UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 3, 2018
ATTIS INDUSTRIES INC.
(Exact name of registrant as specified in its charter)
| New York | 001-13984 | 13-3832215 | ||
| (State or other jurisdiction | (Commission File Number) | (IRS Employer | ||
| of incorporation) | Identification No.) |
12540 Broadwell Road, Suite 2104
Milton, GA30004
(Address of principal executive offices)
(678) 580-5661
(Registrant’s telephone number, including area code)
(Former address, if changed since last report)
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:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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. ☐
Item 1.01 Entry into a Material Definitive Agreement
Securities Purchase Agreement Amendments
On August 3, 2018, Attis Industries Inc. (the “Company”) entered into amendments for those certain Securities Purchase Agreements entered into on November 29, 2017 (the “November Purchase Agreements”) and those certain Securities Purchase Agreements entered into on February 21, 2018 (the “February Purchase Agreements”) pursuant to the execution and delivery of that certain Omnibus Amendment (the “Omnibus Amendment”) between the Company and certain investors who, collectively, purchased a majority in interest of the Shares (as defined in the November Purchase Agreement) based on the initial Subscription Amounts of the November Purchase Agreements and/or, in the case of the February Purchase Agreements, purchased a majority in interest of the Series F Preferred Stock based on the initial Subscription Amounts (as defined in the February Purchase Agreements) and the “Required Holders” (as defined therein).
As previously disclosed, the Company entered into the November Purchase Agreements in connection with the Company’s private placement offering of its common stock, Series A Common Stock Purchase Warrants (the “Series A Warrants”), and Series B Common Stock Purchase Warrants. As previously disclosed, the Company entered into the February Purchase Agreements in connection with the Company’s private placement offering of its Series F Preferred Stock and warrants to purchase the Company’s common stock (“Series F Offering”).
Pursuant to the Omnibus Amendment, (i) Section 4.12 of the November Purchase Agreements was removed, resulting in the Company no longer being precluded from issuing its common stock or common stock equivalents or be precluded from entering into variable rate transactions; (ii) Section 4.13 of the February Purchase Agreements was removed, resulting in the Company no longer being precluded from making certain issuances of common stock or common stock equivalents or precluded from entering into variable rate transactions; and (iii) the phrase “(and which must include the Required Holders)” in Section 5.5 of the February Agreement was amended and restated as “(and which must include the Required Holders with respect to any amendment, modification or waiver of Sections 4.8, 4.10 or 4.12 or any other part of the February Agreement related to the Warrants and/or the Warrant Shares or the rights or remedies of any Purchaser hereunder or thereunder with respect to the Warrants and/or the Warrant Shares)”, each as approved by the majority of the holders of the Company’s Series F Preferred Stock.
Ratification Agreement
On August 3, 2018, the Company entered into that certain Ratification Agreement (the “Ratification Agreement”) with the holder of a majority of the issued and outstanding shares of the Company’s Series F Preferred Stock (the “Majority Series F Holder”). The Majority Series F Holder acquired such shares of Series F Preferred Stock in a private purchase transaction, effective August 3, 2018. Pursuant to the Ratification Agreement, among other things, the Company acknowledged the Majority Series F Holder’s acquisition of such shares and the assignment to the Majority Series F Holder of all applicable registration rights granted to the original purchasers of the shares of the Series F Preferred Stock pursuant to the Registration Rights Agreement entered into in connection with the Series F Offering.
In connection with the Ratification Agreement, the Company and the Majority Series F Holder agreed to amend the designations for the Series F Preferred Stock to state that the conversion price of the Series F Preferred Stock shall be the greater of (a) $0.50 or (b) 100% of the lowest closing market price during the 30-calendar day period preceding the date of delivery of the conversion notice by the Series F Preferred Stock shareholder, subject to adjustment (the “Series F Amendment”).
The foregoing descriptions of the November Purchase Agreements, the February Purchase Agreements, the Omnibus Amendment, and the Registration Rights Agreement do not purport to be complete and are subject to, and qualified in their entirety by, the Form of November Purchase Agreement, the Form of February Purchase Agreement, the Form of Omnibus Amendment and the Form of Registration Rights Agreement, copies of which are attached as Exhibits 10.1, 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
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Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On August 6, 2018 the Company submitted for filing with the Secretary of State of the State of New York that certain Certificate of Amendment to the Certificate of Incorporation (the “Series F Amended Certificate”) to effect the Series F Amendment, among other changes. The Series F Amended Certificate and the filing thereof was approved by the Company’s Board of Directors and the majority of the holders of the Company’s Series F Preferred Stock.
The foregoing description of the terms of the Series F Amended Certificate is incomplete and subject to, and qualified in its entirety by, the actual terms of the Series F Amended Certificate, a copy of which is attached to this Current Report on Form 8-K as Exhibit 3.1 and is hereby incorporated by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
* filed herewith
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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 hereunto duly authorized.
| ATTIS INDUSTRIES INC. | |||
| Date: August 6, 2018 | By: | /s/ Jeffrey Cosman | |
| Name: | Jeffrey Cosman | ||
| Title: | Chief Executive Officer | ||
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Exhibit 3.1
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
ATTIS INDUSTRIES INC.
Under Section 805 of the Business Corporation
Law IT IS HEREBY CERTIFIED THAT:
1. The name of the corporation is: Attis Industries Inc.
The former name of the corporation, under which it was originally formed is: CIP, Inc.
2. The date of filing of the certificate of incorporation with the Department of State is: November 12, 1993
3. The amendment effected by this certificate of amendment is as follows: Paragraph Fourth of the Certificate of Incorporation relating to:
capitalization of the corporation and designations of classes of preferred stock is amended as follows to amend the designations, rights and references for the Series F Preferred Stock and, to amend subparagraph j. thereof as follows:
A. In subparagraph j. of paragraph FOURTH, the following defined terms shall be deleted in their entirety from Section 1:
“ Base Conversion Price ”;
“ Dilutive Issuance ”;
“ Dilutive Issuance Notice ”;
“ Floor Price ”;
“ Shareholder Approval ”; and
“ Trigger Date ”.
B. In subparagraph j. of paragraph FOURTH, Section 6(b) shall be deleted and replaced in its entirety with the following:
“(b) Conversion Price . The conversion price for the Series F Preferred Stock shall equal the amount equal to the greater of (i) $0.50 or (ii) 100% of the lowest closing market price during the 30-calendar day period preceding the date of delivery of the Conversion Notice, subject to adjustment herein (the “ Conversion Price ”).”
C. In subparagraph j. of paragraph FOURTH, Section 6(e) shall be deleted and replaced in its entirety with the following: “Reserved.”
D. Section 8(a) shall be deleted and replaced in its entirety with the following:
“a. Notices . Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile or e-mail attachment, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above Attention: Jeff Cosman, CEO, e-mail address jcosman@attisind.com , or such other facsimile number, e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 11. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile or e-mail attachment, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, e-mail address or address of such Holder appearing on the books of the Corporation, or if no such facsimile number, e-mail address or address appears on the books of the Corporation, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail attachment at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail attachment at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.”
4. The certificate of amendment was authorized by: the vote of the board of directors followed by a vote of a majority of all outstanding shares entitled to vote thereon at a meeting of shareholders.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 6 th day of August 2018.
| /s/ Jeffrey Cosman | |
| Name: Jeffrey Cosman | |
| Title: Chief Executive Officer |
Exhibit 10.3
OMNIBUS Amendment
This OMNIBUS AMENDMENT (this “ Amendment ”) is entered into as of August 3, 2018 by and between Attis Industries Inc. (formerly known as Meridian Waste Solutions, Inc.), a New York corporation (the “ Company ”) and the undersigned (the “ Purchaser ”). The Company and the Purchasers are also each hereinafter referred to individually as a “Party” and together as the “Parties”.
RECITALS
WHEREAS, the Company entered into that certain Securities Purchase Agreement dated November 29, 2017 whereby certain investors (which, if specified on the signature page of the Purchaser, included the Purchaser) purchased from the Company and the Company sold to such investors shares of the Company’s common stock and warrants to purchase shares of the Company’s common stock (the “ November Agreement ”);
WHEREAS, the Company entered into that certain Securities Purchase Agreement dated February 21, 2018, whereby certain investors (which, if specified on the signature page of the Purchaser, included the Purchaser) purchased from the Company and the Company sold to such investors shares of the Company’s Series F Convertible Preferred Stock and warrants to purchase shares of the Company’s common stock (the “ February Agreement ”, and together with the November Agreement, the “ Original Agreements ”);
WHEREAS, the Purchaser desires to amend the Original Agreements to which it was a party to remove certain restrictions on the Company’s ability to issue stock to provide the Company with greater flexibility, and the Company desires to accept such amendments; and
WHEREAS, concurrently herewith, the Company desires to enter into amendments in the form of this Amendment (the “ Other Amendments ”, and together with this Amendment, the “ Amendments ”) with certain other investors party to one or both of the Original Agreements (the “ Other Purchasers ”, and together with the Purchaser, the “ Purchasers ”), such that Company shall have obtained duly executed and delivered Amendments from Purchasers who collectively own a majority in interest of the orginal subscription amounts pursuant to each of the Original Agreements (the “ Required Amendments ”).
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows:
1. Definitions . Capitalized terms not defined herein shall have the meaning as set forth in the February Agreement.
2. Amendments . Effective as of the time the Required Amendments shall have been, severally, duly executed and delivered by the Company and each of the Purchasers (the “ Amendment Time ”:
(a) The definition of “Agreement” as defined in each Original Agreement, is hereby amended to include this Amendment. The definition of “Securities Purchase Agreement”, as defined by each other Transaction Document (as defined in the February Agreement) and each other Transaction Document (as defined in the November Agreement), is hereby amended to include this Amendment.
(b) Section 4.12 (Subsequent Equity Sales) of the November Agreement is hereby deleted in its entirety and replaced with the word “Reserved.”
(c) Section 4.13 (Subsequent Equity Sales) of the February Agreement is hereby deleted in its entirety and replaced with the word “Reserved.”
(d) The phrase “(and which must include the Required Holders)” in Section 5.5 of the February Agreement is hereby amended and restated as “(and which must include the Required Holders with respect to any amendment, modification or waiver of Sections 4.8, 4.10 or 4.12 or any other part of the February Agreement related to the Warrants and/or the Warrant Shares or the rights or remedies of any Purchaser hereunder or thereunder with respect to the Warrants and/or the Warrant Shares)”
3. ACKNOWLEDGEMENT; REAFFIRMATION OF OBLIGATIONS . The Company hereby confirms and agrees that following the Amendment Time, except as set forth in Section 2 above, each Original Agreement is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects.
4. Amendments . This Amendment may only be amended, modified or waived in a writing duly executed and delivered by the Company and the Purchaser.
5. Miscellaneous . The provisions of Section 5 of the February Agreement (other than Sections 5.1, 5.2. and 5.5) are hereby incorporated by reference herein, mutatis mutandis .
6. Counterparts . This Amendment may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile signature.
7. Independent Nature of Buyers' Obligations and Rights . The obligations of the Purchaser under this Amendment and the Other Purchasers under any Other Amendment are several and not joint with the obligations of any Other Purchaser, and the Purchaser shall not be responsible in any way for the performance of the obligations of any Other Purchaser under any Other Amendment. Nothing contained herein or in any Other Amendment, and no action taken by the Purchaser pursuant hereto or any Other Purchaser pursuant to thereto, shall be deemed to constitute the Purchaser and the Other Purchasers as, and the Company acknowledges that the Purchaser and the Other Purchasers do not so constitute, a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchaser and the Other Purchasers are in any way acting in concert or as a group, and the Company shall not assert any such claim with respect to such obligations or the transactions contemplated by this Amendment or any Other Amendment and the Company acknowledges that the Purchaser and the Other Purchasers are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement and any Other Amendment. The Company acknowledges and the Purchaser confirms that it has independently participated in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. The Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any Other Purchaser to be joined as an additional party in any proceeding for such purpose.
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IN WITNESS WHEREOF , each of the undersigned hereby (a) executes this Agreement; (b) confirms its agreement with the provisions and covenants herein provided; and (c) agrees to be bound by this Agreement.
| PURCHASER: | ||
| By: | ||
| Name: | ||
| Title: | ||
Subscription Amount of November Agreement (if any):
Subscription Amount of February Agreement (if any):
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| ATTIS INDUSTRIES INC. | ||
| By: | ||
| Name: | Jeffrey Cosman | |
| Title: | Chief Executive Officer | |
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