SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 11, 2021
(Exact name of Registrant as specified in its charter)
(State or other jurisdiction
900 E. Old Settlers Boulevard, Suite 100
Round Rock, Texas 78664
(Address of principal executive offices and zip code)
Registrant’s telephone number, including area code: 512-994-4917
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|[ ]||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|[ ]||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|[ ]||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|[ ]||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
|Title of each class||Trading Symbol(s)||Name of each exchange on which registered|
|Common stock, par value $0.0001 per share||AYRO||The Nasdaq Stock Market LLC|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. [ ]
Item 1.01 Entry Into a Material Definitive Agreement
On February 11, 2021, AYRO, Inc. (the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain institutional and accredited investors (the “Purchasers”), pursuant to which the Company agreed to issue and sell in a registered direct offering (the “Offering”) an aggregate of 4,400,001 shares (the “Shares”) of common stock of the Company, par value $0.0001 per share (the “Common Stock”), at an offering price of $9.50 per share, for gross proceeds of approximately $41.8 million before the deduction of fees and offering expenses. The Shares are being offered by the Company pursuant to a shelf registration statement on Form S-3 (File No. 333-251001) (the “Shelf Registration Statement”), previously filed with the Securities and Exchange Commission (the “SEC”) on November 27, 2020, and declared effective by the SEC on December 2, 2020. Each Purchaser also has the right to purchase, on or before February 16, 2022, additional shares of Common Stock equal to the full amount of 75% of the Common Stock it purchased at the initial closing, or an aggregate of 3,300,000 shares, at a price of $11.50 per share.
Palladium Capital Advisors, LLC, or Palladium, and Spartan Capital Securities, LLC, or Spartan, or collectively with Palladium, the financial advisors, acted as financial advisors in connection with the Offering. The financial advisors are entitled to a fee equal to 8% of the gross proceeds raised in the Offering, or an aggregate of approximately $3,344,000.76, and warrants (the “Warrants”) to purchase an aggregate of approximately 308,000 shares of our Common Stock (which equals 7% of the aggregate number of shares sold in the Offering) at an exercise price of $10.925 per share (which represents 115% of the offering price per share sold in the Offering). The Warrants are exercisable immediately following issuance and terminate five years following issuance. A holder of the Warrants will not have the right to exercise any portion of its Warrants if the holder, together with its affiliates, would beneficially own in excess of 4.99% (or 9.99% at the election of the holder prior to the date of issuance) of the number of shares of Common Stock outstanding immediately after giving effect to such exercise (the “Beneficial Ownership Limitation”); provided, however, that upon 61 days’ prior notice to the Company, the holder may increase or decrease the Beneficial Ownership Limitation, provided that in no event shall the Beneficial Ownership Limitation exceed 9.99%.
The Warrants and the shares of our Common Stock issuable upon the exercise of the Warrants are not being registered under the Securities Act of 1933, as amended (the “Securities Act”), are not being offered pursuant to the Shelf Registration Statement, and are being offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder.
The closing of the Offering is subject to satisfaction of customary closing conditions set forth in the Purchase Agreement and is expected to occur on or about February 16, 2021. The representations, warranties and covenants contained in the Purchase Agreement were made solely for the benefit of the parties to the Purchase Agreement. In addition, such representations, warranties and covenants (i) are intended as a way of allocating the risk between the parties to the Purchase Agreement and not as statements of fact, and (ii) may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. Accordingly, the Purchase Agreement is filed with this report only to provide investors with information regarding the terms of transaction, and not to provide investors with any other factual information regarding the Company. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Purchase Agreement, which subsequent information may or may not be fully reflected in public disclosures.
The net proceeds to the Company from the Offering, after deducting fees and expenses and the Company’s estimated offering expenses, and excluding the proceeds, if any, from the exercise of the Options, are expected to be approximately $36,906,000. The Company currently intends to use these net proceeds for working capital and general corporate purposes, which may include acquisitions.
The legal opinion of Haynes and Boone, LLP relating to the legality of the issuance and sale of the Shares in the Offering is attached as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated by reference herein.
The description of the terms and conditions of the Purchase Agreement and the Warrants set forth herein do not purport to be complete and are qualified in their entirety by the full text of the forms of Purchase Agreement and the Warrant, copies of which are filed as Exhibits 10.1 and 4.1, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information contained in Item 1.01 of this Current Report on Form 8-K in relation to the Warrants and the rights to purchase additional shares of Common Stock and the shares of our Common Stock issuable upon the exercise of the Warrants and the rights to purchase the additional shares of Common Stock is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On February 11, 2021, the Company issued a press release regarding the Offering. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
In accordance with General Instruction B.2 of Form 8-K, the information in this Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Exchange Act or the Securities Act of 1933, as amended, except as shall be expressly set forth by reference in such a filing. Furthermore, the furnishing of information under Item 7.01 of this Current Report on Form 8-K is not intended to constitute a determination by the Company that the information contained herein, including the exhibits hereto, is material or that the dissemination of such information is required by Regulation FD.
Item 9.01 Financial Statements and Exhibits.
|4.1||Form of Warrant|
|5.1||Opinion of Haynes and Boone, LLP|
|10.1||Form of Securities Purchase Agreement|
|23.1||Consent of Haynes and Boone, LLP (contained in Exhibit 5.1)|
|99.1||Press Release, dated February 11, 2021|
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: February 16, 2021||By:||/s/ Rodney C. Keller, Jr.|
|Rodney C. Keller, Jr.|
|Chief Executive Officer|