Item
1.01
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Entry
Into a Material Definitive Agreement
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On
May 14, 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 1,366,856 shares (the “Shares”)
of common stock of the Company, no par value (the “Common Stock”), at an offering price of $3.53 per share, for gross
proceeds of approximately $4.825 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 May 18, 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.
As
previously reported in our Current Report on Form 8-K, dated April 8, 2020, the Company entered into an engagement letter (the
“Engagement Letter”), dated April 7, 2020, 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 109,348 Common Stock at
an exercise price of $4.4125 (the “Placement Agent Warrants”). 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
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 $4.3 million.
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.