| Item
1.01 |
Entry
into a Material Definitive Agreement. |
On
January 10, 2023, My Size, Inc. (the “Company”) entered into a securities purchase agreement (the “RD Purchase
Agreement”) pursuant to which the Company agreed to sell and issue in a registered direct offering (the “Registered
Direct Offering”) an aggregate of 162,000 of the Company’s shares of common stock (the “RD Shares”) and
pre-funded warrants (the “Pre-funded Warrants”) to purchase up to 278,899 shares of
common stock and, in a concurrent private placement, unregistered warrants to purchase up to 883,798 shares of common stock (the “RD Warrants”), consisting of Series A warrants
(“Series A Warrants”) to purchase up to 441,899 shares of common stock and Series B warrants (“Series B
Warrants”) to purchase up to 441,899 shares of common stock, at an offering price of $3.055 per
RD Share and associated Series A and Series B warrants and an offering price of $3.054 per Pre-funded Warrant and associated Series A and Series B
warrants.
In
addition, the Company entered into a securities purchase agreement (the “PIPE Purchase Agreement,” and together with the
RD Purchase Agreement, the “Purchase Agreements”) pursuant to which the Company agreed to sell and issue in a private placement
(the “PIPE Offering” and together with the Registered Direct Offering, the “Offerings”) an aggregate of up
to 540,098 unregistered Pre-funded Warrants and unregistered warrants to purchase up to an aggregate of 1,080,196 shares of
common stock (the “PIPE Warrants” and together with the RD Warrants, the “Warrants”), consisting of Series A
Warrants to purchase up to 540,098 shares of common stock and Series B Warrants to purchase up to 540,098 shares of common stock at an
offering price of $3.054 per Pre-funded Warrant and associated Series A and Series B warrants.
The
Pre-funded Warrants will be immediately exercisable at an exercise price of $0.001 per share and will not expire until exercised in full.
The Warrants will be immediately exercisable upon issuance at an
exercise price of $2.805 per share, subject to adjustment as set forth therein. The Series A Warrants have a term of five and one-half
years from the date of issuance and the Series B Warrants have a term of 28 months from the date of issuance. The Warrants may be exercised
on a cashless basis if there is no effective registration statement registering the shares underlying the warrants.
In
connection with the PIPE Purchase Agreement, the Company entered into a registration rights agreement (the “Registration
Rights Agreement”). Pursuant to the Registration Rights Agreement, the Company is required to file a resale registration
statement (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) to register
for resale the shares issuable upon exercise of the unregistered Pre-funded Warrants and
Warrants, within 20 days of the signing date of the PIPE Purchase Agreement (the “Signing Date”), and to have such
Registration Statement declared effective within 60 days after the Signing Date in the event the Registration Statement is not
reviewed by the SEC, or 90 days of the Signing Date in the event the Registration Statement is reviewed by the SEC. The Company will
be obligated to pay certain liquidated damages if the Company fails to file the Registration Statement when required, fails to cause
the Registration Statement to be declared effective by the SEC when required, of if the Company fails to maintain the effectiveness
of the Registration Statement.
The
Purchase Agreements and the Registration Rights Agreements also contain representations, warranties, indemnification and
other provisions customary for transactions of this nature. In addition, subject to limited exceptions, the Purchase Agreements
provide that for a period of one year following the closing of the offering, the Company will not effect or enter into an agreement
to effect a “variable rate transaction” as defined in the Purchase Agreements. In addition, pursuant to the
Purchase Agreements, the Company agreed to abide by certain customary standstill restrictions for a period of sixty (60) days
following the closing of the offering.
Aggregate
gross proceeds to the Company in respect of the Offerings is approximately $3.0 million, before deducting fees payable to the placement
agent and other offering expenses payable by the Company. The Offerings are expected to close on or about January 12, 2023, subject to
satisfaction of customary closing conditions.
The
Company also entered into a letter agreement (the “Engagement Agreement”) with H.C. Wainwright & Co., LLC (“Wainwright”),
pursuant to which Wainwright agreed to serve as the exclusive placement agent for the Company in connection with the Offerings. The Company
agreed to pay Wainwright a cash placement fee equal to 7% of the aggregate gross proceeds raised in the Offerings, a management fee of
1% of the aggregate gross proceeds raised in the Offerings, a non-accountable expense allowance of $85,000 and clearing fees of $15,950.
Wainwright will also receive placement agent warrants (the “Placement Agent Warrants”) on substantially the same terms as
the Series A Warrants to be issued in the Offering in an amount equal to 7% of the aggregate number of Shares and Pre-funded Warrants
sold in the Offerings, or 68,740 shares, at an exercise price of $3.8188 per share and a term expiring on January 10, 2028.
The
RD Shares and the Pre-funded Warrants and the shares underlying the Pre-funded Warrants
to be issued in the Registered Direct Offering will be issued pursuant to a prospectus supplement dated as of January 10, 2023 which
will be filed with the SEC, in connection with a takedown from the Company’s shelf registration statement on Form S-3 (File
No. 333-251679), which became effective on December 30, 2020, and the base prospectus dated as of December 30, 2020 contained in
such registration statement.
The
Pre-funded Warrants to be issued in the PIPE Offering, the Warrants, Placement Agent Warrants and the shares underlying
such warrants are being offered and sold pursuant to an exemption from the registration requirements under Section 4(a)(2) of
the Securities Act of 1933, as amended (the “Securities Act”) and Rule 506 of Regulation D promulgated thereunder. The investors
have represented that they are accredited investors, as that term is defined in Regulation D, or qualified institutional buyer as defined
in Rule 144(A)(a), and have acquired such securities for their own account and have no arrangements or understandings for any
distribution thereof. The offer and sale of the foregoing securities is being made without any form of general solicitation or advertising.
The Pre-funded Warrants to be issued in the PIPE Offering, the Warrants, Placement Agent Warrants and the shares underlying
such warrants have not been registered under the Securities Act or applicable state securities laws. Accordingly, such securities
may not be offered or sold in the United States except pursuant to an effective registration statement or an applicable exemption from
the registration requirements of the Securities Act and such applicable state securities laws.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation to buy nor shall there be any sale of the shares
or warrants in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state or jurisdiction.
The
foregoing descriptions of the Purchase Agreements, the Registration Rights Agreement, the Warrants, the Engagement Agreement, and
Placement Agent Warrants are not complete, and are qualified in their entireties by reference to the full text of such documents,
copies of which are filed as exhibits to this Current Report on Form 8-K and are incorporated by reference herein.
A
copy of the opinion of Greenberg Traurig, LLP relating to the Registered
Direct Offering is attached as Exhibit 5.1 hereto.
Warning
Concerning Forward Looking Statements
This
Current Report on Form 8-K contains statements which constitute forward looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995 and other securities laws. These forward looking statements are based upon the Company’s present
intent, beliefs or expectations, but forward looking statements are not guaranteed to occur and may not occur for various reasons, including
some reasons which are beyond the Company’s control. For example, this Current Report states that the Offerings are expected to
close on or about January 12, 2023. In fact, the closing of the Offerings is subject to various conditions and contingencies as are customary
in securities purchase agreements in the United States. If these conditions are not satisfied or the specified contingencies do not occur,
this offering may not close. For this reason, among others, you should not place undue reliance upon the Company’s forward looking
statements. Except as required by law, the Company undertakes no obligation to revise or update any forward looking statements in order
to reflect any event or circumstance that may arise after the date of this Current Report.