form8k.htm
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): December 18, 2008
eMagin
Corporation
(Exact
name of registrant as specified in its charter)
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Delaware
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000-24757
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56-1764501
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(State or other
jurisdiction
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(Commission File
Number)
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(IRS
Employer
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10500 N.E. 8th Street, Suite 1400,
Bellevue, WA 98004
(Address
of principal executive offices and Zip Code)
Registrant's
telephone number, including area code (425)-749-3600
Copies
to:
Richard
A. Friedman, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway, 32nd
Floor
New York,
New York 10006
Phone:
(212) 930-9700
Fax:
(212) 930-9725
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 (see General Instruction A.2. below):
[ ]
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))
Item
1.01 Entry into a Material Definitive Agreement.
Pursuant
to a Securities Purchase Agreement (the “Securities Purchase Agreement”) entered
into on December 18, 2008 between eMagin Corporation (the “Company”)
and an accredited investor (the “Investor”), on December 22, 2008
(the “Closing”), the Company sold the Investor for an aggregate purchase price
of $4,033,000 an aggregate of 4,033 shares of its Series B Convertible Preferred
Stock (the “Preferred Stock”), which have a stated value of $1,000 per share, a
conversion price of $.75 per share and have the rights and preferences set forth
in the Certificate of Designations of Series B Convertible Preferred Stock filed
with the Secretary of State for the State of Delaware on December 19, 2008 (the
“Certificate of Designations”), and warrants to purchase 1,875,467 shares of
common stock at $1.03 per share (the “Warrants”),. The Warrants
terminate on December 22, 2013.
Pursuant
to the terms of the Securities Purchase Agreement, the Company used the proceeds
from the sale of the Preferred Stock to exclusively to repay $4,033,000 of its
Amended and Restated 8% Senior Secured Convertible Notes Due 2008 (the “Notes”)
which matured on December 22, 2008.
Pursuant
to the Securities Purchase Agreement, the members of the Company’s board of
directors, and certain executive officers executed lockup agreements pursuant to
which, subject to the terms of the lockup agreement, they are restricted from
selling the stock of the Company that they beneficially own for 180 days from
the Closing.
On
December 22, 2008, the Company entered into an Exchange Agreement (the “Exchange
Agreement”) with three holders (“Holders”) of its outstanding
Notes. Pursuant to the Exchange Agreement, on December 22, 2008, the
Holders exchanged $1,700,000 of their outstanding Notes and unpaid interest
thereon and received 1,706 shares of the Preferred Stock (the amount of the
outstanding principal and interest due on the Notes exchanged divided by
$1,000).
Pursuant
to the Securities Purchase Agreement, the Company filed the Certificate of
Designations with the State of Delaware on December 19, 2008. The
Certificate of Designations designates 10,000 shares of the Company’s preferred
stock as Series B Convertible Preferred Stock. The Preferred Stock
has a stated value of $1,000 and has a conversion price of $.75 per
share. The Preferred Stock does not pay interest. The
holders of the Preferred Stock are not entitled to receive dividends unless the
Company’s Board of Directors declared a dividend for holders of the Company’s
common stock and then the dividend shall be equal to the amount that such holder
would have been entitled to receive if the holder converted its Preferred Stock
into shares of the Company’s common stock. Each share of Preferred
Stock has voting rights equal to (i) the number of shares of Common Stock
issuable upon conversion of such shares of Preferred Stock at such time
(determined without regard to the shares of Common Stock so issuable upon such
conversion in respect of accrued and unpaid dividends on such share of Preferred
Stock) when the Preferred Stock votes together with the Company’s Common Stock
or any other class or series of stock of the Company and (ii) one vote per share
of Preferred Stock when such vote is not covered by the immediately preceding
clause. The Company may at its option redeem the Preferred Stock by
providing the required notice to the holders of the Preferred Stock and paying
an amount equal to $1,000 multiplied by the number of shares for all of such
holder’s shares of outstanding Preferred Stock to be redeemed.
The
Company entered into a Registration Rights Agreement with the Investor to
register the resale of the shares of the Company’s common stock issuable upon
conversion of the Preferred Stock sold in the offering and the shares of common
stock issuable upon exercise of the warrants. Subject to the terms of
the Registration Rights Agreement, the Company is required to file a
registration statement (the “Registration Statement”) on Form S-1 with the
Securities and Exchange Commission (the “SEC”) within 30 days following the date
that the Company is permitted to file a registration statement by (i) the rules
and regulations of the Securities and Exchange Commission and (ii) the
agreements set forth on Schedule B to the Registration Rights Agreement, which
as of December 18, 2008 prohibit the Company from filing the initial
Registration Statement until certain other registration statements are filed.
After filing the Registration Statement, the Company is to cause such
Registration Statement to be declared effective under the Securities Act of 1933
(the “Act”) as promptly as possible after the filing thereof, but in no event
later than 90 days after the filing date (or no later than 120 days after the
filing date in the event of SEC “full review” of the Registration Statement).
The holders of Notes that exchanged their Notes pursuant to the Exchange
Agreement received the same registration rights as the Investor.
Pursuant
to the Securities Purchase Agreement, the Company claims an exemption from the
registration requirements of the Act for the private placement of these
securities pursuant to Section 4(2) of the Act and/or Regulation D promulgated
thereunder since, among other things, the transaction did not involve a public
offering, the investors were accredited investors and/or qualified institutional
buyers, the investors had access to information about the Company and their
investment, the investors took the securities for investment and not resale, and
the Company took appropriate measures to restrict the transfer of the
securities.
The
foregoing descriptions of the Securities Purchase Agreement, Registration Rights
Agreement, Certificate of Designations, Warrant and Exchange Agreement do not
purport to be complete and is qualified in its entirety by reference to the
respective agreements which are attached as exhibits to this Current Report and
is incorporated into this Item by reference.
Item
3.02 Unregistered Sales of Equity Securities.
See Item
1.01 above.
Item
9.01 Financial Statements and Exhibits.
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(a)
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Financial
statements of business acquired.
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Not
applicable.
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(b)
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Pro
forma financial information.
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Not
applicable.
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Exhibit
Number
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Description
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4.1
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Form
of Common Stock Purchase Warrant of the Company.
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| 4.2 |
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Certificate
of Designations of Series B Convertible Preferred Stock |
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99.1
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Securities
Purchase Agreement dated December 18, 2008, by and among the Company and
the investor named on Schedule A thereto.
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99.2
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Registration
Rights Agreement dated December 18, 2008, by and among the Company and the
investor named on Schedule A thereto.
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99.3
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Exchange
Agreement between the Company and the parties named on Schedule A thereto
dated December 18,
2008.
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SIGNATURES
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: December 22,
2008
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By:
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/s/ Paul
Campbell
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Paul
Campbell
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Interim
Chief Financial Officer
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