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.
On March 20, 2023, Cerberus Cyber Sentinel Corporation (the “Company,” “we,” “us,” or “our”) entered into a Purchase Agreement (the “Purchase Agreement”) with Hensley & Company dba Hensley Beverage Company (the “Purchaser”), pursuant to which we issued and sold to the Purchaser a $5,000,000 10 Percent (10%) Unsecured Convertible Note (the “Note”) for gross proceeds of $5,000,000 in a private placement exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Regulation D promulgated thereunder (the “Note Offering”). The Note, together with accrued and unpaid interest thereon, is due on March 20, 2025 (the “Maturity Date”). The Company may not prepay the Note prior to the Maturity Date without the consent of the Purchaser. The Note will bear interest at a rate of 10% per annum (based on a 360-day year), payable monthly. At any time prior to or on the Maturity Date and subject to certain beneficial ownership limitations, the Purchaser may convert all or any portion of the outstanding principal amount of the Note and all accrued and unpaid interest thereon into shares (the “Conversion Shares”) of common stock, par value $0.00001 per share, of the Company at a conversion price of $1.20 per share (the “Conversion Price”). The Conversion Price is adjustable in the event of any stock split, reverse stock split, recapitalization, reorganization, or similar event. Upon the occurrence of an “Event of Default” (as defined in the Note and including the failure to make required payments when due after specified grace periods, certain breaches of the Purchase Agreement and certain specified insolvency events), the Purchaser would have the right to accelerate payments due under the Note, which from and after such acceleration would bear interest at a default rate of 24% per annum.
We intend to use the net proceeds from the Note Offering and our existing cash resources to repay in full the $5,000,000 4% promissory note issued and sold to Bell Bank (the “Bell Bank Note”) in June 2022. As of the date of this Current Report on Form 8-K, we owed a total of $5,035,417 under the Bell Bank Note.
The foregoing summary of the Note Offering, the Purchase Agreement, and the Note does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Purchase Agreement and the Note, copies of which are filed as Exhibits 10.1 and 10.2, respectively, and are incorporated by reference herein.
Andrew McCain, a director of our company, is President and Chief Operating Officer of the Purchaser.
Item 2.02. Results of Operations and Financial Condition.
On March 20, 2023, we issued a press release, which contained certain preliminary estimated financial information as of and for the quarter and fiscal year ended December 31, 2022. A copy of the press release is furnished as Exhibit 99.1 hereto and is incorporated herein by reference.
The information included or incorporated by reference in this Item 2.02, including Exhibit 99.1 attached hereto, is being furnished and shall not be deemed “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. The information in Item 2.02 of this report shall not be incorporated by reference into any registration statement or other document filed with the Securities and Exchange Commission before or after the date hereof, regardless of any general incorporation language in any such filing, unless the Company expressly sets forth in such filing that such information is to be considered “filed” or incorporated by reference therein.
We do not have, and expressly disclaim, any obligation to release publicly any updates or any changes in our expectations or any change in events, conditions, or circumstances on which any forward-looking statement is based.
The text included with this Current Report on Form 8-K is available on our website at www.ciso.inc, although we reserve the right to discontinue that availability at any time.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information required by this Item 2.03 is included under Item 1.01 of this Current Report on Form 8-K and is incorporated by reference into this Item 2.03.
Item 2.04. Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.
On June 14, 2022, we issued and sold the Bell Bank Note to Bell Bank. The Bell Bank Note was originally due and payable on December 14, 2022, which was extended to March 14, 2023 (as so extended, the “Bell Bank Maturity Date”). We did not repay the Bell Bank Note on or prior to the Bell Bank Maturity Date, which resulted in an event of default under the terms thereof. As a result, the interest rate applicable to amounts due under the Bell Bank Note increased from 4% to 7%. As of the date of this Report, we owed a total of $5,035,417 under the Bell Bank Note.
As described in Item 1.01 above, we intend to use the net proceeds from the Note Offering and our existing cash resources to repay in full the Bell Bank Note.
Item 3.02. Unregistered Sales of Equity Securities.
The information required by this Item 3.02 is included under Item 1.01 of this Current Report on Form 8-K and is incorporated by reference into this Item 3.02.
Item 8.01. Other Events.
On March 20, 2023, the Company issued a press release, which contained certain preliminary estimated financial information as of and for the quarter and fiscal year ended December 31, 2022 presented below. The preliminary estimated financial information has been prepared by, and is the responsibility of, the Company’s management. Semple, Marchal & Cooper, LLP, the Company’s independent registered public accounting firm, has not audited, reviewed, compiled or performed any procedures with respect to the preliminary estimated financial information provided below.
The Company’s preliminary unaudited estimates for the fourth quarter and fiscal year ended December 31, 2022 are as follows:
| ● | $14.7 million in total revenue for the fiscal quarter ended December 31, 2022, an increase of $8.8 million, or 150%, compared to total revenue of $5.9 million for the fiscal quarter ended December 31, 2021. | |
| ● | $46.5 million in total revenue for the fiscal year ended December 31, 2022, an increase of $31.4 million, or 207%, compared to total revenue of $15.1 million for the fiscal year ended December 31, 2021. | |
| ● | $9.4 million in operating loss for the fiscal quarter ended December 31, 2022, a decrease of $23.5 million, or 71%, compared to $32.9 million in operating loss for the fiscal quarter ended December 31, 2021. | |
| ● | $33.2 million in operating loss for the fiscal year ended December 31, 2022 , a decrease of $6.6 million, or 17%, compared to $39.8 million in operating loss for the fiscal year ended December 31, 2021. |
The Company’s preliminary estimates of these financial results are based solely on information available to it as of the date of this Current Report on Form 8-K and are inherently uncertain and subject to change, including finalizing accounting for the impact of any adjustments pertaining to business combinations made during the measurement period. The Company’s actual results remain subject to the completion of management’s final review and other closing procedures, as well as the completion of the audit of its annual consolidated financial statements. These preliminary estimates are not a comprehensive statement of the Company’s expected financial results for the quarter and fiscal year ended December 31, 2022 and should not be viewed as a substitute for full financial statements prepared in accordance with generally accepted accounting principles. In addition, these preliminary estimates for the fiscal quarter and year ended December 31, 2022, are not necessarily indicative of the results to be achieved in any future period. Accordingly, investors should not place undue reliance on these preliminary estimated financial results. The Company’s actual audited consolidated financial statements and related notes as of and for the fiscal year ended December 31, 2022 will be reflected in the Company’s consolidated financial statements for the quarter and year when they are completed and publicly disclosed.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description | |
| 10.1 | Purchase Agreement, dated March 20, 2023, by and between Cerberus Cyber Sentinel Corporation and Hensley & Company dba Hensley Beverage Company | |
| 10.2 | Unsecured Convertible Note, dated March 20, 2023, issued by Cerberus Cyber Sentinel Corporation | |
| 99.1 | Press release, dated March 20, 2023 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
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.
| Cerberus Cyber Sentinel Corporation | ||
| Date: March 20, 2023 | By: | /s/ Debra L. Smith |
| Name: | Debra L. Smith | |
| Title: | Chief Financial Officer | |
Exhibit 10.1
PURCHASE AGREEMENT
This Purchase Agreement (this “Agreement”), dated as of March 20, 2023, is between Cerberus Cyber Sentinel Corporation, a Delaware corporation (“Issuer”), and Hensley & Company dba Hensley Beverage Company (“Purchaser”).
1. Purchase
1.1 Subject to the terms and conditions set forth in this Agreement and in the form of Note attached as Exhibit B to this Agreement, Purchaser hereby irrevocably subscribes for and agrees to purchase the Note. Purchaser has tendered the principal amount of the Note contemporaneously herewith pursuant to wire transfer instructions attached as Exhibit A, and Issuer agrees to issue the Note to Purchaser.
1.2 Subject to the beneficial ownership limitations contained in the Note, Purchaser will have the right to convert all or any portion of the outstanding principal amount of the Note and all accrued but unpaid interest thereon into shares of common stock of Issuer (the “Conversion Shares”) in accordance with terms of the Note. The Note and the Conversion Shares are referred to collectively herein as the “Securities”.
2. Redemption
2.1 Issuer will have the right to redeem the outstanding principal amount plus an accrued, but unpaid interest thereon in accordance with terms of the Note.
3. Documents Required from Purchaser
3.1 As soon as practicable upon any request by Issuer, Purchaser will complete, sign and return to Issuer any additional documents, questionnaires, notices and undertakings as may be required by any regulatory authorities or applicable laws.
3.2 Issuer and Purchaser acknowledge and agree that Issuer’s counsel has acted as counsel only to Issuer and is not protecting the rights and interests of Purchaser. Purchaser acknowledges and agrees that Issuer and Issuer’s counsel have given Purchaser the opportunity to seek, and are hereby recommending that Purchaser obtain, independent legal advice with respect to the subject matter of this Agreement and, further, Purchaser hereby represents and warrants to Issuer and Issuer’s counsel that Purchaser has sought independent legal advice or waives such advice.
4. Acknowledgements and Agreements of Purchaser
Purchaser acknowledges and agrees that:
(a) none of the Securities have been or will be registered under the United States Securities Act of 1933, as amended (the “1933 Act”), or under any securities or “blue sky” laws of any state of the United States;
(b) Issuer has not undertaken, and will have no obligation, to register any of the Securities under the 1933 Act or any other applicable securities laws;
(c) the decision to execute this Agreement and to acquire the Securities has not been based upon any oral or written representation as to fact or otherwise made by or on behalf of Issuer other than as set forth in this Agreement and such decision is based entirely upon the Purchaser’s a review of any public information which has been filed by Issuer with the United States Securities and Exchange Commission (the “SEC”) (collectively, the “Public Record”);
(d) Issuer and others will rely upon the truth and accuracy of the acknowledgements, representations, warranties, covenants and agreements of Purchaser contained in this Agreement, and Purchaser agrees that if any of such acknowledgements, representations and agreements are no longer accurate or have been breached, Purchaser will promptly notify Issuer;
(e) there are risks associated with the purchase of the Securities, as more fully described in Issuer’s periodic reports filed with the SEC.
(f) Purchaser and Purchaser’s advisor(s) have had a reasonable opportunity to ask questions of, and receive answers from, Issuer in connection with the transactions contemplated hereby, and to obtain additional information, to the extent possessed or obtainable without unreasonable effort or expense, necessary to verify the accuracy of the information about Issuer;
(g) the books and records of Issuer were available upon reasonable notice for inspection, subject to certain confidentiality restrictions, by Purchaser during reasonable business hours at its principal place of business, and all documents, records and books in connection with the issuance of the Securities hereunder have been made available for inspection by Purchaser, its legal counsel and/or its advisor(s);
(h) all of the information which Purchaser has provided to Issuer is correct and complete and if there should be any change in such information prior to the Closing, Purchaser will immediately notify Issuer, in writing, of the details of any such change;
(i) Issuer is entitled to rely on the representations and warranties of Purchaser contained in this Agreement, and Purchaser will hold harmless Issuer and its representatives from any loss or damage they may suffer as a result thereof;
(j) The Purchaser understands that the Securities are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances;
(k) The Purchaser understands that any transfer of the Securities or any interest therein will be subject to compliance by the Purchaser with the requirements of applicable securities laws;
(l) Purchaser has been advised to consult Purchaser’s own legal, tax and other advisors with respect to the merits and risks of an investment in the Securities and with respect to applicable resale restrictions, and it is solely responsible (and Issuer is not in any way responsible) for compliance with:
(i) Any applicable laws of the jurisdiction in which Purchaser is resident in connection with the distribution of the Securities hereunder, and
(ii) Applicable resale restrictions;
(m) there may be material tax consequences to Purchaser of an acquisition or disposition of the Securities and Issuer gives no opinion and makes no representation to Purchaser with respect to the tax consequences to Purchaser under federal, state, local or foreign tax laws that may apply to Purchaser’s acquisition or disposition of the Securities;
(n) no documents in connection with the issuance of the Securities have been reviewed by the SEC or any other securities regulators;
(o) neither the SEC nor any other securities commission or similar regulatory authority has reviewed or passed on the merits of any of the Securities;
(p) there is no government or other insurance covering any of the Securities; and
(q) hedging transactions involving the Securities may not be conducted unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable securities laws.
5. Representations and Warranties of Purchaser
Purchaser hereby represents and warrants to Issuer (which representations and warranties will survive the consummation of the transactions contemplated hereby) that:
(a) Purchaser is resident of the state set forth set forth opposite Purchaser’s signature hereto and is an accredited investor as defined under the 1933 Act;
(b) Purchaser: (i) has adequate net worth and means of providing for its current financial needs and possible personal contingences, (ii) has no need for liquidity in this investment, (iii) has such knowledge and experience in business matters as to be capable of evaluating the merits and risks of its prospective investment in the Securities, (iv) is able to bear the economic risks of an investment in the Securities for an indefinite period of time, and (v) can afford the complete loss of its investment;
(c) Purchaser has the legal capacity and competence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if Purchaser is an entity, it is duly organized and validly subsisting under the laws of its jurisdiction of organization and all necessary approvals by its directors, managers, shareholders, members and others have been obtained to authorize execution and performance of this Agreement on behalf of Purchaser;
(d) the entering into of this Agreement and the transactions contemplated hereby do not and will not result in the violation of any of the terms and provisions of any law applicable to, and, if applicable, any of the constituting documents of, Purchaser or of any agreement, written or oral, to which Purchaser may be a party or by which Purchaser is or may be bound;
(e) Purchaser has duly executed and delivered this Agreement and it constitutes a valid and binding agreement of Purchaser enforceable against Purchaser;
(f) Purchaser has carefully read this Agreement;
(g) Purchaser is aware that an investment in Issuer is speculative and involves certain risks, including those risks disclosed in the Public Record and the possible loss of the entire investment;
(j) Purchaser has made an independent examination and investigation of an investment in the Securities and Issuer and agrees that Issuer will not be responsible in any way for Purchaser’s decision to invest in the Securities and Issuer;
(k) Purchaser is not an underwriter of, or dealer in, any of the Securities, nor is Purchaser participating, pursuant to a contractual agreement or otherwise, in the distribution of the Securities;
(l) Purchaser is purchasing the Securities for its own account for investment purposes only and not for the account of any other person and not for distribution, assignment or resale to others, and no other person has a direct or indirect beneficial interest in such Securities, and Purchaser has not subdivided its interest in any of the Securities with any other person;
(m) no person has made to Purchaser any written or oral representations:
(i) that any person will resell or repurchase any of the Securities,
(ii) that any person will refund the purchase price of any of the Securities, other than repayment pursuant to the terms and conditions of the Note, or
(iii) as to the future price or value of any of the Securities.
6. Representations and Warranties will be Relied Upon by Issuer
Purchaser acknowledges and agrees that the representations and warranties contained in this Agreement are made by it with the intention that such representations and warranties may be relied upon by Issuer and Issuer’s counsel in determining Purchaser’s eligibility to purchase the Securities under applicable laws, or, if applicable, the eligibility of others on whose behalf Purchaser is contracting hereunder to purchase the Securities under applicable laws. Purchaser further agrees that the representations and warranties contained herein will survive the purchase by Purchaser of the Securities and will continue in full force and effect notwithstanding any subsequent disposition by Purchaser of such Securities.
7. Acknowledgement
Purchaser has acknowledged that the decision to acquire the Securities was solely made on the basis of the Public Record.
8. Legending of Securities
Purchaser hereby acknowledges that any certificate or other document representing any of the Securities will bear a legend in substantially the following form:
“The securities represented hereby have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities are sold pursuant to Rule 144, or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended.”
Purchaser hereby acknowledges and agrees to Issuer making a notation on its records or giving instructions to the registrar and transfer agent of Issuer in order to implement the restrictions on transfer set forth and described in this Agreement.
9. Collection of Personal Information
9.1 Purchaser acknowledges and consents to the fact that Issuer is collecting Purchaser’s personal information for the purpose of fulfilling this Agreement. Purchaser acknowledges that its personal information (and, if applicable, the personal information of those on whose behalf Purchaser is contracting hereunder) may be included in record books in connection with the Offering and may be disclosed by Issuer to: (a) stock exchanges or securities regulatory authorities, (b) Issuer’s registrar and transfer agent, (c) tax authorities, (d) authorities pursuant to the PATRIOT Act (U.S.A.) and (e) any of the other parties involved in the transactions contemplated hereby, including Issuer’s counsel. By executing this Agreement, Purchaser is deemed to be consenting to the foregoing collection, use and disclosure of Purchaser’s personal information (and, if applicable, the personal information of those on whose behalf Purchaser is contracting hereunder) for the foregoing purposes and to the retention of such personal information for as long as permitted or required by applicable laws.
9.2 Furthermore, Purchaser is hereby notified that Issuer may deliver to any government authority having jurisdiction over Issuer, Purchaser or the transactions contemplated hereby, including the SEC and/or any state securities commissions, certain personal information pertaining to Purchaser, including Purchaser’s full name, residential address and telephone number, the number of Shares or other securities of Issuer owned by Purchaser, the principal amount of Note purchased by Purchaser, the total amount paid for the Note and the date of issuance of the Note.
10. Governing Law
This Agreement is governed by the laws of the State of Delaware (without reference to its rules governing the choice or conflict of laws). Any dispute arising under or in relation to this Agreement shall be resolved exclusively in the competent courts in Delaware, and each of the parties hereby submits irrevocably to the jurisdiction of such court.
11. Survival
This Agreement, including, without limitation, the representations, warranties and covenants contained herein, will survive and continue in full force and effect and be binding upon Issuer and Purchaser, notwithstanding the completion of the purchase of the Securities by Purchaser.
12. Assignment
This Agreement is not transferable or assignable.
13. Severability
The invalidity or unenforceability of any particular provision of this Agreement will not affect or limit the validity or enforceability of the remaining provisions of this Agreement.
14. Entire Agreement
Except as expressly provided in this Agreement and in the exhibits, agreements, instruments and other documents attached hereto or contemplated or provided for herein, this Agreement contains the entire agreement between the parties with respect to the sale of the Securities and there are no other terms, conditions, representations or warranties, whether expressed, implied, oral or written, by statute or common law, by Issuer or by anyone else.
15. Notices
All notices and other communications hereunder will be in writing and will be deemed to have been duly given if hand delivered or transmitted by any standard form of telecommunication, including facsimile, electronic mail or other means of electronic communication capable of producing a printed copy. Notices to Purchaser will be directed to the address of Purchaser set forth opposite its signature hereto and notices to Issuer will be directed to it at Issuer’s principal executive offices.
16. Counterparts and Electronic Means
This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, will constitute an original and all of which together will constitute one instrument. Delivery of an executed copy of this Agreement by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Agreement.
17. Exhibits
The exhibits attached hereto form part of this Agreement.
18. Indemnity
Each of the parties will indemnify and hold harmless the other party and, where applicable, the other party’s directors, officers, employees, agents, advisors and shareholders, from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the other party contained in this Agreement, or in any document furnished by the other party in connection herewith being untrue in any material respect, or any breach or failure by the other party to comply with any covenant or agreement made by such other party in connection therewith.
[Signature page follows]
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as of the date first set forth above.
| CERBERUS CYBER SENTINEL CORPORATION | ||
| By: | /s/ David Jemmett | |
| David Jemmett | ||
| Chief Executive Officer | ||
| Address: | ||
| /s/ Andrew McCain | ||
| Hensley & Company, dba Hensley Beverage Company | ||
EXHIBIT A
INSTRUCTIONS FOR WIRING FUNDS
EXHIBIT B
FORM OF NOTE
Exhibit 10.2
This Note and the securities issuable upon conversion of this Note have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities are sold pursuant to Rule 144, or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended.
Issue Date: March 20, 2023
$5,000,000
10 PERCENT (10%) UNSECURED CONVERTIBLE NOTE
1. General
(a) FOR VALUE RECEIVED, CERBERUS CYBER SENTINEL CORPORATION (the “Company”) promises to pay to the order of Hensley & Company dba Hensley Beverage Company (the “Holder”) the principal sum of Five Million Dollars ($5,000,000), in lawful currency of the United States (the “Principal Amount”) on March 20, 2025 (the “Maturity Date”), and to pay interest to the Holder on the aggregate unconverted and then outstanding Principal Amount at the rate of ten percent (10%) per annum, subject to Section 3(b) below, payable monthly. Interest shall be calculated on the basis of a 360-day year with 12, 30-day months, and shall accrue daily, commencing on the Issue Date, until payment in full of the Principal Amount, together with all accrued and unpaid interest and other amounts which may become due hereunder, has been made. Interest shall cease to accrue with respect to the Principal Amount converted, provided that the Company has delivered the Conversion Shares (as defined herein). The Company may not prepay any principal amount due under this Note without the consent of the Holder, which consent may be withheld or given in the Holder’s sole and absolute discretion.
(b) Payment of this Note shall be paid to the Holder by the Company by wire transfer in accordance with the wiring instructions set out by the Holder at time of payment (or such other instructions as the Holder may give the Company from time to time in accordance with Section 6) (or such other method as may be mutually agreed to by the Holder and the Company from time to time). The Company will withhold and remit any tax required to be withheld and remitted to U.S. and/or applicable foreign taxing authorities. IN EACH CASE SUBJECT TO THE SECURITIES ACT LEGEND AT THE TOP OF THIS NOTE AND APPLICABLE LAW, THIS NOTE MAY BE TRANSFERRED WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY.
2. Event of Default
(a) For the purposes of this Note, the Company shall be in default upon the occurrence of any one or more of the following events (each such event being an “Event of Default”):
(i) default shall be made in the payment of any installment of principal or interest on this Note when due and the Company fails to cure such default within five (5) days after written notice of default is sent to the Company;
(ii) there is a material default by the Company in the observance or performance of any non-monetary representation, warranty, covenant or agreement contained herein or the Purchase Agreement by and between the Company and the Holder, dated as of the date hereof (the “Purchase Agreement”), or in any other present or future agreement of any nature whatsoever between the Holder and the Company, and the Company fails to cure such default within thirty (30) days after written notice of default is sent to the Company (or within such other time period as may be therein specifically provided);
(iii) the Company shall file a voluntary petition in bankruptcy or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors; or shall seek, consent to, or acquiesce in, the appointment of any trustee, receiver or liquidator of the Company or of all or substantially all of the assets of the Company (the “Assets”), or of any or all of the royalties, revenues, rents, issues or profits thereof, or shall make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due;
(iv) a petition to a court of competent jurisdiction shall be filed for the entry of an order, judgment or decree approving a petition filed against the Company seeking any reorganization, dissolution or similar relief under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, and such petition shall remain unvacated or not removed for an aggregate of sixty (60) days (whether or not consecutive) from the first date of entry thereof or rejected by such court; or any trustee, receiver or liquidator of the Company or of all or any part of the Assets, or of any or all of the royalties, revenues, rents, issues or profits thereof, shall be appointed without the consent or acquiescence of the Company and such appointment shall remain unvacated and unstayed for an aggregate of thirty (30) days (whether or not consecutive);
(v) the Company ceases or threatens to cease to carry on its business; or
(vi) the Company sells or agrees to sell all or substantially all of its assets, or a change in voting control of the Company or the dissolution, liquidation, merger, consolidation, or reorganization of the Company without the Holder’s prior written consent.
(b) If any Event of Default occurs, subject to any cure period, the full Principal Amount, together with interest and other amounts owing in respect thereof to the date of acceleration shall become, at the Holder’s election, immediately due and payable in cash. From and after the date of acceleration, the applicable interest rate charged hereunder with respect to any unpaid principal, fees, expenses and interest shall be twenty-four percent (24%) per annum (the “Default Rate”) compounded monthly. Upon payment of the full Principal Amount, together with interest at the Default Rate and other amounts owing in respect thereof, in accordance herewith, this Note shall promptly be surrendered to or as directed by the Company. The Holder need not provide and the Company hereby waives any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Any declaration of acceleration may be rescinded and annulled by the Holder at any time prior to payment hereunder and the Holder shall have all rights as a Note holder until such time, if any, as the full payment under this Section 3 shall have been received by it. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
3. Conversion
(a) Subject to the provisions of Section 4, the Holder shall have the right, but not the obligation, at any time and from time-to-time while all or any portion of the Principal Amount under the Note that is still outstanding to convert all or any portion of the outstanding Principal Amount and all accrued but unpaid interest thereon into a number of shares of Common Stock of the Company (the “Conversion Shares”) calculated as the total dollar amount to be converted divided by $1.20 (the “Conversion Price”). In the event that the Holder wishes to exercise the conversion rights set forth in this Section 3(a), the Holder shall give the Company written notice (the “Conversion Notice”) of such conversion specifying the Principal Amount and accrued interest to be converted, which notice shall be effective on the date of such Conversion Notice, if such Conversion Noticed is received by the Company not later than 4:00 p.m. Eastern Time on such date or, if such Conversion Noticed is received by the Company after 4:00 p.m. Eastern Time on such date, then on the next succeeding Business Day. The date on which such Conversion Notice is deemed to be effective is hereinafter referred to as the “Conversion Date.”
(b) Not later than five (5) Business Days after any Conversion Date, the Company will deliver to the Holder, by overnight courier service to the address of the Holder set out in Section 6 (or such other address as the Holder may notify the Company of from time to time in accordance with Section 6), certificates representing the Conversion Shares (bearing appropriate restrictive legends) representing the aggregate number of Conversion Shares being acquired.
(c) Upon a conversion hereunder, the Company shall not be required to issue certificates representing fractions of any Conversion Shares, and the number of Conversion Shares shall be rounded down to the nearest whole number.
4. Beneficial Ownership Limitation
The Company shall not effect any conversion of this Note, and the Holder shall not have the right to convert any portion of this Note, pursuant to Section 3 or otherwise, to the extent that after giving effect to such issuance after conversion as set forth on the applicable Conversion Notice, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon the conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) conversion of the remaining, unconverted portion of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 4, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith and the calculations required under this Section 4. To the extent that the limitation contained in this Section 4 applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Conversion Notice shall be deemed to be the Holder’s determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the transfer agent for the Common Stock setting forth the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within one (1) Business Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 4, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the provisions of this Section 4 shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this Section 4 shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4 to correct this Section 4 (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
5. Adjustments
(a) If, at any time while any portion of this Note remains outstanding, the Company effectuates a stock split or reverse stock split of its Common Stock or issues a dividend on Common Stock consisting of shares of Common Stock, the Conversion Price and any other amounts calculated as contemplated hereby or by any of the other Agreements shall be equitably adjusted to reflect such action. By way of illustration, and not in limitation, of the foregoing, (i) if the Company effectuates a 2:1 split of its Common Stock, thereafter, with respect to any conversion for which the Company issues shares after the record date of such split, the Conversion Price shall be deemed to be one-half of what it had been immediately prior to such split; (ii) if the Company effectuates a 1:10 reverse split of its Common Stock, thereafter, with respect to any conversion for which the Company issues shares after the record date of such reverse split, the Conversion Price shall be deemed to be ten times what it had been calculated to be immediately prior to such split; and (iii) if the Company declares a stock dividend of one share of Common Stock for every 10 shares outstanding, thereafter, with respect to any conversion for which the Company issues shares after the record date of such dividend, the Conversion Price shall be deemed to be such amount multiplied by a fraction, of which the numerator is the number of shares (10 in the example) for which a dividend share will be issued and the denominator is such number of shares plus the dividend share(s) issuable or issued thereon (11 in the example).
(b) In case of any capital reorganization or of any reclassification of the capital of the Company or in case of the consolidation, merger or amalgamation of the Company with or into any other company or of the sale of the assets of the Company as or substantially as an entirety or of any other company, this Note shall, after such capital reorganization, reclassification of capital, consolidation, merger, amalgamation or sale (“Equity Transaction”), confer the right to convert into that number of shares or other securities or property of the Company or of the company resulting from such Equity Transaction or to which such sale shall be made, as the case may be, to which the Holder of the shares deliverable at the time of such Equity Transaction would have been entitled as a result of such Equity Transaction had the Note been converted prior thereto, and in any such case, if necessary, appropriate adjustments shall be made in the application of the provisions set forth herein with respect to the rights and interest thereafter of the Holders of the Notes to the end that the provisions set forth herein shall thereafter correspondingly be made applicable as nearly as may reasonable be expected in relation to any shares or other securities or property thereafter deliverable. The subdivision or consolidation of the shares at any time outstanding into a greater or lesser number of shares (whether with or without par value) shall not be deemed to be a capital reorganization or a reclassification of the capital of the Company for the purposes of this Section.
6. Notices
(a) Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Conversion Notice, shall be in writing, sent by a nationally recognized overnight courier service or by electronic mail, addressed to the Company: Cerberus Cyber Sentinel Corporation, Attn: David Jemmett, CEO, 6900 E. Camelback Road, Suite 240, Scottsdale, AZ 85251, Email: david@cerberussentinel.com or such other address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 7. The address of the Holder is 4201 N. 45th Avenue, Phoenix, AZ 85031, Email: ammcain@hensley.com.
(b) Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, sent by a nationally recognized overnight courier service addressed to the Holder at the Email or street address of the Holder appearing on page 1 of this Note (or such other address as the Holder may notify the Company of from time to time in accordance with this Section 6), or if no such email or street address appears, at the address of the Holder to which this Note was delivered.
(c) Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via electronic mail at the address specified in this Section 6 prior to 5:30 p.m. (U.S. Eastern Time), with confirmation of receipt, (b) the date after the date of transmission, if such notice or communication is delivered via electronic mail at the Email address specified in this Section 6 later than 5:30 p.m. (U.S. Eastern Time) on any date and earlier than 11:59 p.m. (U.S. Eastern Time) on such date, with confirmation of receipt, (c) the second Business Day following the date of mailing, if sent by nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given.
7. Definitions
(a) For the purposes hereof, in addition to the terms defined elsewhere in this Note, the following terms shall have the following meanings:
(i) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended;
(ii) “Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day; and
(iii) “Person” means a corporation, an association, a partnership, limited liability company, organization, a business, an individual, a government or political subdivision thereof or a governmental agency.
8. Replacement of Note if Lost or Destroyed
If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the balance outstanding at such time with respect to the Principal Amount, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, and indemnity, if requested, all reasonably satisfactory to the Company.
9. Governing Law
All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of Delaware, without regard to the principles of conflicts of law thereof. Any dispute arising under or in relation to this Note shall be resolved exclusively in the competent courts in Delaware, and each of the parties hereby submits irrevocably to the jurisdiction of such court.
10. Attorneys’ Fees
If a legal proceeding shall be brought to recover any amount due under this Note, or for or on account of any breach of or to enforce or interpret any of the terms, covenants or conditions of this Note, in addition to any other remedy available at law or in equity, the Holder shall be entitled to an award of its fees and costs (whether taxable or not), including, without limitation, expert witness fees, all litigation or dispute resolution related expenses, and reasonable attorneys’ fees incurred in connection with such action, which award shall be made by the court, not a jury.
11. Waivers
Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note. Any waiver must be in writing.
12. Next Business Day
Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.
[Signature page follows]
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the date first set forth above.
| CERBERUS CYBER SENTINEL CORPORATION | ||
| By: | /s/ David Jemmett | |
| David Jemmett | ||
| Chief Executive Officer | ||
Exhibit 99.1
CERBERUS CYBER SENTINAL ANNOUNCES PRELIMINARY ESTIMATED FINANCIAL INFORMATION
Receives $5.0 million from private convertible note offering
Scottsdale, Ariz. Mar. 20, 2023 — Cerberus Cyber Sentinel Corporation (“Cerberus Sentinel” or the “Company”) (NASDAQ: CISO), an industry leader as a managed cybersecurity and compliance provider, based in Scottsdale, Ariz., today announced certain preliminary estimated financial information as of and for the quarter and fiscal year ended December 31, 2022.
The preliminary estimated financial information has been prepared by, and is the responsibility of, the Company’s management. Semple, Marchal & Cooper, LLP, the Company’s independent registered public accounting firm, has not audited, reviewed, compiled or performed any procedures with respect to the preliminary estimated financial information provided below.
The Company’s preliminary unaudited estimates for the fourth quarter and fiscal year ended December 31, 2022 are as follows:
| ● | $14.7 million in total revenue for the fiscal quarter ended December 31, 2022, an increase of $8.8 million, or 150%, compared to total revenue of $5.9 million for the fiscal quarter ended December 31, 2021. | |
| ● | $46.5 million in total revenue for the fiscal year ended December 31, 2022, an increase of $31.4 million, or 207%, compared to total revenue of $15.1 million for the fiscal year ended December 31, 2021. | |
| ● | $9.4 million in operating loss for the fiscal quarter ended December 31, 2022, a decrease of $23.5 million, or 71%, compared to $32.9 million in operating loss for the fiscal quarter ended December 31, 2021. | |
| ● | $33.2 million in operating loss for the fiscal year ended December 31, 2022 , a decrease of $6.6 million, or 17%, compared to $39.8 million in operating loss for the fiscal year ended December 31, 2021. |
David Jemmett, Chief Executive Officer and Chairman, stated, “We are very pleased to announce this 2022 preliminary estimated financial information, which reflects our highest quarterly revenue ever and continues our string of seven consecutive quarters of record revenues. We believe that this estimated financial information continues to validate our service offering and our strategy, enabling us to drive significant revenue and market penetration. We continue to see growing demand for our services and expect this to carry on through 2023.”
The Company’s preliminary estimates of these financial results are based solely on information available to it as of the date of this press release and are inherently uncertain and subject to change, including finalizing accounting for the impact of any adjustments pertaining to business combinations made during the measurement period. The Company’s actual results remain subject to the completion of management’s final review and other closing procedures, as well as the completion of the audit of its annual consolidated financial statements. These preliminary estimates are not a comprehensive statement of the Company’s expected financial results for the quarter and fiscal year ended December 31, 2022 and should not be viewed as a substitute for full financial statements prepared in accordance with GAAP. In addition, these preliminary estimates for the fiscal quarter and year ended December 31, 2022 are not necessarily indicative of the results to be achieved in any future period. Accordingly, investors should not place undue reliance on these preliminary estimated financial results. The Company’s actual audited consolidated financial statements and related notes as of and for the fiscal year ended December 31, 2022, will be reflected in the Company’s consolidated financial statements for the quarter and year when they are completed and publicly disclosed.
Note Offering
On March 20, 2023, the Company entered into a Purchase Agreement with Hensley & Company dba Hensley Beverage Company (the “Purchaser”) pursuant to which the Company issued and sold to the Purchaser a $5,000,000 10% Unsecured Convertible Note (the “Note”) for gross proceeds of $5,000,000 in a private placement exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended, and Regulation D promulgated thereunder (the “Note Offering”). The Note, together with accrued and unpaid interest thereon, is due on March 20, 2025 (the “Maturity Date”). The Company may not prepay the Note prior to the Maturity Date without the consent of the Purchaser. The Note will bear interest at a rate of 10% per annum (based on a 360-day year), payable monthly. At any time prior to or on the Maturity Date and subject to certain beneficial ownership limitations, the Purchaser may convert all or any portion of the outstanding principal amount of the Note and all accrued and unpaid interest thereon into shares (the “Conversion Shares”) of common stock, par value $0.00001 per share, of the Company at a conversion price of $1.20 per share (the “Conversion Price”). The Conversion Price is adjustable in the event of any stock split, reverse stock split, recapitalization, reorganization, or similar event. The Company intends to use the net proceeds of the Note Offering and its existing cash resources to repay in full the $5,000,000 4% promissory note issued and sold to Bell Bank in June 2022.
About Cerberus Sentinel
Cerberus Sentinel is an industry leader as a managed cybersecurity and compliance provider. The Company is rapidly expanding by acquiring world-class cybersecurity, secured managed services, and compliance companies with top-tier talent that utilize the latest technology to create innovative solutions to protect the most demanding businesses and government organizations against continuing and emerging security threats and compliance obligations.
Safe Harbor Statement
This press release contains certain statements that may be deemed to be forward-looking statements under federal securities laws, and we intend that such forward-looking statements be subject to the safe-harbor created thereby. Such forward-looking statements include, among others, our preliminary unaudited estimates for the fourth quarter and fiscal year ended December 31, 2022 for total revenue and operating loss; our belief that this estimated financial information continues to validate our service offering and our strategy, enabling us to drive significant revenue and market penetration; our belief that we continue to see growing demand for our services and expect this to carry on through 2023; and our intention to use the net proceeds of the Note Offering and our existing cash resources to repay in full the $5,000,000 4% promissory note issued and sold to Bell Bank in June 2022. These statements are often, but not always, made through the use of words or phrases such as “believes,” “expects,” “anticipates,” “intends,” “estimates,” “predict,” “plan,” “project,” “continuing,” “ongoing,” “potential,” “opportunity,” “will,” “may,” “look forward,” “intend,” “guidance,” “future” or similar words or phrases. These statements reflect our current views, expectations, and beliefs concerning future events and are subject to substantial risks, uncertainties, and other factors that could cause actual results to differ materially from those reflected by such forward-looking statements. Such factors include, among others, risks related to our ability to raise capital; our ability to increase revenue and cash flow and become profitable; our ability to recruit and retain key talent; our ability to identify and consummate acquisitions; our ability to acquire, attract, and retain clients; and other risks detailed from time to time in the reports filed with the Securities and Exchange Commission, including the Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and the Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2022. You should not place undue reliance on any forward-looking statements, which speak only as of the date they are made. Except as required by law, we assume no obligation and do not intend to update any forward-looking statements, whether as a result of new information, future developments, or otherwise.
Company Contact:
Neil Stinchcombe, CMO
Cerberus Sentinel
480-500-7294
Neil.Stinchcombe@cerberussentinel.com
Public Relations Contact:
Cathy Morley Foster
Eskenzi PR
925-708-7893
cathy@eskenzipr.com
Corporate Communications:
IBN (InvestorBrandNetwork)
Los Angeles, California
www.InvestorBrandNetwork.com
310-299-1717 Office
Editor@InvestorBrandNetwork.com
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