Exhibit 5.1
ELLENOFF GROSSMAN & SCHOLE LLP
1345 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10105
TELEPHONE: (212) 370-1300
FACSIMILE: (212) 370-7889
www.egsllp.com
November 29, 2019
Akers Biosciences, Inc.
201 Grove Road
Thorofare, New Jersey 08086
Re: Akers Biosciences, Inc., Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel to Akers Biosciences, Inc., a New Jersey corporation (the “Company”), in connection with its filing of a Registration Statement on Form S-1, Commission File 333- 234447 (the “Initial Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), with the Securities and Exchange Commission (the “Commission”) on November 1, 2019, as amended by Amendment No. 1 to the Initial Registration Statement (“Amendment No. 1” and together with the Initial Registration Statement, the “Registration Statement”) the Company filed with the Commission on November 29, 2019. The Registration Statement relates to the proposed offering and sale of up to $7,500,000 worth of securities consisting of (A) Class A Units (the “Class A Units”), each consisting of a share of the common stock of the Company, no par value (the “Common Stock”), and a warrant (each, a “Preferred Stock Warrant” and, collectively, the “Preferred Stock Warrants”) to purchase one share of series C convertible preferred stock of the Company, no par value (the “Series C Preferred Stock”); and (B) Class B Units (the “Class B Units”), each consisting of a pre-funded warrant to purchase one share of Common Stock (each, a “Pre-Funded Common Warrant” and collectively, the “Pre-Funded Common Warrants”) and one Preferred Stock Warrant. The shares of Common Stock, which include the shares of Common Stock being issued as part of the Class A Units, issuable from time to time upon the exercise of the Pre-Funded Common Warrants and issuable upon exercise of those certain warrants to purchase Common Stock being issued to the Placement Agent (the “Placement Agent Warrants”) (collectively, the “Shares”) and up to $7,500,000 aggregate offering price of shares of Series C Preferred Stock issuable from time to time upon the exercise of the Preferred Stock Warrants (the “Preferred Shares”) are being registered pursuant to the Registration Statement. The Class A Units, Preferred Stock Warrants, Class B Units, Pre-Funded Common Warrants, the Placement Agent Warrants, the Shares, and the Preferred Shares are collectively referred to herein as the “Securities”. This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
In connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of the Company’s amended and restated certificate of incorporation, as amended, and the Company’s amended and restated bylaws and such other documents, records and instruments as we have deemed appropriate for purposes of the opinion set forth herein.
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile, or photostatic copies and the authenticity of the originals of all documents submitted to us as copies.
Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) execution and delivery by the Company of the Securities Purchase Agreement (the “Agreement”) with the various purchaser signatory thereto, (ii) effectiveness of the Registration Statement, (iii) issuance of the Securities pursuant to the terms of the Agreement, and (iv) receipt by the Company of the consideration for the Securities, as applicable:
(a) | The Class A Units, Class B Units and Placement Agent Warrants will be duly authorized for issuance and, when issued and sold in accordance with the Agreement and the engagement agreement between the Company and the placement agent, as applicable, and duly executed and delivered by the Company to the purchasers thereof against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms; | |
(b) | The Preferred Stock Warrants and Pre-Funded Common Warrants will be duly authorized for issuance and, when issued and sold in accordance with the Agreement and duly executed and delivered by the Company to the purchasers thereof against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms; and | |
(c) | The Shares and Preferred Shares will be duly authorized and when issued and paid for in accordance with the provisions of the Class A Units, Pre-Funded Common Warrants, Placement Agent Warrants and Preferred Stock Warrants, as applicable, will be validly issued and be fully paid and nonassessable. |
The opinions above are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting enforcement of creditors’ rights or remedies generally, (ii) general principles of equity, whether such principles are considered in a proceeding of law or at equity, and (iii) an implied covenant of good faith, reasonableness and fair dealing and standards of materiality.
This opinion is limited to the New Jersey Business Corporation Act, including the statutory provisions of the New Jersey Business Corporation Act and all applicable provisions of the New Jersey Constitution and reported judicial decisions interpreting these laws. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus. In giving our consent, we do not thereby admit that we are experts with respect to any part of the Registration Statement, the Prospectus, or any Prospectus Supplement within the meaning of the term “expert,” as used in Section 11 of the Securities Act or the rules and regulations promulgated thereunder by the Commission, nor do we admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Yours truly, | |
/s/ Ellenoff Grossman & Schole LLP | |
Ellenoff Grossman & Schole LLP |