Unassociated Document
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): December 29, 2008
NEONODE
INC.
(Exact
name of issuer of securities held pursuant to the plan)
Commission
File Number 0-8419
|
Delaware
|
|
94-1517641
|
|
(State
or other jurisdiction
of
incorporation)
|
|
(I.R.S.
Employer
Identification
No.)
|
4000
Executive Parkway, Suite 200, San Ramon, CA 94583
(Address
of principal executive offices, including Zip Code)
Registrant’s
telephone number, including area code:
(925)
355-7700 — USA
Not
Applicable
(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 (see General Instruction A.2. below):
|
¨
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
¨
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
¨
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
|
|
¨
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
|
TABLE
OF CONTENTS
|
Item
3.02
|
Unregistered
Sales of Equity Securities
|
3
|
|
Item
9.01
|
Financial
Statements and Exhibits
|
4
|
Exhibit
Index
Ex-4.1
Certificate of Designations for the Series A and Series B Preferred
Stock
Ex-10.1 Form
of Note Conversion Agreement
Ex-10.2 Form
of Warrant Conversion Agreement
Ex-10.3 Form
of Subscription Agreement
Ex-10.4 Share
Exchange Agreement
Ex-99.1
Neonode Proforma Consolidated Balance Sheet
Ex-99.2
Press Release
Item 3.02.
Unregistered Sale of Equity Securities
On December 27, 2008, to comply with
the relevant NASDAQ maintenance criteria and to raise capital to finance Neonode
Inc.’s (the “Registrant”) business going forward, the Board of Directors of the
Registrant approved the entry by the Registrant into several refinancing and
capital raising agreements (together, the “Refinancing Agreements”) relating to
the unregistered sale of up to an aggregate amount of 1,000,002 shares of the
Registrant’s preferred stock, par value $0.001 per share.
On
December 29, 2008, the Registrant commenced entering into Note Conversion
Agreements with the holders of convertible notes and promissory notes of the
Registrant note holders in the aggregate amount of up to $6,341,611, for the
issuance of up to 250,000 shares of Series A Preferred Stock in exchange for the
surrender of the Convertible Notes by the note holders. As of the
date of this Report, the Registrant has entered into Note Conversion Agreements
with 25 out of 27 note holders for the surrender of notes in the aggregate
amount of $6,187,930 in consideration for the issuance of 232,915.52 shares of
Series A Preferred Stock.
On December 29, 2008, the Registrant
commenced entering into Warrant Conversion Agreements with the holders of
warrants for the purchase of shares, notes, and/or additional warrants of the
Registrant, for the issuance of up to 100,934 shares of Series B Preferred Stock
in exchange for the surrender of the warrants by the warrant
holders. As of the date of this Report, the Registrant has entered
into Warrant Conversion Agreements with 57 out of 129 warrant holders for the
issuance of 76,491.41 shares of Series B Preferred Stock.
On December 30, 2008, the Registrant
commenced entering into Subscription Agreements with certain
subscribers (the “Subscribers”), for the issuance of up to 150,000
shares of Series A Preferred Stock to the Subscribers, at a price equal to $10
per share, for an aggregate purchase price of up to $1,500,000. As of
the date of this Report, the following Subscribers have signed Subscription
Agreements and have agreed to invest an aggregate of $959,404 in the
Registrant: Iwojima Sarl, Pertus Holdings S.A., PA Brazil Holding
B.V., Anders Stjernstrom, Magnus Lindhal, American Investment LTD, Longview Fund
LP and Dectra Sarl.
On December 30, 2008, the Registrant
entered into a Share Exchange Agreement with AB Cypressen 9683 (“NewCo”), and
the stockholders of NewCo: Iwojima Sarl, Wirelesstoys AB, and Athemis
Ltd. (the “NewCo Stockholders”), pursuant to which the Registrant agreed to
acquire all of the issued and outstanding shares of NewCo in exchange for the
issuance of 495,000 shares of Series A Preferred Stock to the NewCo
Stockholders. Pursuant to the terms of the Share Exchange Agreement,
upon the closing of the transaction, NewCo will become a wholly-owned subsidiary
of the Registrant.
In addition, the Registrant has agreed
to issue 4,068 shares of Series A Preferred Stock to Ellis International LP as
full consideration for certain brokerage services supplied by Ellis
International LP to the Registrant.
The
rights, preferences, privileges, and restrictions of the Preferred A Stock and
of the Preferred B Stock are as described in the Certificate of Designations
filed by the Registrant with the Delaware Secretary of State. A copy
of the Certificate of Designations is attached hereto as Exhibit 4.1., and is
incorporated herein by reference. Initially, each share of Preferred
A Stock and each share of Preferred B Stock is convertible into one share of the
Registrant’s common stock.
Any
modification of the conversion rate for the conversion of the shares of
preferred stock to be issued pursuant to the Refinancing Agreements into shares
of common stock is subject to stockholder approval. In accordance with the
NASDAQ rules, shareholder approval is a prerequisite to any modification of the
conversion rate and subsequent issuance of common stock securities and, as such,
no shares of the preferred stock issued in these transactions can be converted
into common stock other than on a 1 for 1 basis until the required
shareholder approval is obtained.
The
foregoing description of the Note Conversion Agreement is qualified in its
entirety by reference to the Form of Note Conversion Agreement attached hereto
as Exhibit 10.1 and incorporated herein by reference.
The foregoing description of the
Warrant Conversion Agreement is qualified in its entirety by reference to the
Form of Warrant Conversion Agreement attached hereto as Exhibit 10.2, and
incorporated herein by reference.
The foregoing description of the
Subscription Agreement is qualified in its entirety by reference to the Form of
Subscription Agreement attached hereto as Exhibit 10.3, and incorporated herein
by reference.
The foregoing description of the Share
Exchange Agreement is qualified in its entirety by reference to the Share
Exchange Agreement in the form attached hereto as Exhibit 10.4, and incorporated
herein by reference.
We expect that the issuance of shares
of our preferred stock pursuant to the terms of the Refinancing Agreements will
be exempt from registration under Section 4(2) of the Securities Act
of 1933, as amended (the “Securities Act”), and Regulation D and/or Regulation S
promulgated thereunder, based upon our compliance with such rules and
regulations.
We expect
the unregistered sale of shares of preferred stock to U.S. persons to comply
with the provisions of Regulation D under the Securities Act, as we will be
selling these shares to “accredited investors” within the meaning of Regulation
D. We expect the unregistered sale of shares of preferred stock to
non-U.S. persons to comply with the requirements of Regulation S under the
Securities Act, as we will be selling these shares of preferred stock to the
persons who are not U.S. Persons within the meaning of Regulation S in an
offshore transaction, and no selling efforts were made in the U.S.
The
shares of preferred stock to be issued in the unregistered sales will not be
registered under the Securities Act, or any state securities laws, and may not
be offered or sold in the United States absent registration or an applicable
exemption from the registration requirements of the Securities Act.
We expect the initial closing of the
transactions contemplated by the Refinancing Agreements to occur on or before
December 31, 2008.
The
completion of the foregoing transactions allows the Company to regain compliance
with Nasdaq Marketplace Rule 4310(c)(3)(A) (the “Rule”) which requires the
Company to maintain a minimum stockholders’ equity of $2,500,000 and provides
sufficient shareholders’ equity to maintain compliance with the Rule. The
Company has also paid the $43,615.08 past due Nasdaq listing fees. There can be
no assurance that the Nasdaq Listings Qualifications Panel will grant the
Company’s request for continued listing.
Item 9.01.
Financial Statements and Exhibits.
(d)
Exhibits
|
Exhibit No.
|
|
Description of Exhibit
|
|
|
|
|
|
4.1
|
|
Certificate
of Designations for the Series A and Series B Preferred Stock filed on
December 29, 2008 with the Secretary of State of Delaware designating the
rights, preferences, privileges, and restrictions of the Preferred A Stock
and of the Preferred B Stock.
|
|
|
|
|
|
10.1
|
|
Form
of Note Conversion Agreement dated as of December 29, 2008, by and between
the Registrant and the note holders.
|
|
|
|
|
|
10.2
|
|
Form
of Warrant Conversion Agreement Stock Purchase Agreement, dated as of
December 29, 2008, by and between Registrant and the warrant
holders.
|
|
10.3
|
|
Form
of Subscription Agreement, dated as of December 29, 2008, by and between
the Registrant and the subscribers.
|
|
|
|
|
|
10.4
|
|
Share
Exchange Agreement, dated as of December 30, 2008, by and between the
Registrant, AB Cypressen 9683, and the stockholders of AB Cypressen
9683.
|
|
|
|
|
|
99.1
|
|
Neonode
Inc Proforma Consolidated Balance Sheet.
|
|
|
|
|
|
99.2
|
|
Press
release “Neonode Announces Completion of Restructuring and Financing
Transactions”, dated December 31,
2008.
|
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 thereunto
duly authorized.
|
|
NEONODE,
INC.
|
|
|
|
|
|
|
|
|
By:
|
/s/
David W. Brunton
|
|
|
|
Name:
|
David
W. Brunton
|
|
|
|
Title:
|
Chief
Financial Officer
|
|
|
|
|
|
|
|
Date:
December 31, 2008
|
|
|
|