Item 1.01 Entry into a Material Definitive Agreement
On December 30, 2021 (the "Closing Date"), BitNile Holdings, Inc., a Delaware
corporation (the "Company") entered into a Securities Purchase Agreement (the
"SPA") with certain sophisticated investors (the "Investors") providing for the
issuance of (i) Secured Promissory Notes (individually, a "Note" and
collectively, the "Notes") with an aggregate principal face amount of
approximately $66,000,000; (ii) five-year warrants to purchase an aggregate of
14,095,350 shares of Class A Common Stock, par value $0.001 per share (the
"Common Stock") of the Company (the "Class A Warrant Shares") at an exercise
price of $2.50, subject to adjustment (the "Class A Warrants"); and (iii)
five-year warrants to purchase an aggregate of 1,942,508 shares of Common Stock
(the "Class B Warrant Shares" and with the Class A Warrant Shares, the "Warrant
Shares") at an exercise price of $2.50 per share, subject to adjustment (the
"Class B Warrants" and together with the Class A Warrants, the "Warrants").
Under the SPA, the Company shall repay sixty-five percent (65%) of the proceeds
it may receive, while the Notes remain outstanding, from (i) any financing
conducted and (ii) the sale of any Bitcoin from its mining operations.
Pursuant to the SPA, the Company agreed to file a registration statement on Form
S-3 to register the Warrant Shares and certain other shares underlying
previously issued warrants to one of the Investors within ten (10) days of the
Closing Date. The Warrant Shares will not be exercisable until the Company shall
have obtained approval of the NYSE American, LLC (the "Exchange") for the
foregoing issuances (the "Exchange Approval"). Pursuant to the SPA and if
required by the Exchange, the Company agreed to file a proxy statement to obtain
stockholder approval for the foregoing issuances.
Pursuant to the SPA, the Company and certain of its subsidiaries (the
"Subsidiaries") and Esousa Holdings, LLC, as the collateral agent on behalf of
the Investors (the "Agent") entered into a security agreement (the "Security
Agreement"), pursuant to which the Company (i) pledged the equity interests in
substantially all of its U.S. based subsidiaries and (ii) granted to the
Investors a security interest in, among other items, substantially all of the
Company'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. In addition,
pursuant to the Security Agreement, the Subsidiaries granted to the Investors a
security interest in its Assets and, pursuant to a Subsidiary Guaranty (the
"Subsidiary Guaranty"), jointly and severally agreed to guarantee and act as
surety for the Company's obligation to repay the Notes.
The Notes are further secured by a guaranty (the "A&C Guaranty") provided by
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, and his spouse.
Description of the Secured Promissory Notes
The Notes have a principal face amount of approximately $66,000,000 and bear
interest at 8% per annum. The maturity date of the Notes is March 31, 2022. The
Notes contain standard and customary events of default including, but not
limited to, failure to make payments when due under the Note, failure to comply
with certain covenants contained in the Note, or bankruptcy or insolvency of the
Company. The Company may prepay the full outstanding principal and accrued and
unpaid interest at any time without penalty. The purchase price for the Notes
was $60 million, of which approximately $38.2 million was from the exchange of
bridge notes sold by the Company in December 2021 in the principal amount of
$37.2 million, plus accrued interest and fees, and the remaining approximately
$21.8 million was received by the Company in cash.
Description of the Warrants
The Warrants entitle the holders to purchase shares of the Company's common
stock for a period of five years subject to certain beneficial ownership
limitations. The Warrants are exercisable immediately once the Company obtains
Exchange Approval. The Warrants may be exercised on a cashless basis prior to
registration of the underlying Common Stock and for cash subsequent to
registration.
The Warrants entitle the Investor to purchase an aggregate of 16,037,858 Warrant
Shares for a period of five years, subject to certain beneficial ownership
limitations. The exercise price of each Warrant is subject to adjustment for
customary stock splits, stock dividends, combinations or similar events. In
addition, if the trading price of the Common Stock is less than $2.50 per share
90 days after the Closing Date, the exercise price of the Class A Warrants will
be reduced to 110% of the closing price of the Common Stock on that date,
subject to a floor price of $1.00 per share. Notwithstanding anything therein to
the contrary, the Warrants may be exercised via cashless exercise at the option
of the Investor.
Class A Warrant
If the Investors elect to exercise their Class A Warrants on a cashless basis,
they will receive a number of shares of Common Stock (the "Class A Net Number")
derived from the following formula:
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Class A Net Number = Y (A-B)/A
where:
Y = the number of Warrant Shares with respect to which this Warrant is being
exercised.
A = the Fair Market Value (as set forth in the Class A Warrant) of the
Common Stock, provided, however, that in no event shall the Fair Market Value
used for the purposes of calculating the Class A Net Number be less than $1.00
per share.
B = the Exercise Price.
Class B Warrant
. . .
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. The Notes, the Warrants and
the Warrant Shares described in this Current Report on Form 8-K were offered and
sold to the Investors in reliance upon exemption from the registration
requirements under Section 4(a)(2) under the Securities Act of 1933.
Item 7.01 Regulation FD Disclosure
On December 31, 2021, the Company issued a press release announcing the sale of
the Notes and Warrants. A copy of the press release is furnished herewith
as Exhibit 99.1 and is 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.
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Item 9.01 Financial Statements and Exhibits
(d) Exhibits:
Exhibit No. Description
4.1 Form of Note
4.2 Form of Class A Warrant
4.3 Form of Class B Warrant
10.1 Form of Securities Purchase Agreement
10.2 Form of Security Agreement
10.3 Form of A&C Guaranty
10.4 Form of Subsidiary Guaranty
99.1 Press release issued by the Company on December 31, 2021
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).
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