Item 1.01. Entry into a Material Definitive Agreement.
On October 11, 2019, Energous Corporation (Energous) entered into an At Market Issuance Sales Agreement (the Sales Agreement) with
B. Riley FBR, Inc., as agent (B. Riley FBR), pursuant to which Energous may offer and sell, from time to time through or to B. Riley FBR, shares of its common stock, par value $0.00001 per share (the Common Stock), with
aggregate gross proceeds of up to $20.0 million (the Shares). The offer and sale of the Shares will be made pursuant to a shelf registration statement on Form S-3 and the related prospectus
(File No. 333-226739) filed by Energous with the Securities and Exchange Commission (the SEC) on August 9, 2018 and declared effective by the SEC on August 17, 2018, as supplemented
by a prospectus supplement dated October 11, 2019 and filed with the SEC pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the Securities Act).
Under the Sales Agreement, B. Riley FBR may sell the Shares in sales deemed to be
at-the-market equity offerings as defined in Rule 415 promulgated under the Securities Act, including sales made directly on or through Nasdaq. If agreed to
in a transaction notice, Energous may also sell common stock to B. Riley FBR as principal, at a purchase price agreed upon by B. Riley FBR and Energous. The offer and sale of the Shares pursuant to the Sales Agreement will terminate upon the earlier
of (a) the sale of all of the Shares subject to the Sales Agreement or (b) the termination of the Sales Agreement by B. Riley FBR or Energous pursuant to the terms thereof.
Energous will pay B. Riley FBR a commission of 2.5% of the aggregate gross proceeds from any Shares sold by B. Riley FBR under the sales agreement, and
Energous has agreed to provide B. Riley FBR with customary indemnification and contribution rights, including for liabilities under the Securities Act. Energous also will reimburse B. Riley FBR for specified expenses in connection with entering into
the Sales Agreement. The Sales Agreement contains customary representations and warranties and conditions to the placements of the Shares pursuant thereto.
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 the Sales Agreement is filed with this Current Report on Form 8-K as Exhibit 1.1 and is incorporated herein by reference.
A copy of the opinion of Fenwick & West LLP, relating to the validity of the Shares to be issued pursuant to the Sales Agreement, is filed with this
Current Report on Form 8-K report 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 the Shares, nor shall there be any offer, solicitation, or sale of Energouss Common Stock 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.