EMAGIN CORP (Form: 8-K, Received: 07/13/2020 06:01:05)

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): June 10, 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 July 10, 2020, eMagin Corporation (the “Company”) entered into an amendment (the “Amendment”) to the At The Market Offering Agreement (the “Agreement”), dated November 22, 2019 and amended as of February 13, 2020, between the Company and H.C. Wainwright & Co., LLC , as sales agent (“Wainwright”). As previously disclosed in the Company’s Current Reports on Form 8-K, filed with the Securities and Exchange Commission on November 22, 2019 and February 13, 2020, respectively, under the terms of the Agreement, the Company may from time to time offer and sell shares of its common stock, par value $0.001 per share (the “Shares”) through Wainwright (the “ATM Offering”).

The Amendment amends the Agreement to reflect the filing of a new registration statement on Form S-3 (File No. 333-239441) (due to the prior Form S-3 (File No. 333-218838) expiring in July 2020) and new prospectus supplement regarding the ATM Offering to qualify the offering under the new registration statement on Form S-3. The termination provisions of the Agreement, which provide that the Agreement will remain in force until the date that the Agreement is terminated by either party upon proper notice or otherwise by mutual agreement of the parties, remain unchanged.

The Amendment is filed as Exhibit 10.3 to this report. The above description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment 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 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.

Item 9.01.Financial Statements and Exhibits.

(d) Exhibits. The following documents are filed as exhibits to this report:


Exhibit Number		Description
5.1		Opinion of Goodwin Procter LLP
10.1		At Market Offering Agreement, dated November 22, 2019, between eMagin Corporation and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on November 22, 2019)*
10.2		Amendment, dated February 13, 2020, to At The Market Offering Agreement, dated November 22, 2019, between eMagin Corporation and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on February 13, 2020)*
10.3		Amendment, dated July 10, 2020, to At The Market Offering Agreement, dated November 22, 2019 and amended as of February 13, 2020, between eMagin Corporation and H.C. Wainwright & Co., LLC*
23.1		Consent of Goodwin Procter LLP (included in Exhibit 5.1)

*The foregoing Exhibits are hereby incorporated by reference into the Company’s Registration Statement on Form S-3 (File No. 333-239441), filed with the SEC on June 26, 2020, as declared effective on July 10, 2020, pursuant to the Securities Act of 1933, as amended.

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: July 10, 2020	By:	/s/ Mark A. Koch
		Name: Mark A. Koch
		Title: Acting Chief Financial Officer

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

goodwinlaw.com

+1 617 570 1000

July 10, 2020

eMagin Corporation

700 South Drive, Suite 201

Hopewell Junction, NY 12533

Re:Securities Registered under Registration Statement on Form S-3

Ladies and Gentlemen:

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333-239441) (as amended or supplemented, the “Registration Statement”) filed on June 26, 2020 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of the offering by eMagin Corporation, a Delaware corporation (the “Company”) of up to $80,000,000 of any combination of securities of the types specified therein. The Registration Statement was declared effective by the Commission on July 10, 2020. Reference is made to our opinion letter dated June 25, 2020 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement (the “Prospectus Supplement”) filed on July 10, 2020 by the Company with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by the Company of up to $6,753,671 in shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (“Common Stock”) covered by the Registration Statement. The Shares are being offered and sold by the sales agent named in, and pursuant to, a sales agreement among the Company and such sales agent (the “Sales Agreement”).

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinion set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.

For purposes of the opinion set forth below, we have assumed that the Shares are issued for a price per share equal to or greater than the minimum price authorized by the Company’s board of directors prior to the date hereof (the “Minimum Price”) and that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares that may be issued for the Minimum Price.

For purposes of the opinion set forth below, we refer to the following as “Future Approval and Issuance”: (a) the approval by the Company’s board of directors (or a duly authorized committee of the board of directors) of the issuance of the Shares (the “Approval”) and (b) the issuance of the Shares in accordance with the Approval and the receipt by the

eMagin Corporation.

July 10, 2020

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Company of the consideration (which shall not be less than the par value of such Shares) to be paid in accordance with the Approval.

The opinion set forth below is limited to the Delaware General Corporation Law.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon Future Approval and Issuance, will be validly issued, fully paid and nonassessable.

This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Shares (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Current Report and its incorporation by reference and the reference to our firm in that report. In giving our consent, we do not 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.

Very truly yours,

/s/ Goodwin Procter LLP

GOODWIN PROCTER LLP

July 10, 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, as amended on February 13, 2020 (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 defined term “Registration Statement” in the ATM Agreement is amended and restated as follows:

“Registration Statement” shall mean, collectively, (i) for the period from November 22, 2019 until the Second Shelf Effective Date (as defined herein), the shelf registration statement (File Number 333-218838) on Form S-3 (the “First Registration Statement”) that was initially declared effective on July 11, 2017 and (ii) for the period from the Second Shelf Effective Date and thereafter, a new shelf registration statement (File Number 333-239441) on Form S-3 (the “Second Registration Statement”) that was filed prior to the expiration of the First Registration Statement and that was declared effective by the Commission on July 10, 2020 (such date of effectiveness of the Second Registration Statement, the “Second Shelf Effective Date”), including exhibits and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.”

3. The Company and Wainwright hereby agree that the date of this Amendment shall be a Representation Date under the ATM Agreement and the Company shall file a Prospectus Supplement with the Commission on the date hereof.

4. 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.

5. 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 Koch ______________

Name: Mark Koch

Title: Chief Financial Officer

[signature page to EMAN Amendment to

atm agreement]