Soluna Holdings, Inc 8-K, filed Dec 5, 2022
Soluna Holdings, Inc (SLNH)
About this 8-K
Soluna Holdings, Inc filed this 8-K on December 5, 2022.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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Item 1.01 Entry into a Material Definitive Agreement.
As previously reported, on December 5, 2022, Soluna Holdings, Inc., a Nevada corporation (the “Company”), entered into a securities purchase agreement (the “Purchase Agreement”) with the purchasers named therein of 1,125,000 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”) and associated warrants (the “Warrants”) to purchase up to 2,250,000 shares of common stock at a price of $0.76 per share and associated Warrants (the “Offering”), with the investors in the Offering the right to purchase (the “Options”) additional shares of Common Stock (the “Option Shares”) and related warrants (the “Option Warrants”).
As previously reported, on December 2, 2022, the Company entered into a placement agency agreement (the “Placement Agency Agreement”) with Univest Securities, LLC (“Univest”), pursuant to which Univest agreed to serve as the exclusive placement agent for the Company on a reasonable best-efforts basis in connection with the Offering. Pursuant to the Placement Agency Agreement, the Company agreed to pay to Univest (i) a fee in shares of Common Stock equal to 7% of the Shares (excluding any securities that may be issued pursuant to the Options or upon exercise of the Warrants) (the “Placement Agent Shares”), (ii) 431,014 restricted shares of Common Stock in relation to Univest’s role in the underwritten offering that closed on October 26, 2022 (the “October Shares”), and (iii) an additional fee of warrants to purchase the number of shares of Common Stock equal to 7% of the number of Shares (excluding any securities that may be issued pursuant to the Options or upon exercise of the Warrants) in the form substantially similar as the Warrants (the “Placement Agent Warrants”, and such shares issuable upon the exercise of the Placement Agent Warrants, the “Placement Agent Warrant Shares”), each such issuance to Univest (and/or its designees) subject to and upon obtaining the appropriate approval by stockholders required by the applicable rules and regulations of Nasdaq.
The legal opinion of Parsons Behle & Latimer regarding the legality of the Shares, the Option Shares, the Warrant Shares, the Placement Agent Shares and the Placement Agent Warrant Shares is attached hereto as Exhibit 5.1 to this Current Report on Form 8-K. The legal opinion of Haynes and Boone, LLP regarding the legality of the Warrants, the Options, the Option Warrants and the Placement Agent Warrants is attached hereto as Exhibit 5.2 to this Current Report on Form 8-K. Exhibits 5.1 and 5.2 are incorporated herein by reference and into the Registration Statement.
The description of terms and conditions of the Purchase Agreement, the Warrants, the Option Warrants and the Placement Agent Warrants set forth herein do not purport to be complete and are qualified in their entirety by the full text of the Purchase Agreement and the form of Warrant, which were filed previously with the Securities and Exchange Commission on the Current Report on Form 8-K, filed on December 5, 2022.
In connection with the Offering and pursuant to the Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock with respect to certain consent requirements, the Company also agreed to issue to the holder of the Series B Convertible Preferred Stock, 10% of the capital raised from the Offering in the same securities sold in the Offering, subject to and upon obtaining stockholders approval required by the applicable rules and regulations of Nasdaq for such issuances.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
| Exhibit No. | Description | |
| 5.1 | Opinion of Parsons Behle & Latimer. | |
| 5.2 | ||
| 23.1 | Consent of Parsons, Behle & Latimer (contained in Exhibit 5.1). | |
| 23.2 | Consent of Haynes and Boone, LLP (contained in Exhibit 5.2). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: December 5, 2022 | SOLUNA HOLDINGS, INC. | |
| By: | /s/ Philip F. Patman, Jr. | |
| Name: | Philip F. Patman, Jr. | |
| Title: |
Chief Financial Officer |
|
Exhibit 5.1
December 5, 2022
Board of Directors
Soluna Holdings, Inc.
325 Washington Avenue Extension
Albany, NY 12206
Re: Soluna Holdings, Inc. – Prospectus Supplement dated December 5, 2022
Ladies and Gentlemen:
We have acted as special Nevada counsel to Soluna Holdings, Inc., a Nevada corporation (the “Company”), in connection with the filing of a Prospectus Supplement to the Registration Statement on Form S-3 (the “Registration Statement”) filed on December 16, 2021, by the Company with the Securities and Exchange Commission. The Prospectus Supplement relates to the sale of up to an aggregate of $855,000.00 of shares (the “Shares”) of the Company’s common stock, par value $0.001 per share, related warrants (the “Warrants”) to purchase up to $1,710,00.00 of shares of common stock (the “Warrant Shares”), and right to purchase (the “Options”) additional $1,710,000 of shares of common stock and related warrants to purchase up to $3,420,000 of shares of common stock (the “Option Warrants” and the shares issuable upon the exercise of the Option Warrants, the “Option Warrant Shares”) pursuant to the Securities Purchase Agreement between the Company and the Purchaser’s party thereto dated December 5, 2022 (the “Offering”). The Prospectus Supplement further relates to an agreement to issue to Univest Securities, LLC (the “Placement Agent”) shares of common stock equal to 7% of the shares of common stock issued upon the closing the Offering (the “Placement Agent Shares”) and 431,014 restricted shares of common stock in relation to the Placement Agent’s role in the underwritten offering that closed on October 26, 2022 and warrants to purchase the number of shares of common stock equal to 7% of the amount of shares of common stock issued upon the closing of the Offering (the “Placement Agent Warrants”, and the shares of common stock issuable upon the exercise of the Placement Agent Warrants, the “Placement Agent Warrant Shares”) as compensation for its services as Placement Agent in connection with the Offering of the Shares, the Warrants and the Options and with respect to the Placement Agent’s services in connection with the October Offering, as defined in the Prospectus Supplement.
As counsel to the Company, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of rendering this opinion. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the Nevada Revised Statutes, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of Nevada, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state.
Board of Directors
Soluna Holdings, Inc.
December 5, 2022
Page Two
Based upon such examination, it is our opinion that the Shares have been duly authorized by all requisite corporate action on the part of the Company and upon their issuance, delivery and payment therefor in the manner contemplated by the Registration Statement will be validly issued, fully paid and non-assessable. The Warrant Shares, the Option Shares, and the Option Warrant Shares, when approved by the shareholders and issued and delivered in accordance with the terms of the Securities Purchase Agreement, will be fully paid and nonassessable. The Placement Agent Shares and Placement Agent Warrant Shares, when approved by the shareholders and issued and delivered in accordance with the terms of the Placement Agency Agreement, dated December 5, 2022, between the Company and the Placement Agent, will be fully paid and nonassessable.
No opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus Supplement. In connection with this opinion, we have relied on oral or written statements and representations of officers or other representatives of the Company and others. Our knowledge of the Company and its legal and other affairs is limited by the scope of our engagement, which scope includes the delivery of this opinion letter. We do not represent the Company with respect to all legal matters or issues. The Company may employ other independent counsel and, to our knowledge, handles certain matters and issues without the assistance of independent counsel.
This opinion is given as of the date hereof. We assume no obligation to advise you of changes that may hereafter be brought to our attention.
We consent to the inclusion of this opinion as an exhibit to the Prospectus Supplement and further consent to all references to us under the caption “Legal Matters” in the Prospectus Supplement constituting a part of the Registration Statement. In giving this 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 of the Commission.
| Very truly yours, | |
| PARSONS BEHLE & LATIMER |
Exhibit 5.2
December 5, 2022
Soluna Holdings, Inc.
325 Washington Avenue Extension
Albany, NY 12205
Ladies and Gentlemen:
We have acted as counsel to Soluna Holdings, Inc., a Nevada corporation (the “Company”), in connection with the filing with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Act”) of the Company’s prospectus supplement, dated December 5, 2022 ( the “Prospectus Supplement”), forming part of the registration statement on Form S-3 (Registration No. 333-261427) and the prospectus contained therein (the “Base Prospectus” and as supplemented by the Prospectus Supplement, the “Prospectus”), initially filed by the Company with the Commission on November 30, 2021, and declared effective on December 16, 2021 (the “Registration Statement”). The Prospectus relates to the offering of (i) 1,125,000 shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), (ii) warrants (the “Common Warrants”) to purchase up to an aggregate of 2,250,000 shares of Common Stock, (iii) options (the “Options”), consisting of the right to purchase up to (a) $1,710,000 of shares of Common Stock and (b) warrants (the “Option Warrants”) to purchase up to $3,420,000 shares of Common Stock, (iv) 59,850 shares of Common Stock to be issued to Univest Securities, LLC or its designees (the “Placement Agent”), and (v) 59,850 warrants (the “Placement Agent Warrants” and together with the Common Warrants, the Options and the Option Warrants, the “Securities”) to be issued to the Placement Agent to purchase up to an aggregate of 59,850 shares of Common Stock. Certain of the Securities are being sold pursuant to the securities purchase agreement (the “Securities Purchase Agreement”) dated December 5, 2022, by and between the Company and the purchasers (the “Purchasers”) identified on the signature pages thereto.
In rendering the opinions expressed herein, we have examined and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of (i) the Registration Statement and the prospectus contained therein; (ii) the Securities Purchase Agreement; (iii) the Placement Agency Agreement between the Company and the Placement Agent, dated as of December 2, 2022; (iv) certain resolutions of the Board of Directors of the Company related to the filing of the Prospectus, the authorization and issuance of the Securities and related matters (v) the form of Common Warrant; and (vi) such other records, documents and instruments as we have deemed necessary for the expression of the opinions stated herein.
As to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to the extent we deem reasonably appropriate upon the representations and warranties of the Company contained in such documents, records, certificates, instruments or representations furnished or made available to us by the Company.
In making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv) that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v) that all factual information on which we have relied was accurate and complete.
Haynes and Boone, LLP
|
30 Rockefeller Plaza | 26th Floor | New York, NY 10112 T: 212.659.7300 | haynesboone.com |
Soluna Holdings, Inc.
December 5, 2022
Page 2
We have also assumed that, at the time of the issuance of the Securities; (i) the Company will continue to be incorporated and in existence and good standing in its jurisdiction of organization; (ii) the resolutions of the Board of Directors of the Company referred to above will not have been modified or rescinded; (iii) all Securities will be offered, issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Prospectus; (iv) the Securities Purchase Agreement will have been duly authorized and validly executed and delivered by the parties thereto and will be enforceable obligations of the parties thereto; (vii) the Company will receive consideration for the issuance of the Common Warrants, the Options and the Option Warrants that is at least equal to the par value of the Common Stock; and (viii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Prospectus.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
| 1. | The Common Warrants have been issued and delivered pursuant to the Prospectus against payment in full of the consideration payable therefor, the Common Warrants will constitute valid and legally binding obligations of the Company; |
| 2. | The Options constitute valid and binding obligations of the Company and are enforceable against the Company in accordance with their terms. |
| 3. | When the Option Warrants have been issued and sold pursuant to the Prospectus and in accordance with the terms of the Options, against payment in full of the consideration payable therefor, the Option Warrants will constitute valid and legally binding obligations of the Company; and |
| 4. | When the Placement Agent Warrants have been issued pursuant to the Prospectus, the Placement Agent Warrants will constitute valid and legally binding obligations of the Company. |
The opinions are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, rearrangement, liquidation, conservatorship or other similar laws now or hereafter in effect relating to or affecting the rights of creditors generally, (ii) provisions of applicable law pertaining to the voidability of preferential or fraudulent transfers and conveyances, (iii) the fact that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; and (iv) the approval of the shareholders of the Company for the issuance of the Options and the Option Warrants to the Purchaser and the Placement Agent Warrants to the Placement Agent, as required by the applicable rules and regulations of the Nasdaq Stock Market LLC.
The opinions expressed herein are limited to the federal laws of the United States of America, and, to the extent relevant to the opinions expressed herein, the laws of the State of New York, in each case as in effect on the date hereof (all of the foregoing being referred to as the “Opined on Law”). We do not express any opinion with respect to any other laws, or the laws of any other jurisdiction (including, without limitation, any laws of any other jurisdiction which might be referenced by the choice-of-law rules of the Opined on Law), other than the Opined on Law or as to the effect of any such other laws on the opinions herein stated.
We hereby consent to the filing of this opinion as Exhibit 5.2 to the Registration Statement and to the reference to our firm contained therein under the heading “Legal Matters.” In giving this consent, we do not hereby admit we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Haynes and Boone, LLP | |
| Haynes and Boone, LLP |