The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”). This Amendment No. 2 amends the Schedule 13D as specifically set forth herein.
|
Item 2.
|
Identity and Background.
|
|
|
Item 2 is hereby amended and restated as follows:
|
|
|
(a)
|
This
statement
is filed by:
|
|
|
(i)
|
Iroquois Master Fund Ltd., a Cayman Islands exempted limited company (“Iroquois Master Fund”);
|
|
|
(ii)
|
Iroquois Capital Management, LLC, a Delaware limited liability company (“Iroquois Capital”), which serves as the investment advisor to Iroquois Master Fund;
|
|
|
(iii)
|
Iroquois Capital Investment Group LLC, a Delaware limited liability company (“ICIG”);
|
|
|
(iv)
|
American Capital Management, LLC, a Delaware limited liability company (“American Capital”);
|
|
|
(v)
|
Richard Abbe, who serves as the Director of Iroquois Master Fund and President of Iroquois Capital; and
|
|
|
(vi)
|
Kimberly Page, who serves as the manager of American Capital.
|
Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing Agreement, as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
(b) The address of the principal office of each of the Reporting Persons is 205 East 42nd Street, 20th Floor, New York, New York 10017. The officers and directors of Iroquois Master Fund and their principal occupations and business addresses are set forth on
Schedule A
to the Schedule 13D and are incorporated by reference in this Item 2.
(c) The principal business of Iroquois Master Fund is serving as a private investment fund. The principal business of Iroquois Capital is serving as an investment adviser that provides investment advisory services to Iroquois Master Fund. The principal business of ICIG is serving as a private investment fund. The principal business of American Capital is serving as an investment vehicle for investment purposes. The principal occupation of Mr. Abbe is serving as the Director of Iroquois Master Fund and President of Iroquois Capital. The principal occupation of Ms. Page is serving as Chief Operating Officer, Compliance Officer of Iroquois Capital and manager of American Capital.
(d) No
Reporting
Person, nor any person listed on
Schedule A
to the Schedule 13D, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person, nor any person listed on
Schedule A
to the Schedule 13D, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Mr.
Abbe
and Ms. Page are citizens of the United States of America. The citizenship of the persons listed on
Schedule A
to the Schedule 13D is set forth therein.
|
Item 4.
|
Purpose of the Transaction
.
|
|
|
Item 4 is hereby amended to add the following:
|
On August 15, 2016, the Reporting Person and Mr. Silverman (collectively, “Iroquois”) entered into a Nomination, Standstill and Voting Agreement (the “Agreement”) with the Issuer. In connection with Iroquois’ entering into the Agreement, Iroquois Master Fund has withdrawn that certain Nomination Letter delivered to the Issuer’s Corporate Secretary on July 29, 2016 nominating Mr. Silverman for election to the Board at the 2016 annual meeting of stockholders (the “2016 Annual Meeting”). The following description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
Pursuant to the terms of the Agreement, the Issuer agreed, among other things: (i) to appoint Mr. Silverman to fill a current vacancy on the Board resulting from the Board’s adoption of a resolution increasing the size of the Board from 4 directors to 5 directors and (ii) to include Mr. Silverman in its slate of nominees for election as directors of the Issuer at the 2016 Annual Meeting.
Pursuant to the terms of the Agreement, Iroquois agreed, among other things: (i) to vote all Shares beneficially owned by Iroquois at the 2016 Annual Meeting (A) in favor of the Issuer’s nominees, and (B) in accordance with the Board’s recommendation with respect to any Issuer or stockholder proposal presented at the 2016 Annual Meeting; provided, however, that in the event that Institutional Shareholder Services Inc. (“ISS”) or Glass Lewis & Co., LLC (“Glass Lewis”) recommends otherwise with respect to any Issuer proposal or stockholder proposal presented at the 2016 Annual Meeting (other than proposals relating to the election of directors), Iroquois shall be permitted to vote in accordance with the ISS or Glass Lewis recommendation, and (ii) to not, directly or indirectly, (A) nominate or recommend any person for election at the 2016 Annual Meeting, (B) submit any proposal for consideration at, or bring any other business before, the 2016 Annual Meeting, or (C) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign with respect to the 2016 Annual Meeting. Iroquois also agreed not to publicly or privately encourage or support any other stockholder to take any of the actions described in subclause (ii) of this paragraph.
In addition, Iroquois agreed to customary standstill restrictions during the period beginning on the date of the Agreement and ending at such time as Mr. Silverman is no longer serving as a member of the Issuer’s Board (the “Standstill Period”). The standstill provisions provide, among other things, that, during the Standstill Period, Iroquois will not: (i) solicit proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or proxies or consents, in each case, with respect to the securities of the Issuer, (ii) form, join or in any way participant in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Shares; provided, however, that nothing shall limit the ability of an affiliate of Iroquois to join the “group” so long as any such affiliate agrees to be bound by the provisions in the Agreement, (iii) deposit any Shares in any voting trust or subject any Shares to any arrangement or agreement with respect to the voting of any Shares, other than any such voting trust, arrangement or agreement solely among the members of Iroquois and otherwise in accordance with the Agreement, (iv) seek or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Issuer or seek, encourage or take any other action with respect to the election or removal of any directors, (v) seek, alone or in concert with others, representation on the Board, or (vi) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Issuer at any annual or special meeting of stockholders.
|
Item 5.
|
Interest in Securities of the Issuer.
|
|
|
Items 5(a)-(c) are hereby amended and restated as follows:
|
The aggregate percentage of Shares reported owned by each person named herein is based upon 2,866,567 Shares, which represents (1) the 2,848,659 Shares outstanding, as of August 4, 2016, which is the total number of Shares outstanding as reported in the Issuer’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on August 5, 2016 plus (2) 17,908 Shares issuable upon the conversion of certain Series H-1 Preferred Stock owned by Iroquois Master Fund.
Excluded from the Reporting Person’s beneficial ownership are an aggregate of 2,133,353 Shares underlying certain Series H and H-1 Preferred Stock and issuable upon the exercise of certain warrants, because of a beneficial ownership limitation in the form of a conversion cap that precludes the Reporting Persons, collectively, from converting such Preferred Stock or exercising such warrants to the extent that the Reporting Persons would, after such conversion or exercise, collectively beneficially own (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended) in excess of 9.99% of the Shares outstanding (the “Beneficial Ownership Limitation”).
The excluded Shares include: (i) 97,000 Shares underlying Series H Preferred Stock owned by Iroquois Master Fund, 685,792 Shares underlying Series H-1 Preferred Stock owned by Iroquois Master Fund and 1,055,481 Shares issuable upon the exercise of certain warrants owned by Iroquois Master Fund; (ii) 54,100 Shares underlying Series H-1 Preferred Stock owned by ICIG and 81,190 Shares issuable upon the exercise of certain warrants owned by ICIG and (iii) 23,500 Shares underlying Series H Preferred Stock owned by American Capital, 54,100 Shares underlying Series H-1 Preferred Stock owned by American Capital and 81,190 Shares issuable upon the exercise of certain of the Issuer’s warrants directly owned by American Capital.
As such, the following beneficial ownership information excludes an aggregate of 2,133,353 Shares underlying certain Series H and H-1 Preferred Stock and issuable upon the exercise of certain warrants due to the Beneficial Ownership Limitation. The Reporting Persons may choose to convert or exercise, as applicable, the Series H or H-1 Preferred Stock and warrants, in other amounts among the Reporting Persons, while continuing to comply with the Beneficial Ownership Limitation.
|
|
(a)
|
As of the close of business on August 17, 2016, Iroquois Master Fund beneficially owned 277,839 Shares consisting of (i) 259,931 Shares directly and beneficially owned by Iroquois Master Fund, and (ii) 17,908 Shares underlying Series H-1 Preferred Stock owned by Iroquois Master Fund.
|
Percentage: 9.7%
|
|
(b)
|
1. Sole power to vote or direct vote: 0
|
|
|
2. Shared power to vote or direct vote: 277,839
|
|
|
3. Sole power to dispose or direct the disposition: 0
|
|
|
4. Shared power to dispose or direct the disposition: 277,839
|
|
|
(c)
|
The transactions in the Shares by Iroquois Master Fund since the filing of Amendment No. 1 to the Schedule 13D are set forth in
Schedule B
and are incorporated herein by reference.
|
|
|
(a)
|
As of the close of business on August 17, 2016, Iroquois Capital beneficially owned 277,839 Shares by virtue of its relationship as the investment manager to Iroquois Master Fund.
|
Percentage: 9.7%
|
|
(b)
|
1. Sole power to vote or direct vote: 0
|
|
|
2. Shared power to vote or direct vote: 277,839
|
|
|
3. Sole power to dispose or direct the disposition: 0
|
|
|
4. Shared power to dispose or direct the disposition: 277,839
|
|
|
(c)
|
Iroquois Capital has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.
|
|
|
(a)
|
As of the close of business on August 17, 2016, ICIG directly and beneficially owned 0 Shares.
|
Percentage: 0%
|
|
(b)
|
1. Sole power to vote or direct vote: 0
|
|
|
2. Shared power to vote or direct vote: 0
|
|
|
3. Sole power to dispose or direct the disposition: 0
|
|
|
4. Shared power to dispose or direct the disposition: 0
|
|
|
(c)
|
ICIG has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.
|
|
|
(a)
|
As of the close of business on August 17, 2016, American Capital directly and beneficially owned 8,674 Shares.
|
Percentage: Less than 1%
|
|
(b)
|
1. Sole power to vote or direct vote: 0
|
|
|
2. Shared power to vote or direct vote: 8,674
|
|
|
3. Sole power to dispose or direct the disposition: 0
|
|
|
4. Shared power to dispose or direct the disposition: 8,674
|
|
|
(c)
|
American Capital has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.
|
|
|
(a)
|
As of the close of business on August 17, 2016, Mr. Abbe beneficially owned 277,839 Shares by virtue of his relationship as the Director of Iroquois Master Fund and President of Iroquois Capital.
|
Percentage: 9.7%
|
|
(b)
|
1. Sole power to vote or direct vote: 277,839
|
|
|
2. Shared power to vote or direct vote: 0
|
|
|
3. Sole power to dispose or direct the disposition: 277,839
|
|
|
4. Shared power to dispose or direct the disposition: 0
|
|
|
(c)
|
Mr. Abbe has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D. The transactions in the Shares on behalf of Iroquois Master Fund since the filing of Amendment No. 1 to the Schedule 13D are set forth in
Schedule B
and are incorporated herein by reference.
|
|
|
(a)
|
As of the close of business on August 17, 2016, Ms. Page beneficially owned 8,674 Shares by virtue of her relationship as the manager of American Capital.
|
Percentage: Less than 1%
|
|
(b)
|
1. Sole power to vote or direct vote: 8,674
|
|
|
2. Shared power to vote or direct vote: 0
|
|
|
3. Sole power to dispose or direct the disposition: 8,674
|
|
|
4. Shared power to dispose or direct the disposition: 0
|
|
|
(c)
|
Ms. Page has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.
|
As of the close of business on August 17, 2016 the Reporting Persons collectively beneficially owned an aggregate of 286,513 Shares (including certain Securities held by the Reporting Persons and excluding certain Securities held by the Reporting Persons subject to the Beneficial Ownership Limitation described in this Item 5), constituting approximately 9.99% of the Shares outstanding.
Each Reporting Person, as a member of a “group” with the other Reporting Persons for the purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, may be deemed the beneficial owner of the Shares directly owned by the other Reporting Persons. Each Reporting Person disclaims beneficial ownership of such Shares except to the extent of his or its pecuniary interest therein.
|
Item 6.
|
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
.
|
|
|
Item 6 is hereby amended to add the following:
|
On August 15, 2016, the Reporting Persons, the Issuer and Mr. Silverman entered into the Agreement defined and described in Item 4 above and attached as Exhibit 99.1 hereto.
On August 17, 2016, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law. The Joint Filing Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
|
Item 7.
|
Material to be Filed as Exhibits
.
|
|
|
Item 7 is hereby amended to add the following exhibit:
|
|
|
99.1
|
Nomination, Standstill and Voting Agreement by and among Iroquois Master Fund Ltd., Iroquois Capital Management, LLC, Iroquois Capital Investment Group LLC, American Capital Management, LLC, Richard Abbe, Kimberly Page, Joshua Silverman and the Issuer, dated August 15, 2016.
|
|
|
99.2
|
Joint Filing Agreement by and among Iroquois Master Fund Ltd., Iroquois Capital Management, LLC, Iroquois Capital Investment Group LLC, American Capital Management, LLC, Richard Abbe and Kimberly Page, dated August 17, 2016.
|
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: August 17, 2016
|
IROQUOIS MASTER FUND LTD.
|
|
|
|
By:
|
Iroquois Capital Management, LLC,
its investment manager
|
|
|
|
|
IROQUOIS CAPITAL INVESTMENT GROUP LLC
|
|
|
|
IROQUOIS CAPITAL MANAGEMENT, LLC
|
|
|
|
|
By:
|
|
|
|
Name:
|
Richard Abbe
|
|
|
Title:
|
President
|
|
AMERICAN CAPITAL MANAGEMENT, LLC
|
|
|
|
By:
|
|
|
|
Name:
|
Kimberly Page
|
|
|
Title:
|
Manager
|
SCHEDULE A
Directors of Iroquois Master Fund Ltd.
|
Name and Position
|
Present Principal Occupation
|
Business Address
|
|
|
|
|
|
Richard Abbe, Director
|
Hedge Fund Manager
|
205 East 42nd Street, 20th Floor, New York, New York 10017
|
SCHEDULE B
Transactions in the Shares Since the Filing of Amendment No. 1 to the Schedule 13D
|
Nature of the Transaction
|
Shares
Purchased/(Sold)
|
Price Per
Share($)
|
Date of
Purchase / Sale
|
IROQUOIS MASTER FUND LTD.
|
Conversion of Preferred Stock*
|
142,500
|
-
|
08/04/2016
|
|
Purchase of Common Stock
|
8,000
|
1.5400
|
08/02/2016
|