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):
December 17, 2015
MGT Capital Investments, Inc.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
001-32698 |
|
13-4148725 |
(State or other jurisdiction of
incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
500 Mamaroneck Avenue, Suite 204, Harrison,
NY 10528
(Address of principal executive offices, including
zip code)
(914) 630-7430
(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:
| |
¨ |
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)) |
| Item 1.01. |
Entry into a Material Definitive Agreement |
On December 17, 2015,
MGT Capital Investments, Inc., a Delaware corporation (the “Company”) entered into Securities Purchase Agreements (the
“Purchase Agreements”) with a current stockholder and another investor pursuant to which the Company agreed to sell
in a registered direct offering a total of 688,556 shares (the “Shares”) of its common stock at a price per share of
$0.25. The Company has not engaged an underwriter or placement agent in connection with this offering.
The offering is expected
to close on or about December 22, 2015, subject to the satisfaction of customary closing conditions contained in the Purchase Agreements.
The Purchase Agreements also contain customary representations, warranties and agreements by us and the purchasers, indemnification
obligations for us, other obligations of the parties and termination provisions.
The foregoing summary
of the Purchase Agreements is subject to, and qualified in its entirety by reference to, the Purchase Agreements, the form of which
is attached hereto as Exhibit 10.1 and is incorporated herein by reference. The Purchase Agreements contain representations and
warranties that the respective parties made to, and solely for the benefit of, the other parties thereto in the context of all
of the terms and conditions of that agreement and in the context of the specific relationship between the parties. The provisions
of the Purchase Agreements, including the representations and warranties contained therein, are not for the benefit of any party
other than the parties to such agreements or as stated therein and are not intended as documents for investors and the public to
obtain factual information about the current state of affairs of the parties to those documents and agreements. Rather, investors
and the public should look to other disclosures contained in the Company’s filings with the Securities and Exchange Commission.
A copy of the opinion of
Sichenzia Ross Friedman Ference LLP relating to the validity of the issuance and sale of the Shares is attached as Exhibit 5.1
hereto. The offer and sale of the Shares was made pursuant to the Company’s shelf registration statement on Form S-3 (SEC File
No. 333-182298), which became effective on September 25, 2012, and a prospectus supplement thereto dated December 17, 2015.
| Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits.
|
Exhibit
No. |
|
Description |
| |
|
|
| 5.1 |
|
Opinion of Sichenzia Ross Friedman Ference LLP |
| |
|
|
| 10.1 |
|
Form of Securities Purchase Agreement |
SIGNATURES
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.
| |
MGT CAPITAL INVESTMENTS, INC. |
|
| |
|
|
|
| |
|
|
|
| Date: December 18, 2015 |
By: |
/s/ Robert B. Ladd |
|
| |
Name: Robert B. Ladd |
|
| |
Title: President and Chief Executive Officer |
|
Exhibit 5.1
MGT Capital Investments, Inc.
500 Mamaroneck Avenue
Suite 204
Harrison, New York 10528
December 17, 2015
Re: MGT Capital Investments, Inc.
Ladies and Gentlemen:
We
have acted as special counsel for MGT Capital Investments, Inc., a Delaware corporation (the “Company”),
in connection with the preparation and filing of the prospectus supplement, dated December 17, 2015 (the “Prospectus
Supplement”), filed with the Securities and Exchange Commission (the “Commission”) pursuant
to Rule 424(b) of the rules and regulations of the Securities Act. The Company filed a Registration Statement on Form S-3, File
No. 333-182298 originally filed with the Commission on June
22, 2012, as amended on July 31, 2012, September 21, 2012 and September 25, 2012 (the “Registration Statement”),
and the prospectus included therein (the “Prospectus”) under the Securities Act of 1933, as amended (the
“Securities Act”), and the rules and regulations promulgated thereunder, which Registration Statement was declared
effective by the Commission on September 25, 2012.
The Prospectus Supplement
pertains to a registered direct offering (the “Offering”) by the Company of 688,556 shares of the Company’s
common stock (the “Shares”) for a purchase price of $0.25 per share pursuant to a securities purchase agreement
entered into by and between the Company and each investor in the Offering (the “Securities Purchase Agreement”).
We understand that the
Shares are to be sold, as described in the Registration Statement, the Prospectus and the Prospectus Supplement, pursuant to the
Securities Purchase Agreement filed as Exhibit 10.1 to the Current Report on Form 8-K to which this opinion is attached as Exhibit
5.1.
In connection with this
opinion, we have examined the Registration Statement, the Prospectus and the Prospectus Supplement. We also have examined such
corporate records, certificates and other documents and such questions of law as we have considered necessary or appropriate for
the purpose of this opinion. We have assumed: (A) the genuineness and authenticity of all documents submitted to us as originals
and (B) the conformity to originals of all documents submitted to us as copies thereof. As to certain factual matters, we have
relied upon certificates of officers of the Company and have not sought independently to verify such matters.
Based on the foregoing,
and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that the issuance and sale
of the Shares have been duly authorized and, when issued and sold in the manner described in the Registration Statement, the Prospectus
and the Prospectus Supplement and in accordance with the terms and conditions of the Securities Purchase Agreement, the shares
of Common Stock will be validly issued, fully paid and non-assessable.
We hereby consent to the
inclusion of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated December 18, 2015 and to the references
to our firm therein and in the Prospectus and the Prospectus Supplement under the caption “Legal Matters.” In giving
our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations thereunder.
| |
Very truly yours,
/s/ Sichenzia Ross Friedman Ference LLP
Sichenzia Ross Friedman Ference LLP |
Exhibit 10.1
SECURITIES
PURCHASE AGREEMENT
This Securities
Purchase Agreement (this “Agreement”) is dated as of __________, 2015, between MGT Capital Investments, Inc.,
a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the “Securities Act”), the Company desires to issue and sell to each Purchaser, and
each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described
in this Agreement.
NOW, THEREFORE,
IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the
meanings set forth in this Section 1.1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to
close.
“Closing”
means the closing of the purchase and sale of the Shares pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii)
the Company’s obligations to deliver the Shares, in each case, have been satisfied or waived, but in no event later than
the third Trading Day following the date hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
“Company
Counsel” means Sichenzia Ross Friedman Ference LLP, with offices located at 61 Broadway, New York, NY 10006.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Per Share
Purchase Price” equals $0.25, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with
the Commission and delivered by the Company to each Purchaser at the Closing.
“Registration
Statement” means the effective registration statement with Commission file No. 333-
182298 which registers the sale of the Shares to the Purchasers.
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time
to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time
to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued to each Purchaser at the Closing.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act(but shall
not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares hereunder as specified below such Purchaser’s
name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars
and in immediately available funds.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on
the date in question: the NYSE AMEX, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the
New York Stock Exchange, OTC Markets, Inc., or the OTC Bulletin Board (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement and any other documents or agreements executed in connection with the transactions contemplated
hereunder.
“Transfer Agent”
means VStock Transfer, LLC the current transfer agent of the Company, with a mailing address of 18 Lafayette Place, Woodmere,
NY 11598, and any successor transfer agent of the Company.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution
and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly,
agree to purchase, up to an aggregate of _______ Shares. Each Purchaser shall deliver to the Company, via wire transfer or a certified
check, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto
executed by such Purchaser and the Company shall deliver to each Purchaser its respective Shares as determined pursuant to Section
2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the
Closing. Upon satisfaction of the covenants and conditions set forth in Section 2.2 and Section 2.3, the Closing
shall occur at the offices of Company Counsel or such other location as the parties shall mutually agree.
2.2 Deliveries.
(a) On or prior
to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement
duly executed by the Company;
(ii) the Shares,
delivery to be made through the facilities of The Depository Trust Company’s DWAC system in accordance with the instructions
set forth on the signature page attached hereto under the heading “DWAC Instructions”;
(iii) the Prospectus
and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On or prior
to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this Agreement
duly executed by such Purchaser; and
(ii) such Purchaser’s
Subscription Amount by wire transfer to the account designated in writing by the Company.
2.3 Closing
Conditions.
(a) The obligations
of the Company hereunder in connection with the Closing with respect to each Purchaser are subject to the following conditions
being met:
(i) the accuracy in all material respects
on the Closing Date of the representations and warranties of such Purchaser contained herein (unless as of a specific date therein
in which case they shall be accurate as of such date);
(ii) all obligations,
covenants and agreements of such Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the delivery
by such Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective
obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained
herein (unless as of a specific date therein);
(ii) all obligations,
covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery
by the Company of the items set forth in Section 2.2(a) of this Agreement; and
(iv) there shall
have been no Material Adverse Effect with respect to the Company since the date hereof.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of
the Company. The Company hereby represents and warrants to each Purchaser, as of the Closing Date:
(a) Organization, Good Standing and
Power; Subsidiaries. The Company is a corporation duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power to own, lease and operate its properties and assets and to conduct its
business as it is now being conducted. The Company is duly qualified as a foreign corporation to do business and is in good standing
in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary
except for any jurisdiction(s) (alone or in the aggregate) in which the failure to be so qualified will not have or reasonably
be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material
Adverse Effect”).
All of the direct and indirect
subsidiaries of the Company are listed on Schedule 3.1(a). Except as set forth on Schedule 3.1(a), the Company owns, directly or
indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens (as such term is
defined below), and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and perform this Agreement and to issue
and sell the Shares in accordance with the terms hereof. The execution, delivery and performance of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate
action, and no further consent or authorization of the Company or its Board of Directors or stockholders is required in connection
therewith. This Agreement has been duly executed and delivered by the Company. This Agreement constitutes a valid and binding obligation
of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or
affecting generally the enforcement of, creditor’s rights and remedies or by equitable principles of general application.
(c) Capitalization.
As of the Closing Date but prior to the issuance of any Shares pursuant to this Agreement, the authorized and issued and outstanding
capital stock of the Company consists solely of (i) 75,000,000 shares of Common Stock, par value $0.001 per such share, of which
17,209,655 shares of Common Stock are issued and outstanding, and (ii) 10,000,000 shares of preferred stock, of which 10, 29 6shares
are issued and outstanding.
The Company has furnished
or made available to the Purchasers true and correct copies of the Company’s Certificate of Incorporation and Bylaws, each
as in effect on the date hereof (the “Charter Documents”). All of the outstanding shares of Common Stock
have been duly and validly authorized and are fully paid and non-assessable. None of the shares of Common Stock are subject to
preemptive rights. No shares of Common Stock are entitled to registration rights. The Company is not a party to, and it has no
knowledge of, any agreement restricting the voting of any shares of the Common Stock of the Company, or restricting the transfer
of its securities.
(d) Issuance of
the Shares. The Shares to be purchased by the Purchasers from the Company have been duly authorized for issuance and sale to
the Purchasers and, when issued and delivered by the Company pursuant to the terms of the Agreements against payment of the consideration
set forth therein, will be validly issued and fully paid and non-assessable. The Shares have been registered on the Registration
Statement. The Registration Statement has been declared effective by the Securities and Exchange Commission and is effective on
the date hereof.
(e) No Conflicts.
The execution, delivery and performance of the Agreement by the Company, and the performance by the Company of its obligations
contemplated herein do not and will not (i) violate any provision of the Charter Documents, (ii) conflict with, or constitute a
default under any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation
to which the Company is a party, or (iii) create or impose a lien, mortgage, security interest, charge or encumbrance of any nature
on any property of the Company under any agreement or any commitment to which the Company is a party or by which the Company is
bound or by which any of its respective properties or assets are bound.
(f) Financial Statements. The
Company has made available to the Purchasers, by reference to www.sec.gov, true and complete copies its audited financial
statements for the fiscal year ended December 31, 2014 (the “Annual Financial Statements Date”) and unaudited
financial statements for the Company for the nine (9) months ended September 30, 2015 (the “Quarterly Financial Statements
Date”). Such financial statements are collectively referred to as the “Financial Statements.”
The Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”)
applied on a consistent basis during the periods involved (except as may be otherwise indicated in such financial statements or
the notes thereto). Since the date of the latest audited financial statements included within the SEC Reports (as defined below),
except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been no event, occurrence
or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary
course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting,
(iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not
have pending before the Commission any request for confidential treatment of information.
(g) Title to Assets.
Except as set forth on Schedule 3.1(g), the Company has good and marketable title to all of its owned real and personal property
whether tangible or intangible (collectively, the “Assets”), free and clear of any mortgages, pledges,
charges, liens, security interests, claim, community property interest, condition, equitable interest or other encumbrances, license,
option, right of first refusal or restriction of any kind, including any restriction on use, voting, transfer, receipt of income
or exercise of any other attribute of ownership (“Liens”).
(h) Taxes.
The Company has accurately prepared and filed all material foreign, federal, state income and all other tax returns, reports and
declarations required by law to be paid or filed by it by any jurisdiction to which the Company is subject. The Company has no
knowledge of any assessments, adjustments or contingent tax liability (whether federal or state) of any nature whatsoever, whether
pending or threatened against the Company for any period, nor of any basis for any such assessment, adjustment or contingency.
The Company has complied in all material respects with all applicable legal requirements relating to the payment and withholding
of taxes and, within the time and in the manner prescribed by law, has withheld from wages, fees and other payments, and paid over
to the proper governments or regulatory authorities, all amounts required.
(i) Filings, Consents and Approvals.
The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other governmental authority or other Person in connection with
the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant
to Section 4.1 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (ii) such filings as
are required to be made under applicable state securities laws (collectively, the “Required Approvals”).
(j) SEC Reports. The Company
has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or
such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange
Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(k) Litigation. There is no action,
suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against
or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign, including FINRA) (collectively, an
“Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of
the Transaction Documents or the Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected to
result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been
the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach
of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission or FINRA involving the Company or any current or former director or officer of the Company. The Commission has
not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any
Subsidiary under the Exchange Act or the Securities Act.
(l) Disclosure. Except with respect
to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither
it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus
Supplement. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions
in securities of the Company. All disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company,
its business and the transactions contemplated hereby is true and correct and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under
which they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date
of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were
made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(m) No Integrated Offering. Assuming the accuracy
of the Purchasers’ representations and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates,
nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under circumstances that would cause this offering to be integrated with prior offerings by the
Company for purposes of any applicable shareholder approval provisions of any Trading Market on which any of the securities of
the Company are listed or designated.
(n) Patents and Trademarks.
To the knowledge of the Company, the Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or material for use in connection with their respective businesses as described in
the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). Neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of the Intellectual
Property Rights used by the Company or any Subsidiary violates or infringes upon the rights of any Person. To the knowledge of
the Company, all such Intellectual Property Rights are enforceable. The Company and its Subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do
so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(o) Regulation M
Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any
action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of,
any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as
of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein):
(a) Organization;
Authority. Such Purchaser, if an entity, is an entity duly incorporated or formed, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and performance by such Purchaser
of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate, partnership, limited liability
company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the
valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Shares as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Shares (this representation and warranty
not limiting such Purchaser’s right to sell the Shares pursuant to the Registration Statement or otherwise in compliance
with applicable federal and state securities laws). Such Purchaser is acquiring the Shares hereunder in the ordinary course of
its business.
(c) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of
an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.
(d) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Reports and, subject to the Company’s need to comply with Regulation FD,
has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives
of the Company concerning the terms and conditions of the offering of the Shares and the merits and risks of investing in the Shares;
(ii) access to information about the Company and its financial condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information
that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment.
(e) .
(f) Confidentiality.
Other than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made
to it in connection with this transaction (including the existence and terms of this transaction).
(g) Estimates;
Forward-Looking Statements. The Purchaser acknowledges that any and all estimates or forward-looking statements or projections
with which it may have been provided (collectively, the “Information”) were prepared by the Company in good
faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed, will not
be updated by the Company and should not be relied upon. The Purchaser further acknowledges that any and all Information regarding
the historical performance of the Company is not necessarily indicative of future performance.
(h) No
Representations. No oral or written representations have been made, or oral or written information furnished, to the Purchaser
or its advisors, if any, in connection with the offering of the Shares which are in any way inconsistent with the information
contained in the Prospectus.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Securities
Laws Disclosure; Publicity. The Company shall (a) by 9:00 a.m. (New York City time) on the Trading Day immediately following
the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current
Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the
Exchange Act. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to
the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise
make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or
without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably
be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide
the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory
agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law
in connection with the filing of final Transaction Documents (including signature pages thereto) with the Commission and (b) to
the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers
with prior notice of such disclosure permitted under this Section 4.1.
4.2 Indemnification
of Purchasers. Subject to the provisions of this Section 4.2, the Company will indemnify and hold each Purchaser and
its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”)
harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants
or agreements made by the Company in this Agreement or in the other Transaction Documents. If any action shall be brought against
any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly
notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing
reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser
Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the
Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there
is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the
position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more
than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement
by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed;
or (z) to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction
Documents. The indemnification required by this Section 4.2 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or are incurred.
4.3 Equal Treatment
of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of any of this Agreement unless the same consideration is also
offered to all of the parties to this Agreement. For clarification purposes, this provision constitutes a separate right granted
to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers
as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Shares or otherwise.
4.4 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither
it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending
at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.1. Each
Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated
by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.1,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in
the Disclosure Schedules.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing
has not been consummated on or before December 31, 2015; provided, however, that no such termination will affect
the right of any party to sue for any breach by any other party (or parties).
5.2 Fees and
Expenses. Except as expressly set forth in the Transaction Documents to the contrary, 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 Transfer Agent fees
(including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and
any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of
any Shares to the Purchasers.
5.3 Entire Agreement.
The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement, contain
the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements
and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents,
exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing,
if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Purchasers holding at least a majority in interest of the Shares based on the
initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived provision
is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such
right.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
5.7 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 the prior written consent of
each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to
whom such Purchaser assigns or transfers any Shares, provided that such transferee agrees in writing to be bound by the provisions
of the Transaction Documents that apply to the “Purchasers.”
5.8 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth
in Section 4.2 and this Section 5.8.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents 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 legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan 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 any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding
is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or 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 other manner permitted by law. If either party shall commence
an action, suit or proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such action,
suit or 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 action or proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Shares.
5.11 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 each other party, it being
understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, 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 or “.pdf”
signature page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
5.13 Replacement
of Securities. If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or
in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall
also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement securities.
5.14 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of
the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the
Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation
the defense that a remedy at law would be adequate.
5.15 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance
or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any
other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers
are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction
Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the
rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser
to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented by its own separate
legal counsel in its review and negotiation of the Transaction Documents.
5.16 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.17 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction
Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and
every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after
the date of this Agreement.
WAIVER OF JURY
TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY
AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF,
the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
|
mgt capital investments,
inc.
|
Address for Notice:
500 Mamaroneck Avenue
Suite 204
Harrison, NY 10528 USA
|
|
By:__________________________________________
Name:
Title:
With a copy to (which shall not constitute notice): |
|
|
Jay Kaplowitz
Sichenzia Ross Friedman Ference LLP
61 Broadway, 32nd Floor
New York, NY 10006
|
|
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO MGT CAPITAL INVESTMENTS,
INC. SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF,
the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as
of the date first indicated above.
Name of Purchaser: ________________________________________________________
Signature of Authorized Signatory of Purchaser:
_________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory:_________________________________________
Facsimile Number of Authorized Signatory: __________________________________________
Address for Notice to Purchaser:
| DWAC Instructions: |
|
|
| |
|
|
| Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): |
| |
|
|
| DTC Participant Number: _________________ |
|
|
| |
|
|
|
Name of Account at DTC Participant being
credited with the Shares: _________________ |
|
|
| |
|
|
Account Number at DTC Participant being credited
with the Shares: _________________ |
|
|
Subscription Amount: $_________________
Shares: _________________
Shares: _________________
EIN Number: _______________________
MGT Capital Investments (PK) (USOTC:MGTI)
Historical Stock Chart
From Mar 2024 to Apr 2024
MGT Capital Investments (PK) (USOTC:MGTI)
Historical Stock Chart
From Apr 2023 to Apr 2024
