| Item 1.01 | Entry into a Material Definitive Agreement. |
On February 10, 2023, Meta Materials Inc. (the “Company”) entered into an At Market Issuance Sales Agreement (the “Sales Agreement”), by and among the Company, Ladenburg Thalmann & Co. Inc., B. Riley Securities, Inc., and Roth Capital Partners, LLC (each, an “Agent” and together, the “Agents”), pursuant to which the Company may offer and sell, from time to time through the Agents, acting as its agent, or directly to the Agents acting as principal, shares of the Company’s common stock, par value $0.001 per share, having an aggregate offering price of up to $100,000,000 (the “Shares”).
The offer and sale of the Shares will be made pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-268282) (the “Registration Statement”) that was declared effective by the U.S. Securities and Exchange Commission (the “SEC”) on November 18, 2022, and a related prospectus supplement, which the Company filed with the SEC on February 10, 2023.
The Company is not obligated to sell any Shares pursuant to the Sales Agreement. Subject to the terms and conditions of the Sales Agreement, the Agents have agreed to use commercially reasonable efforts, consistent with their normal trading and sales practices and applicable law and regulations, to sell Shares from time to time in accordance with the Company’s instructions including any price, time or size limits or other customary parameters or conditions the Company may impose.
Under the Sales Agreement, the Agents may sell Shares by any method permitted by law and deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act of 1933, as amended, and the rules and regulations thereunder, including by ordinary brokers’ transactions through the facilities of The Nasdaq Capital Market (“Nasdaq”) or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices, in block transactions or as otherwise permitted by law. Subject to the terms and conditions of the Sales Agreement, the Company may also from time to time sell Shares to the Agents as principals.
The Sales Agreement may be terminated for any reason, at any time by either the Company or the Agents upon the prior written notice to the other parties.
The Company has agreed to pay the Agents an aggregate commission equal to 3.0% of the gross proceeds from the sales of Shares pursuant to the Sales Agreement and has agreed to provide the Agents with customary indemnification and contribution rights. The Company will also reimburse the Agents for certain specified expenses in connection with entering into and maintaining the Sales Agreement. The Sales Agreement contains customary representations and warranties and conditions to the placements of the Shares pursuant thereto.
The foregoing summary of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed as Exhibit 10.1 hereto and incorporated herein by reference. The Sales Agreement contains representations and warranties that the parties made to, and solely for the benefit of, the other in the context of all of the terms and conditions of the Sales Agreement and in the context of the specific relationship between the parties. The provisions of the Sales Agreement, including the representations and warranties contained therein, are not for the benefit of any party other than the parties to the Sales Agreement and are not intended as a document for investors and the public to obtain factual information about the Company’s current state of affairs. Rather, investors and the public should look to other disclosures contained in the Company’s filings with the SEC.
Ballard Spahr, counsel to the Company, has issued a legal opinion relating to the validity of the Shares being offered pursuant to the Sales Agreement. A copy of such legal opinion, including the consent included therein, is filed as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 2.02 | Results of Operations and Financial Condition. |
On February 10, 2023, the Company filed a prospectus supplement with the SEC in connection with the Sales Agreement, which contained certain preliminary estimated financial information as of and for the quarter and fiscal year ended December 31, 2022 presented below. The preliminary
