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): March 17, 2023
DATA443 RISK MITIGATION, INC.
(Exact Name of Registrant as Specified in Charter)
| Nevada | 000-30542 | 86-0914051 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
4000 Sancar Drive, Suite 400
Research Triangle Park, NC 27709
(Address of Principal Executive Offices)
Registrant’s telephone number, including area code: (919) 858-6542
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 |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| none | N/A | N/A |
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 checkmark 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. |
As previously reported on a Current Report on Form 8-K filed on November 7, 2022, on November 4, 2022, Data443 Risk Mitigation, Inc., a Nevada corporation (“we” or “our”) closed a private placement transaction (the “Offering”) with certain “accredited investors,” as defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) (each, an “Investor”). In connection with the Offering, we entered into a securities purchase agreement (“Original SPA”) with each Investor pursuant to which we offered and sold to the Investors a total of 931,000 shares of our common stock, par value $0.001 (the “Common Stock”), at a purchase price of $1.00 per share, for aggregate gross proceeds of approximately $931,000.
On March 17, 2023, we amended the terms of the Original SPA (as amended, the “Amended SPA”). Under the Amended SPA, the number of shares received by each Investor will be multiplied by 50.
We continue to intend to use the net proceeds from the Offering for general corporate purposes.
The Common Stock has not been registered under the Securities Act, and cannot be offered or sold in the United States absent effective registration or an applicable exemption from registration requirements. For these shares, we are relying on the private placement exemption from registration provided by Section 4(a)(2) of the Securities Act and by Rule 506 of Regulation D, promulgated thereunder and on similar exemptions under applicable state laws.
The Investors will have “piggyback” registration rights that will allow each Investor to elect to have the Common Stock that the Investor purchased in the Offering included in any underwritten public offering of equity securities we subsequently initiate. The Common Stock included in any underwritten public offering initiated by us will be subject to limitation based on the discretion of the underwriter of such offering.
The foregoing description of the Amended SPA does not purport to be complete and is qualified in its entirety by the terms and conditions of the document itself. A copy of the form of the Amended SPA is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
| ITEM 3.02 | Unregistered Sales of Equity Securities. |
The information set forth in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.02 in its entirety.
| ITEM 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
The following exhibits are furnished with this report:
| Exhibit No. | Exhibit Description | ||
| 10.1 | Form of Amendment to Securities Purchase Agreement between the Company and each Investor. | ||
| 104 | Cover Page Interactive Data File (Embedded within the Inline XBRL document and included in Exhibit) |
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.
| Date: March 23, 2023 | DATA443 RISK MITIGATION, INC. | |
| By: | /s/ Jason Remillard | |
| Jason Remillard | ||
| Chief Executive Officer | ||
Exhibit 10.1
DATA443 RISK MITIGATION, INC.
4000 Park Drive, Suite 400
Research Triangle Park, NC 27709
March ___, 2023
Dear Investor:
Reference is made to that certain Securities Purchase Agreement dated as of November 4, 2022 (the “Purchase Agreement”) by and among Data443 Risk Mitigation, Inc. (the “Company”), you and the other investors party thereto (you and such other investors, each an “Investor” and, collectively, the “Investors”), pursuant to which the Investors purchased an aggregate of 931,000 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). All capitalized terms used but not defined herein shall have the meaning ascribed to such term in the Purchase Agreement.
1. Purchase and Sale of Shares. Subject to the terms and conditions of this letter agreement (the “Agreement”), the Company agrees to issue to you the number of shares of Common Stock set forth under your name on the signature page hereof (the “Shares”)1. You acknowledge that the Shares owned by you have not been certificated and the Shares have been held by the Company for your benefit.
2. Release. In consideration of the Shares, the covenants set forth herein and other good and valuable consideration and in order to induce the Company to issue the Shares, you hereby release, remise and forever discharge the Company, its shareholders, officers, directors, employees, agents, attorneys, affiliates, successors and assigns (collectively, the “Company Releasees”) of and from any and all actions, causes of action, suits, debts, charges, complaints, liabilities, obligations, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands (including attorneys’ fees and costs actually incurred), of any nature whatsoever, known or unknown, matured or not yet matured, in law or equity, which you, and your heirs, executors, administrators, successors and assigns, had, now have, or hereafter may have against the Company Releasees from the beginning of the universe to the date of this Agreement, except for any claims arising out of a breach of any of the covenants, agreements, warranties, representations, obligations and liabilities of the Company under this Agreement, the Purchase Agreement, and any other related documents executed simultaneously with this Agreement.
1 To be fifty (50) times the number of shares purchased by such Investor in the November 2022 offering.
March ___, 2023
Page 2
3. Representations. You represent and warrant that (i) you have all requisite power and authority to execute, deliver and perform this Agreement and the transactions contemplated under this Agreement; (ii) all acts and proceedings required to be taken by you to authorize the execution, delivery and performance of this Agreement have been duly and validly taken; (iii) this Agreement and all documents or instruments relating hereto to be executed and delivered by you in connection with the transactions contemplated hereby constitute (or when executed and delivered by you will constitute) your valid and binding obligations, enforceable against it in accordance with their respective terms; (iv) you acknowledge that the consideration for the Shares is fair and has been negotiated between you and the Company; and (v) you acknowledge and agree (a) you have carefully read this Agreement, understand it, and are voluntarily entering into it without duress or coercion, after due consideration of its terms and conditions and (b) that in entering into this Agreement, you are not relying upon any representation, warranty or other statement made by the Company or any representative of the Company (all of which the Company expressly disclaims, except as set forth herein).
4. Further Assurances. Each party hereto shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
5. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective Affiliates, employees or agents) shall be commenced exclusively in the New York Courts. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such New York Court, or that such Proceeding has been commenced in an improper or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. If either party shall commence a Proceeding to enforce any provisions of this Agreement, then the prevailing party in such Proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.
6. Headings and Captions. The headings and captions contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
March ___, 2023
Page 3
7. Execution. This Agreement may be executed in two or more counterparts, all of which when taken together 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, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof.
8. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, discussions and representations, oral or written, with respect to such matters, which the parties acknowledge have been merged into this Agreement.
9. Amendment or Waiver of Agreement. The provisions of this Agreement may not be amended or waived except by a written instrument signed by both the Company and you.
10. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without your prior written consent. You may assign any or all of your rights under this Agreement to any Person to whom you assign or transfer any Shares, provided such transferee agrees in writing to be bound, with respect to the transferred Shares, by the provisions hereof that apply to you.
11. Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
12. Notices. Section 6.3 of the Purchase Agreement shall apply mutatis mutandis.
13. Costs. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all stamp and other taxes and duties levied in connection with the issuance of the Shares.
14. Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Investors and the Company will be entitled to specific performance under this Agreement. The parties hereto agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.
[The remainder of this page has been left blank intentionally.]
Please evidence your agreement to the above by signing this Agreement in the space provided below.
| Very truly yours, | ||
| DATA443 RISK MITIGATION. INC. | ||
| By: | ||
| Name: | Jason Remillard | |
| Title: | President and Chief Executive Officer | |
AGREED TO AND ACCEPTED
AS OF THE DATE FIRST ABOVE
WRITTEN
| By | ||
| Name: | ||
| Number of Shares being issued: | ||
[Signature Page to Letter Agreement]