Full Press Release Details
Howard R. Yeaton, Chief Executive Officer
letter agreement (this "Agreement") constitutes the agreement between Akers Biosciences, Inc. (the
"Company") and H.C. Wainwright & Co., LLC ("Wainwright"), that Wainwright shall
serve as the exclusive agent, advisor or underwriter in any offering (each, an "Offering") of securities
of the Company (the "Securities") during the Term (as hereinafter defined) of this Agreement. The terms of
each Offering and the Securities issued in connection therewith shall be mutually agreed upon by the Company and Wainwright
and nothing herein implies that Wainwright would have the power or authority to bind the Company and nothing herein implies
that the Company shall have an obligation to issue any Securities. It is understood that Wainwright's assistance in an
Offering will be subject to the satisfactory completion of such investigation and inquiry into the affairs of the Company as
Wainwright deems appropriate under the circumstances and to the receipt of all internal approvals of Wainwright in connection
with the transaction. The Company expressly acknowledges and agrees that Wainwright's involvement in an Offering is
strictly on a reasonable best efforts basis and that the consummation of an Offering will be subject to, among other things,
market conditions. The execution of this Agreement does not constitute a commitment by Wainwright to purchase the Securities
and does not ensure a successful Offering of the Securities or the success of Wainwright with respect to securing any other
financing on behalf of the Company. Wainwright may retain other brokers, dealers, agents or underwriters on its behalf in
connection with an Offering; provided, however, that the Company, upon mutual consent of the Company and Wainwright, may
engage an independent financial advisor, at the Company's sole cost and expense.
Reimbursement. At the closing of each Offering (each, a "Closing"), the Company shall compensate
Wainwright as follows:
| 1. | Cash Fee . The Company shall pay to Wainwright a cash fee, or as to an underwritten Offering an underwriter discount, equal to 7.5% of the aggregate gross proceeds raised in each Offering. | |
| 2. | Warrant Coverage . The Company shall issue to Wainwright or its designees at each Closing, warrants (the " Wainwright Warrants ") to purchase that number of shares of common stock of the Company equal to 8.0% of the aggregate number of shares of common stock (or common stock equivalent, if applicable) placed in each Offering (and if an Offering includes a "greenshoe" or "additional investment" component, such number of shares of common stock underlying such "greenshoe" or "additional investment" component, with the Wainwright Warrants issuable upon the exercise of such component). If the Securities included in an Offering are convertible, the Wainwright Warrants shall be determined by dividing the gross proceeds raised in such Offering by the Offering Price (as defined hereunder). The Wainwright Warrants shall be in a customary form reasonably acceptable to Wainwright, have a term of five (5) years and an exercise price equal to 125% of the offering price per share (or unit, if applicable) in the applicable Offering and if such offering price is not available, the market price of the common stock on the date an Offering is commenced (such price, the " Offering Price "). If warrants are issued to investors in an Offering, the Wainwright Warrants shall have the same terms as the warrants issued to investors in the applicable Offering, except that such Wainwright Warrants shall have an exercise price equal to 125% of the Offering Price. |
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| 3. | Expense Allowance . Out of the proceeds of each Closing, the Company also agrees to pay Wainwright (a) a management fee equal to 1.0% of the gross proceeds raised in each Offering; (b) $25,000 for non-accountable expenses (to be increased to $40,000 in case of a public Offering); (c) up to $25,000 for fees and expenses of legal counsel and other out- of-pocket expenses (to be increased to $75,000 in case of a public Offering); plus the additional amount payable by the Company pursuant to Paragraph D.3 hereunder and, if applicable, the costs associated with the use of a third-party electronic road show service (such as NetRoadshow); provided, however, that such amount in no way limits or impairs the indemnification and contribution provisions of this Agreement. | |
| 4. | Tail . Wainwright shall be entitled to compensation under clauses (1) and (2) hereunder, calculated in the manner set forth therein, with respect to any public or private offering or other financing or capital-raising transaction of any kind (" Tail Financing ") to the extent that such financing or capital is provided to the Company by investors whom Wainwright had contacted during the Term or introduced to the Company during the Term, if such Tail Financing is consummated at any time within the 12-month period following the expiration or termination of this Agreement. Wainwright agrees to provide the Company with a schedule of investors it contacts and introduced to the Company during the Term. |
and Termination of Engagement; Exclusivity. The term of Wainwright's exclusive engagement will begin on the date
hereof and end ninety (90) days thereafter (the "Term"). Notwithstanding anything to the contrary
contained herein, the Company agrees that the provisions relating to the payment of fees, reimbursement of expenses, tail,
indemnification and contribution, confidentiality, conflicts, independent contractor and waiver of the right to trial by jury
will survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary contained herein, the
Company has the right to terminate the Agreement for cause in compliance with FINRA Rule 5110(f)(2)(D)(ii). The exercise of
such right of termination for cause eliminates the Company's obligations with respect to the provisions relating to the
tail fees. Notwithstanding anything to the contrary contained in this Agreement, in the event that an Offering pursuant to
this Agreement shall not be carried out for any reason whatsoever during the Term, the Company shall be obligated to pay to
Wainwright its actual and accountable out-of-pocket expenses related to an Offering (including the fees and disbursements of
Wainwright's legal counsel) and, if applicable, for electronic road show service used in connection with an Offering.
During Wainwright's engagement hereunder: (i) the Company will not, and will not permit its representatives to, other
than in coordination with Wainwright, contact or solicit institutions, corporations or other entities or individuals as
potential purchasers of the Securities and (ii) the Company will not pursue any financing transaction which would be in lieu
of an Offering. Furthermore, the Company agrees that during Wainwright's engagement hereunder, all inquiries from
prospective investors will be referred to Wainwright. Additionally, except as set forth hereunder, the Company represents,
warrants and covenants that no brokerage or finder's fees or commissions are or will be payable by the Company or any
subsidiary of the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or
other third-party with respect to any Offering.
Reliance. The Company shall furnish, or cause to be furnished, to Wainwright all information requested by Wainwright for
the purpose of rendering services hereunder and conducting due diligence (all such information being the
"Information"). In addition, the Company agrees to make available to Wainwright upon request from time to
time the officers, directors, accountants, counsel and other advisors of the Company. The Company recognizes and confirms
that Wainwright (a) will use and rely on the Information, including any documents provided to investors in each Offering (the
"Offering Documents") which shall include any Purchase Agreement (as defined hereunder), and on
information available from generally recognized public sources in performing the services contemplated by this Agreement
without having independently verified the same; (b) does not assume responsibility for the accuracy or completeness of the
Offering Documents or the Information and such other information; and (c) will not make an appraisal of any of the assets or
liabilities of the Company. Upon reasonable request, the Company will meet with Wainwright or its representatives to discuss
all information relevant for disclosure in the Offering Documents and will cooperate in any investigation undertaken by
Wainwright thereof, including any document included or incorporated by reference therein. At each Offering, at the request of
Wainwright, the Company shall deliver such legal letters (including, without limitation, negative assurance letters),
opinions, comfort letters, officers' and secretary certificates and good standing certificates, all in form and
substance satisfactory to Wainwright and its counsel as is customary for such Offering. Wainwright shall be a third party
beneficiary of any representations, warranties, covenants, closing conditions and closing deliverables made by the Company in
any Offering Documents, including representations, warranties, covenants, closing conditions and closing deliverables made to
any investor in an Offering.
Agreements. At each Offering, the Company shall enter into the following additional agreements:
| 2. | Best Efforts Offering . If an Offering is on a best efforts basis, the sale of Securities to the investors in the Offering will be evidenced by a purchase agreement (" Purchase Agreement ") between the Company and such investors in a form reasonably satisfactory to the Company and Wainwright. Wainwright shall be a third party beneficiary with respect to the representations, warranties and covenants, closing conditions and closing deliverables included in the Purchase Agreement. Prior to the signing of any Purchase Agreement, officers of the Company with responsibility for financial affairs will be available to answer inquiries from prospective investors. | |
| 3. | Escrow, Settlement and Closing . If each Offering is not settled via delivery versus payment (" DVP "), the Company and Wainwright shall enter into an escrow agreement with a third party escrow agent pursuant to which Wainwright's compensation and expenses shall be paid from the gross proceeds of the Securities sold. If the Offering is settled in whole or in part via DVP, Wainwright shall arrange for its clearing agent to provide the funds to facilitate such settlement. The Company shall pay Wainwright closing costs, which shall also include the reimbursement of the out-of-pocket cost of the escrow agent or clearing agent, as applicable, which closing costs shall not exceed $12,900. | |
| 4. | FINRA Amendments . Notwithstanding anything herein to the contrary, in the event that Wainwright determines that any of the terms provided for hereunder shall not comply with a FINRA rule, including but not limited to FINRA Rule 5110, then the Company shall agree to amend this Agreement (or include such revisions in the final underwriting agreement) in writing upon the request of Wainwright to comply with any such rules; provided that any such amendments shall not provide for terms that are less favorable to the Company than are reflected in this Agreement. |
In the event of the consummation or public announcement of any Offering, Wainwright shall have the right to disclose its
participation in such Offering, including, without limitation, the Offering at its cost of "tombstone"
advertisements in financial and other newspapers and journals.
| 2. | The Company further agrees that it will not, without the prior written consent of Wainwright, settle, compromise or consent to the entry of any judgment in any pending or threatened Claim in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such Claim), unless such settlement, compromise or consent includes an unconditional, irrevocable release of each Indemnified Person from any and all liability arising out of such Claim. | |
| 3. | Promptly upon receipt by an Indemnified Person of notice of any complaint or the assertion or institution of any Claim with respect to which indemnification is being sought hereunder, such Indemnified Person shall notify the Company in writing of such complaint or of such assertion or institution but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses. If the Company is requested by such Indemnified Person, the Company will assume the defense of such Claim, including the employment of counsel for such Indemnified Person and the payment of the fees and expenses of such counsel, provided, however, that such counsel shall be satisfactory to the Indemnified Person and provided further that if the legal counsel to such Indemnified Person reasonably determines that having common counsel would present such counsel with a conflict of interest or if the defendant in, or target of, any such Claim, includes an Indemnified Person and the Company, and legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses available to it or other Indemnified Persons different from or in addition to those available to the Company, such Indemnified Person will employ its own separate counsel (including local counsel, if necessary) to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses of such counsel. If such Indemnified Person does not request that the Company assume the defense of such Claim,such Indemnified Person will employ its own separate counsel (including local counsel, if necessary) to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses of such counsel. Notwithstanding anything herein to the contrary, if the Company fails timely or diligently to defend, contest, or otherwise protect against any Claim, the relevant Indemnified Person shall have the right, but not the obligation, to defend, contest, compromise, settle, assert crossclaims, or counterclaims or otherwise protect against the same, and shall be fully indemnified by the Company therefor, including without limitation, for the reasonable fees and expenses of its counsel and all amounts paid as a result of such Claim or the compromise or settlement thereof. In addition, with respect to any Claim in which the Company assumes the defense, the Indemnified Person shall have the right to participate in such Claim and to retain his, her or its own counsel therefor at his, her or its own expense. |
| 4. | The Company agrees that if any indemnity sought by an Indemnified Person hereunder is held by a court to be unavailable for any reason then (whether or not Wainwright is the Indemnified Person), the Company and Wainwright shall contribute to the Claim for which such indemnity is held unavailable in such proportion as is appropriate to reflect the relative benefits to the Company, on the one hand, and Wainwright on the other, in connection with Wainwright's engagement referred to above, subject to the limitation that in no event shall the amount of Wainwright's contribution to such Claim exceed the amount of fees actually received by Wainwright from the Company pursuant to Wainwright's engagement. The Company hereby agrees that the relative benefits to the Company, on the one hand, and Wainwright on the other, with respect to Wainwright's engagement shall be deemed to be in the same proportion as (a) the total value paid or proposed to be paid or received by the Company pursuant to the applicable Offering (whether or not consummated) for which Wainwright is engaged to render services bears to (b) the fee paid or proposed to be paid to Wainwright in connection with such engagement. | |
| 5. | The Company's indemnity, reimbursement and contribution obligations under this Agreement (a) shall be in addition to, and shall in no way limit or otherwise adversely affect any rights that any Indemnified Person may have at law or at equity and (b) shall be effective whether or not the Company is at fault in any way. |
of Engagement to the Company. The Company acknowledges that Wainwright has been retained only by the Company, that
Wainwright is providing services hereunder as an independent contractor (and not in any fiduciary or agency capacity) and
that the Company's engagement of Wainwright is not deemed to be on behalf of, and is not intended to confer rights
upon, any shareholder, owner or partner of the Company or any other person not a party hereto as against Wainwright or any of
its affiliates, or any of its or their respective officers, directors, controlling persons (within the meaning of Section 15
of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), employees or agents. Unless otherwise expressly agreed in writing by Wainwright, no one other than the
Company is authorized to rely upon this Agreement or any other statements or conduct of Wainwright, and no one other than the
Company is intended to be a beneficiary of this Agreement. The Company acknowledges that any recommendation or advice,
written or oral, given by Wainwright to the Company in connection with Wainwright's engagement is intended solely for
the benefit and use of the Company's management and directors in considering a possible Offering, and any such
recommendation or advice is not on behalf of, and shall not confer any rights or remedies upon, any other person or be used
or relied upon for any other purpose. Wainwright shall not have the authority to make any commitment binding on the Company.
The Company, in its sole discretion, shall have the right to reject any investor introduced to it by Wainwright.
of Wainwright's Liability to the Company. Wainwright and the Company further agree that neither Wainwright nor any
of its affiliates or any of its or their respective officers, directors, controlling persons (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act), employees or agents shall have any liability to the Company, its
security holders or creditors, or any person asserting claims on behalf of or in the right of the Company (whether direct or
indirect, in contract, tort, for an act of negligence or otherwise) for any losses, fees, damages, liabilities, costs,
expenses or equitable relief arising out of or relating to this Agreement or the services rendered hereunder, except for
losses, fees, damages, liabilities, costs or expenses that arise out of or are based on any action of or failure to act by
Wainwright and that are finally judicially determined to have resulted solely from the gross negligence or willful misconduct
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to
agreements made and to be fully performed therein. Any disputes that arise under this Agreement, even after the termination
of this Agreement, will be heard only in the state or federal courts located in the City of New York, State of New York. The
parties hereto expressly agree to submit themselves to the jurisdiction of the foregoing courts in the City of New York,
State of New York. The parties hereto expressly waive any rights they may have to contest the jurisdiction, venue or
authority of any court sitting in the City and State of New York. In the event Wainwright or any Indemnified Person is
successful in any action, or suit against the Company, arising out of or relating to this Agreement, the final judgment or
award entered shall be entitled to have and recover from the Company the costs and expenses incurred in connection therewith,
including its reasonable attorneys' fees. Any rights to trial by jury with respect to any such action, proceeding or
suit are hereby waived by Wainwright and the Company.
Notices. All notices hereunder will be in writing and sent by certified mail, hand delivery, overnight delivery, fax or
e-mail, if sent to Wainwright, at the address set forth on the first page hereof, e-mail: notices@hcwco.com, Attention: Head