GPUS 8-K/A
Hyperscale Data, Inc. (GPUS)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________
FORM
(Amendment No. 2)
CURRENT REPORT
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EXPLANATORY NOTE
This Current Report on Form 8-K/A (this “Amendment No. 2”) amends and restates (i) the Current Report on Form 8-K (the “Original Form 8-K”) filed by Hyperscale Data, Inc., a Delaware corporation formerly known as Ault Alliance, Inc. (the “Company”) with the Securities and Exchange Commission (the “Commission”) on November 7, 2023, and (ii) the Current Report on Form 8-K (the “March 2024 Form 8-K” and with the Original Form 8-K, the “Prior Forms 8-K”) filed by the Company with the Commission on March 26, 2024 disclosing an amendment to the Agreement (as defined below) dated March 25, 2024 (the “First Amendment”).
This Amendment No. 2 is filed solely for the purpose of disclosing an Amendment dated September 17, 2024 (the “Second Amendment”) to the Securities Purchase Agreement dated November 6, 2023 (the “Agreement” and as amended, the “Amended Agreement”), entered into by and between the Company and Ault & Company, Inc., a Delaware corporation (the “Purchaser”), to provide for an extension of the closing date of the final tranche of the Financing (as defined below).
Other than the foregoing, this Amendment No. 2 speaks as of the original date of the Original Form 8-K and does not reflect events that may have occurred subsequent to the date of the Original Form 8-K, except for (i) the reverse stock split of the Company’s common stock, par value $0.001 per share (the “Common Stock”), which was effective as of January as of January 16, 2024, (ii) closings of the Financing that occurred since the Execution Date (as defined below), (iii) adjustment to the Conversion Price (as defined below) upon an issuance of Common Stock at a price per share lower than the Conversion Price then in effect, (iv) removal of Item 7.01 and the referenced press release of the Original Form 8-K, and (v) the contents of the March 2024 Form 8-K.
| Item 1.01 | Entry into a Material Definitive Agreement. |
On November 6, 2023 (the “Execution Date”), the Company entered into the Agreement with the Purchaser, pursuant to which the Company agreed to sell to the Purchaser up to 50,000 shares of Series C convertible preferred stock (the “Series C Convertible Preferred Stock”), and Series C Warrants to purchase shares of Common Stock, in one or more closings, for a total purchase price of up to $50,000,000.00 (the “Financing”).
On March 25, 2024, the Company and the Purchaser entered into the First Amendment, pursuant to which the total amount of the Financing was increased to $75,000,000.00, with the COD and the Series C Warrants being amended accordingly. As of March 25, 2024, the Purchaser had purchased an aggregate of 43,500 shares of Series C Convertible Preferred Stock for an aggregate purchase price of $43.5 million.
The Purchaser is an affiliate of the Company.
On September 17, 2024, the Company and the Purchaser entered into the Second Amendment. Pursuant to the Second Amendment, the “Termination Date” was amended from June 30, 2024 to December 31, 2024, in each case subject to the right of the Purchaser to extend such date for an additional ninety (90) days. As of September 17, 2024, the Purchaser had purchased an aggregate of 44,000 shares of Series C Convertible Preferred Stock for an aggregate purchase price of $44 million.
The foregoing description of the Second Amendment as well as the transactions contemplated thereby do not purport to be complete and are qualified in their entirety by reference to the Second Amendment filed hereto as Exhibits 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits: |
| Exhibit No. | Description | |
| 10.1 | Amendment to the Securities Purchase Agreement, dated September 17, 2024. | |
| 101 | Pursuant to Rule 406 of Regulation S-T, the cover page is formatted in Inline XBRL (Inline eXtensible Business Reporting Language). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document and included in Exhibit 101). |
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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.
| HYPERSCALE DATA, INC. | ||
| Dated: September 17, 2024 | /s/ Henry Nisser | |
|
Henry Nisser President and General Counsel |
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Exhibit 10.1
AMENDMENT TO
THE SECURITIES PURCHASE AGREEMENT
DATED SEPTEMBER 17, 2024
and
THE CERTIFICATE OF DESIGNATION OF PREFERENCES, RIGHTS AND LIMITATIONS
of
THE SERIES C CONVERTIBLE PREFERRED STOCK
This amendment (the “Amendment”) to (i) the Securities Purchase Agreement dated November 6, 2023 (the “Agreement”), entered into by and between Hyperscale Data, Inc., f/k/a Ault Alliance, Inc., a Delaware corporation (the “Company”), and Ault & Company, Inc., a Delaware corporation (the “Purchaser”), (ii) the Certificate of Designation of Preferences, Rights and Limitations of the Series C Convertible Preferred Stock filed with the Secretary of State of Delaware on November 15, 2023 (the “COD”) and (iii) the number of warrants (the “Series C Warrants”), is dated September 17, 2024. All capitalized terms in this Amendment and not defined herein shall have the meanings ascribed to such terms in the Agreement, the COD and/or the Series C Warrants, as applicable.
WHEREAS, the Company and the Purchaser desire to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing and intending to be legally bound hereby, the parties hereto agree as follows:
| 1. | Section 2.1 of the Agreement is hereby deleted and replaced in its entirety by the following: |
“2.1 Closing. On each Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase, the Securities for the Subscription Amount (such purchase and sale being a “Closing”). Contemporaneously with or promptly following a Closing, the Purchaser shall deliver to the Company the Purchaser’s Subscription Amount as set forth on the signature page hereto executed by the Purchaser by a wire transfer of immediately available funds and the Company shall, on the Closing Date, deliver to the Purchaser a certificate representing the number of Preferred Shares and the Warrant purchased by the Purchaser at the particular Closing as determined pursuant to Section 2.2(a). The Company and the Purchaser shall also deliver the other items set forth in Section 2.2 deliverable at the particular Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3 and receipt of the Subscription Amount by the Company, the Closing shall occur at the principal offices of the Company or such other location as the parties shall mutually agree. Notwithstanding anything herein to the contrary, each Closing Date shall occur on or before December 31, 2024, provided, however, that the Purchaser may extend such the Closing Date for an additional ninety (90) days, by notice to the Company (such outside date, the “Termination Date”).”
| 2. | This Amendment shall be binding on the Company and the Purchaser and all of their respective successors, heirs, personal representatives and assigns and permitted transferees. |
| 3. | Except as amended hereby, the Agreement shall remain unmodified and is hereby ratified in all respects. |
| 4. | This Amendment may be executed and delivered (including by electronic or facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. |
Agreed this 17th day of September, 2024.
| HYPERSCALE DATA, INC. | AULT & COMPANY, INC. | ||
| By: | /s/ Henry Nisser | By: | /s/ Milton C. Ault, III |
| Henry Nisser | Milton C. Ault, III | ||
| President | Chief Executive Officer | ||