More dilution:
Item 1.01
Entry into a Material Definitive Agreement.
On August 10, 2017, Uni-Pixel, Inc. (the “Company”) entered into an equity purchase agreement (the “Equity Purchase Agreement”) with L2 Capital, LLC, a Kansas limited liability company (“L2 Capital”), relating to an offering (the “Offering”) of an aggregate of up to 14,146,649 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), of which 13,085,650 of such Shares are being offered in an indirect primary offering consisting of an equity line of credit. The Offering is being made pursuant to a prospectus supplement dated and filed with the Securities and Exchange Commission (“SEC”) on August 10, 2017 and an accompanying prospectus dated July 10, 2015, under the Company’s shelf registration statement on Form S-3 declared effective by the SEC on January 10, 2015 (File No. 333-200316) (the “Registration Statement”). Prior to the Company’s entry into the Equity Purchase Agreement, as of August 4, 2017, 73,210,642 shares of Common Stock were issued and outstanding.
The Company initially issued 1,060,999 Shares (the “Commitment Shares”) to L2 Capital as an inducement to enter into the Equity Purchase Agreement. Additionally, under the terms of the Equity Purchase Agreement, the Company has the right to “put,” or sell, up to 13,085,650 shares of Common Stock (the “Put Shares”) to L2 Capital for an Investment Amount (as defined below and subject to adjustment) based upon a per share price (the “Purchase Price”) equal to the greater of (i) $0.36 (the “Fixed Price”) or (ii) 90% of the Market Price (as defined below) on the date the Purchase Price is calculated (the “Variable Price”). For purposes of calculating the Variable Price, the “Market Price” means the lowest traded price on the Principal Market for any trading day during the Valuation Period, as reported by Bloomberg Finance L.P. or other reputable source, which shall be at least $0.05. The “Principal Market” means any of the national exchanges (i.e., the NYSE, NYSE AMEX or Nasdaq), or principal quotation systems (i.e., OTCQX, OTCQB, OTC PINK or the OTC Bulletin Board), or other principal exchange or recognized quotation system which is at the time the principal trading platform or market for our Common Stock.
From time to time over the term of the Equity Purchase Agreement, and at the Company’s sole discretion, the Company may make the put of the Put Shares by presenting L2 Capital with put notices (“Put Notices”) specifying a number of Put Shares to be purchased by L2 Capital pursuant to the terms of the Equity Purchase Agreement. Each Put Notice shall require L2 Capital to purchase Put Shares (i) in a minimum amount of not less than $25,000 and (ii) in a maximum amount of the lesser of (a) $1,000,000 or (b) 150% of the Average Daily Trading Value (as defined below). The “Average Daily Trading Value” means the average daily trading volume of the Common Stock in the 10 trading days immediately preceding the applicable Put Date, multiplied by the lowest traded price of the Common Stock in the 10 trading days immediately preceding the applicable Put Date. The “Put Date” means the date on which a Put Notice is deemed delivered, as set forth in the Equity Purchase Agreement.
The Company is required to deliver Put Shares within 2 trading days of the applicable Put Date. Each such purchase of Put Shares will have an individual closing (each, a “Closing”) within 1 trading day following the end of the applicable Valuation Period. The “Valuation Period” shall be the period of 5 trading days immediately following the date on which the Put Shares are delivered to L2 Capital’s brokerage account.
At the applicable Closing, L2 Capital shall deliver the Investment Amount (as defined below and subject to adjustment) to the Company. The “Investment Amount” means the aggregate Purchase Price for the Put Shares to the Company, minus clearing costs payable to L2 Capital’s broker or to the Company’s transfer agent for the issuance of the shares (the “Clearing Costs”). The number of Put Shares upon which the Investment Amount is calculated is subject to adjustment in the event that the Variable Price is less than the Fixed Price with respect to a Put. In such event, the number of Put Shares as calculated with respect to the Investment Amount shall be reduced to equal the quotient of (A) the product of the Put Shares of such Put multiplied by the Variable Price, minus the Clearing Costs, divided by (B) the Fixed Price. In addition, the number of shares equal to the Put Shares as initially stated in the Put Notice, and such reduced number of Put Shares, shall be deemed true-up shares which shall not be included as part of the Put Shares for purposes of calculation of the Investment Amount.
The Company may issue Put Shares at any time on or after the date of the Equity Purchase Agreement, until the earlier of (i) the date on which L2 Capital has purchased 13,085,650 Put Shares, or (ii) July 9, 2018 (such period, the “Commitment Period”), unless the Equity Purchase Agreement is terminated earlier in accordance with its terms; provided, that, the Company is not permitted to submit more than one Put Notice to L2 Capital in any 10 trading day period without L2 Capital’s consent. Further, the number of Put Shares to be purchased by L2 Capital may not exceed the number of shares that, when added to the number of shares of the Common Stock then beneficially owned by L2 Capital, would exceed 9.99% of the shares of Common Stock outstanding. Additionally, the Company is not required to deliver Put Shares, and L2 Capital is not entitled to receive such Put Shares, if the issuance of such Put Shares would exceed the aggregate number of shares of the Common Stock that the Company may issue without breaching our obligations under the rules or regulations of the Principal Market.
With regard to the purchase and resale of the Put Shares, L2 Capital is an “underwriter” within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). Any broker-dealers or agents that are involved in resales of Put Shares may be deemed “underwriters.” The Company will receive proceeds from the sale of the Put Shares directly to L2 Capital pursuant to the Equity Purchase Agreement, however the Company will not receive any proceeds from the resale of the Put Shares by L2 Capital thereafter. The Benchmark Company, LLC has acted as the sole placement agent in connection with the Offering, for which it will receive a placement agent fee equal to 1% of the estimated gross proceeds calculated as the number of Shares offered, net of the Commitment Shares, multiplied by the Fixed Price.
The Equity Purchase Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and L2 Capital, including for liabilities under the Securities Act other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Equity Purchase Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
A copy of the Equity Purchase Agreement is attached as Exhibit 1.1 to this report and is incorporated by reference herein. The foregoing description of the terms of the Equity Purchase Agreement is only a summary of the material terms of the Equity Purchase Agreement, does not purport to be complete and is qualified in its entirety by reference to such exhibit.
In connection with the offering and sale of the Common Stock, the following exhibits are being filed with this Current Report on Form 8-K to be incorporated by reference into the Registration Statement: (1) the Equity Purchase Agreement (Exhibit 1.1); (2) the opinion of Crowell & Moring LLP as to the validity of the sale and issuance of the Shares in the Offering (Exhibit 5.1); and (3) the consent of Crowell & Moring LLP (Exhibit 23.1, included in Exhibit 5.1).
