Item 1.01. Entry into a Material Definitive Agreement.
On January 27, 2021, Digital Ally, Inc. (the "Company") entered into a
securities purchase agreement (the "Purchase Agreement") with two investors (the
"Investors"), for the offering (the "Offering") of (i) 3,250,000 shares of
common stock ("Shares"), par value $0.001 per share, of the Company ("Common
Stock"); (ii) pre-funded warrants to purchase up to 11,050,000 shares of Common
Stock, issuable to Investors whose purchase of shares of Common Stock would
otherwise result in such Investor, together with its affiliates and certain
related parties, beneficially owning more than 4.99% (or, at the election of the
holder, 9.99%) of the Company's outstanding Common Stock immediately following
the consummation of the Offering (the "Pre-Funded Warrants"); and (iii) common
stock purchase warrants ("Warrants") to purchase up to an aggregate of
14,300,000 shares of Common Stock, which are exercisable for a period of five
years after issuance at an initial exercise price of $3.25 per share, subject to
certain adjustments, as provided in the Warrants. The Shares or Pre-Funded
Warrants, and the accompanying Warrants, can only be purchased together, but
will be issued separately and will be immediately separable upon issuance. Each
Share and accompanying Warrant will be offered at a combined offering price of
$2.80. Each Pre-Funded Warrant and accompanying Warrant will be offered at a
combined offering price of $2.79. Pursuant to the Purchase Agreement, the
Investors are purchasing the Shares, the Pre-Funded Warrants and accompanying
Warrants for an aggregate purchase price of approximately $40,040,000.
The Offering is being conducted pursuant to a placement agency agreement, dated
January 27, 2021 (the "Placement Agency Agreement"), between the Company and
Kingswood Capital Markets, division of Benchmark Investments, Inc. (the
"Placement Agent"). The Company has agreed to pay the Placement Agent a fee
equal to 6% of the aggregate purchase price paid by Investors placed by the
Placement Agent and certain expenses.
The Shares, the Pre-Funded Warrants and the accompanying Warrants will be issued
to the Investors in a registered direct offering (the "Registered Offering"),
pursuant to which the Shares, the Pre-Funded Warrants, the shares of Common
Stock issuable upon exercise of the Pre-Funded Warrants, the Warrants and the
shares of Common Stock issuable upon exercise of the Warrants, will all be
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a prospectus supplement to the Company's currently effective
registration statement on Form S-3 (File No. 333-239419), which was initially
filed with the U.S. Securities and Exchange Commission (the "SEC") on June 25,
2020, and was declared effective on July 2, 2020 (the "Shelf Registration
Statement"). The Company expects to file the prospectus supplement for the
Offering on or about January 28, 2021. The prospectus supplement relating to the
Offering will be available on the SEC's web site at http://www.sec.gov.
Each of the Purchase Agreement and the Placement Agency Agreement contains
customary representations, warranties and agreements by the Company and the
other parties thereto, customary conditions to closing, indemnification
obligations of the parties, including for liabilities under the Securities Act,
other obligations of the parties and termination provisions.
In addition, pursuant to the terms of the Placement Agency Agreement, among
other agreements, the Company has agreed not to, for a period of 90 days after
the date of the Placement Agency Agreement (i.e., April 27, 2021), with certain
exceptions, unless it has obtained the prior written consent of the Placement
Agent, (i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for shares of capital stock of
the Company; (ii) file or cause to be filed any registration statement with the
SEC relating to the offering of any shares of capital stock of the Company or
any securities convertible into or exercisable or exchangeable for shares of
capital stock of the Company; (iii) complete any offering of debt securities of
the Company, or (iv) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
capital stock of the Company.
Also, pursuant to the terms of the Purchase Agreement and Lock-Up Agreements
signed by the Company's officers and directors, the officers and directors have
agreed, for a period of 90 days after the date of the Purchase Agreement (i.e.,
April 27, 2021), not to transfer their shares of Common Stock or Common Stock
equivalents of the Company.
Further, pursuant to the terms of the Purchase Agreement, the Company has
granted to the Investors, for a period of 12 months after the closing of the
Offering, the right to participate in subsequent offerings by the Company of
Common Stock and Common Stock equivalents in an amount up to 50% of the amount
of each such subsequent offering, on the same terms, conditions and price
provided for in such subsequent offering.
The Offering is expected to close on or about February 1, 2021, subject to the
satisfaction of customary closing conditions.
The Company expects to receive approximately $37,447,100 in net proceeds from
the Offering before exercise of the Pre-Funded Warrants and Warrants and after
deducting the discounts, commissions and other estimated offering expenses
payable by the Company. The Company expects to use the net proceeds from the
Offering for working capital, product development, potential acquisitions, order
fulfillment and for general corporate purposes.
The foregoing description of the Placement Agency Agreement, the Purchase
Agreement, the Pre-Funded Warrants and the Warrants are qualified in their
entirety by reference to the full text of such Placement Agency Agreement,
Purchase Agreement, Pre-Funded Warrants and Warrants, the forms of which are
attached as Exhibits 10.1, 10.2, 4.1 and 4.2, respectively, to this Current
Report on Form 8-K (this "Form 8-K"), and which are incorporated herein in their
entirety by reference. The Company is filing the opinion of its counsel,
Sullivan & Worcester LLP, relating to the legality of the issuance and sale of
the Shares, the Pre-Funded Warrants and the Warrants as Exhibit 5.1 hereto.
Exhibit 5.1 is incorporated herein by reference and into the Shelf Registration
Statement.
This Form 8-K contains forward-looking statements. Forward-looking statements
include, but are not limited to, statements that express the Company's
intentions, beliefs, expectations, strategies, predictions or any other
statements related to the Company's future activities, or future events or
conditions. These statements are based on current expectations, estimates and
projections about the Company's business based, in part, on assumptions made by
its management. These statements are not guarantees of future performances and
involve risks, uncertainties and assumptions that are difficult to predict.
Therefore, actual outcomes and results may differ materially from what is
expressed or forecasted in the forward-looking statements due to numerous
factors, including those risks discussed in documents that the Company files
from time to time with the SEC. Any forward-looking statements speak only as of
the date on which they are made, and the Company undertakes no obligation to
update any forward-looking statement to reflect events or circumstances after
the date of this Form 8-K, except as required by law.
Item 8.01 Other Events.
On January 27, 2021, the Company issued a press release announcing the pricing
of the Offering. A copy of the press release is filed as Exhibit 99.1 to this
Form 8-K and is incorporated in this Item 8.01 by reference.
The press release shall not constitute an offer to sell or the solicitation of
an offer to buy, nor shall there be any sale of these securities in any state in
which the offer, solicitation or sale would be unlawful prior to the
registration or qualification under applicable securities laws.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
Exhibit 4.1 Form of Pre-Funded Common Stock Purchase Warrant
Exhibit 4.2 Form of Common Stock Purchase Warrant
Exhibit 5.1 Opinion of Sullivan & Worcester LLP
Exhibit 10.1 Form of Placement Agency Agreement, dated January 27, 2021, by
and between the Company and Kingswood Capital Markets, division of
Benchmark Investments, Inc.
Exhibit 10.2 Form of Securities Purchase Agreement, dated as of January 27,
2021, by and between the Company and the Investors
Exhibit 23.1 Consent of Sullivan & Worcester LLP (contained in Exhibit 5.1
hereto)
Exhibit 99.1 Press Release of the Company, dated January 27, 2021
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