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 in a Form 8-K filed with the U.S. Securities and Exchange Commission on April 13, 2023, on April 12, 2023, AERWINS Technologies Inc., a Delaware corporation’s (the “Company,” “we,” “us,” or “AERWINS”) entered into a Securities Purchase Agreement (the “SPA”) with Lind Global Fund II LP, an investment fund managed by The Lind Partners, a New York based institutional fund manager (together, the “Investor”). Pursuant to the SPA, the Company agreed to issue to the Investor up to three secured convertible promissory notes (the “Notes” and each a “Note”) in the aggregate principal amount of $6,000,000 and warrants (the “Warrant” and each a “Warrant”) to purchase up to 5,601,613 shares of the Company’s common stock ( the “Transaction”).
The Closing of the first Tranche (the “First Closing”) occurred on April 12, 2023 and consisted of the issuance and sale to the Investor of a Note with a purchase price of $2,100,000 and a principal amount of $2,520,000 (the “First Closing Note”) and the issuance to the Investor of a Warrant to acquire 2,532,678 shares of common stock. The Closing of the second Tranche (the “Second Closing”) occurred on May 23, 2023 and consisted of the issuance and sale to the Investor of a Note with a purchase price of $1,400,000 and a principal amount of $1,680,000 (the “Second Closing Note,” together with the First Closing Note, the “Closing Notes”), and the issuance to the Investor of a Warrant to acquire 1,568,542 shares of common stock.
Floor Price Amendment. On August 25, 2023 (the “Amendment Date”), the Company and the Investor entered into an Amendment to Senior Convertible Promissory Note First Closing Note and an Amendment to the Senior Convertible Promissory Note Second Closing Note (collectively, the “Note Amendments”) which amended the Closing Notes’ Conversion Price (as defined in the Closing Notes) to include a floor price of $0.18176 (the “Floor Price”).
As amended pursuant to the Note Amendments, the Conversion Price of the Closing Notes is a price equal to the lesser of: (i) US$0.90 (the “Fixed Price”); or (ii) 90% of the lowest single VWAP during the 20 Trading Days prior to conversion of the Closing Notes, subject to adjustment as disclosed below, provided that in no event shall the Conversion Price be less than the Floor Price, and in the event that the calculation as set forth above would result in a Conversion Price less than the Floor Price, the “Conversion Price” for purposes shall be the Floor Price. If the Company shall at any time or from time to time after the Amendment Date effect a split or other subdivision of the outstanding common stock, the Floor Price in effect immediately prior to the stock split shall be proportionately decreased, and if the Company shall at any time or from time to time after the Amendment Date combine its outstanding common stock, the Floor Price in effect immediately prior to the combination shall be proportionately increased.
Cash Payment. The Note Amendments also provide that at the option of the Investor, if in connection with a conversion under the Closing Notes, as amended, the Conversion Price is deemed to be the Floor Price, then in addition to issuing the Conversion Shares (as defined in the Closing Notes) at the Floor Price, the Company will also pay to the Investor a cash amount equal to (i) the number of shares of common stock that would be issued to the Investor upon a conversion determined by dividing the dollar amount to be converted being paid in shares of common stock by ninety percent (90%) of the lowest single VWAP during the twenty (20) Trading Days prior to the applicable date of conversion (notwithstanding the Floor Price) less (ii) the number of Conversion Shares issued to the Investor in connection with the conversion; and (iii) multiplying the result thereof by the VWAP on the Conversion Date.
The foregoing description of the Note Amendments is qualified in its entirety by reference to the Note Amendments, which are filed as Exhibits 10.1 and 10.2 hereto and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
| Exhibit | ||
| Number | Description | |
| 10.1 | Amendment to Senior Convertible Promissory Note First Closing Note between AERWINS Technologies, Inc. and Lind Global Fund II LP dated August 25, 2023. | |
| 10.2 | Amendment to Senior Convertible Promissory Note Second Closing Note between AERWINS Technologies, Inc. and Lind Global Fund II LP dated August 25, 2023. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
| 2 |
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 thereunto duly authorized.
| Date: August 28, 2023 | AERWINS Technologies Inc. | |
| By: | /s/ Taiji Ito | |
| Taiji Ito | ||
| Chief Executive Officer | ||
| 3 |
Exhibit 10.1
Amendment to Senior Convertible Promissory Note
First Closing Note
Dated as of August 25, 2023
This Amendment to Senior Convertible Promissory Note (this “Amendment”), dated as of the date first set forth above (the “Amendment Date”), is entered into by and between AERWINS Technologies Inc., a Delaware corporation (the “Maker”), and Lind Global Fund II LP, a Delaware limited partnership (together with its successors and representatives, the “Holder”). The Maker and Holder may be referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, the Holder is the holder of that certain Senior Convertible Promissory Note of the Maker, dated April 12, 2023 (the “Original Note”), and the Parties now wish to amend the Original Note as set forth herein and, pursuant to Section 5.06 of the Original Note, the Original Note may be amended in writing;
NOW THEREFORE, in consideration of the foregoing and of the agreements and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
| 1. | Defined terms used herein without definition shall have the meaning given to them in the Original Note. |
| 2. | Subject to the provisions hereof, the Original Note is hereby amended as follows: |
| (a) | Section 3.01(b) of the Original Note is hereby amended and restated in its entirety to provide as follows: |
(b) Conversion Price. The “Conversion Price” means, the lesser of: (i) US$0.90 (the “Fixed Price”); or (ii) 90% of the lowest single VWAP during the 20 Trading Days prior to conversion of this Note, and shall be subject to adjustment as provided herein, provided that in no event shall the Conversion Price be less than the Floor Price (as defined below), and in the event that the calculation as set forth above would result in a Conversion Price less than the Floor Price, the “Conversion Price” for purposes herein shall be the Floor Price, and provided that the provisions of this Section 3.01(b) with respect to the Floor Price shall take precedence over any other provisions of this Note which would otherwise result in the Conversion Price being less than the Floor Price pursuant to this Section 3.01(a).
| (b) | A new Section 3.01(c) and Section 3.01(d) is hereby added to the Original Note, immediately following Section 3.01(b), and providing as follows: |
(c) Floor Price. For purposes herein, the “Floor Price” means $0.18176, subject to adjustment as set forth herein. If the Maker shall at any time or from time to time after the Amendment Date effect a split or other subdivision of the outstanding Common Stock, the Floor Price in effect immediately prior to the stock split shall be proportionately decreased, and if the Maker shall at any time or from time to time after the Amendment Date combine the outstanding Common Stock, the Floor Price in effect immediately prior to the combination shall be proportionately increased, with any adjustments pursuant to this sentence being effective at the close of business on the date the stock split or combination occurs.
| 1 |
(d) Cash Payment. At the option of the Holder, if in connection with a conversion under this Note, the Conversion Price is deemed to be the Floor Price, then in addition to issuing the Conversion Shares at the Floor Price, the Maker will also pay to the Holder a cash amount equal to the following formula:
(A – B) x C
Where:
A = Number of shares of Common Stock that would be issued to the Holder on such Conversion Date determined by dividing the Conversion Amount being paid in shares of Common Stock by ninety percent (90%) of the lowest single VWAP during the twenty (20) Trading Days prior to the applicable Conversion Date (notwithstanding the Floor Price);
B = Number of Conversion Shares issued to the Holder in connection with the conversion; and
C = the VWAP on the Conversion Date.
| 3. | Other than as amended herein, the Note shall remain in full force and effect and nothing herein shall be deemed to constitute a waiver by the Maker of any Events of Default which may have occurred prior to the date of this amendment. Following the Amendment date, any reference to the “Note” shall be deemed a reference to the Original Note as amended by this Amendment. |
| 4. | This Amendment and all matters based upon, arising out of or relating in any way to this Amendment, including all disputes, claims or causes of action arising out of or relating to this Amendment as well as the interpretation, construction, performance and enforcement of this Amendment, shall be governed by the laws of the United States and the State of Delaware, without regard to any jurisdiction’s conflict-of-laws principles. |
| 5. | This Amendment may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall be but a single instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
[Signature Page Follows]
| 2 |
In witness whereof, the Parties have executed this Amendment as of the Amendment Date.
| AERWINS Technologies Inc. | ||
| By: | /s/ Taiji Ito | |
| Name: | Taiji Ito | |
| Title: | Chief Executive Officer | |
| Lind GLOBAL FUND II LP | ||
| By: | /s/ Jeff Easton | |
| Name: | Jeff Easton | |
| Title: | Manager | |
| 3 |
Exhibit 10.2
Amendment to Senior Convertible Promissory Note
Second Closing Note
Dated as of August 25, 2023
This Amendment to Senior Convertible Promissory Note (this “Amendment”), dated as of the date first set forth above (the “Amendment Date”), is entered into by and between AERWINS Technologies Inc., a Delaware corporation (the “Maker”), and Lind Global Fund II LP, a Delaware limited partnership (together with its successors and representatives, the “Holder”). The Maker and Holder may be referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, the Holder is the holder of that certain Senior Convertible Promissory Note of the Maker, dated May 23, 2023 (the “Original Note”), and the Parties now wish to amend the Original Note as set forth herein and, pursuant to Section 5.06 of the Original Note, the Original Note may be amended in writing;
NOW THEREFORE, in consideration of the foregoing and of the agreements and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
| 1. | Defined terms used herein without definition shall have the meaning given to them in the Original Note. |
| 2. | Subject to the provisions hereof, the Original Note is hereby amended as follows: |
| (a) | Section 3.01(b) of the Original Note is hereby amended and restated in its entirety to provide as follows: |
(b) Conversion Price. The “Conversion Price” means, the lesser of: (i) US$0.90 (the “Fixed Price”); or (ii) 90% of the lowest single VWAP during the 20 Trading Days prior to conversion of this Note, and shall be subject to adjustment as provided herein, provided that in no event shall the Conversion Price be less than the Floor Price (as defined below), and in the event that the calculation as set forth above would result in a Conversion Price less than the Floor Price, the “Conversion Price” for purposes herein shall be the Floor Price, and provided that the provisions of this Section 3.01(b) with respect to the Floor Price shall take precedence over any other provisions of this Note which would otherwise result in the Conversion Price being less than the Floor Price pursuant to this Section 3.01(a).
| (b) | A new Section 3.01(c) and Section 3.01(d) is hereby added to the Original Note, immediately following Section 3.01(b), and providing as follows: |
(c) Floor Price. For purposes herein, the “Floor Price” means $0.18176, subject to adjustment as set forth herein. If the Maker shall at any time or from time to time after the Amendment Date effect a split or other subdivision of the outstanding Common Stock, the Floor Price in effect immediately prior to the stock split shall be proportionately decreased, and if the Maker shall at any time or from time to time after the Amendment Date combine the outstanding Common Stock, the Floor Price in effect immediately prior to the combination shall be proportionately increased, with any adjustments pursuant to this sentence being effective at the close of business on the date the stock split or combination occurs.
| 1 |
(d) Cash Payment. At the option of the Holder, if in connection with a conversion under this Note, the Conversion Price is deemed to be the Floor Price, then in addition to issuing the Conversion Shares at the Floor Price, the Maker will also pay to the Holder a cash amount equal to the following formula:
(A – B) x C
Where:
A = Number of shares of Common Stock that would be issued to the Holder on such Conversion Date determined by dividing the Conversion Amount being paid in shares of Common Stock by ninety percent (90%) of the lowest single VWAP during the twenty (20) Trading Days prior to the applicable Conversion Date (notwithstanding the Floor Price);
B = Number of Conversion Shares issued to the Holder in connection with the conversion; and
C = the VWAP on the Conversion Date.
| 3. | Other than as amended herein, the Note shall remain in full force and effect and nothing herein shall be deemed to constitute a waiver by the Maker of any Events of Default which may have occurred prior to the date of this amendment. Following the Amendment date, any reference to the “Note” shall be deemed a reference to the Original Note as amended by this Amendment. |
| 4. | This Amendment and all matters based upon, arising out of or relating in any way to this Amendment, including all disputes, claims or causes of action arising out of or relating to this Amendment as well as the interpretation, construction, performance and enforcement of this Amendment, shall be governed by the laws of the United States and the State of Delaware, without regard to any jurisdiction’s conflict-of-laws principles. |
| 5. | This Amendment may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall be but a single instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
[Signature Page Follows]
| 2 |
In witness whereof, the Parties have executed this Amendment as of the Amendment Date.
| AERWINS Technologies Inc. | ||
| By: | /s/ Taiji Ito | |
| Name: | Taiji Ito | |
|
|
Title: | Chief Executive Officer |
| Lind GLOBAL FUND II LP | ||
| By: | /s/ Jeff Easton | |
| Name: | Jeff Easton | |
| Title: | Manager | |
| 3 |
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