Item
1.01. Entry into a Material Definitive Agreement.
Registered
Offering
On
February 15, 2017, Uni-Pixel, Inc. (the “Company”) priced a public offering of 10,530,000 units, each consisting of
one share of the Company’s common stock, $0.001 par value per share (“Common Stock”), and a warrant to purchase
45% of one share of Common Stock (the “Warrant”). Investors in the offering purchasing not less than $100,000 in units
entered into a Securities Purchase Agreement (the “Purchase Agreement”) with the Company. The purchase price for a
unit is $0.95. The closing of the offering is expected to occur on or about February 21, 2017, subject to the satisfaction of
certain customary closing conditions.
The
Company offered and sold the units, pursuant to an effective registration statement on Form S-3 (File No. 333-203691), filed with
the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1993, as amended, on July 6, 2015 and
declared effective on July 10, 2015. In addition, the shares of Common Stock issuable upon exercise of the Warrants are also registered
on the same registration statement. In the Purchase Agreement, the Company has agreed to maintain an effective registration statement
covering the issuance of the Common Stock issuable upon exercise of the Warrants.
The
Company expects to receive net proceeds of approximately $9.1 million at the closing, after deducting commissions to the Placement
Agent (as defined below) and estimated offering expenses associated with the offering payable by the Company.
The
units will not be issued or certificated. The Warrants will be issued in certificated physical form and may be transferred separately
immediately thereafter. The Warrants will not be listed on any national securities exchange or other trading market, and no trading
market for the Warrants is expected to develop.
The
form of the Purchase Agreement is attached to this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference.
Additional
Terms of the Purchase Agreement
The
terms of the Purchase Agreement limit the Company’s ability to issue securities in the future:
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Until
90 days after the closing of the offering, the Company may not issue, enter into any agreement to issue or announce the issuance
or proposed issuance of any shares of Common Stock, or any security which would entitle the holder to acquire at any time
shares of Common Stock.
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Until
90 days after the closing of the offering, the Company may not effect or enter into an agreement to effect any issuance of
shares of Common Stock or any security which would entitle the holder to acquire at any time shares of Common Stock involving
a Variable Rate Transaction (as defined in the Purchase Agreement). The term “Variable Rate Transaction” generally
means a transaction in which the Company issues or sells any debt or equity securities that are convertible into, exchangeable
or exercisable for, or include the right to receive, additional shares of Common Stock either (a) at a conversion price, exercise
price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the
shares of Common Stock at any time after the initial issuance of such debt or equity securities or (b) with a conversion,
exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity
security or upon the occurrence of specified or contingent events directly or indirectly related to the Company’s business
or the market for the Common Stock.
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For
one year after the closing of the offering, the Company may not effect or enter into an agreement to effect any issuance of
shares of Common Stock, or any security which would entitle the holder to acquire at any time shares of Common Stock, involving
an equity line of credit, an at-the-market offering (as defined in Rule 415 promulgated under the Securities Act of 1933,
as amended (“Securities Act”), or similarly structured transactions whereby we may issue securities at a future
determined price.
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However,
the limitations on securities issuances described above do not apply to the issuance of: (a) shares of Common Stock or options
to the Company’s employees, officers or directors pursuant to any stock or option plan duly adopted for such purpose, by
a majority of the non-employee members of the Company’s board of directors or a majority of the members of a committee of
non-employee directors established for such purpose for services rendered to the Company; (b) securities upon the exercise, exchange
or conversion of the Warrants and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date the Company entered into the Purchase Agreement, subject to certain limitations; and (c) securities
issued pursuant to acquisitions or strategic transactions approved by a majority of the Company’s disinterested directors,
subject to certain limitations, provided that none of the issuances listed above are Variable Rate Transactions (other than with
respect to the transactions described in clause (b) of this paragraph).
The
Purchase Agreement also contains customary representations, warranties, covenants, including indemnifications, and closing conditions.
Terms
of the Warrants
The
Company intends to enter into Warrants with Investors. The Warrants will be exercisable upon issuance and will remain exercisable
until the fifth anniversary of the date of issuance. The initial exercise price of the Warrants will be subject to adjustments
for stock splits and similar events. Under certain circumstances, the holders of the Warrants may elect to exercise them through
a cashless exercise, in which case the holders will receive upon such exercise the “net number” of shares of Common
Stock determined according to the formula set forth in the Warrants and the Company will not receive the cash exercise price.
A
holder may not exercise a Warrant and we may not issue shares of Common Stock under a Warrant if, after giving effect to the exercise
or issuance, the holder together with its affiliates would beneficially own in excess of 4.99% of the outstanding shares of our
Common Stock. At each holder’s option, the cap may be increased or decreased to any other percentage not in excess of 9.99%,
except that any increase will not be effective until the 61st day after notice to us.
The
holders of the Warrants are entitled to acquire options, convertible securities or rights to purchase the Company’s securities
or property granted, issued or sold pro rata to the holders of its Common Stock on an “as if exercised for Common Stock”
basis. The holders of the Warrants are entitled to receive any dividend or other distribution of the Company’s assets (or
rights to acquire its assets), at any time after the issuance of the Warrants, on an “as if exercised for Common Stock”
basis. The Warrants prohibit the Company from entering into transactions constituting a “fundamental transaction”
(as defined in the Warrants) unless the successor entity assumes all of the Company’s obligations under the Warrants and
the other transaction documents in a written agreement approved by the “required holders” of the Warrants. The definition
of “fundamental transactions” includes, but is not limited to, mergers, a sale of all or substantially all of the
Company’s assets, certain tender offers and other transactions that result in a change of control.
The
form of the Warrant is attached to this Current Report on Form 8-K as Exhibit 4.1 and is incorporated herein by reference.
Leak-Out
Agreement
Each
investor purchasing more than $10,000 of units has entered into a separate and substantially similar leak-out agreement with the
Company. Under the leak-out agreements, during the specified period commencing on February 15, 2017 and ending on March 2, 2017,
each such investor (together with certain of its affiliates) may not sell, dispose or otherwise transfer, directly or indirectly
(including, without limitation, any sales, short sales, swaps or any derivative transactions that would be equivalent to any sales
or short positions), on any trading day, shares purchased in this offering and the shares of Common Stock issuable upon exercise
of the Warrants in an amount more than a specified percentage of the trading volume of the Common Stock on the principal trading
market, subject to certain exceptions such as any actual “long” (as defined in Regulation SHO of the Securities Exchange
Act of 1934, as amended) sales greater than $1.10. The aggregate trading volume for all investors is 35% of the trading volume
of the Common Stock on the principal trading market during each trading day during the above referenced leak-out period, subject
to certain exception.
The
form of the leak-out agreement is attached to this Current Report on Form 8-K as Exhibit 10.2 and is incorporated herein by reference.
Placement
Agent
Roth
Capital Partners, LLC acted as the lead placement agent for the offering (the “Representative”) and Ladenburg Thalmann
and The Benchmark Company to act as the co-placement agents (together with the Representative, the “Placement Agents”)
pursuant to the terms of a Placement Agency Agreement, dated February 15, 2017 (the “Placement Agency Agreement”).
The Company’s engagement of the Placement Agents expires 15 days from the date of the Placement Agency Agreement. In connection
with the closing of the offering, the Company expects to pay the Placement Agents a cash fee equal to approximately $700,245,
an amount equal to 7% of the gross proceeds received by the Company from the sale of the units. The Company has agreed to reimburse
the Representative’s expenses up to a maximum of $80,000.
Additionally,
the Company has agreed to indemnify the Placement Agent against certain liabilities, including liabilities under the Securities
Act or to contribute to payments the Placement Agent may be required to make because of those liabilities.
The
Placement Agency Agreement also contains customary representations, warranties, covenants and closing conditions.
The
form of Placement Agency Agreement is attached to this Current Report on Form 8-K as Exhibit 10.3 and is incorporated herein by
reference.
Disclaimers
of Representations and Warranties
The
representations and warranties of the Company and its subsidiaries contained in the Purchase Agreement and the Placement Agency
Agreement have been made solely for the benefit of the parties thereto. In addition, such representations and warranties (a) have
been made only for purposes of such documents, (b) in some cases, have been qualified by documents filed with, or furnished to,
the Securities and Exchange Commission by the Company before the date of the Purchase Agreement and the Placement Agency Agreement,
(c) are subject to materiality qualifications contained therein which may differ from what may be viewed as material by investors,
(d) were made only as of the date of the Purchase Agreement and the Placement Agency Agreement, or such other date as is specified
in such documents, and (e) have been included in the Purchase Agreement and the Placement Agency Agreement for the purpose of
allocating risk between the contracting parties rather than establishing matters as facts.
Accordingly,
the Purchase Agreement and the Placement Agency Agreement are included with this filing only to provide investors with information
regarding the terms of such documents, and not to provide investors with any other factual information regarding the Company or
its subsidiaries or their respective business. You should not rely on the representations and warranties or any descriptions thereof
as characterizations of the actual state of facts or condition of the Company or any of its subsidiaries or affiliates. Moreover,
information concerning the subject matter of the representations and warranties may change after the date of the Purchase Agreement
and the Placement Agency Agreement, which subsequent information may or may not be fully reflected in the Company’s public
disclosures. The Purchase Agreement and Placement Agency Agreement should not be read alone, but should instead be read in conjunction
with the other information regarding the Company and its subsidiaries that has been, is or will be contained in, or incorporated
by reference into, the Forms 10-K, Forms 10-Q, Forms 8-K, proxy statements, registration statements and other documents that the
Company files with the Securities and Exchange Commission.
Forward-Looking
Statements
This
Current Report on Form 8-K includes forward-looking statements relating to matters that are not historical facts. Forward-looking
statements may be identified by the use of words such as “expect,” “believe,” “will,” “should,”
“would” or comparable terminology or by discussions of strategy. While the Company believes its assumptions and expectations
underlying forward-looking statements are reasonable, there can be no assurance that actual results will not be materially different.
Risks and uncertainties that could cause materially different results include, among others, the Company’s ability to close
the offering described herein and whether holders of the Warrants will exercise them for cash and other risks and uncertainties
included in the Company’s filings with the Securities and Exchange Commission. The Company assumes no duty to update any
forward-looking statements.