- Current report filing (8-K)
March 02 2010 - 8:43AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 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): March 1, 2010
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(Exact
Name of Registrant as Specified in its
Charter)
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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100-C
Cooper Court, Los Gatos, CA
(Address
of Principal Executive Offices)
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95032
(Zip
Code)
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Registrant’s
telephone number, including area code:
(408) 354-7200
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:
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¨
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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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¨
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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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Item
1.01. Entry into a Material Definitive Agreement
On March
1, 2010, we entered into a Placement Agent Agreement (the “
Placement Agent
Agreement
”) with Merriman Curhan Ford & Co. (“
MCF
”)
related to a registered direct offering of up to 18,000,000 shares of our common
stock (the “
Offering
”). Under
the terms of the transaction and pursuant to separate Subscription Agreements
(the “
Subscription
Agreements
”) between us and each of the investors, we will sell the
common stock at $0.40 per share to a group of institutional investors for gross
proceeds of approximately $7.2 million. The closing of the Offering
is expected to take place on March 4, 2010, subject to the satisfaction of
customary closing conditions. A copy of the Placement Agent Agreement
is attached as Exhibit 1.1 hereto and is incorporated by reference. A
copy of the form of Subscription Agreement is attached as Exhibit 1.2 hereto and
is incorporated by reference.
In
connection with the Offering, both we and our executive officers and directors
have agreed that we will not, for a period of 90 days from March 1, 2010,
without the consent of MCF, directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of, any shares of our
common stock or any securities convertible into or exercisable or exchangeable
for our common stock, subject to certain customary exceptions.
The
common stock will be issued pursuant to a prospectus supplement filed with the
Securities and Exchange Commission on March 2, 2010, in connection with a shelf
takedown from our registration statement on Form S-3 (File no. 333-164314),
which became effective on February 9, 2010. A copy of the opinion of
McDonald Carano Wilson LLP relating to the legality of the issuance and sale of
the shares in the Offering is attached as Exhibit 5.1 hereto.
On March
2, 2010, we issued a press release announcing the Offering. A copy of
the press release is attached hereto as Exhibit 99.1 and is incorporated herein
by reference.
As
compensation for services rendered, we shall pay to MCF a placement fee equal to
seven percent (7%) of the gross proceeds received by us from the
Offering. We shall also issue to MCF, for consideration of $1.00, a
warrant for the purchase of up to 180,000 shares of our common stock,
exercisable for a period of three years at a price of $0.40 per share (the
“
Placement
Agent Warrant
”). At the option of MCF, the Placement Agent
Warrant may be exercised on a cashless basis. If MCF elects to
exercise the Placement Agent Warrant in full for cash, we will also receive
proceeds of $72,000 from the aggregate exercise price of the Placement Agent
Warrant. A copy of the Placement Agent Warrant is attached hereto as
Exhibit 4.1 and is incorporated herein by reference.
Item
3.02. Unregistered Sales of Equity Securities
The
information in Item 1.01 above is incorporated by reference into this Item
3.02. For the issuance of the Placement Agent Warrant, we relied on
the exemption from registration provided by Section 4(2) of the Securities Act
of 1933, as amended, as a transaction not involving any public offering, on the
basis that MCF indicated its intention to acquire the securities for investment
only and not with view to or the distribution thereof and appropriate legends
were affixed to the Placement Agent Warrant.
Item
9.01 Financial Statements and Exhibits
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1.1
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Placement
Agent Agreement dated March 1, 2010 by and among Procera Networks, Inc.
and Merriman Curhan Ford & Co.
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1.2
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Form
of Subscription Agreement by and between Procera Networks, Inc. and each
investor.
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4.1
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Form
of Placement Agent Warrant.
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5.1
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Opinion
of McDonald Carano Wilson LLP
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23.1
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Consent
of McDonald Carano Wilson LLP
(
included in its
opinion filed as Exhibit 5.1
hereto).
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99.1
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Press
release issued by Procera Networks, Inc. on March 2,
2010.
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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 hereunto
duly authorized.
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Date: March
2, 2010
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Procera
Networks, Inc.
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By:
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/s/ Charles Constanti
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Charles
Constanti
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Chief
Financial Officer and Principal Accounting
Officer
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INDEX
TO EXHIBITS
Exhibit
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Placement
Agent Agreement dated March 1, 2010 by and among Procera Networks, Inc.
and Merriman Curhan Ford & Co.
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Form
of Subscription Agreement by and between Procera Networks, Inc. and each
investor.
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Form
of Placement Agent Warrant.
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Opinion
of McDonald Carano Wilson LLP
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23.1
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Consent
of McDonald Carano Wilson LLP
(
included in its
opinion filed as Exhibit 5.1
hereto).
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Press
release issued by Procera Networks, Inc. on March 2,
2010.
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