Item 1.01 Entry Into a Material Definitive Agreement
On August 11, 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 1,207,744 shares (the "Shares") of common stock of
the Company, no par value (the "Common Stock"), at an offering price of $5.67
per share, for gross proceeds of approximately $6.8 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, including a prospectus contained therein, dated
April 7, 2020, as supplemented by a prospectus supplement, dated August 11,
2020, relating to the Offering.
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 August 13, 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 August 10, 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 96,620 Common Stock at an exercise price of $7.0875
(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 $6.2 million.
The legal opinion of Haynes and Boone, LLP relating to the legality of the
issuance and sale of the Shares in the Offering is attached as Exhibit 5.1 to
this Current Report on Form 8-K.
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.
Item 3.02 Unregistered Sales of Equity Securities.
The information contained in Item 1.01 of this Current Report on Form 8-K in
relation to the Placement Agent Warrants and Placement Agent Warrant Shares is
incorporated herein by reference.
Item 8.01 Other Events.
On August 11, 2020, the Company issued a press release regarding the transaction
described above under Item 1.01 of this Current Report on Form 8-K. A copy of
the press release is attached hereto as Exhibit 99.2 and is incorporated herein
by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. Description
4.1 Form of Placement Agent Warrant
5.1 Opinion of Haynes and Boone, LLP
10.1 Form of Securities Purchase Agreement
23.1 Consent of Haynes and Boone, LLP (contained in Exhibit 5.1)
99.1 Engagement Letter, dated August 10, 2020, by and between Akers
BioSciences, Inc. and H.C. Wainwright & Co., LLC.
99.2 Press Release, dated August 11, 2020
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