Current Report Filing (8-k)
November 19 2021 - 6:07AM
Edgar (US Regulatory)
0001046995
false
0001046995
2021-11-18
2021-11-18
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
November 18, 2021
eMagin Corporation
(Exact name of registrant as specified in charter)
Delaware
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001-15751
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56-1764501
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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700 South Drive, Suite 201
Hopewell Junction, NY 12533
(Address of principal executive office)
Registrant’s telephone number, including
area code (845) 838-7900
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
Title of each class
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Trading Symbol(s)
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Name of each exchange on
which registered
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Common Stock, $.001 Par Value Per Share
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EMAN
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NYSE American
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Indicate by check mark whether the registrant is an emerging growth
company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
☐ Emerging growth company
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
Item 1.01.
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Entry into a Material Definitive Agreement.
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On November 18, 2021, eMagin Corporation (“we,”
“us,” “eMagin” or the “Company”) entered into an At The Market Offering Agreement (the “Agreement”)
with H.C. Wainwright & Co., LLC (“Wainwright” or the “Agent”), to create an at-the-market equity program (the
“ATM Program”) under which the Company from time to time may offer and sell shares of its common stock, par value $0.001 per
share (“Common Stock”), through Wainwright. The aggregate offering price of shares that the Company may offer and sell through
Wainwright under the ATM Program (the “Shares”) is limited to an amount equal to the lesser of such number of shares of the
Common Stock that (a) equals the number or dollar amount of shares of Common Stock registered on the registration statement pursuant to
which an offering under the ATM Program is being made, (b) equals the Company’s authorized but unissued shares of Common Stock (less
the number of shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise
reserved from the Company’s authorized capital stock), (c) equals the number or dollar amount of shares of Common Stock authorized
by the Company’s board of directors, or (d) would cause the Company or an offering under the ATM Program to not satisfy the eligibility
and transaction requirements for use of Form S-3, including, if applicable, general instruction I.B.6 of Form S-3.
On November 18, 2021, the Company filed a prospectus supplement pursuant to which the aggregate offering price of Shares that the Company
may offer and sell under the ATM Program is $10.0 million.
Subject to the terms and conditions of the Agreement,
Wainwright will use its commercially reasonable efforts to sell the Shares from time to time, based upon the Company’s instructions.
The Company has provided the Agent with customary indemnification rights, and the Agent will be entitled to a placement fee at a fixed
commission rate equal to 3.0% of the gross proceeds per Share sold.
Sales of the Shares, if any, under the Agreement
may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act
of 1933, as amended (the “Securities Act”), including sales made by means of ordinary brokers’ transactions, including
on the NYSE American, at market prices or as otherwise agreed with the Agent. The Company has no obligation to sell any of the Shares,
and may at any time suspend offers under the Agreement or terminate the Agreement.
This report also incorporates by reference the
Agreement into the shelf registration statement on Form S-3 (File No. 333-239441) previously filed with the Securities and Exchange Commission
on June 26, 2020, in the form in which it became effective on July 10, 2020 (the “2020 Registration Statement”). This report
shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Shares in any state in
which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state.
The Agreement is filed as Exhibit 10.1 to this
report. The description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the Agreement
filed herewith as an exhibit to this report.
The opinion of the Company’s counsel regarding
the validity of the Shares that will be issued pursuant to the Agreement is also filed herewith as Exhibit 5.1. This opinion is also filed
with reference to, and is hereby incorporated by reference into, the 2020 Registration Statement.
Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits. The following documents are filed as exhibits
to this report:
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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EMAGIN CORPORATION
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Date: November 18, 2021
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By:
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/s/ Mark Koch
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Name: Mark Koch
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Title: Chief Financial Officer
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