On December 4, 2015, the Company filed a shelf registration statement on Form S-3 with the Securities and Exchange Commission (the “SEC”), SEC File No. 333-208330 (the “Registration Statement”), which registered an aggregate of $100,000,000 of securities, consisting of Common Stock, preferred stock, warrants, rights and units (collectively, the “Securities”) in unallocated amounts, except as set forth in prospectuses included in the Registration Statement. The Company had previously filed final prospectuses under the Registration Statement that covered Securities with a value of $99,806,500.00, resulting in Securities with a value of $193,500 remaining available for sale under the Registration Statement.
On December 23, 2015, the Company filed the final prospectus dated December 22, 2015 under the Registration Statement (the “Original Lincoln Park Prospectus”) relating to the potential sale of up to $42,194,000 of Common Stock to Lincoln Park pursuant to the Purchase Agreement. As of the date of this Current Report on Form 8-K, the Company has sold or reserved for issuance $792,150 of Common Stock under the Original Lincoln Park Prospectus.
On February 6, 2017, the Company and Lincoln Park entered into the Second Amendment described in Item 1.01. As a result of the Second Amendment, the Company will file a prospectus supplement under the Registration Statement (the “Amended Lincoln Park Prospectus”) as soon as practicable to reduce by $39,400,000 the value of the Common Stock that may be sold under the Amended Lincoln Park Prospectus pursuant to the Purchase Agreement, as amended by the First Amendment and the Second Amendment. The dollar amount of the reduction in value of Securities is again available to be sold pursuant to the Registration Statement. Until such time as the Amended Lincoln Park Prospectus is filed with the SEC, the Company will not issue and sell any shares of Common Stock under the Original Lincoln Park Prospectus and the Purchase Agreement, as amended.
On January 7, 2016, the Company filed a final prospectus dated January 7, 2016 under the Registration Statement relating to the sale of Common Stock and warrants with an aggregate price to the public of $21,750,000, plus additional Common Stock and warrants in the amount of $3,262,500 (the “Over-Allotment Amount”) in connection with a 30-day option granted to the underwriters to cover over-allotments, if any (the “Over-Allotment Option”). The Over-Allotment Option expired unexercised. Accordingly, the Over-Allotment Amount is again available for sale pursuant to the Registration Statement.
On December 14, 2016, the Company and JGB Newton Ltd., a Cayman Islands exempted company (the “Investor”) entered into a waiver (the “Waiver”) that amended the Securities Purchase Agreement dated May 10, 2016 between the Company and the Investor, as amended on August 22, 2016 (the “SPA”). Under the terms of the SPA the Company sold to the Investor a secured convertible debenture (the “Debenture”), in the principal amount of $25,350,000. The Waiver provides that solely with respect to the calendar months of December 2016, January 2017, February 2017 and March 2017 (collectively, the “Specified Months”), the Investor waives, subject to certain delineated exceptions, the requirement of paragraph (i) of the definition of “Equity Conditions” set forth in Section 1 of the Debenture, thereby continuing to allow the Company to deliver shares of its Common Stock in respect to a portion of its amortization obligation under the Debenture. Furthermore, the waiver sets out a Monthly Allowance for each Specified Month equal to $1,500,000 and required the Company to withdraw all cash and/or cash equivalents in excess of eighteen million five hundred thousand dollars ($18,500,000) from certain accounts and deposit such funds into an account in a form acceptable to the Investor, to be executed by the Company, U.S. Bank, N.A. and SVB Asset Management such that the Company requires the prior written consent of the Investor for certain withdrawals. The Waiver also grants the Investor special redemption rights depending upon the price of our common stock, including the right to redeem the debenture.
The foregoing description of the material terms of the Waiver is qualified in its entirety by the Waiver, a copy of which is filed as Exhibit 10.3 on this Current Report on Form 8-K and are incorporated herein by reference.