- Filing of certain prospectuses and communications in connection with business combination transactions (425)
30 9월 2009 - 12:48AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 29, 2009
VERICHIP CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE
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001-33297
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06-1637809
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(State or other Jurisdiction of
Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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1690 SOUTH CONGRESS AVENUE, SUITE 200
DELRAY BEACH, FLORIDA
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33445
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants telephone number, including area code:
561-805-8008
(Former name or former address if changed since last report.)
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Convertible Preferred Stock Purchase Agreement
On September 29, 2009, VeriChip Corporation, a Delaware corporation (the Company) entered
into a Convertible Preferred Stock Purchase Agreement (the Purchase Agreement) with Optimus
Capital Partners, LLC doing business as Optimus Technology Capital Partners, LLC (Optimus) under
which Optimus is committed to purchase up to $10 million shares of convertible Series A Preferred
Stock of the Company (the Preferred Stock) in one or more tranches. Under the terms of the
Purchase Agreement, from time to time and at the Companys sole discretion, the Company may present
Optimus with a notice to purchase such Preferred Stock (the Notice).
Optimus is obligated to purchase such Preferred Stock on the tenth trading day after the
Notice date, subject to satisfaction of certain closing conditions, including (i) that the Company
is listed for and trading on a trading market, (ii) the representations and warranties of the
Company set forth in the Purchase Agreement are true and correct as if made on each tranche date,
(iii) Optimus shall have received a commitment fee of $800,000 payable only on the first tranche
closing date in the event the gross proceeds from the first tranche closing exceed $800,000; if
such gross proceeds are less than $800,000 then the entire gross proceeds must be offset toward the
commitment fee and the balance of the commitment fee must be paid in cash by the Company, and if
the commitment fee has not been paid in full by the six-month anniversary of the first tranche
closing date then the Company must pay any remaining amount of the commitment fee in cash on such
date, and (iv) that no such purchase would result in Optimus and its affiliates beneficially owning
more than 9.99% of the Companys common stock.
In the event the closing bid price of the Companys common stock during any one or more of the
nine trading days following the delivery of a Notice falls below 75% of the closing bid price on
the trading day prior to the Notice date and Optimus determines not to complete the tranche
closing, then the Company may, at its option, proceed to issue some or all of the applicable
shares, provided that the conversion price for the Preferred Stock that is issued shall reset at
the lowest closing bid price for such nine trading day period.
In addition, redemption of the Preferred Stock by the Company, to the extent such Preferred
Stock shall not have been converted into shares of Common Stock, shall be mandatory in the event
that the Company does not receive stockholder approval for the transactions described in the
Purchase Agreement on or before March 31, 2010.
To faciliate the transactions contemplated by the Purchase Agreement, R & R Consulting
Partners, LLC, a company controlled by Scott R. Silverman, the Companys chief executive officer
and executive chairman of the board, will loan shares of Common Stock to Optimus equal to 135% of
the aggregate purchase price for each tranche pusuant to Stock Loan Agreements between R & R
Consulting Partners, LLC and Optimus. R & R Consulting Partners, LLC is being paid $100,000 plus 2%
interest for entering into the stock loan arrangement. The aggregate amount of shares loaned under
any and all Stock Loan Agreements, together with all other shares sold by or on behalf of the
Company pursuant to General Instruction I.B.6. to Form S-3, can not exceed one-third of the
aggregate market value of the voting and non-voting common equity held by non-affiliates of the
Company in any 12 month period.
A copy of the Purchase Agreement is attached as Exhibit 10.1 to this Current Report on Form
8-K. The description of certain terms of the Purchase Agreement set forth herein does not purport
to be complete and is qualified in its entirety by the provisions of the Purchase Agreement.
Certificate of Designations
On September 29, 2009, pursuant to the Purchase Agreement, the Company filed a Certificate of
Designations of Preferences, Rights and Limitations of Series A Preferred Stock (the Certificate
of Designations) with the Secretary of State of the State of Delaware. A summary of the
Certificate of Designations is set forth below:
Ranking and Voting.
The Preferred Stock ranks, with respect to rights upon liquidation,
winding-up or dissolution, senior to the Companys Common Stock and any other classes of stock or
series of preferred stock of the Company and junior to existing and future indebtedness of the
Company. Otherwise, holders of the Preferred Stock will not be entitled to receive dividends and
will have no right to vote on any matters, questions or proceedings, including, without limitation,
the election of directors.
Conversion.
One or more shares of the Preferred Stock may be converted into shares of Common
Stock of the Company, on or after the six month anniversary of the issuance date, at a conversion
price equal to the closing bid price on the trading day immediately preceeeding the Notice date
(the Conversion Price) by the Company or Optimus. If the Company or Optimus exercises this
conversion option with respect to any Preferred Stock, the Company will issue to Optimus the number
of shares of Common Stock equal to (x) $10,000 per share of Preferred Stock multiplied by (y) the
number of shares of Preferred Stock subject to the Notice divided by (z) the Conversion Price with
respect to such shares. If the Company exercises the conversion prior to the fourth anniversary of
the issuance of such shares, then in addition to the conversion shares, the Company must pay to the
holder additional shares with respect to such converted shares: (i) 35% of the conversion shares if
converted after the six-month anniversary of the issuance date but prior to the first anniversary
of the issuance date, (ii) 27% of the converted shares if converted on or after the first
anniversary but prior to the second anniversary of the issuance date, (iii) 18% of the converted
shares if converted on or after the second anniversary but prior to the third anniversary of the
issuance date, and (iv) 9% of the converted shares if converted on or after the third anniversary
but prior to the fourth anniversary of the issuance date.
Dividends and Other Distributions.
Commencing on the first anniversary of the date of issuance
of any such shares of Preferred Stock, holders of Preferred Stock shall be entitled to receive
dividends on each outstanding share of Preferred Stock, which shall accrue in shares of Preferred
Stock at a rate equal to 10% per annum from the date of issuance. Accrued Dividends shall be
payable annually on the anniversary of the Issuance Date. No dividend shall be payable with respect
to shares of Series A Preferred Stock that are redeemed for cash or converted into shares of Common
Stock prior to the first anniversary of the Issuance Date with respect to such shares.
Liquidation.
Upon any liquidation, dissolution or winding up of the Company after payment or
provision for payment of debts and other liabilities of the Company, before any distribution or
payment is made to the holders of any other class or series of stock, the holders of Preferred
Stock shall first be entitled to be paid out of the assets of the Company available for
distribution to its stockholders an amount with respect to the Series A Liquidation Value, after
which any remaining assets of the Company shall be distributed among the holders of the other class
or series of stock in accordance with the Companys Certificates of Designations and Certificate of
Incorporation.
Redemption
. The Company may redeem, for cash, any or all of the Preferred Stock at any time
at the redemption price per share equal to $10,000 per share of Preferred Stock (the Series A
Liquidation Value), plus any accrued but unpaid dividends with respect to such shares of Preferred
Stock (the Redemption Price). If the Company exercises this redemption option with respect to
any Preferred Stock prior to the fourth anniversary of the issuance of such Preferred Stock, then
in addition to the Redemption Price, the Company must pay to Optimus a make-whole price per share
equal to the
following with respect to such redeemed Preferred Stock: (i) 35% of the Series A Liquidation
Value if redeemed prior to the first anniversary of the issuance date, (ii) 27% of the Series A
Liquidation Value if redeemed on or after the first anniversary but prior to the second anniversary
of the issuance date, (iii) 18% of the Series A Liquidation Value if redeemed on or after the
second anniversary but prior to the third anniversary of the issuance date, and (iv) 9% of the
Series A Liquidation Value if redeemed on or after the third anniversary but prior to the fourth
anniversary of the issuance date.
The Preferred Stock and Common Stock issuable upon conversion of the Preferred Stock, if any,
will not be or have not been registered under the Securities Act of 1933 and may not be offered or
sold in the United States absent registration or an applicable exemption from registration
requirements.
A copy of the Certificate of Designations is attached as Exhibit 3.1 to this Current Report on
Form 8-K. The description of certain terms of the Certificate of Designations set forth herein does
not purport to be complete and is qualified in its entirety by the provisions of the Certificate of
Designations.
ITEM 3.02. Unregistered Sales of Equity Securities.
The Company agreed to issue the Preferred Stock and Common Stock issuable upon conversion of
the Preferred Stock in reliance upon the exemption from registration under Section 4(2) of the
Securities Act of 1933, as amended (the Act). The information disclosed under Item 1.01 is
incorporated into this Item 3.02 in its entirety.
ITEM 3.03. Material Modification to Rights of Security Holders.
The information disclosed under Item 1.01 of this report is incorporated into this Item 3.03
in its entirety.
ITEM 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information disclosed under Item 1.01 of this report is incorporated into this Item 5.03
in its entirety.
ITEM 8.01. Other Events.
On September 29, 2009, the Company issued a press release announcing the entry into the
Purchase Agreement as set forth in Item 1.01 of this Current Report on Form 8-K. The press release
is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
On September 29, 2009, the Company issued a press release to announce further details of the
development of its virus triage detection system for the H1N1 virus. The press release is furnished
as Exhibit 99.2 to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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Exhibit No.
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Description
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3.1
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Certificate of Designations of Convertible Series A Preferred
Stock (included as part of Exhibit 10.1)
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10.1
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Convertible Preferred Stock Purchase Agreement, dated
September 29, 2009, between VeriChip Corporation and Optimus
Capital Partners, LLC
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99.1
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Press Release of VeriChip Corporation dated September 29, 2009
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99.2
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Press Release of VeriChip Corporation dated September 29, 2009
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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 hereunto duly authorized.
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Date: September 29, 2009
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VeriChip Corporation
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/s/ William J. Caragol
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William J. Caragol
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Acting Chief Financial Officer
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EXHIBIT INDEX
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Exhibit No.
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Description
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3.1
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Certificate of Designations of Convertible Series A Preferred
Stock (included as part of Exhibit 10.1)
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10.1
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Convertible Preferred Stock Purchase Agreement, dated
September 29, 2009, between VeriChip Corporation and Optimus
Capital Partners, LLC
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99.1
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Press Release of VeriChip Corporation dated September 29, 2009
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99.2
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Press Release of VeriChip Corporation dated September 29, 2009
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Verichip (MM) (NASDAQ:CHIP)
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