UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________
FORM 8-K/A
(Amendment No. 1)
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
___________________________________________________________________
Date of Report (Date of earliest event reported): January 3, 2023
AULT ALLIANCE, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-12711 | 94-1721931 | ||
| (State or other jurisdiction of incorporation or organization) |
(Commission File Number) | (I.R.S. Employer Identification No.) |
11411 Southern Highlands Parkway, Suite 240, Las Vegas, NV 89141
(Address of principal executive offices) (Zip Code)
(949) 444-5464
(Registrant's telephone number, including area code)
BitNile Holdings, Inc.
(Former name or 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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
| Common Stock, $0.001 par value | AULT | NYSE American | ||
| PRD |
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 o
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. o
EXPLANATORY NOTE
This Amendment No. 1 on Form 8-K/A (the “Amended Current Report”) amends the Current Report on Form 8-K of Ault Alliance, Inc., a Delaware corporation (formerly, BitNile Holdings, Inc.) (the “Company”), originally filed with the Securities and Exchange Commission on December 19, 2022 (the “Prior Filing”). The sole purpose of this Amended Current Report is to disclose an amendment to the SPA (as defined below), whereby the total amount of the Financing (as defined below) was increased and the Company sold an additional Note (as defined below).
Other than the foregoing, this Amended Current Report speaks as of the original date of the Prior Filing, does not reflect events that may have occurred subsequent to the date of the Prior Filing and does not modify or update in any way disclosures made in the Prior Filing.
| Item 1.01 | Entry into a Material Definitive Agreement |
On December 16, 2022 (the “Closing Date”), the Company entered into a Securities Purchase Agreement (the “SPA”) with an accredited investor (the “Initial Investor”) providing for the issuance of secured promissory notes (the “Notes”) with an aggregate principal face amount of $14,700,000 (the “Financing”). On December 29, 2022, the Company and the Initial Investor entered into an amended and restated amendment to the SPA (the “Amendment”), pursuant to which the total amount of the Financing was increased to $17,511,370.10 and the Company sold an additional Note to a second accredited investor (the “Subsequent Investor” and together with the Initial Investor, the “Investors”).
Under the SPA, the Company shall repay, while the Notes remain outstanding, (i) eighty percent (80%) of the proceeds it may receive from any financing conducted, other than at-the-market offerings and (ii) one hundred percent (100%) of the proceeds it may receive from the sale of marketable securities by Ault Lending, LLC (“Ault Lending”), the Company’s wholly owned subsidiary. In addition, if Third Avenue Apartments, LLC (“Third Avenue”), the Company’s wholly owned subsidiary, sells the property it owns in St. Peterburg, Florida, the Company shall use the net proceeds from the sale of such property in excess of $10 million, to repay the Notes.
In addition, the Company agreed to issue 11,605,913 shares of the Company’s common stock (the “Registrable Shares”) to the Initial Investor in exchange for the cancellation of all outstanding warrants previously issued to the Initial Investor, which warrants were exercisable for 11,605,913 shares of the Company’s common stock. The Company agreed to file a registration statement on Form S-3 to register the Registrable Shares and certain other shares owned by the Initial Investor within ten (10) days of the Closing Date. The Company agreed to pay the Initial Investor liquidated damages of approximately $120,000 per month that the Registrable Shares have not been registered.
Pursuant to the SPA, the Company, Ault Lending, BitNile, Inc. (“BitNile”) and Esousa Group Holdings, LLC, as the collateral agent on behalf of the Investors (the “Agent”) entered into a security agreement (the “Security Agreement”), pursuant to which (i) BitNile granted to the Investors a security interest in 12,000 Bitcoin miners and (ii) Ault Lending granted to the Investors a security interest in, among other items, substantially all of the Ault Lending’s deposit accounts, securities accounts, chattel paper, documents, equipment, general intangibles, instruments and inventory, and all proceeds therefrom (the “Assets”), as set forth in the Security Agreement, except for assets previously granted security interests to other parties.
The Notes are further secured by a guaranty (the “Guaranty”) provided by Ault Lending, BitNile, Ault & Company, Inc. (“A&C”), an affiliate of the Company, as well as by Milton C. Ault, the Company’s Executive Chairman and the Chief Executive Officer of A&C.
Description of the Secured Promissory Notes
The Notes have a principal face amount of $17,511,370.10 and bear interest at 16% per annum. The maturity date of the Notes is March 16, 2023, although if the Company repays at least $14,294,996 of principal payment on or before the maturity date, the Company may extend the maturity date by forty-five (45) days by paying a fee of 10% of the outstanding balance owed on the Notes as of the original maturity date. The Notes contain standard and customary events of default including, but not limited to, failure to make payments when due under the Notes, failure to comply with certain covenants contained in the Notes, or bankruptcy or insolvency of the Company. The Company may prepay any or all outstanding principal and accrued and unpaid interest at any time without penalty. The purchase price for the Notes was $16,081,870.50, of which $13,322,940 was paid in cash, $1,786,874.50 was a non-accountable expense allowance and $972,056 was the forgiveness of cash owed to the Subsequent Investor for cashless exercise of warrants previously issued to the Subsequent Investor.
The foregoing descriptions of the Note, the SPA, the Security Agreement, the Guaranty and the Amendment do not purport to be complete and are qualified in their entirety by reference to their respective forms which are annexed hereto as Exhibits 4.1, 10.1, 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. The foregoing does not purport to be a complete description of the rights and obligations of the parties thereunder and such descriptions are qualified in their entirety by reference to such exhibits.
| -2- |
| Item 2.01 | Completion of Acquisition or Disposition of Assets |
As previously reported in the Current Report on Form 8-K filed by the Company on November 18, 2022, Circle 8 Newco LLC, a Delaware limited liability company (“Circle 8 Newco”), entered into an Asset Purchase Agreement (the “Asset Purchase Agreement”) with Circle 8 Crane Services LLC, a Delaware limited liability company (“Circle 8 Crane Services”) pursuant to which Circle 8 Newco agreed to purchase substantially all of the assets (the “Acquired Assets”) and assume certain specified liabilities of Circle 8 Crane Services (the “Circle 8 Transaction”). Circle 8 Newco is a wholly owned subsidiary of Circle 8 Holdco LLC, a Delaware limited liability company (“Circle 8 Holdco”). Circle 8 Holdco is a subsidiary of Ault Alliance, Inc., a Delaware corporation (“Ault Alliance”) which is a wholly owned subsidiary of the Company. Ault Alliance owns a controlling interest in Circle 8 Holdco.
On December 19, 2022, the transaction closed and Circle 8 Newco purchased the Acquired Assets. As consideration for the acquisition of the Acquired Assets, Circle 8 Crane Services received Class D equity interests in Circle 8 Holdco and is eligible to receive cash earnout payments in an aggregate maximum amount of up to $2,100,000 based on the achievement by Circle 8 Newco of certain EBITDA targets over the three year period following the completion of the acquisition of the Acquired Assets by Circle 8 Newco. The Company contributed $12 million to Circle 8 Newco, and an independent third party contributed $4 million, of which approximately $11,650,000 of which was used to pay down a portion of the Circle 8 Crane Services’ senior debt facility at the closing, $3,000,000 of which was used to pay off Circle 8 Crane Services’ subordinated debt facility in full at the closing and $1,350,000 was used to pay the expenses of Circle 8 Newco and Circle 8 Crane Services. In addition, Circle 8 Newco assumed a new line of credit issued by Circle 8 Crane Services’ current senior lender.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference to this Item 2.03.
| Item 3.02 | Unregistered Sales of Equity Securities |
The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference to this Item 3.02.
| Item 7.01 | Regulation FD Disclosure |
On December 19, 2022, the Company issued a press release announcing the closing of the Financing. On December 19, 2022, the Company issued a press release announcing the closing of the Circle 8 Transaction. Copies of these press releases are furnished herewith as Exhibit 99.1 and Exhibit 99.2 and are incorporated by reference herein.
In accordance with General Instruction B.2 of Form 8-K, the information under this item shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such a filing. This report will not be deemed an admission as to the materiality of any information required to be disclosed solely to satisfy the requirements of Regulation FD.
The Securities and Exchange Commission encourages registrants to disclose forward-looking information so that investors can better understand the future prospects of a registrant and make informed investment decisions. This Current Report on Form 8-K and exhibits may contain these types of statements, which are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, and which involve risks, uncertainties and reflect the Registrant’s judgment as of the date of this Current Report on Form 8-K. Forward-looking statements may relate to, among other things, operating results and are indicated by words or phrases such as “expects,” “should,” “will,” and similar words or phrases. These statements are subject to inherent uncertainties and risks that could cause actual results to differ materially from those anticipated at the date of this Current Report on Form 8-K. Investors are cautioned not to rely unduly on forward-looking statements when evaluating the information presented within.
| -3- |
| Item 9.01 | Financial Statements and Exhibits |
| (d) | Exhibits: |
| Exhibit No. | Description | |
| 4.1* | Form of Note | |
| 10.1* | Form of Securities Purchase Agreement | |
| 10.2* | Form of Security Agreement | |
| 10.3* | Form of Guaranty | |
| 10.4 | Form of Amended and Restated Amendment to Securities Purchase Agreement | |
| 99.1* | Press release regarding the Financing issued by the Company on December 19, 2022 | |
| 99.2* | Press release regarding the Circle 8 Transaction issued by the Company on December 19, 2022 | |
| 101 | Pursuant to Rule 406 of Regulation S-T, the cover page is formatted in Inline XBRL (Inline eXtensible Business Reporting Language). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document and included in Exhibit 101). |
______
* Filed previously
| -4- |
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.
| AULT ALLIANCE, INC. | ||
| Dated: January 3, 2023 | /s/ Henry Nisser | |
| Henry Nisser President and General Counsel | ||
-5-
Exhibit 10.4
BITNILE Holdings, Inc.
Amended and Restated Amendment To
Securities Purchase Agreement
This amended and restated amendment (the “Amendment”), dated as December 29, 2022 to the Securities Purchase Agreement dated December 16, 2022 (the “Agreement”), by and between ______________ (the “Majority Holder”) and BitNile Holdings, Inc. (“NILE”). All capitalized terms in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, NILE and the Majority Holder desire to amend the Agreement in certain respects to allow _________________ (“_____”) to invest in the Notes.
WHEREAS, the Majority Holder constitutes the “majority in interest” of the Investors as such term is used in the Agreement.
NOW, THEREFORE, in consideration of the foregoing and intending to be legally bound hereby, the parties hereto agree as follows:
1. The definition of “Funding Amount” in Section I is hereby deleted and replaced in its entirely by the following:
“Funding Amount” means an amount equal to Sixteen Million Eighty-One Thousand Eight Hundred Seventy Dollars and Fifty Cents ($16,081,870.50), consisting of a cash payment of Thirteen Million Three Hundred Twenty-Two Thousand Nine Hundred Forty Dollars ($13,322,940), the forgiveness of Nine Hundred Seventy-Two Thousand Fifty-Six Dollars ($972,056) owed to _____ by the Company for cashless exercise of warrants issued to _____ on December 29, 2021 and a non-reimbursable expense allocation of One Million Seven Hundred Eighty-Six Thousand Eight Hundred Seventy-Four Dollars and Fifty Cents ($1,786,874.50).”
2. Section 2.1 is hereby deleted and replaced in its entirety by the following:
“2.1 Purchase and Sale of the Note. Subject to the terms and conditions set forth herein, at the Closing, the Company shall issue and sell to the Investors, and the Investors shall purchase from the Company, original issuance discount senior secured promissory notes in the form attached hereto as Exhibit B (the “Note”), in the aggregate principal amount of Seventeen Million Five Hundred Eleven Thousand Three Hundred Seventy Dollars and Ten Cents ($17,511,370.10), subject to adjustment as set forth in the Note (the “Principal Amount”) in exchange for the Funding Amount.”
3. Section 2.2 is hereby deleted and replaced in its entirety by the following:
“2.2 Closing. The closing hereunder, including payment for and delivery of the Note, shall take place remotely via the exchange of documents and signatures, no later than ten (10) Business Days following the execution and delivery of this Agreement, subject to satisfaction or waiver of the conditions set forth in Section 6, or at such other time and place as the Company and the Investor agree upon, orally or in writing (the “Closing,” and the date of the Closing being the “Closing Date”). On the Closing Date, (i) the Investor shall pay the Funding Amount to the Company by wire transfer of immediately available funds in accordance with the Company’s written wire instructions and (ii) the Company shall issue to the Investor a Note in the Principal Amount, duly executed on behalf of the Company and registered in the name of the Investor or its designee. Notwithstanding anything else to the foregoing, the sale of the Notes may be made in one or more Closings and on one or more Closing Dates.”
4. The Company and the Majority Holder acknowledge and agree that the initial Closing occurred on December 16, 2022, whereby the Majority Holder purchased a Note in the principal amount of Fourteen Million Seven Hundred Thousand Dollars ($14,700,000) in exchange for the funding amount of Thirteen Million Five Hundred Thousand Dollars ($13,500,000), consisting of a cash payment of Twelve Million Dollars ($12,000,000) and a non-reimbursable expense allocation of One Million Five Hundred Thousand Dollars ($1,500,000).
5. This Amendment shall be binding on the Holder and all of its successors, heirs, personal representatives and assigns and permitted transferees.
6. Except as amended hereby, the Agreement shall remain unmodified and is hereby ratified in all respects.
7. This Amendment may be executed and delivered (including by electronic or facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Agreed this 29nd day of December, 2022.
| BITNILE HOLDINGS, INC. | ||||
| By: | By: | |||
| William B. Horne | ||||
| Chief Executive Officer | ||||
2