Current Report Filing (8-k)
December 02 2016 - 5:02PM
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): November 30, 2016
POSITIVEID
CORPORATION
(Exact
name of registrant as specified in its charter)
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 Number)
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1690
South Congress Avenue, Suite 201
Delray
Beach, Florida 33445
(Address
of principal executive offices) (zip code)
(561)
805-8000
(Registrant’s
telephone number, including area code)
(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):
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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))
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Cautionary
Note on Forward-Looking Statements
This
Current Report on Form 8-K (this “Report”) and any related statements of representatives and partners of the Company
contain, or may contain, among other things, certain “forward-looking statements” within the meaning of Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). Such forward-looking statements involve significant risks and uncertainties.
Such statements may include, without limitation, statements with respect to the Company’s plans, objectives, projections,
expectations and intentions and other statements identified by words such as “projects,” “may,” “will,”
“could,” “would,” “should,” “believes,” “expects,” “anticipates,”
“estimates,” “intends,” “plans,” or similar expressions. These statements are based upon the
current beliefs and expectations of the Company’s management and are subject to significant risks and uncertainties, including
those detailed in the Company’s filings with the Securities and Exchange Commission (the “SEC”). Actual results
may differ significantly from those set forth in the forward-looking statements. These forward-looking statements involve certain
risks and uncertainties that are subject to change based on various factors (many of which are beyond the Company’s control).
The Company undertakes no obligation to publicly update any forward-looking statements, whether as a result of new information,
future events or otherwise, except as required by applicable law.
Item
1.01 Entry into a Material Definitive Agreement.
On
November 30, 2016, PositiveID Corporation (the “Company”) closed a Securities Purchase Agreement (“SPA”)
with ADAR BAYS, LLC (the “Investor”), providing for the purchase of three Convertible Redeemable Notes in the aggregate
principal amount of $183,750 (the “Notes”), with the first note being in the amount of $52,500 (“Note I”),
the second note being in the amount of $52,500 (“Note II”), and the third note being in the amount of $78,750 (“Note
III”). Note I has been funded, with the Company receiving $50,000 of net proceeds (net of original issue discount). Note
II will initially be paid for by the issuance of an offsetting $50,000 secured note issued to the Company by the Investor (“Investor
Note 1”), and Note III will initially be paid for by the issuance of an offsetting $75,000 secured note issued to the Company
by the Investor (“Investor Note 2,” collectively the “Secured Notes”). The funding of Note II and Note
III is subject to the mutual agreement of the Investor and the Company. The Investor is required to pay the principal amount of
the Secured Notes in cash and in full prior to executing any conversions under Note II and Note III. The Notes bear an interest
rate of 10%, and are due and payable on November 30, 2017. The Notes may be converted by the Investor at any time into shares
of Company’s common stock (as determined in the Notes) calculated at the time of conversion, except for Note II and Note
III, which require full payment of the Secured Notes by the Investor before conversions may be made. The Notes (subject to funding
in the case of Note II and Note III) may be converted by the Investor at any time into shares of Company’s common stock
at a price at a price equal to 65% of the lowest closing bid price of the common stock as reported on the OTC Link ATS owned by
OTC Markets Group for the 15 prior trading days including the day upon which a notice of conversion is received by the Company.
The
Notes are long-term debt obligations that are material to the Company. The Notes may be prepaid in accordance with the terms set
forth in the Notes. The Notes also contain certain representations, warranties, covenants and events of default including if the
Company is delinquent in its periodic report filings with the Securities and Exchange Commission, and increases in the amount
of the principal and interest rates under the Notes in the event of such defaults. In the event of default, at the option of the
Investor and in the Investor’s sole discretion, the Investor may consider the Notes immediately due and payable.
The
foregoing description of the terms of the SPA, Note I, Note II, Note III, Investor Note I, and Investor Note II, do not purport
to be complete and are qualified in its entirety by the complete text of the documents attached as Exhibit 10.1, Exhibit 4.1,
Exhibit 4.2, Exhibit 4.3, Exhibit 10.2, and Exhibit 10.3 to this Current Report on Form 8-K.
Item
2.03 Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The
information provided in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item
3.02 Unregistered Sales of Equity Securities
The
descriptions in Item 1.01 of the notes issued by the Company that are convertible into the Company’s equity securities at
the option of the holder of the notes are incorporated herein. The issuance of the notes set forth herein was made in reliance
on the exemption provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) for
the offer and sale of securities not involving a public offering, and Regulation D promulgated under the Securities Act. The Company’s
reliance upon Section 4(a)(2) of the Securities Act in issuing the securities was based upon the following factors: (a) the issuance
of the securities was an isolated private transaction by us which did not involve a public offering; (b) there was only one recipient;
(c) there were no subsequent or contemporaneous public offerings of the securities by the Company; (d) the securities were not
broken down into smaller denominations; (e) the negotiations for the issuance of the securities took place directly between the
individual and the Company; and (f) the recipient of the note was an accredited investor.
Item
5.03 Amendments to Articles of Incorporation or Bylaws.
On
October 26, 2016, the stockholders of the Company voted to approve the Company’s Third Amended and Restated Certificate
of Incorporation to permit stockholders to act by written consent, and to permit stockholders of different classes of the Company’s
capital stock to vote as a single class with regard to certain changes to the Company’s certificate of incorporation. On
November 30, 2016, the Company filed its Third Amended and Restated Certificate of Incorporation with the Secretary of State of
the State of Delaware. A copy of the Amendment is attached as Exhibit 3.1 hereto and incorporated herein by reference.
Item
9.01 Financial Statements and Exhibits
Exhibit
Number
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Description
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3.1
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Third
Amended and Restated Certificate of Incorporation of PositiveID Corporation
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4.1
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Form
of 10% Convertible Redeemable Note, dated November 30, 2016, with ADAR BAYS, LLC
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4.2
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Form
of 10% Convertible Redeemable Note, dated November 30, 2016, with ADAR BAYS, LLC
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4.3
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Form
of 10% Convertible Redeemable Note, dated November 30, 2016, with ADAR BAYS, LLC
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10.1
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Form
of Securities Purchase Agreement, dated November 30, 2016, with ADAR BAYS, LLC
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10.2
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Form
of ADAR BAYS, LLC Collateralized Note, dated November 30, 2016, with PositiveID Corporation
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10.3
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Form
of ADAR BAYS, LLC Collateralized Note, dated November 30, 2016, with PositiveID Corporation
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SIGNATURES
Pursuant
to the requirements of the Securities and 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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POSITIVEID CORPORATION
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Date:
December 2, 2016
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By:
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/s/
William J. Caragol
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Name:
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William
J. Caragol
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Title:
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Chief
Executive Officer
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