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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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 (see General Instruction A.2. below):
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging Growth Company
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Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Not applicable | Not applicable | Not applicable |
| Item 1.01 | Entry Into a Material Agreement. |
On May 18, 2023, Nightfood Holdings, Inc. (the “Company”) entered into an Amendment and Addendum to Letter of Engagement (the “Agreement”) with its banker, Spencer Clarke, LLC (“SC”), which amended and supplemented certain terms of its Letter of Engagement with SVC dated February 2, 2021 as amended and supplemented (the “Original Engagement Letter”).
The Agreement, among other things, amended the Original Engagement Letter as follows:
| 1. | Remove the minimum fee payable by the Company to SC upon certain events described in the Agreement. |
| 2. | SC waived its fees with respect to the Company’s February 28, 2023 financing. |
| 3. | Any warrants to be issued to SC pursuant to the terms of the Original Engagement Letter as amended by the Agreement shall contain price protections as described in the Agreement. |
| 4. | As compensation for cash compensation SC agreed to forego during the term of the Engagement Letter, including foregone cash compensation of $479,842, the Company shall issue to SC 1,000,000 common stock purchase warrants with an initial exercise price of $.033, and the Company and SC shall enter into the Warrant Exchange Agreement referenced in and attached to the Agreement(the “Warrant Exchange Agreement”). |
| 5. | The term of the Original Engagement Letter was extended to June 30, 2023. |
Pursuant to the Warrant Exchange Agreement, among other things, SC exchanged an aggregate of 16,181,393 of its existing warrants in the Company issued to it in 2021, originally with exercise prices ranging from $0.2 to $0.3, which had, as per the terms of the original warrants, adjusted to exercise prices of $.0747 as of calculations completed in February 2023 for the Company’s 10Q filing for the fiscal quarter ended December 31, 2022, for a like amount of new warrants to purchase Company common stock at a price per share capped at $0.0747 (the “New Warrants”).
The foregoing summaries of the Agreement, the Warrant Exchange Agreement and the New Warrants do not purport to be complete and are subject to, and qualified in their entirety by, such documents attached as Exhibits 10.1, 10.2, 4.1 and 4.2, respectively, to this Current Report on Form 8-K, which are incorporated herein by reference. Also included in this Form 8-K as Exhibits 4.3 through 4.19 are all other outstanding warrant agreements issued to SC under the terms of the Original Engagement Letter.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information set forth in Item 1.01 above related to the New Warrants and the shares of common stock underlying the New Warrants is incorporated herein by reference into this Item 3.02. Neither of the New Warrants nor the shares of common stock issuable upon the exercise of the New Warrants are registered under the Securities Act of 1933, as amended (the “Securities Act”). The New Warrants and the shares of common stock issuable upon the exercise of the New Warrants are were issued in reliance on the exemptions from registration provided by Section 4(a)(2) under the Securities Act.
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| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
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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: May 24, 2023
| NIGHTFOOD HOLDINGS, INC. | ||
| By: | /s/ Sean Folkson | |
| Name: | Sean Folkson | |
| Title: | Chief Executive Officer | |
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