Big Digital Energy, Inc S-1/A, filed Jul 27, 2021
Big Digital Energy, Inc. (BGDE)
As filed with the Securities and Exchange Commission on July 27, 2021
Registration No. 333-256947
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MAWSON INFRASTRUCTURE GROUP INC.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 2834 | 80-0445167 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
Level 5, 97 Pacific Highway
North Sydney NSW 2060
Australia
Telephone: +61 2 8624 6130
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
James Manning
CEO - Mawson Infrastructure Group Inc.
Level 5, 97 Pacific Highway
North Sydney NSW 2060
Australia
Telephone: +61 2 8624 6130
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Chad Ensz, Esq.
Greg Carney, Esq.
Dentons US LLP
4655 Executive Drive, Suite 700
San Diego, CA 92121 USA
Telephone: +1 (858) 720-6361
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement, as determined by market and other conditions.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one)
| Large accelerated filer: ☐ | Accelerated filer: ☐ | |
| Non-accelerated filer: ☒ | Smaller reporting company: ☒ | |
| 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 7(a)(2)(B) of the Securities Act ☐
CALCULATION OF REGISTRATION FEE
| Title of each class of securities to be registered | Amount To Be | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Aggregate Offering Price | Amount
of Registration Fee(3) | |||||||||||
| Common Stock, $0.001 par value | 503,357,990 | $ | 0.8425 | $ | 424,079,106.58 | $ | 46.267.03 | ||||||||
| Common Stock, $0.001 par value (underlying convertible notes) | 43,622,862 | $ | 0. 8425 | $ | 36,752,261.24 | $ | 4,009.68 | ||||||||
| Common Stock, $0.001 par value (underlying warrants) | 16,960,982 | $ | 0.8425 | $ | 14,289,627.34 | $ | 1,559.00 | ||||||||
| Total | 563,941,835 | 475,120,995.16 | $ | 51,835.71 | (5) | ||||||||||
| (1) | The Registrant is registering for resale by the selling stockholders identified in the prospectus contained herein up to 563,941,835 shares of common stock Common Stock, $0.001 par value (the “Common Stock”), which consists of: (i) 503,357,990 shares of Common Stock, (ii) 16,960,982 shares of Common Stock issuable upon exercise of Common Stock purchase warrants held by the selling stockholders and (iii) 43,622,862 shares of Common Stock issuable upon conversion of convertible notes held by the selling stockholders. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), there are also being registered hereby an additional indeterminate number of shares of Common Stock as may become issuable to the selling stockholders as a result of stock splits, stock dividends and similar transactions, and, in any such event, the number of shares registered hereby shall be automatically increased to cover the additional shares |
| (2) | Represents the higher of: (i) the exercise prices of the convertible security and (ii) the offering price of securities of the same class as the common stock underlying the convertible security calculated in accordance with Rule 457(c) under the Securities Act, for the purpose of calculating the registration fee pursuant to Rule 457(g) under the Securities Act. Represents the closing price of the Common Stock on the OTC Markets on July 6, 2020, a date within 5 trading days prior to the date of the filing of this registration statement. |
| (3) | Estimated in accordance with Rule 457(c) under the Securities Act, solely for the purpose of calculating the registration fee, based on the closing price of our Common Stock on June 7, 2021, as reported on the OTCQB, a date within 5 trading days of the date of filing of this registration statement. |
| (4) | Determined in accordance with Section 6(b) of the Securities Act at a rate equal to $109.10 per $1,000,000 of the proposed maximum aggregate offering price. |
| (5) | Previously paid. |
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
EXPLANATORY NOTE
The sole purpose of this Amendment No. 2 to the Registration Statement on Form S-1 (File No. 333-256947) is to file Exhibits 5.1, 10.35 and 10.40, as indicated in Item 16 of Part II of this amendment. No change is made to the preliminary prospectus constituting Part I of the Registration Statement or Items 13, 14, 15 or 17 of Part II of the Registration Statement. Accordingly, this amendment consists only of the facing page, this explanatory note, Item 16 of Part II and the signature page to the Registration Statement.
| ITEM 16. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. |
(a) Exhibits.
The exhibits filed and furnished with this registration statement are set forth on the “Exhibit Index” set forth elsewhere herein.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of North Sydney, Australia on the 27th day of July, 2021.
| Mawson Infrastructure Group Inc. | |||
| By: | /s/ James Manning | ||
| Name: | James Manning | ||
| Title: | Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ James Manning | Chief Executive Officer and Director |
July 27, 2021 | ||
| James Manning | (Principal Executive Officer) | |||
* |
Chief Financial Officer | July 27, 2021 | ||
| Or Eisenberg | (Principal Financial and Accounting Officer) | |||
* |
Director | July 27, 2021 | ||
| Michael Hughes | ||||
| * | Director | July 27, 2021 | ||
| Gregory Martin | ||||
| * | Director | July 27, 2021 | ||
| Yossi Keret |
| *By: | /s/ James Manning | |
| James Manning | ||
| Attorney-in-fact |
EXHIBIT INDEX
| # | Filed herewith |
| ## | Previously filed. |
| † | Exhibits and schedules to this exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. We will furnish the omitted exhibits and schedules to the Securities and Exchange Commission upon request by the Securities and Exchange Commission. |
| + | Management compensatory plan |
| ** | Confidential treatment was requested with respect to certain portions of this exhibit pursuant to 17.C.F.R. §240.24b-2. Omitted portions were filed separately with the SEC. |
Exhibit 5.1
|
|
Dentons US LLP 4655 Executive Drive Suite 700 San Diego, CA 92121 United States
dentons.com |
July 26, 2021
VIA ELECTRONIC TRANSMISSION
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
| Re: | Mawson Infrastructure Group Inc. Form S-1 Registration Statement |
Ladies and Gentlemen:
We have acted as counsel to Mawson Infrastructure Group Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-1 (the “Registration Statement”) filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”), covering the resale by the selling stockholders of up to 563,941,835 shares of the Company’s common stock, consisting of (i) 503,357,990 shares of common stock (the “Common Shares”), (ii) 43,622,862 shares of common stock issuable upon conversion of convertible notes (the “Conversion Shares”) and (iii) 16,960,982 shares of common stock issuable upon exercise of warrants (the “Warrant Shares” and collectively with the Common Shares and the Conversion Shares, the “Registrable Shares”).
In connection with this opinion, we have examined and relied upon the Registration Statement and related Prospectus included therein, the Company’s Certificate of Incorporation and Bylaws, as currently in effect and the originals or copies certified to our satisfaction of such other records, documents, certificates, memoranda and other instruments as we deem necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals and all signatures thereon, and the conformity to originals of all documents submitted to us as copies thereof.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion as to whether any particular laws other than those identified above are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Registrable Shares, including the Conversion Shares, when issued pursuant to the terms of the applicable convertible note, and the Warrant Shares, when paid for and issued pursuant to the terms of the applicable warrants, are duly authorized, validly issued, fully paid and nonassessable.
Our opinions are subject to the effect of federal and state bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent conveyance and other laws relating to or affecting the rights of secured or unsecured creditors generally (or affecting the rights of only creditors of specific types of debtors), with respect to which we express no opinion.
Our opinions are subject to limitations imposed by general principles of equity or public policy upon the enforceability of any of the remedies or covenants, including, without limitation, concepts of materiality, good faith and fair dealing and upon the availability of injunctive relief or other equitable remedies, and the application of principles of equity (regardless of whether enforcement is considered in proceedings at law or in equity).
Securities and Exchange Commission
Julye 26, 2021
Page 2
We hereby consent to the reference to our firm under the caption “Legal Matters” in the Prospectus included in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. In the giving of 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/ Dentons US LLP | |
| Dentons US LLP |
Exhibit 10.35
AMENDMENT TO CONVERTIBLE LOAN AGREEMENTS
This Amendment to Convertible Loan Agreements (this “Amendment”), dated as of November 28, 2019 and effective November 29, 2019, is entered into by and among Wize Pharma Ltd., an Israeli private company #520033259 (the “Company”), Wize Pharma, Inc. (“Parent”), Rimon Gold Assets Ltd., an Israeli private company #514819424 (“Rimon Gold’’), Mobigo Inc (“Mobigo”), and Shimshon Fisher (“Fisher”, together with Rimon Gold and Mobigo, the “Lenders”).
W I T N E S S E T H:
WHEREAS, the Company is party to a convertible loan agreement with Rimon Gold, dated March 20, 2016 (as amended from time to time, the “First Convertible Loan Agreement”), as amended by (i) the addendum dated March 30, 2016, between the Company and Rimon Gold, (ii) the second convertible loan agreement (as amended from time to time, the “Second Convertible Loan Agreement” and, together with the First Convertible Loan Agreement, and this Amendment, the “Loan Agreements”), dated January 12, 2017, among the Company, Rimon Gold, and Ridge Valley Corporation (“Ridge”), (iii) an amendment to the First Convertible Loan Agreement, dated December 21, 2017, (iv) an amendment to the Loan Agreements, dated October 19, 2018, (v) an amendment to the Loan Agreements, dated March 4, 2019, and (iv) an amendment to the Loan Agreements, dated May 31, 2019;
WHEREAS, pursuant to an assignment and assumption agreement, Fisher is party to the Second Convertible Loan Agreement;
WHEREAS, pursuant to an assignment and assumption agreement of all of Ridge’s rights under the Second Convertible Loan Agreement, Mobigo is party to the Second Convertible Loan Agreement;
WHEREAS, the parties desire to amend the First Convertible Loan Agreement and the Second Convertible Loan Agreement as more particularly set forth below;
NOW THEREFORE, the parties do hereby agree as follows:
| 1. | All of the terms which are used in this Amendment and are not explicitly defined herein shall have the meanings assigned to them in the Second Convertible Loan Agreement. |
| 2. | The parties acknowledge that the outstanding loan amounts (principal and accrued interest), Loan Warrants, Investment Rights and Investment Options set forth in Exhibit A hereto are true and correct and that, other than the securities set forth therein, they are not entitled to any other securities issued or issuable in connection with the Loan Agreements. |
| 3. | Subject to a Lender’s written election to convert (such Lender, a “Converting Party”) at least quarter (25%) of its outstanding loan amount (principal and interest) under the Loan Agreements as set forth in Columns (2) and (3) of Exhibit A (the “Outstanding Loan Amount” and the portion elected to be converted as set forth in Column (4) of Exhibit A, the “Conversion Amount”) by no later than November 29, 2019, the following terms will apply effective December 13, 2019 (with respect to such Converting Party only) (the “Loan Conversion”): |
| a. | The conversion price per share of common stock of Parent (each, a “Share”) will be reduced to $0.27 (the “Conversion Price”) and, Parent shall issue the Converting Party a number of Shares equal to the Conversion Amount (which, for the sake of clarity, may not be less than 25% of the outstanding loan amount) divided by the Conversion Price. |
| b. | For every single Share that will be issued by Parent as a result of the Loan Conversion, the Converting Party will be entitled to one warrant (each, a “Conversion Warrant”) to purchase two Shares. |
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| c. | The Conversion Warrants will have an exercise period of five years, an exercise price of $0.27 per share and the same terms as the form of Warrant attached hereto as Exhibit B. |
| d. | The exercise or conversion price of the convertible securities that each Converting Party currently holds as set forth in columns (5), (6) and (7) of Exhibit A (each, an “Other Loan Security” and collectively, the “Other Loan Securities”) shall be adjusted to $0.27 per share; and the number of shares of common stock issuable upon conversion or exercise of the Other Loan Securities shall be reduced to equal the number of shares of common stock originally issuable upon conversion or exercise of Converting Party’s total number of Other Loan Securities multiplied by (i) the Conversion Amount divided by (ii) the Outstanding Loan Amounts. |
| e. | If at any time while an Other Loan Security is outstanding, the exercise price of the Company’s Series A Warrants issued pursuant to that certain Securities Purchase Agreement, dated October 22, 2018 between the Company and the investors thereto, is reduced as a result of a dilutive issuance (the “New Series A Warrants Exercise Price”) to an exercise price lower than the exercise or conversion price of such Other Loan Security then in effect, then the exercise or conversion price of such Other Loan Security then in effect shall be reduced to the New Series A Warrants Exercise Price. |
| 4. | For the sake of clarity, the loan amounts (principal and interest) under the Loan Agreements that are not converted in accordance with the Loan Agreements (and, if applicable, as amended by Section 3 hereof), will be paid to the Lenders on November 30, 2019 (“Repayment”). |
| 5. | Each Lender acknowledges and agrees that each of the other Lenders may freely assign all or part of their rights and obligations under the Loan Agreements (as amended hereby) to other third parties, subject to applicable securities laws. |
| 6. | For the removal of doubt, the Repayment (together with the conversion, if any, of the applicable portion of the loan amounts), will settle all the obligations and liabilities of the Parent and its affiliates (including the Company) to the Lenders in accordance with the Loan Agreements (including any liens, guarantees or the like) and, without derogating from the generality of the foregoing, the Lenders will act to promptly remove all liens registered in their favor, if any, in this respect. |
| 7. | Except as may be modified herein, the terms of the Loan Agreements shall remain in full force and effect. |
| 8. | This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and shall be binding upon all parties, their successors and assigns, and all of which taken together shall constitute one and the same Amendment. A signature delivered by facsimile shall constitute an original. |
[Signature Page Follows]
2
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
| WIZE PHARMA LTD. | WIZE PHARMA, INC. | |||
| By: | /s/ Or Eisenberg | By: | /s/ Or Eisenberg | |
| Name: | Or Eisenberg | Name: | Or Eisenberg | |
| Title: | CFO | Title: | CFO | |
RIMON GOLD ASSETS LTD. |
||
| By: | /s/ Abir Raveh | |
| Name: | Abir Raveh | |
| Title: | ||
MOBIGO INC. |
||
| By: | /s/ Priscilla Julie | |
| Name: | Priscilla Julie | |
| Title: | Director | |
| /s/ Shimshon Fisher | ||
| Shimshon Fisher | ||
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EXHIBIT A
| (1) | (2) | (3) | (4) | (5) | (6) | (7) | ||||||||||||||||||
| LENDER | PRINCIPAL AMOUNT | ACCRUED AND UNPAID INTEREST (through Maturity Date) | CONVERSION (PRINCIPAL + INTEREST) | INVESTMENT RIGHTS | INVESTMENT OPTIONS | LOAN WARRANTS (issued in connection with the Amendment, dated May 31, 2019) | ||||||||||||||||||
| Rimon - 2016 | $ | 531,067 | $ | 79,661 | $ | 305,364 | - | 391,582 | 347,213 | |||||||||||||||
| Rimon - 2017 | $ | 274,048 | $ | 29,231 | $ | 151,640 | 308,613 | - | 173,607 | |||||||||||||||
| Mobigo | $ | 274,048 | $ | 29,231 | $ | 203,197 | 94,382 | - | 173,607 | |||||||||||||||
| Fisher | $ | 274,048 | $ | 29,505 | $ | 100,172 | 95,089 | - | 173,607 | |||||||||||||||
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Exhibit 10.40
AMENDMENT TO LICENSE AGREEMENT
This agreement (the “Amendment”) is entered into on May 4, 2020 (the “Effective Date”), by and between Resdevco Research and Development Company Ltd., reg. no. 510422223 (the “Licensor”) and Wize Pharma Ltd., reg. no. 520033259 and/or OcuWize Ltd. reg.no. 515241511, the former name of which is Star Night Technologies Ltd. (the “Licensee”) (the Licensor and the Licensee shall be collectively referred to hereinafter as the “Parties”).
WHEREAS, the Licensor and the Licensee have entered into that certain Exclusive Distribution and Licensing Agreement dated May 1, 2015 and to subsequent amendments thereto (collectively referred to hereunder as the “License Agreement”), setting forth the terms and conditions of the license and distribution rights granted by the Licensor to the Licensee in the territory of the United States of America (the “Territory”); and
WHEREAS, the Parties wish to amend and update certain obligations and time frames which were previously agreed in the License Agreement.
NOW THEREFORE, the Parties hereby declare and agree as follows:
| 1. | Immediate Termination: |
| 1.1 | Notwithstanding anything to the contrary in the License Agreement, if (i) within 3 months after the receipt by Licensee of the Pre-IND, or (ii) in case of proven inability to receive Pre-IND as a direct result of COVID-19 epidemic, in both cases not later than December 31, 2020, Licensee provides the Licensor with a written notice of Licensee’s decision to terminate the License Agreement for any reason, the License Agreement shall be terminated immediately upon the receipt of such notice by Licensor without any additional written notice (the “Termination Right”). For the sake of clarity, to the extent the Termination Right is exercised as aforesaid before the end of 2020 no minimum royalty fee shall be due from the Licensee for the year 2021. |
| 1.2 | If Licensee does not exercise the Termination Right by December 31st, 2020, then, subject to Licensee’s obligations under the License Agreement (as amended among others on November 8, 2019), the Termination Rights (including the foregoing limitation of 3 months) shall apply until December 31, 2021 (the “Extended Termination Right”). For the sake of clarity, to the extent the Extended Termination Right is exercised as aforesaid before the end of 2021 no minimum royalty fee shall be due from the Licensee for the year 2022. |
“Pre-IND” means pre-IND consultation with FDA and receiving the FDA feedback.
| 2. | Survival of Terms. |
For the avoidance of doubt, the provisions of the License Agreement which by their nature are intended to survive termination or expiration of the License Agreement shall survive the termination pursuant to Section 1 of this Amendment, including without limitation Article 16.18 to the License Agreement and all Articles indicated therein (the “Surviving Obligations”).
| 3. | Termination Conditions. |
Without derogating from the said in Section 2 above, and as a condition of Licensor’s consent to waive its right for 180 days’ prior termination notice, it is expressly agreed that immediately upon termination of the License Agreement:
| (a) | Licensee will strictly comply with the provisions of the License Agreement regarding revert of all rights and transfer of all proprietary, confidential and other information related to the business conducted under the License Agreement from Licensee to Licensor pursuant to Article 11.3 of the License Agreement, as well as any and all registration files, drug files, authorizations, technical data, preclinical and clinical data, toxicological and pharmacological data, scientific data, and any other information, documentation or results obtained or possessed by Licensee, relating to any business conducted by Licensee in connection with the License Agreement and/or any registration proceedings conducted in the Territory. |
| (b) | Licensee will use its best efforts to assist Licensor in finding a third-party willing to take Licensee’s place and comply to the greatest extent with the provisions of the License Agreement. |
| (c) | For the avoidance of doubt, the provisions of penalty payments under Article 12.3 of the License Agreement shall expressly apply with respect to the termination of the License Agreement pursuant to Section 1 of this Amendment. |
| (d) | Licensor shall be free and have full power and discretion to engage with any person and to enter into any agreement for the grant of any right and interest previously granted under the License Agreement, explicitly or implicitly, and Licensee will have no claims in this regard. |
| 4. | Miscellaneous. |
| (a) | Without derogating from the Licensee’s Surviving Obligations, Licensee forever waives, releases and discharges Licensor from any and all claims, causes of action, demands, liabilities, damages, obligations and debts, of every kind and nature, whether known or unknown, suspected or unsuspected, that Licensee had in past, currently has or will have in future in connection with the License Agreement or otherwise. |
| (b) | This Amendment constitutes the entire understanding and agreement between the Parties with regard to the subject matter hereof and supersedes any and all prior discussions, agreements and correspondence with regard to the subject matter hereof. |
| (c) | Except as explicitly provided in this Amendment, this Amendment shall not derogate from or amend the provisions of the License Agreement, and it shall remain in full force and effect throughout their terms. |
| (d) | Any amendment of this Amendment and any waiver of any of the terms or conditions thereof may be made only in in written agreement executed by both Parties. |
IN WITNESS WHEREOF, the Parties have entered into this Amendment as of the date written above.
| /s/ Prof. S. Dikstein | /s/ Noam Danenberg | |||
| Resdevco Research and Development | Wize Pharma Ltd. | |||
| Company Ltd. | OcuWize Ltd. | |||
| By: | Prof. Shabtay Dikstein | By: | Noam Danenberg | |
| Title: | CEO | Title: | CEO | |