UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
Current
Report Pursuant to Section 13 or 15(d) of
the Securities Act of 1934
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Item 1.01 Entry into a Material Definitive Agreement.
On August 7, 2023, Ocean Power Technologies, Inc. (the “Company”) entered into a Controlled Equity Offering Sales Agreement (the “Sales Agreement”) with Cantor Fitzgerald & Co. (“Cantor”), as sales agent, pursuant to which the Company may offer and sell, from time to time, through Cantor shares of its common stock, par value $0.001 per share (the “Shares”).
Upon delivery of a placement notice and subject to the terms and conditions of the Sales Agreement, Cantor will use commercially reasonable efforts consistent with its normal trading and sales practices, applicable state and federal law, rules and regulations, and the rules of the NYSE American to sell the Shares from time to time based upon the Company’s instructions, including any price, time or size limits specified by the Company. Under the Sales Agreement, Cantor may sell the Shares by any method deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the U.S. Securities Act of 1933, as amended, or any other method permitted by law, including in negotiated transactions with our prior consent. Cantor’s obligations to sell the Shares under the Sales Agreement are subject to satisfaction of certain conditions, including customary closing conditions.
The Company will pay Cantor a commission of 3.0% of the aggregate gross proceeds from each sale of the Shares and has agreed to provide Cantor with customary indemnification rights. The Company has also agreed to reimburse Cantor for certain specified expenses. The Company is not obligated to sell any Shares under the Sales Agreement. The offering of the Shares pursuant to the Sales Agreement will terminate upon the termination of the Sales Agreement by Cantor or the Company, as permitted therein.
The foregoing description 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 herewith and is incorporated herein by reference. A copy of the legal opinion of Porter Hedges LLP relating to the validity of the Shares under the Sales Agreement is filed herewith as Exhibit 5.1.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any shares under the Sales Agreement, nor shall there be any sale of such 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.
Exhibits
| *4.1 | Sales Agreement, dated August 7, 2023, by and between Ocean Power Technologies, Inc. and Cantor Fitzgerald & Co. |
| *5.1 | Opinion of Porter Hedges LLP dated August 7, 2023. |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
* Filed herewith.
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 thereunto duly authorized.
| Ocean Power Technologies, Inc. | |
| Dated: August 7, 2023 | /s/ Philipp Stratmann |
| Philipp Stratmann | |
| President and Chief Executive Officer |