NIKOLA CORPORATION Item 1.01 Entry into a Material Definitive Agreement.
On
Under the terms and subject to the conditions of the Purchase Agreement, the
Company has the right, but not the obligation, to sell to Tumim, and Tumim is
obligated to purchase, up to
Tumim has no right to require the Company to sell any shares of common stock to Tumim, but Tumim is obligated to make purchases as the Company directs, subject to certain conditions. There are no upper limits on the price per share that Tumim must pay for shares of common stock. Actual sales of shares of common stock to Tumim will depend on a variety of factors to be determined by the Company from time to time, including, among others, market conditions, the trading price of the Company's common stock and determinations by the Company as to the appropriate sources of funding for the Company and its operations.
The net proceeds under the Purchase Agreement to the Company will depend on the frequency and prices at which the Company sells shares of its common stock to Tumim. The Company expects that any proceeds received by the Company from such sales to Tumim will be used for working capital and general corporate purposes.
The Company has agreed with Tumim that it will not enter into any "equity line of credit" transactions with any third party during the term of the Purchase Agreement. Tumim has covenanted not to enter into or effect, in any manner whatsoever, directly or indirectly, any short sales of the Company's common stock or hedging transaction which establishes a net short position with respect to the common stock.
As consideration for Tumim's irrevocable commitment to purchase shares of the Company's common stock upon the terms of and subject to satisfaction of the conditions set forth in the Purchase Agreement, upon execution of the Purchase Agreement, the Company issued 155,703 shares of its common stock to Tumim.
The Purchase Agreement and the Registration Rights Agreement contain customary representations, warranties, conditions and indemnification obligations of the parties. The Company has the right to terminate the Purchase Agreement at any time, at no cost or penalty, subject to the survival of certain provisions of the Purchase Agreement and the Registration Rights Agreement. The Purchase Agreement will automatically terminate upon the Termination Date, the date on which the Investor shall have purchased the Total Commitment and in the event of bankruptcy proceedings by or against the Company. Tumim may terminate the Purchase Agreement upon (i) the occurrence of an event constituting a material adverse effect (as defined in the Purchase Agreement), (ii) the occurrence of a change of control transaction, (iii) the failure by the Company to file a registration statement by the applicable deadline set forth in the Registration Rights Agreement, (iv) the lapse of the effectiveness, or unavailability of, a registration statement filed by the Company pursuant to the Registration Rights Agreement for a period of 30 consecutive trading days or for more than an aggregate of 120 trading days in any 365-day period or (v) the suspension of trading of the Company's common stock for a period of three (3) consecutive trading days.
The foregoing descriptions of the Purchase Agreement and the Registration Rights Agreement are qualified in their entirety by reference to the full text of such agreements, copies of which are attached hereto as Exhibits 10.1 and 4.1, respectively, and each of which is incorporated herein in its entirety by reference. The representations, warranties and covenants contained in such agreements were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon by the contracting parties.
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This current report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any shares of common stock in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Item 3.02 Unregistered Sales of
The information contained above in Item 1.01 is hereby incorporated by reference into this Item 3.02.
In the Purchase Agreement, Tumim represented to the Company, among other things, that it is an "accredited investor" (as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act")). The securities referred to in this current report on Form 8-K are being issued and sold by the Company to Tumim in reliance upon the exemptions from the registration requirements of the Securities Act afforded by Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D promulgated thereunder.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Description 4.1 Registration Rights Agreement by and betweenNikola Corporation andTumim Stone Capital LLC , datedJune 11, 2021 . 10.1 Purchase Agreement by and betweenNikola Corporation and Tumim StoneCapital LLC , datedJune 11, 2021 104 Cover Page Interactive Data File (formatted as Inline XBRL).
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