Smith Micro Software Inc. filed SEC Form 8-K: Entry into a Material Definitive Agreement, Unregistered Sales of Equity Securities, Regulation FD Disclosure, Financial Statements and Exhibits

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Registrant’s Telephone Number, Including Area Code: (412) 837-5300

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):

 

 

 

 

 

Securities registered pursuant to Section 12(b) of the Act:

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

 

On November 5, 2025, Smith Micro Software, Inc. (the “Company”) entered into a securities purchase agreement (the “RDO Purchase Agreement”) with certain institutional and accredited investors (the “RDO Purchasers”) relating to the registered direct offering and sale of an aggregate of 1,714,373 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) at an offering price of $0.6708 per share of Common Stock (the “Offering”). The shares of Common Stock were offered by the Company pursuant to a prospectus supplement dated November 5, 2025, and accompanying prospectus dated May 16, 2025, in connection with a takedown from the Company’s shelf registration statement on Form S-3 (File No. 333-287029), which was declared effective by the Securities and Exchange Commission (“SEC”) on May 16, 2025. A copy of the legal opinion of Buchanan Ingersoll & Rooney PC relating to the validity of the shares of Common Stock issued in the Offering is filed herewith as Exhibit 5.1.

 

Pursuant to the RDO Purchase Agreement, in a concurrent private placement, the Company also agreed to sell to the RDO Purchasers unregistered warrants (the “Common Warrants”) to purchase up to an aggregate of 1,714,373 shares of Common Stock (the “Common Warrant Shares”). Each unregistered Common Warrant has an exercise price of $0.6708 per share, is exercisable at any time beginning six months following their original issuance and will expire five years from the initial exercise date.

 

Neither the Common Warrants nor the Common Warrant Shares have been registered under the Securities Act of 1933, as amended (the “Securities Act”). The Common Warrants were, and Common Warrant Shares will be, issued without registration under the Securities Act, in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering and Rule 506 promulgated under the Securities Act as sales to accredited investors.

 

Roth Capital Partners, LLC (the “Placement Agent”) acted as the exclusive placement agent for the Offering and the concurrent private placement of Common Warrants pursuant to a placement agency agreement (the “Placement Agency Agreement”) dated November 5, 2025, by and between the Company and the Placement Agent.

 

The gross proceeds to the Company from the completed Offering was approximately $1.15 million, before deducting offering expenses payable by the Company.

 

 

On November 5, 2025, the Company separately entered into a second securities purchase agreement (the “Private Placement Purchase Agreement”) with the Company’s Chief Executive Officer (the “Purchaser”) relating to a private placement transaction and sale of 2,236,136 unregistered shares of the Company’s Common Stock at an offering price of $0.6708 per share of Common Stock (the “Shares”) and unregistered warrants (the “Private Placement Common Warrants”) to purchase up to an aggregate of 2,236,136 shares of Common Stock (the “Private Placement Common Warrant Shares”) (the “Private Placement”). Each unregistered Private Placement Common Warrant has an exercise price of $0.6708 per share, is exercisable following receipt of stockholder approval of the same, and will expire five years from the initial exercise date. Neither the Shares, Private Placement Common Warrants nor the Private Placement Common Warrant Shares have been registered under the Securities Act. The Shares and Private Placement Common Warrants were, and Private Placement Common Warrant Shares will be, issued without registration under the Securities Act, in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering and Rule 506 promulgated under the Securities Act as sales to accredited investors.

 

The gross proceeds to the Company from the completed Private Placement was approximately $1.5 million, before deducting offering expenses payable by the Company.

 

 

 

The Company expects to use the net proceeds from the Offering and the Private Placement for working capital and general corporate purposes. The closing of the Offering and the Private Placement occurred on or about November 6, 2025.

 

Each of the RDO Purchase Agreement and Private Placement Purchase Agreement (collectively, the “Purchase Agreements”) contain representations, warranties and covenants made by the Company that are customary for transactions of this type. Under the terms of each of the Purchase Agreements, and subject to certain exceptions, the Company has agreed not to (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock equivalents or (ii) subject to customary exceptions, file any registration statement or amendment or supplement thereto, for a period of thirty (30) days following the closing of the Offering and the Private Placement, respectively. The Company has also agreed not to effect or enter into an agreement to effect any issuance of Common Stock or Common Stock equivalents involving a Variable Rate Transaction, as defined in each of the Purchase Agreements, for a period of three months following the closing of the Offering and the Private Placement, respectively.

 

Further, pursuant to the Purchase Agreements, the Company agreed that, on or before the sixtieth (60^th) day following the closing of each of the Offering and the Private Placement, the Company will file a registration statement with the SEC registering for resale the Shares, the Common Warrant Shares issuable upon exercise of the Common Warrants, and the Private Placement Common Warrant Shares issuable upon exercise of the Private Placement Common Warrants. The Company has further agreed that such registration statement will be declared effective by the SEC no later than one hundred twenty (120) days following the closing of the Offering and the Private Placement.

 

Pursuant to the Placement Agency Agreement, the Company has agreed to pay to the Placement Agent a cash fee equivalent to 6.0% of the gross proceeds raised in the Offering, excluding amounts invested by certain individuals or entities mutually agreed upon by the Company and the Placement Agent. The Company also agreed to reimburse the Placement Agent’s expenses of up to $125,000, payable immediately upon the Closing of the Offering.

 

The foregoing is only a summary of the material terms of the Common Warrants, Private Placement Common Warrants, the RDO Purchase Agreement, the Private Placement Purchase Agreement and the Placement Agency Agreement, and is qualified in its entirety by reference to the full text of such agreements, which are attached hereto as Exhibits 4.1, 4.2, 10.1, 10.2 and 10.3, respectively, and incorporated by reference herein.

 

The foregoing summary and the exhibits hereto also are not intended to modify or supplement any disclosures about the Company in its reports filed with the SEC. In particular, the agreements and the related summary are not intended to be, and should not be relied upon, as disclosures regarding any facts and circumstances relating to the Company or any of its subsidiaries or affiliates. The agreements contain representations and warranties by the Company, which were made only for purposes of that agreement and as of specified dates. The representations, warranties and covenants in the agreements were made solely for the benefit of the parties to the agreements; may be subject to limitations agreed upon by the contracting parties, including being subject to confidential disclosures that may modify, qualify or create exceptions to such representations and warranties; may be made for the purposes of allocating contractual risk between the parties to the agreements instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Accordingly, the agreements are filed with this report only to provide investors with information regarding the terms of the transactions contemplated thereby, and not to provide investors with any other factual information regarding the Company. In addition, information concerning the subject matter of the representations, warranties and covenants may change after the date of the agreements, which subsequent information may or may not be fully reflected in our public disclosures.

 

 

 

The disclosures in Item 1.01 of this Current Report on Form 8-K regarding the Common Warrants, Common Warrant Shares issuable thereunder, Shares, Private Placement Common Warrants, and Private Placement Common Warrant Shares issuable thereunder are incorporated by reference into this Item 3.02. The Shares, Common Warrants, and Private Placement Common Warrants were and the Shares, Common Warrant Shares, and Private Placement Common Warrant Shares will be, issued without registration under the Securities Act, in reliance upon the exemptions provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering and Rule 506 promulgated under the Securities Act as sales to accredited investors.

 

 

On November 5, 2025, the Company issued a press release announcing each of the Offering and the Private Placement, respectively. A copy of the press release is attached as Exhibit 99.1 hereto.

 

The information presented in Item 7.01 of this Current Report on Form 8-K and the accompanying press releases shall not be deemed to be “filed” for 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, unless the Company specifically states that the information is to be considered “filed” under the Exchange Act or specifically incorporates it by reference into a filing under the Securities Act or the Exchange Act.

 

 

This Current Report on Form 8-K and the press release contain forward-looking statements within the meaning of U.S. federal securities laws. Such forward-looking statements include, but are not limited to, statements regarding the expectations, hopes, beliefs, intentions, plans, prospects or strategies of the Company. Any statements contained herein that are not statements of historical fact may be deemed to be forward-looking statements. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. The forward-looking statements contained in this Current Report on Form 8-K and the press release are based on certain assumptions and analyses made by the management of the Company in light of their respective experience and perception of historical trends, current conditions and expected future developments and their potential effects on the Company as well as other factors they believe are appropriate in the circumstances. There can be no assurance that future developments affecting the Company will be those anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond the control of the parties) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. Should one or more of these risks or uncertainties materialize, or should any of the assumptions being made prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

 

 

Item 9.01.         Financial Statements and Exhibits.

 

(d)         Exhibits

 

 

*Certain exhibits and schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish a copy of any of the omitted exhibits or schedules upon request by the SEC.

 

 

 

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.