PROPOSAL 2—AUTHORIZED SHARE INCREASE
Introduction
Our Board has unanimously determined that it is in the best interests of the Company and our stockholders to amend Section 4 of the Certificate of Incorporation (such amendment as shown in Appendix B) to increase the number of authorized shares of Common Stock by 4,500,000,000 to 5,000,000,000, par value $0.0001.
Why did the Board approve the Authorized Share Increase?
As of January 7, 2016, there were no shares of unissued and unreserved Common Stock available for issuance under our authorized capital. Because the Company’s authorized share capital is currently 500,000,000 shares of Common Stock, we have insufficient shares to cover our obligations unless the Company’s stockholders approve either the Authorized Share Increase or the Reverse Stock Split. As of January 7, 2016, there were 10,373,935 shares of Common Stock outstanding, 1,000,000 shares reserved for future issuance of options under our 2015 Equity Incentive Plan and 9,404,143 shares reserved upon the conversion of our Series A Convertible Preferred Stock. Additionally, there are 312,425,792 shares issuable upon exercise of warrants issued and outstanding, including our Series A Warrants. Based on the price of our Common Stock on January 7, 2016 of $0.26, we would need 310,918,125 shares of Common Stock to settle the cashless exercise of all outstanding Series A Warrants. If the price of our Common Stock dropped to as low as $0.02, however, we would need 4,041,935,620 shares of Common Stock to settle the cashless exercise of all outstanding Series A Warrants.
If we do not have sufficient available authorized Common Stock for issuance upon exercise of the Series A Warrants, we are required to make cash payments in lieu of the issuance of common stock. We do not believe that we currently have sufficient available common stock to fully satisfy these obligations based on the price of our Common Stock as of January 7, 2016. We, therefore, could be required to make significant cash payments, which we estimate could be up to approximately $81 million. As of December 8, 2015, we had cash and cash equivalents of approximately $28 million and as of the date hereof we had insufficient cash and cash equivalents to settle all of the Series A Warrants in cash.
What is the purpose of the Authorized Share Increase?
The Board recommends the Authorized Share Increase for the following reasons:
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To permit the Company to issue shares of Common Stock to holders of the Company’s Series A Warrants upon exercise of the Series A Warrants;
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To permit the Company to make future issuances or exchanges of Common Stock for capital raising purposes or to restructure outstanding securities of the Company, including the Series A Warrants;
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To permit the exercise of the Exchange Warrants if the Exchange Offer is successful; and
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To permit the Company to make future issuances of options, warrants and other convertible securities.
Why would the Company not have sufficient shares of Common Stock to issue shares of Common Stock upon the exercise of the Series A Warrants?
On July 29, 2015, we sold 3,761,657 Units in a public offering. Each Unit consisted of one-fourth of a share of Series a Convertible Preferred Stock and 20 Series A Warrants. Each one-fourth share of Series A Convertible Preferred Stock is convertible into ten shares of Common Stock at the option of the holder. The holders of Series A Warrants may exercise Series A Warrants by paying the exercise price of $1.24 in cash or, in lieu of payment of the exercise price in cash by electing to receive a cash payment from us (subject to certain conditions not being met by the Company) equal to the Black Scholes Value (as defined below) of the number of shares the holder elects to exercise, which we refer to as the Black Scholes