Blog: BK TECHNOLOGIES CORP : Unregistered Sale of Equity Securities, Regulation FD Disclosure, Financial Statements and Exhibits (form 8-K) –

Item 3.02 Unregistered Sales of Equity Securities.

On June 6, 2021, BK Technologies Corporation (the “Company”) entered into an
underwriting agreement (the “Underwriting Agreement”) with ThinkEquity, a
division of Fordham Financial Management, Inc. (the “Representative”), as
representative of the several underwriters listed therein (the “Underwriters”),
pursuant to which the Company agreed to issue and sell 3,695,000 shares of
common stock of the Company (the “Offering Shares”), par value $0.60 per share
(the “Common Stock”), in a public offering (the “Offering”), at a public
offering price of $3.00 per share. The Company also granted a 45-day option to
the Underwriters to purchase up to 554,250 additional shares (the “Option
Shares”) of Common Stock, representing approximately fifteen percent (15%) of
the Offering Shares sold in the Offering, solely to cover over-allotments, if
any. On June 9, 2021, the Company issued and sold to the Underwriters pursuant
to the Underwriting Agreement the Offering Shares and Option Shares for
estimated net proceeds of approximately $11.6 million, after deducting
underwriting discounts and commissions and estimated offering expenses payable
by the Company.

The Underwriting Agreement contains customary representations, warranties and
agreements by the Company and customary obligations of the parties, including a
90-day lock-up period on certain dispositions of Common Stock by the Company,
subject to customary exceptions. Additionally, the Company has agreed to
indemnify the Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended (the “Securities Act”), or to
contribute to payments the Underwriters may be required to make because of any
of those liabilities. Until June 9, 2022, the Representative has an irrevocable
right of first refusal to act as sole investment banker, sole book-runner and/or
sole placement agent, at the Representative’s sole discretion, for each and
every future public and private equity and debt offering, including all equity
linked financings, for the Company, or any successor to or any subsidiary of the
Company, using an investment banker, placement agent or broker on terms
customary to the Representative.

Pursuant to the Underwriting Agreement, on June 9, 2021, the Company also issued
to certain of the Representative’s designees warrants to purchase up to 184,750
shares of Common Stock (collectively, the “Representative’s Warrants”). The
Representative’s Warrants are exercisable at any time, in whole or in part, from
December 3, 2021 until June 6, 2026, at a price per share of $3.75. The
Representative’s Warrants also provide for “piggyback” registration rights with
respect to the registration of the shares of Common Stock underlying the
Representative’s Warrants and customary anti-dilution provisions. The piggyback
registration rights last 4.5 years from the initial exercise date of December 3,

The Offering was made pursuant to the Company’s effective shelf registration
statement on Form S-3 (Registration No. 333-251307), including an accompanying
prospectus, and preliminary and final prospectus supplements thereto, all of
which were previously filed with the Securities and Exchange Commission. The
Representative’s Warrants were issued, and the shares of Common Stock underlying
the Representative’s Warrant, unless registered prior to issuance, are expected
to be issued, in each case, in reliance on the exemption from the registration
requirements in Section 4(a)(2) of the Securities Act. The Company’s reliance
upon Section 4(a)(2) of the Securities Act is based in part upon the following
factors: (a) the issuance of the securities was in connection with isolated
private transactions which did not involve any public offering; (b) there were a
limited number of offerees; (c) there will be no subsequent or contemporaneous
public offerings of the Representative’s Warrants or the shares of Common Stock
underlying the Representative’s Warrant by the Company; and (d) the negotiations
for the sale of the securities took place directly between the Representative
and the Company.

The foregoing descriptions of the Underwriting Agreement and Representative’s
Warrants are qualified in their entirety by reference to the complete text of
the Underwriting Agreement and form of Representative’s Warrant, copies of which
are filed herewith as Exhibits 1.1 and 4.1, respectively, and are incorporated
herein by reference. A copy of the opinion of Kirton McConkie PC relating to the
Offering Shares and Option Shares is also filed herewith as Exhibit 5.1.

Item 7.01. Regulation FD Disclosure.

On June 9, 2021, the Company issued a press release announcing the closing of
the Offering, which is furnished as Exhibit 99.1 hereto.

The information contained in Item 7.01 of this Current Report on Form 8-K and
Exhibit 99.1 hereto are being “furnished” and, as such, shall not be deemed to
be “filed” for the purposes of Section 18 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities
of that section, nor shall it be incorporated by reference into any filing under
the Securities Act or the Exchange Act, except as shall be expressly set forth
by specific reference in such filing.

Item 9.01. Financial Statements and Exhibits.


No.        Description
  1.1      Underwriting Agreement by and between the Company and the
           Representative dated June 6, 2021
  4.1      Form of Representative's Warrant
  5.1      Opinion of Kirton McConkie PC
  23.1     Consent of Kirton McConkie PC (included in Exhibit 5.1)
  99.1     Press Release, dated June 9, 2021

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