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 3, 2020
Remark
Holdings, Inc.
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Delaware
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001-33720
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33-1135689
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(State or other jurisdiction
of incorporation)
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(Commission File
Number)
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(IRS Employer Identification
No.)
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3960 Howard Hughes Parkway,
Suite 900
Las Vegas, NV
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89169
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702-701-9514
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(Address of principal
executive offices)
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(Zip Code)
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(Registrant’s telephone
number, including area code)
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(Former name or former
address, if changed since last report.)
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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))
Securities
registered pursuant to Section 12(b) of the Act:
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Title of
each class
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Trading
Symbol
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Name of each
exchange on which registered
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Common Stock, $0.001 par
value per share
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MARK
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The NASDAQ Stock Market
LLC
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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 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. ☐
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Item
1.01
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Entry into a
Material Definitive Agreement.
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On March 3, 2020,
Remark Holdings, Inc. (“Remark,” “we,” “us” or “our”) entered into
a common stock purchase agreement (the “Purchase Agreement”) with
Aspire Capital Fund, LLC, an Illinois limited liability company
(“Aspire Capital”), which provides that, upon the terms and subject
to the conditions and limitations set forth therein, we have the
right to direct Aspire Capital to purchase up to an aggregate of
$30.0 million of shares of our common stock over the 30-month term
of the Purchase Agreement. In consideration for entering into the
Purchase Agreement, we have agreed to issue to Aspire 2,374,545
shares of our common stock.
Under the
Purchase Agreement, on any trading day selected by us over the
30-month term of the Purchase Agreement, we have the right, in our
sole discretion, to present Aspire Capital with a purchase notice
(each, a “Purchase Notice”) directing Aspire Capital to purchase up
to 250,000 shares of our common stock per trading day, up to an
aggregate of $30.0 million of our common stock, at a per share
price (the “Purchase Price”) equal to the lesser of (i) the lowest
sale price of our common stock on the purchase date or (ii) the
arithmetic average of the three lowest closing sale prices for our
common stock during the 10 consecutive trading days ending on the
trading day immediately preceding the purchase date.
The aggregate
purchase price payable by Aspire Capital on any one purchase date
may not exceed $500,000, unless otherwise mutually agreed. The
parties may mutually agree to increase the number of shares of our
common stock that may be purchased per trading day pursuant to the
terms of the Purchase Agreement to an additional 2,000,000
shares.
In addition, on
any trading day on which we submit a Purchase Notice to Aspire
Capital to purchase at least 250,000 shares, we also have the
right, in our sole discretion, to present Aspire Capital with a
volume-weighted average price purchase notice (each, a “VWAP
Purchase Notice”) directing Aspire Capital to purchase an amount of
our common stock equal to up to 30% of the aggregate shares of our
common stock traded on the next trading day (the “VWAP Purchase
Date”), subject to a maximum number of shares we may determine, and
a minimum purchase price threshold equal to the greater of (i) 80%
of the closing price of our common stock on the trading day
immediately preceding the VWAP Purchase Date or (ii) a higher price
that may be determined by us. The purchase price per share pursuant
to such VWAP Purchase Notice will be equal to the lesser of (i) the
closing sale price of our common stock on the VWAP Purchase Date,
or (ii) 97% of the volume-weighted average price for our common
stock traded on its principal market on the VWAP Purchase
Date.
We may deliver
multiple Purchase Notices and VWAP Purchase Notices to Aspire
Capital from time to time during the term of the Purchase
Agreement, so long as the most recent purchase has been
completed.
In addition,
Aspire Capital will not be required to buy any shares of our common
stock pursuant to a Purchase Notice on any trading day on which the
closing trade price of our common stock is below $0.25. There are
no trading volume requirements or restrictions under the Purchase
Agreement, and we will control the timing and amount of sales of
our common stock to Aspire Capital. Aspire Capital has no right to
require any sales by us, but is obligated to make purchases from us
as directed by us in accordance with the Purchase Agreement. There
are no limitations on use of proceeds, financial or business
covenants, restrictions on future fundings, rights of first
refusal, participation rights, penalties or liquidated damages in
the Purchase Agreement. The Purchase Agreement may be terminated by
us at any time, at our discretion, without any cost to us. Aspire
Capital has agreed that neither it nor any of its agents,
representatives and affiliates will engage in any direct or
indirect short-selling or hedging our common stock during any time
prior to the termination of the Purchase Agreement.
The Purchase
Agreement provides that the total number of shares that may be
issued pursuant to such agreement is limited to 11,007,726 shares
(the “Exchange Cap”), or 19.99% of our shares of common stock
outstanding as of the date of the Purchase Agreement, unless
stockholder approval is obtained in accordance with the rules of
the Nasdaq Stock Market. If stockholder approval is not obtained,
such limitation will not apply after the Exchange Cap is reached if
at all times thereafter the average purchase price paid for all
shares issued under the Purchase Agreement is equal to or greater
than $0.4879 per share. The Purchase Agreement also provides that
at no time will Aspire Capital (together with its affiliates)
beneficially own more than 19.99% of our outstanding shares of
common stock.
Concurrently with
entering into the Purchase Agreement, we also entered into a
registration rights agreement with Aspire Capital (the
“Registration Rights Agreement”), in which we agreed to file with
the Securities and Exchange Commission (the “SEC”) one or more
registration statements, as necessary, and to the extent
permissible and subject to certain exceptions, to register under
the Securities Act of 1933, as amended, for the sale of the shares
of our common stock that have been and may be issued to Aspire
Capital under the Purchase Agreement. We expect to file with the
SEC a prospectus supplement to our effective shelf Registration
Statement on Form S-3 (File No. 333-225448) registering all of the
shares of common stock that may be offered to Aspire Capital from
time to time.
The foregoing
descriptions of the Purchase Agreement and the Registration Rights
Agreement do not purport to be complete and are qualified in their
entirety by reference to the full text of such documents, which are
attached hereto as Exhibits 10.1 and 4.1, respectively, and are
incorporated herein by reference.
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Item
1.02
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Termination
of a Material Definitive Agreement.
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On March 3, 2020,
the Purchase Agreement replaced a prior common stock purchase
agreement, dated as of March 29, 2019, between us and Aspire
Capital, which was terminated under the terms of the Purchase
Agreement.
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Item
9.01
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Financial
Statements and Exhibits.
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Exhibit
Number
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Description
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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.
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Remark
Holdings, Inc.
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Date:
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March 4,
2020
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By:
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/s/
Kai-Shing Tao
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Name:
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Kai-Shing Tao
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Title:
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Chief
Executive Officer
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