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): January 27, 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)
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 | ||
| American |
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
| ITEM 5.03 | AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR |
On January 23, 2023, Ault Alliance, Inc., a Delaware corporation (the “Company”) filed a Certificate of Elimination with the Secretary of State of the State of Delaware with respect to the Company’s Series C convertible redeemable preferred stock (“Series C Preferred Stock”) which, effective upon filing, eliminated from the Company’s Certificate of Incorporation, as amended, all matters set forth in the amended and restated Certificate of Designations for the Series C Preferred Stock. A copy of the Certificate of Elimination with respect to the Company’s Series C Preferred Stock is attached as Exhibit 3.1 to this report and is incorporated herein by reference.
| ITEM 9.01 | FINANCIAL STATEMENTS AND EXHIBITS |
| (d) | Exhibits: |
| Exhibit No. | Description | |
| 3.1 | Certificate of Elimination of the Series C convertible redeemable preferred stock of Ault Alliance, Inc. | |
| 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). |
| -2- |
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 27, 2023 | /s/ Henry Nisser | |
| Henry Nisser | ||
| President and General Counsel | ||
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Exhibit 3.1
CERTIFICATE OF ELIMINATION
OF THE
CERTIFICATE OF DESIGNATIONS
OF
PREFERRED STOCK
OF
AULT ALLIANCE, INC.
Pursuant to Section 151(g)
of the General Corporation Law
of the State of Delaware
Ault Alliance, Inc., formerly known as DPW Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), in accordance with the provisions of Section 151(g) of the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies as follows:
FIRST: Pursuant to the authority to the Board of Directors of the Corporation (the “Board”) by Section 151 of the DGCL, the Board, by resolution duly adopted, authorized the issuance of, and established the voting powers, designation, preferences and relative, participating and other rights, and the qualifications, limitations and restrictions of shares of Series C Preferred Stock, par value $0.001 per share (the “Series C Preferred Stock”), as evidenced by the Certificate of Designation with respect to such Series C Preferred Stock filed with the Secretary of State of the State of Delaware on February 24, 2020.
SECOND: No shares of Series C Preferred Stock are outstanding and none will be issued subject to the Certificate of Designation governing such Series C Preferred Stock.
THIRD: Pursuant to a unanimous written consent of the Board dated January 6, 2023, the Board duly adopted the following resolutions approving the proposed elimination of the Series C Preferred Stock as follows:
WHEREAS, the Certificate of Incorporation, as amended, of the Corporation provides for a class of its authorized stock known as preferred stock, comprised of 25,000,000 shares, $0.001 par value per share, issuable from time to time in one or more classes;
WHEREAS, the Corporation previously authorized and designated a series of Preferred stock entitled the Series C Convertible Preferred Stock (the “Previous Class”), on February 24, 2020 pursuant to the Amended and Restated Certificate of Designations and Preferences therefor (the “Certificate of Designations”), none of which shares was ever issued;
NOW, THEREFORE IT IS RESOLVED, the Corporation hereby eliminates the Certificate of Designations originally filed with the State of Delaware on February 24, 2020 related to the Previous Class, and be it further;
RESOLVED, that the Corporation’s Executive Chairman, its Chief Executive Officer and its President (each, an “Authorized Person”) be, and each of them individually is, authorized to execute the foregoing documents and/or instruments in connection with the elimination of the Certificate of Designations on behalf of the Corporation, together with such amendments and changes thereto as such Authorized Person in his sole discretion shall approve, and together with any other documents and/or instruments executed in connection therewith, his signature thereon to be conclusive evidence of such approval; and be it further
RESOLVED, that in addition to and without limiting the foregoing, each Authorized Person and the Corporation’s attorney, be and hereby is authorized to take, or cause to be taken, such further action, and to execute and deliver, or cause to be delivered, for and in the name and on behalf of the Corporation, all such instruments and documents as he may deem appropriate in order to effect the purpose or intent of the foregoing resolutions (as conclusively evidenced by the taking of such action or the execution and delivery of such instruments, as the case may be) and all action heretofore taken by such officer in connection with the subject of the foregoing recitals and resolutions be, and it hereby is, approved, ratified and confirmed in all respects as the act and deed of the Corporation; and be it further
RESOLVED, that all prior actions taken by the Corporation and/or its officers for and/or on behalf of the Corporation be, and each such action hereby is, approved, ratified and confirmed; and be it further
RESOLVED, that this unanimous written consent may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and may be delivered to the Corporation by facsimile or by an e-mail which contains a portable document format (.pdf) file of an executed signature page; and be it further
FOURTH: In accordance with Section 151(g) of the DGCL, the shares that were designated as Series C Preferred Stock are hereby returned to the status of authorized but unissued shares of the Preferred Stock of the Corporation, without designation as to series.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Elimination to be signed by its duly authorized officer on the 19th day of January 2023.
| AULT ALLIANCE, INC. | ||
| By: | /s/ Henry Nisser | |
| Name: | Henry Nisser | |
| Title: | President | |