the exercise price be lower than $0.10, and the Common Shares issuable under the March 2017 Warrant will increase such that, after taking into account the decrease in exercise price, the aggregate exercise price under the March 2017 Warrant will be the same. In addition, upon the occurrence of certain fundamental transactions concerning the Issuer, including mergers, sale of substantially all assets, and other significant corporate events, MF Ventures has certain rights, including the right to exchange the March 2017 Warrant for warrants to purchase securities of the successor entity and the right to have the Issuer repurchase the March 2017 Warrant for its Black-Scholes value. The foregoing description of the March 2017 Warrant is qualified in its entirety by this reference to the Form of Warrant that is filed as Exhibit 9 hereto and is hereby incorporated by reference into this Item 4.
Leak-Out Agreement
Pursuant to the March 2017 SPA, MF Ventures and the Issuer entered into a Leak-Out Agreement, dated March 24, 2017 (the "
Leak-Out Agreement
"). Pursuant to the Leak-Out Agreement, from March 24, 2017 to April 23, 2017 (the "
Restricted Period
"), MF Ventures may not sell, dispose, or otherwise transfer on any trading day during the Restricted Period Common Shares, including the March 2017 Shares and any Common Shares issuable under the March 2017 Warrant, in an amount more than 7.778% of the trading volume of the Common Shares on that trading day; provided, however, that this foregoing restriction does not apply to any qualifying sales by MF Ventures at a price greater than $0.30. The foregoing description of the Leak-Out Agreement is qualified in its entirety by this reference to the Form of Leak-Out Agreement that is filed as Exhibit 10 hereto and is hereby incorporated by reference into this Item 4.
Registration Rights Agreement
Pursuant to the March 2017 SPA, the Issuer and MF Ventures entered into a Registration Rights agreement, dated March 24, 2017 (the "
Registration Rights Agreement
"), pursuant to which the resale of the Common Shares issuable upon the exercise of the March 2017 Warrant will be registered with the SEC, and the Issuer will bear all fees and expenses attendant to registering such shares. The foregoing description of the Registration Rights Agreement is qualified in its entirety by this reference to the Form of Registration Rights Agreement that is filed as Exhibit 11 hereto and is incorporated by reference into this Item 4."
Item 5.
Interest in Securities of the Issuer.
Amendment No. 3 amends and restates Item 5 of the Statement as follows:
"(a)
and
(b)
Per the prospectus dated March 24, 2017 filed on the same date with the SEC under the
registration statement on Form F-3 (File No. 333-206357), t
he Issuer will have 102,572,543 Common Shares issued and outstanding as of March 29, 2017 (the "
Outstanding Shares
"), which includes 11,988,328 Common Shares issued and outstanding to MF Ventures prior to the March 2017 Registered Offering (the "
MF Shares
") and the March 2017 Shares (4,545,454 Common Shares) purchased by MF Ventures in the March 2017 Registered Offering.
As of March 31, 2017, each Reporting Person may be deemed to own beneficially in the aggregate
37,368,415 Common Shares (the "
Securities
") consisting of the MF Shares, the March 2017 Shares, and the Warrant Shares (20,834,633 Common Shares that may be purchased under certain warrants and the One-Year Warrants and the Five-Year Warrants). Due to the 4.99 % Blocker, the 4,545,454 Common Shares issuable under the March 2017 Warrant may not deemed to be beneficially owned by the Reporting Persons. Assuming no 4.99% Blocker, as of March 31, 2017, each Reporting Person may be deemed to own beneficially in the aggreate 41,913,869 Common Shares.
Further, as of March 31, 2017, each Reporting Person may be deemed to beneficially own 30.3% of the class of Common Shares, assuming 123,407,176 Common Shares outstanding as of March 29, 2017, which consists of the Outstanding Shares and the Warrant Shares. Assuming no 4.99% Blocker, as of March 31, 2017, each Reporting Person may be deemed to beneficially own 32.8% of the class of Common Shares, assuming 127,952,630 Common Shares outstanding as of March 29, 2017, which consists of the Outstanding Shares, the Warrant Shares, and
4,545,454 Common Shares issuable under the March 2017 Warrant.
No Reporting Person has the sole power to vote or direct the vote or sole power to dispose or direct the disposition of the Securities. Each Reporting Person has the shared power to vote or to direct the vote or shared power to dispose or direct the disposition of the Securities.
Other than for purposes of Rule 13d-3 of the Act, the foregoing statements will not be deemed to constitute an admission by each Reporting Person that the Reporting Person is the beneficial owner of any Securities disclosed under this Statement, and such beneficial ownership is expressly disclaimed.
(c)
The information disclosed under Items 3 and 4 of Amendment No. 3 is incorporated by reference into this Item 5(c). Further, the information disclosed under Item 5(c) in
Amendment No. 2 to the Statement filed on March 21, 2017 with the SEC is incorporated
by reference into this Item 5(c).
(d)
None.
(e)
Not Applicable."
Item 6.
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
Amendment No. 3 amends and supplements Item 6 of the Statement by adding the following:
"The information disclosed under Items 3, 4, and 5 of Amendment No. 3 is incorporated by reference into this Item 6. Exhibits 8, 9, 10, and 11 to this Amendment No. 3 are incorporated by reference into this Item 6."
Item 7.
Material to be Filed as Exhibits
Amendment No. 3 amends and supplements Item 7 of the Statement by adding the following:
|
"
Exhibit
|
|
|
Number
|
Description
|
|
7
|
Joint Filing Agreement to Amendment No. 3 (filed herewith).
|
|
8
|
Form of Securities Purchase Agreement dated March 24, 2017 (incorporated herein by reference to Exhibit 99.1 to the Issuer's Form 6-K deemed filed with the SEC on March 24, 2017 (File No. 001-36532)).
|
|
9
|
Form of Warrant (incorporated herein by reference to Exhibit 99.2 to the Issuer's Form 6-K deemed filed with the SEC on March 24, 2017 (File No. 001-36532)).
|
|
10
|
Form of Leak-Out Agreement (incorporated herein by reference to Exhibit 99.3 to the Issuer's Form 6-K deemed filed with the SEC on March 24, 2017 (File No. 001-36532)).
|
|
11
|
Form of Registration Rights Agreement (incorporated herein by reference to Exhibit 99.4 to the Issuer's Form 6-K deemed filed with the SEC on March 24, 2017 (File No. 001-36532))."
|