Item 1.01 Entry into a Material Definitive Agreement.
As previously reported in the
Current Report on Form 8-K filed on May 15, 2018, by DPW Holdings, Inc. (the “
Company
”), the Company entered
into a securities purchase agreement with an institutional investor (the “
Investor
”) providing for the issuance
of (i) a Senior Secured Convertible Promissory Note (the “
Original Note
”); (ii) a five-year warrant at an exercise
price of $1.35; (iii) a five-year warrant at an exercise price of $0.87 per share; and (iv) 344,828 shares of the Company’s
common stock, par value $0.001 per share (“
Common Stock
”).
On June 18, 2019 (the “
Closing
Date
”), the Company entered into a Securities Purchase Agreement (the “
SPA
”) with the Investor to
consummate a refinancing (the “
Refinancing
”) pursuant to which, in consideration for the extinguishment of the
Original Note, the Company shall (i) sell a 10% Senior Secured Promissory Note with a principal face amount of $2,800,000, plus
an original issue discount in the amount of $100,000 (subject to adjustment) (the “
New Note
”) and (ii) issue
500,000 shares of Common Stock (the “
Commitment Shares
”) subject to the approval thereof by the NYSE American.
Pursuant to a registration rights agreement by and between the Company and the Investor (the “
RRA
”), the Company
shall file with the Securities and Exchange Commission (the “
SEC
”) the initial registration statement on Form
S-3 (the “
Registration Statement
”) under the Securities Act of 1933, as amended (the “
Securities Act
”),
relating to the resale by the Investor of all (or such other number as the SEC will permit) of the Commitment Shares within the
twenty-first (21st) calendar day after the closing of the Refinancing (the “
Closing
”). In addition, Ault &
Company, Inc., a Delaware corporation, has guaranteed to the Investor and its successors, endorsees, transferees and assigns, the
prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the obligations
of the Company pursuant to the Refinancing (the “
Guaranty
”).
Description Senior Secured Promissory Note
The New Note has a principal face amount of $2,900,000 with a purchase price of $2,800,000, and bears
interest at 10% per annum.
The Company shall make amortization
payments in six (6) cash payments to the Investor commencing on July 18, 2019, and continuing every month thereafter until December
18, 2019 (the “
Maturity Date
”). The Company shall redeem one-sixths (1/6th) of the original principal amount,
plus accrued but unpaid interest, of the New Note in the amounts set forth therein (each, an “
Amortization Payment
”).
The New Note contains standard
and customary events of default including, but not limited to, failure to make payments when due under the New Note, failure to
comply with certain covenants contained in the New Note, or bankruptcy or insolvency of the Company. So long as no event of default
exists, the Company may prepay, in part or in full, the outstanding principal and accrued and unpaid interest upon ten (10) days
written notice to the Investor. If the Company exercises its right to prepay the New Note, the Company shall make payment to the
Investor of an amount in cash equal to the sum of the then outstanding principal amount of the New Note, any accrued and unpaid
interest, a fee equal to 5% of the original principal amount of the New Note and any other amounts due thereunder.
During the term of the New Note,
in the event that the Company consummates any debt or equity financing or capital-raising transaction of any kind (each a “
Subsequent
Offering
”), the Company shall, subject to certain conditions make payment to the Investor an amount in cash equal to
twenty percent (20%) of the gross proceeds from each Subsequent Offering to prepay outstanding amounts due under the New Note subject
to the terms set forth therein. In the event a Subsequent Offering shall be an At the Market Public Offering or a registered equity
line, then 70% of such gross proceeds shall be used to prepay outstanding amounts due under the New Note.
The foregoing descriptions of the SPA, the New Note,
the RRA and the Guaranty do not purport to be complete and are qualified in their entirety by reference to their respective forms
which are annexed hereto as
Exhibits 10.1, 4.1, 4.2
and
10.2
, 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.