Item 1.01 Entry Into a Material Definitive Agreement.
The Series A Preferred was established pursuant to a Certificate of Designation filed with the
Conversion. Each share of the Series A Preferred is convertible into Common Stock at an initial conversion rate of 1-for-1. The conversion rate of the Series A Preferred is subject to proportionate adjustments for stock splits, reverse stock splits and similar events, but is not subject to adjustment based on price anti-dilution provisions. The Series A Preferred automatically converts into common stock upon the occurrence of certain "Fundamental Transactions," as described below.
Dividends. In addition to stock dividends or distributions for which proportionate adjustments will be made, holders of Series A Preferred are entitled to receive dividends on shares of Series A Preferred equal, on an as-if-converted-to-Common-Stock basis, to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. No other dividends are payable on shares of Series A Preferred.
Voting Rights. Except as provided in the Certificate of Designation or as otherwise required by law, the holders of Series A Preferred are entitled to vote with the holders of outstanding shares of Common Stock, voting together as a single class, with respect to all matters presented to the stockholders for their action or consideration. In any such vote, each holder is entitled to a number of votes equal to the number of shares of Common Stock into which the Series A Preferred held by such holder is convertible, after taking into account the Beneficial Ownership Limitation described below. The Company may not, without the consent of holders of a majority of the outstanding shares of Series A Preferred, alter or change adversely the powers, preferences or rights given to the Series A Preferred or alter or amend the Certificate of Designation.
Liquidation Rights. Upon any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, the holders of Series A Preferred are entitled to receive, pari passu with the holders of Common Stock, out of the assets available for distribution to stockholders an amount equal to such amount per share as would have been payable had all shares of Series A Preferred been converted into Common Stock immediately before such liquidation, dissolution or winding up, without giving effect to any limitation on conversion as a result of the Beneficial Ownership Limitation.
Beneficial Ownership Limitation. The Company may not effect any conversion of the Series A Preferred, and a holder does not have the right to convert any portion of the Series A Preferred or exercise a Warrant held by the holder, to the extent that, after giving effect to the conversion set forth in a notice of conversion or such exercise of the Warrant, such holder would beneficially own in excess of the holder Beneficial Ownership Limitation, or such holder, together with such holder's affiliates, and any persons acting as a group together with such holder or affiliates, would beneficially own in excess of the Affiliates Beneficial Ownership Limitation. The "holder Beneficial Ownership Limitation" is 4.99% 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 Series A Preferred, or upon exercise of the Warrant, held by the applicable holder. The "affiliates Beneficial Ownership Limitation" is 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 Series A Preferred, or upon exercise of the Warrant, held by the applicable holder and its affiliates (the holder Beneficial Ownership Limitation together with the affiliates Beneficial Ownership Limitation collectively referred to as the "Beneficial Ownership Limitation"). The holder has the authority to determine whether the foregoing restrictions will limit any conversion or exercise, the extent such limitation applies and to which convertible or exercisable instrument or part thereof such limitation applies. In addition, a holder may, with 61 days prior notice to the Company, or immediately upon notice from the holder to the Company at any time after the public announcement or other disclosure of a Fundamental Transaction, elect to increase or decrease or remove one or both of the holder Beneficial Ownership . . .
Item 3.02 Unregistered Sales of
The information provided in response to Item 1.01 of this report is incorporated by reference into this Item 3.02. The securities were issued in a private placement under Section 4(2) of the Securities Act of 1933, as amended, and/or Rule 506 of Regulation D under the Securities Act. Each investor represented that it was an accredited investor, as defined in Rule 501 of Regulation D, and that it was acquiring the securities for its own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Act.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in Items 1.01 and 5.03 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.03.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The foregoing description of the Certificate of Designation does not purport to be complete and is qualified in its entirety by reference to the Certificate of Designation, which is filed as an Exhibit to this Current Report on Form 8-K and is incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits. (d) Exhibits Exhibit Number Description 3.1 Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock 4.1 Form of Warrant dated
August 19, 2014. 10.1 Purchase Agreement dated as of August 19, 2014. 10.2 Registration Rights Agreement dated August 19, 2014. 99.1 Press Release dated August 19, 2014. 6