TON Strategy Co 8-K, filed Mar 19, 2024
TON Strategy Co (TONX)
About this 8-K
TON Strategy Co filed this 8-K on March 19, 2024.
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 15, 2023, Verb Technology Company, Inc. (the “Company”) entered into an At-the-Market Issuance Sales Agreement (the “Sales Agreement”) with Ascendiant Capital Markets, LLC, as sales agent (the “Agent”) to sell shares of its common stock, par value $0.0001 (the “Common Stock”), having an aggregate offering price of up to $960,000 (the “Shares”) from time to time, through an “at the market offering” (the “ATM Offering”) as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). On December 15, 2023, the Company filed a prospectus supplement with the Securities and Exchange Commission (“SEC”) relating to the offer and sale of up to $960,000 of common stock in the ATM Offering (the “Prospectus Supplement”).
On March 19, 2024, the Company entered into the Amendment to At-The-Market Issuance Sales Agreement, dated March 19, 2024 (the “Amendment”) to increase the number of shares to be sold in the ATM Offering to $6,260,000
The Company will file a supplement to the Prospectus Supplement (the “Supplement”) with the SEC to increase the amount of Common Stock that may be offered and sold in the ATM Offering under the Sales Agreement to up to $6,260,000 in the aggregate.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy any shares under the Sales Agreement, nor shall there be any offer, solicitation or sale of such shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.
The foregoing description of the terms of the Sales Agreement, as amended by the Amendment, does not purport to be complete and is subject to, and qualified in its entirety by reference to, the Amendment, which is filed herewith as Exhibit 10.1 and is incorporated herein by reference.
The legal opinion of Sichenzia Ross Ference Carmel LLP, counsel to the Company, relating to the legality of the issuance and sale of shares of Common Stock being offered pursuant to the Sales Agreement, as amended by the Amendment, is filed as Exhibit 5.1 hereto.
ITEM 9.01 EXHIBITS.
(d) Exhibits
| Exhibit No. | Description | |
| 5.1 | Opinion of Sichenzia Ross Ference Carmel LLP. | |
| 10.1 | Amendment to At-The-Market Issuance Sales Agreement, dated March 19, 2024, with Ascendiant Capital Markets, LLC. | |
| 23.1 | Consent of Sichenzia Ross Ference Carmel LLP (included in the opinion filed as Exhibit 5.1). | |
| 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 as Inline XBRL document and contained in Exhibit 101). |
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.
| Date: March 19, 2024 | VERB TECHNOLOGY COMPANY, INC. | |
| By: | /s/ Rory J. Cutaia | |
| Name: | Rory J. Cutaia | |
| Title: | President and Chief Executive Officer | |
Exhibit 5.1
March 19, 2024
Verb Technology Company, Inc.
2700 S. Las Vegas Blvd., Suite 2301
Las Vegas, NV 89109
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Verb Technology Company, Inc. (the “Company”) in connection with the At-The-Market Issuance Sales Agreement dated March 19, 2024 (the “Sales Agreement”) by and between the Company and Ascendiant Capital Markets, LLC (the “Agent”), pursuant to which the Company may offer and sell, from time to time through the Agent up to $6,260,000 of shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share, except for 3,817,847 shares for gross proceeds of $960,000 which have been offered and sold as of the date hereof for which we previously provided a due authorization opinion, pursuant to a Registration Statement on Form S-3 (the “Registration Statement”) (File No.: 333-264038) filed on March 31, 2022 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act) and declared effective on April 14, 2022, the prospectus contained therein and the prospectus supplement filed with the Commission on December 15, 2023 along with the prospectus supplement dated March 19, 2024 (the “Prospectus Supplement”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinion set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
The opinion expressed below is limited to the federal securities laws of the United States of America and the laws of the state of Nevada. We express no opinion as to the effect on the matters covered by the laws of any other jurisdiction.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued and sold in the manner described in the Registration Statement, the Prospectus Supplement and the Sales Agreement will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion to the Company’s Current Report on Form 8-K filed with the SEC on March 19, 2024, and which is incorporated by reference in the Registration Statement and the Prospectus Supplement. We also hereby consent to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
| Very truly yours, | |
| /s/ Sichenzia Ross Ference Carmel LLP | |
| Sichenzia Ross Ference Carmel LLP |
Exhibit 10.1
First Amendment
to
At the Market Issuance Sales Agreement
This First Amendment to At the Market Issuance Sales Agreement (this “Amendment”) is entered into on March 19, 2024 (the “Effective Date”) by and between Ascendiant Capital Markets, LLC (the “Agent”), and Verb Technology Company, Inc. (the “Company”). Defined terms used herein have the definitions assigned to them in the At the Market Issuance Sales Agreement between the parties dated December 15, 2023 (the “Offering Agreement”). Unless specifically amended or modified herein, the other terms of the Offering Agreement remain in full force and effect, not amended or modified, as of the date hereof.
1. The amount of Shares that may be sold under and pursuant to the terms of the Offering Agreement is increased from $960,000 to $6,260,000.
2. At the date of this Amendment, for the sake of clarification of items to be delivered in connection with the change in the amount of Shares, the Company will deliver or will arrange for the delivery of the following:
(i) A Representation Date Certificate as provided in Section 7(l) of the Offering Agreement, with the understanding that the Company has sold Shares after the date of the Offering Agreement up to and through the date of this Amendment;
(ii) An opinion or “bring down” opinion of counsel to the Company with such opinion covering the amount of Shares of $6,260,000 that may be sold;
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If the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon this letter will constitute a binding agreement between the Company and the Agent.
| Very truly yours, | ||
| Verb Technology Company, Inc. | ||
| By: | /s/ Rory J. Cutaia | |
| Name: | Rory J. Cutaia | |
| Title: | Chief Executive Officer | |
ACCEPTED as of the date first-above written:
ASCENDIANT CAPITAL MARKETS, LLC
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| By: | /s/ Bradley J. Wilhite | |
| Name: | Bradley J. Wilhite | |
| Title: | Managing Partner | |
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