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):   February 13, 2020

 


 

eMagin Corporation

(Exact name of registrant as specified in charter)

 


 



 

 

 

 

Delaware

 

001-15751

 

56-1764501

(State or other jurisdiction
of incorporation)

 

(Commission
File Number)

 

(IRS Employer
Identification No.)



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:

 

            Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

            Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

            Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

            Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))



 Securities registered pursuant to Section 12(b) of the Act:





 

 

 

 

Title of each class

 

Trading Symbol(s)

 

Name of each exchange on which registered

Common Stock, $.001 Par Value Per Share

 

EMAN

 

NYSE American



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.   Entry into a Material Definitive Agreement.



 On February 13, 2020, eMagin Corporation (the “Company”) entered into an amendment (the “Amendment”) to the At The Market Offering Agreement (the “Agreement”), dated November 22, 2019, between the Company and H.C. Wainwright & Co., LLC (“Wainwright”). The Amendment modifies the Agreement to amend the aggregate offering price of the shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), that the Company may offer and sell through Wainwright from time to time under the Company’s at-the-market equity program (the “ATM Program”) 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 our 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.



This report incorporates by reference the Amendment into the shelf registration statement on Form S-3 (File No. 333-218838) previously filed with the Securities and Exchange Commission on June 20, 2017, in the form in which it became effective on July 11, 2017.  This report shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of shares of Common Stock 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 foregoing description of the Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amendment, which is filed herewith as Exhibit 10.1 to this report and is incorporated by reference herein.



Item 9.01.     Financial Statements and Exhibits.



(d)   Exhibits





 

 

Exhibit Number

 

Description

10.1

 

Amendment, dated February 13, 2020, to At The Market Offering Agreement, dated November 22, 2019, between eMagin Corporation and H.C. Wainwright & Co., LLC 


2

 


 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 



 

 

 

EMAGIN CORPORATION

 

 

 

Date: February 13, 2020

By:

/s/ Mark A. Koch

 

 

Name: Mark A. Koch



 

Title: Acting Chief Financial Officer



 







































3

 


Exhibit 10.1

February 13, 2020



eMagin Corporation

700 South Drive, suite 201

Hopewell Junction, New York 12533

Attention: Mark Koch, Chief Financial Officer



Dear Mr. Koch:



Reference is made to the At The Market Offering Agreement, dated as of November 22, 2019 (the “ATM Agreement”), between eMagin Corporation (the “Company”) and H.C. Wainwright & Co., LLC (the “Wainwright”).  This letter (the “Amendment”) constitutes an agreement between the Company and Wainwright to amend the ATM Agreement as set forth herein.  Defined terms that are used but not defined herein shall have the meanings ascribed to such terms in the ATM Agreement.

 

1. The defined term “Agreement” in the ATM Agreement is amended to mean the ATM Agreement as amended by this Amendment.



2. The first sentence of Section 2 of the ATM Agreement is hereby amended and restated as follows:



“The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal, from time to time during the term of this Agreement and on the terms set forth herein, up to the Maximum Amount (as defined below), which is equal to the lesser of such number of shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (“Common Stock”), that (a) equals the number or dollar amount of shares of Common Stock registered on the Registration Statement pursuant to which the offering is being made, (b) equals the number of 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 authorized by Board, or (d) would cause the Company or the offering of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b), (c) and (d), the “Maximum Amount”).”

 

3. Section 2(d) of the ATM Agreement is hereby amended by deleting in full the first sentence of Section 2(d).



4. Section 8(c) of the ATM Agreement is hereby amended and restated as follows:



“This Agreement shall remain in full force and effect until the date that this Agreement is terminated pursuant to Sections 8(a) or (b) above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed to provide that Sections 5, 7, 8, 9, 10, 12 and 14 shall remain in full force and effect.”




 

5. The Company and Wainwright hereby agree that the date of this Amendment shall be a Representation Date under the ATM Agreement (provided, however, that the deliverables under Sections 6(b) and 6(d) of the ATM Agreement shall not be required on the date of this Amendment) and the Company shall file a Prospectus Supplement with the Commission on the date hereof.



6. In connection with the amendments to the ATM Agreement set forth herein, the Company shall reimburse Wainwright for the fees and expenses of Wainwright’s counsel in an amount not to exceed $15,000, which shall be paid on the date hereof.



7. Except as expressly set forth herein, all of the terms and conditions of the ATM Agreement shall continue in full force and effect after the execution of this Amendment and shall not be in any way changed, modified or superseded by the terms set forth herein.



8. This Amendment may be executed in two or more counterparts and by facsimile or “.pdf” signature or otherwise, and each of such counterparts shall be deemed an original and all of such counterparts together shall constitute one and the same agreement.





[remainder of page intentionally left blank]


 



In acknowledgment that the foregoing correctly sets forth the understanding reached by the Company and Wainwright, please sign in the space provided below, whereupon this Amendment shall constitute a binding amendment to the ATM Agreement as of the date indicated above.





Very truly yours,



H.C. WAINWRIGHT & CO., LLC



By _/s/ Edward D. Silvera__________

Name: Edward D. Silvera

Title: Chief Operating Officer



Accepted and Agreed:



EMAGIN CORPORATION



By: _/s/ Mark A. Koch_______________

    Name: Mark A. Koch

    Title: Chief Financial Officer











[signature page to EMAN Amendment to

atm agreement]