain institutional and accredited investors (the “Purchasers”), pursuant to which
the Company agreed to issue and sell in a registered direct offering (the “Offering”) an aggregate of 766,667 shares
(the “Shares”) of common stock of the Company, no par value (the “Common Stock”), at an offering price
of $6.00 per share, for gross proceeds of approximately $4.6 million before the deduction of placement agent fees and offering
expenses. The Shares are being offered by the Company pursuant to a shelf registration statement on Form S-3 (File No. 333- 234449),
which was initially filed with the Securities and Exchange Commission (the “Commission”) on November 1, 2019, and
was declared effective by the Commission on April 7, 2020, and a related prospectus.
The
closing of the Offering is subject to satisfaction of customary closing conditions set forth in the Purchase Agreement and is
expected to occur on or about April 8, 2020. The representations, warranties and covenants contained in the Purchase Agreement
were made solely for the benefit of the parties to the Purchase Agreement. In addition, such representations, warranties and covenants
(i) are intended as a way of allocating the risk between the parties to the Purchase Agreement and not as statements of fact,
and (ii) may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of,
or other investors in, the Company. Accordingly, the Purchase Agreement is filed with this report only to provide investors with
information regarding the terms of transaction, and not to provide investors with any other factual information regarding the
Company. Moreover, information concerning the subject matter of the representations
and warranties may change after the date of the Purchase Agreement, which subsequent information may or may not be fully reflected
in public disclosures.
On
April 7, 2020, the Company entered into an engagement letter (the “Engagement Letter”) with H.C. Wainwright &
Co., LLC (the “Placement Agent”), pursuant to which the Placement Agent agreed to serve as the exclusive placement
agent for the Company, on a reasonable best efforts basis, in connection with the Offering. The Company has agreed to pay the
Placement Agent an aggregate cash fee equal to 7.5% of the gross proceeds received in the Offering and a management fee of 1.0%
of the gross proceeds received in the Offering. In addition, the Company has agreed to grant to the Placement Agent warrants to
purchase up to shares of 61,333 Common Stock at an exercise price of $7.50 (the “Placement Agent Warrants”) in a private
placement. The Placement Agent Warrants will be exercisable at any time and from time to time, in whole or in part, following
the date of issuance and for a term of five years from the effective date of the Offering. The Company will also pay
the Placement Agent $50,000 for its non-accountable expenses and $12,900 for clearing expenses.
Neither
the Placement Agent Warrants nor the shares of Common Stock issuable upon the exercise of the Placement Agent Warrants (the “Placement
Agent Warrant Shares”) will be registered under the Securities Act or any state securities laws. The Placement Agent Warrants
and the Placement Agent Warrant Shares will be issued in reliance on the exemptions from registration provided by Section 4(a)(2)
under the Securities Act and Regulation D promulgated thereunder. The Placement Agent has represented that it is an accredited
investor, as defined in Rule 501 of Regulation D promulgated under the Securities Act.
The
net proceeds to the Company from the Offering, after deducting the Placement Agent’s fees and expenses and the Company’s
estimated offering expenses, and excluding the proceeds, if any, from the exercise of the Placement Agent Warrants, are expected
to be approximately $4.1 million. The Company currently intends to use $250,000 of the net proceeds from the Offering to
pay the former members of Cystron Biotech, LLC (approximately one-third of which is payable to certain associated persons of
the Placement Agent), pursuant to the terms of that certain Membership Interest Purchase Agreement, dated as of March 23,
2020, and the remaining net proceeds from this offering for working capital and general corporate purposes.
The
description of terms and conditions of the Engagement Letter, the form of Purchase Agreement and the form of Placement Agent Warrant
set forth herein do not purport to be complete and are qualified in their entirety by the full text of the Engagement Letter,
the form of Purchase Agreement and the form of Placement Agent Warrant, which are attached hereto as Exhibits 99.1, 10.1 and 4.1,
respectively.