| Note 19: Subsequent Events Disclosure |
Engagement
Agreement with Chardan Capital Markets LLC (At-The-Market Offering)
On January
7, 2014, we entered into an Engagement Agreement (the “Engagement Agreement”) with Chardan Capital Markets LLC (“Chardan”)
pursuant to which we may issue and sell up to a maximum aggregate amount of 660,000 shares of our common stock from time to time
through Chardan as our sales agent, under our shelf registration statement on Form S-3 (File No. 333-187397) previously filed
with the SEC, pursuant to which any shares that are issued under the Engagement Agreement will be sold.
Upon delivery
of a placement notice by the Company, and subject to the terms and conditions of the Engagement Agreement, Chardan may sell the
common stock by any method that is deemed to be an “at-the-market” offering as defined in Rule 415 promulgated under
the Securities Act of 1933, as amended (the “Securities Act”), including by means of ordinary brokers’ transactions
at market prices on the NASDAQ Capital Market, in block transactions, through privately negotiated transactions, or as otherwise
agreed by Chardan and us. Chardan will act as sales agent on a commercially reasonable efforts basis consistent with its normal
trading and sales practices and applicable state and federal law, rules and regulations and the rules of NASDAQ.
The offering
pursuant to the Engagement Agreement will terminate upon the earlier of (i) the sale of all shares of common stock subject to
the Engagement Agreement, or (ii) termination of the Engagement Agreement as permitted therein. The Engagement Agreement may be
terminated by Chardan or us at any time upon 15 days’ notice to the other party.
We will pay
Chardan a commission equal to up to 3% of the gross proceeds from the sale of the common stock sold through Chardan pursuant to
the Engagement Agreement and reimburse Chardan up to $15,000 in expenses. We have also provided Chardan with customary indemnification
rights. No assurance can be given that we will sell any shares under the Engagement Agreement, or, if we do, as to the price or
amount of shares that we will sell, or the dates on which any such sales will take place.
The foregoing
description of the Engagement Agreement contained herein does not purport to be complete and is qualified in its entirety by reference
to the complete text of the Engagement Agreement, a copy of which is attached to this Annual Report on Form 10-K as Exhibit 1.1
and incorporated herein by reference. This Annual Report on Form 10-K also incorporates by reference the Engagement Agreement
into our shelf registration statement on Form S-3 (File No. 333-187397) previously filed with the SEC, pursuant to which any shares
that are issued under the Engagement Agreement will be sold.
Convertible Note Transaction
($5 Million Line of Credit)
On January
7, 2014, the Company entered into a Note Purchase Agreement (“Purchase Agreement”) with Kingston Diversified Holdings
LLC (the “Investor”), pursuant to which the Investor agreed to purchase for cash up to $5,000,000 in aggregate principal
amount of the Company’s Convertible Notes (“Notes”). The Purchase Agreement and the Notes, which are unsecured,
provide that all amounts payable by the Company to the Investor under the Notes will be due and payable on the second (2nd) anniversary
of the date of the Purchase Agreement (the “Maturity Date”).
The Purchase
Agreement and the Notes provide that:
| |
— |
Either the Company or the Investor will have the
right to cause the sale and issuance of Notes pursuant to the Purchase Agreement, provided that NASDAQ’s approval of
the Purchase Agreement and transactions contemplated thereby is a condition precedent to each party’s right to cause
any borrowings to occur under the Purchase Agreement. |
| |
|
|
| |
— |
Each Note must be in a principal amount of at least $100,000. |
| |
|
|
| |
— |
The Notes are issuable at a 5% discount and will accrue interest
at an annual interest rate equal to 8%. All interest will be payable on the Maturity Date or upon the conversion of the applicable
Note. |
| |
|
|
| |
— |
The Company has the option to prepay each Note, in whole or in
part, at any time without premium or penalty. |
| |
|
|
| |
— |
the Company or the Investor may elect at any time on or before
the Maturity Date to convert the principal and accrued but unpaid interest due under any Note into shares of the Company’s
common stock. The conversion price applicable to any such conversion will be an amount equal to 70% of the lesser of: (i)
the closing bid price of the common stock on the date of the Purchase Agreement (i.e., $9.35 per share); or (ii) the 10-day
volume weighted average closing bid price for the common stock, as listed on NASDAQ for the 10 business days immediately preceding
the date of conversion (the “Average Price”); provided, however, that in no event will the Average Price per share
be less than $1.00. For example, if the Average Price is $0.50 per share, then for purposes of calculating the conversion
price, the Average Price per share would be $1.00 per share instead of $0.50 per share. |
| |
|
|
| |
— |
If either party elects to convert all or any portion of any Note,
the Company must issue to the Investor on the date of the conversion a warrant (“Contingent Warrant”) to purchase
a number of shares of the Company’s common stock equal to the number of shares issuable upon conversion. This number
of shares is subject to adjustment in the event of stock splits or combinations, stock dividends, certain pro rata
distributions, and certain fundamental transactions. Each Contingent Warrant will be exercisable for a period of five (5)
years following the date of its issuance at an exercise price equal to 110% of the conversion price of the applicable Note
(with the exercise price being subject to adjustment under the same conditions as the number of shares for which the warrant
is exercisable.) The Contingent Warrants provide that they may be exercised in whole or in part and include a cashless exercise
feature. |
| |
— |
The Notes provide that, upon the occurrence of any
Event of Default, all amounts payable to the Investor will become immediately due and payable without any demand or notice.
The events of default (“Events of Default”) which trigger the acceleration of the Notes include (among other things):
(i) the Company’s failure to make any payment required under the Notes when due (subject to a three-day cure period),
(ii) the Company’s failure to comply with its covenants and agreements under the Purchase Agreement, the Notes and any
other transaction documents, and (iii) the occurrence of a change of control with respect to the Company. |
| |
|
|
| |
— |
The Company (i) is required to provide certain financial and
other information to the Investor from time to time, (ii) must maintain its corporate existence, business, assets, properties,
insurance and records in accordance with the requirements set forth in the Purchase Agreement, (iii) with certain exceptions,
must not incur or suffer to exist any liens or other encumbrances with respect to the Company’s property or assets,
(iv) must not make certain loans or investments except in compliance with the terms of the Purchase Agreement, and (v) must
not enter into certain types of transactions, including dispositions of its assets or business. |
| |
|
|
| |
— |
The Company agreed to use commercially reasonable efforts to
obtain, as promptly as practicable, any approvals of the Company’s stockholders required under applicable law or NASDAQ
Listing Rules in connection with the transactions contemplated by the Purchase Agreement. Unless and until any such stockholder
approvals are obtained, in no event will the Investor be entitled to convert any Notes and/or exercise any Contingent Warrants
to the extent that any such conversion or exercise would result in the Investor acquiring in such transactions a number of
shares of the Company’s common stock exceeding 19.99% of the number of shares of common stock issued and outstanding
immediately prior to the Company’s entry into the Purchase Agreement. |
| |
|
|
| |
— |
The Investor will be entitled to certain anti-dilution adjustments
if the Company issues shares of its common stock at a lower price per share than the applicable conversion price for any Note(s)
issued pursuant to the Purchase Agreement. If any such dilutive issuance occurs prior to the conversion of one or more Notes,
the conversion price for such Note(s) will be adjusted downward pursuant to its terms (subject to a floor of $0.70 per share).
If any such dilutive issuance occurs after the conversion of one or more Notes, the Investor will be entitled to be issued
additional shares of common stock for no consideration, and to an adjustment of the exercise price payable under the applicable
Contingent Warrant(s). With respect to each Note actually issued pursuant to the Purchase Agreement, the Investor’s
anti-dilution rights will expire two (2) years following the date of issuance. |
The foregoing
description of the Purchase Agreement, the Notes and the Contingent Warrants contained herein does not purport to be complete
and is qualified in its entirety by reference to the complete text of such documents, copies of which are attached to this Annual
Report on Form 10-K as Exhibits 10.10, 10.11 and 10.12, respectively, and incorporated herein by reference
2014 Omnibus Equity Incentive
Plan
On January
7, 2014, our Board of Directors adopted the 2014 Omnibus Equity Incentive Plan (the “2014 Plan”), which authorizes
the issuance of distribution equivalent rights, incentive stock options, non-qualified stock options, performance stock, performance
units, restricted ordinary shares, restricted stock units, stock appreciation rights, tandem stock appreciation rights and unrestricted
ordinary shares to our officers, employees, directors, consultants and advisors. The Company has reserved up to 600,000 shares
of common stock for issuance under the 2014 Plan. Pursuant to Nasdaq Listing Rule 5635(c), the Company intends to seek stockholder
approval of the 2014 Plan at our 2014 Annual Meeting of Stockholders.
Resignation of Director
On January
9, 2014, John Kocmur informed the Board of Directors of his decision to resign as a director of the Company, effective immediately.
Mr. Kocmur did not resign because of any disagreement relating to the Company’s operations, policies or practices.
|