Attached files
|
UNITED STATES
|
|
SECURITIES AND EXCHANGE COMMISSION
|
|
WASHINGTON, DC 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 24,
2017
|
|
root9B Holdings, Inc.
|
|
(Exact
Name of Registrant as Specified in Its Charter)
|
|
Delaware
|
|
000-50502
|
|
20-0443575
|
|
(State
or Other Jurisdiction of Incorporation or
Organization)
|
|
(Commission
File Number)
|
|
(IRS
Employer Identification No.)
|
|
102 N. Cascade Avenue, Suite 220
Colorado Springs, CO
|
|
80919
|
|
(Address
of Principal Executive Offices)
|
|
(Zip
Code)
|
|
Registrant’s
Telephone Number, Including Area Code: (602)
889 1137
|
|
|
|
N/A
|
|
(Former
Name or Former Address, if Changed Since Last Report)
|
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 (see General Instruction A.2.
below):
|
☐
|
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.
|
As
previously disclosed, root9B Holdings, Inc., a Delaware corporation
(the “Company”) was offering secured, convertible
promissory notes (the “Notes”) with an aggregate
principal amount of up to $10,000,000, along with warrants to
purchase shares of the Company’s common stock, par value
$0.001 per share (the “Common Stock”), representing
fifty percent (50%) warrant coverage (the “Warrants”),
to the Investors (as defined in the Agreement) in a private
placement, pursuant to the Securities Purchase Agreement dated
September 9, 2016 (as amended, the “Agreement”). The
following description of Notes and Warrants is presented with
adjustment for the Company’s reverse split of its Common
Stock at a ratio of one-for-fifteen (the “Reverse
Split”), which was effective on December 5, 2016. This
Current Report on Form 8-K shall not constitute an offer to sell or
the solicitation of an offer to buy securities.
Securities Purchase Agreement Amendment
On
March 24, 2017, the Company entered into an amendment (the
“Third Amendment”) to the Agreement with the Majority
Note Holders (as defined in the Agreement). The Third Amendment
authorizes the Company to issue new forms of Notes (the
“Third Form of Note”) and Warrants (the “Second
Form of Warrant”), each as described below. The Company
provided additional representations to each of the Investors and
agreed to file a registration statement with the SEC for the resale
of the Warrants and the underlying shares of Common Stock no later
than June 30, 2017.
The
Third Amendment also provides for the issuance of Notes (as
amended) with an aggregate principal amount equal to $2,250,000,
along with Warrants (as amended) to purchase approximately 112,500
shares of Common Stock. The Company intends to use the proceeds for
working capital and general corporate purposes. The Third Amendment
also provides that the Company will file a registration statement
covering the resale of the Warrants and the shares issued upon
conversion of the Notes and Warrants by no later than June 30,
2017. Additionally, the Third Amendment provides that the Company
make certain additional customary representations and warranties as
of each closing. Following the Third Amendment, the Company has
sold Notes with an aggregate principal amount of approximately $8.8
million, along with Warrants to purchase approximately 438,550
shares of Common Stock. Except as discussed herein, the terms of
the Agreement, the security agreement, the Warrants, and the Notes
are described in the Company’s Current Report on Form 8-K
filed with the Securities and Exchange Commission on January 26,
2017.
The
Third Amendment will be filed in accordance with the rules and
regulations of the SEC, with portions omitted and filed separately
with the SEC pursuant to a request for confidential
treatment.
Except
as described in this Current Report, the terms of the Agreement,
the security agreement, the Warrants, and the Notes are described
in the Company’s Current Report on Form 8-K filed with the
Securities and Exchange Commission on January 26, 2017, and are
qualified in their entirety by reference to the full text of the
Agreement, form of Note, form of Warrant, the security agreement,
and the Second Amendment to the Agreement, copies of which are
filed as Exhibits 10.1, 10.2, 10.3, 10.4, and 10.5, respectively,
to this Current Report on Form 8-K.
Amendment No. 1 to Warrants
On
March 24, 2017, the Company and certain holders of the Warrants
(the “Holders”) entered into an amendment (the
“Warrant Amendment”) to each of the Warrants held by
the Holders. The Warrant Amendment amends the definition of
“Exercise Price” from $12.00 per share to $10.00 per
share. Except as modified by the Warrant Amendment, all other terms
of the Warrants remain unchanged and in full force and effect. The
foregoing description of the principal terms of the Warrant
Amendment does not purport to be complete and is qualified in its
entirety by reference to the Warrant Amendment, a copy of which is
filed as an exhibit to this Current Report on Form 8-K as Exhibit
10.6. The Second Form of Warrant, which incorporates the Warrant
Amendment into the Warrant, is filed as an exhibit to this Current
Report on Form 8-K as Exhibit 10.7.
Amendment No. 2 to Notes
On
March 24, 2017, the Company and certain holders of the Notes (the
“Noteholders”) entered into a second amendment (the
“Note Amendment”) to each of Notes held by the
Noteholders. The Note Amendment requires the Company to comply with
new financial covenants, including that the Company maintain a
positive Working Capital (as defined in the Note Amendment) as of
each month end and average cash on hand at least equal to the
largest payroll during the preceding 90 days (subject to certain
adjustments), and requires the Company to provide regular financial
reports to the Noteholders. The Note Amendment also provides that,
in addition to any other right or remedy upon the occurrence or
existence of any Event of Default (as defined in the Notes), and
until the Event of Default is cured or the Note is converted, the
Majority Note Holders may designate up to two candidates reasonably
acceptable to the Company to serve as directors on the
Company’s Board of Directors, which right may be exercised
only once. In addition, the Note Amendment amends the definition of
“Conversion Price” from $12.00 per share to $10.00 per
share and reduces the per share price floor for any interest
payments made in shares of common stock from $12.00 per share to
$10.00 per share. Additionally, the Note Amendment provides the
Noteholders with a right of first refusal in the event a third
party makes an offer to the Company of a (i) financing involving
more than $2,000,000, or (ii) acquisition of control of the Company
in whatever form. The Note Amendment also requires that the Company
offer to the Noteholders the same terms as any subsequent issuances
of convertible promissory notes that contain, individually or in
the aggregate, more favorable terms than the Notes. Finally, the
Note Amendment clarifies that the maturity date for all notes will
be September 9, 2019, any prepayments made will be on a pro rata
basis and a default under any Note will be treated as a default
under all Notes.
Except
as modified by the Note Amendment, all other terms of the Notes
remain unchanged and in full force and effect. The foregoing
description of the principal terms of the Note Amendment does not
purport to be complete and is qualified in its entirety by
reference to the Form of Note Amendment, a copy of which is filed
as an exhibit to this Current Report on Form 8-K as Exhibit
10.8.
The
Third Form of Note, which incorporates the Note Amendment into the
Notes, will be filed in accordance with the rules and regulations
of the SEC, with portions omitted and filed separately with the SEC
pursuant to a request for confidential treatment.
Waiver
In
connection with the Agreement, the Company entered into a Waiver of
Anti-Dilution Rights (the “Waiver”) with the Qualified
Holders (as defined in the Amended and Restated Securities Purchase
Agreement, dated March 10, 2016, by and among the Company and the
investors party thereto (the “2016 Agreement”)).
Pursuant to the terms of the Waiver, the Qualified Holders agreed
to waive certain anti-dilutive rights provided to them under the
terms of the 2016 Agreement with respect to the Note Amendment and
the Warrant Amendment. The 2016 Agreement was included as Exhibit
10.2 to the Company’s Current Report on Form 8-K filed with
the Securities and Exchange Commission on March 14, 2016. The
foregoing description of the principal terms of the Waiver does not
purport to be complete and is qualified in its entirety by
reference to the Form of Waiver, a copy of which is filed as an
exhibit to this Current Report on Form 8-K as Exhibit
10.9.
|
Item 2.03
|
Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
|
The
information disclosed in Item 1.01 of this Current Report on Form
8-K is incorporated by reference into this Item 2.03.
|
Item 3.02
|
Unregistered Sales of Equity Securities.
|
The
information disclosed in Item 1.01 of this Current Report on Form
8-K is incorporated by reference into this Item 3.02.
|
Item 9.01
|
Financial Statements and Exhibits.
|
(d) Exhibits.
The
information set forth in the Exhibit Index immediately following
the signature page to this Current Report on Form 8-K is
incorporated by reference into this Item 9.01.
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, thereunto duly
authorized.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ROOT9B HOLDINGS, INC.
|
||||
|
|
|
|
|
|
|
|
|
|
|
Dated:
March 24, 2017
|
|
|
|
By:
|
|
/s/
Dan
Wachtler
|
||
|
|
|
|
|
|
|
Name:
|
|
Dan
Wachtler
|
|
|
|
|
|
|
|
Title:
|
|
President
|
Exhibit Index
|
|
|
|
|
Exhibit
|
|
Description
|
|
10.1
|
|
Securities
Purchase Agreement, dated September 9, 2016 (incorporated by
reference to Exhibit 10.1 to the Current Report on Form 8-K of the
Company filed with the Commission on September 12,
2016).
|
|
10.2
|
|
Form of
Secured Convertible Promissory Note (incorporated by reference to
Exhibit 10.2 to the Current Report on Form 8-K of the Company filed
with the Commission on September 12, 2016).
|
|
10.3
|
|
Form of
Common Stock Purchase Warrant (incorporated by reference to Exhibit
10.3 to the Current Report on Form 8-K of the Company filed with
the Commission on September 12, 2016).
|
|
10.4
|
|
Form of
Security Agreement (incorporated by reference to Exhibit 10.4 to
the Current Report on Form 8-K of the Company filed with the
Commission on September 12, 2016).
|
|
10.5
|
|
Second
Amendment to Securities Purchase Agreement, effective January 24,
2017 (incorporated by reference to Exhibit 10.5 to the Current
Report on Form 8-K of the Company filed with the Commission on
January 26, 2016).
|
|
|
Form of
Amendment No. 1 to Warrant.
|
|
|
|
Second
Form of Warrant.
|
|
|
|
Form of
Amendment No. 2 to Secured Convertible Promissory Note
|
|
|
|
Form of
Waiver to Amended and Restated Securities Purchase
Agreement.
|