Item 3.02 Unregistered Sales of Equity Securities.
On May 30, 2018, Identiv, Inc. (the Company) completed the second closing of a private placement of 2,000,000 shares (the
Second Closing Shares) of the Companys Series
B Non-Voting Convertible
Preferred Stock, $0.001 par value per share (the Series B Preferred Stock), at a price of $4.00
per share, to 21 April Fund, LP and 21 April Fund, Ltd. (together, the Purchasers). The sale of the Second Closing Shares was made pursuant to the terms of the Securities Purchase Agreement (the Purchase Agreement)
dated as of December 21, 2017 among the Company and the Purchasers, pursuant to which the Company, in a private placement, agreed to issue and sell to the Purchasers an aggregate of up to 5,000,000 shares (the Shares) of the Series
B Preferred Stock, for an aggregate purchase price of up to $20,000,000 (the Private Placement). The Purchasers agreed to invest $12,000,000 to purchase an aggregate of 3,000,000 Shares at a price of $4.00 per share in cash at the
initial closing of the Private Placement, which initial closing occurred on December 21, 2017, and, at the sole option of the Company, an additional $8,000,000 to purchase 2,000,000 Shares at a price of $4.00 per share in cash at a second
closing of the Private Placement. Gross proceeds to the Company from the Second Closing Shares were approximately $8.0 million, before deducting fees and certain expenses payable by the Company. The proceeds from the issuance of the Shares are
required to be used to pay off existing debt obligations of the Company and to fund future acquisitions of technology, business and other assets by the Company.
In connection with the Private Placement, the Company entered into a Stockholder Agreement with the Purchasers (the Stockholder
Agreement), dated as of December 21, 2017, pursuant to which the Company agreed to file one or more registration statements with the Securities and Exchange Commission (the SEC) covering the resale of the shares of the
Companys common stock, par value $0.001 per share (Common Stock), underlying the Series B Preferred Stock sold in the Private Placement and any Common Stock issued or issuable as a dividend or other distribution with respect to, or
in exchange for or in replacement of, the Shares. The Company filed a registration statement with the SEC covering such Common Stock and the registration statement was declared effective by the SEC on May 2, 2018.
The certificate of designation (the Certificate of Designation) providing for the rights, preferences and privileges of the Series
B Preferred Stock was filed with the Secretary of State of the State of Delaware prior to the initial closing of the Private Placement. Each Share is entitled to an annual dividend of 5% for the first six years following the issuance of such Share
and 3% for each year thereafter, with the Company retaining the option to settle each years dividend after the tenth year in cash. The dividends accrue and are payable in kind upon such time as the Shares convert into Common Stock. Each Share
is convertible at the option of the holder thereof into Common Stock: (i) following the sixth (6th) anniversary of the initial closing of the Private Placement or (ii) if earlier, during the thirty (30) day period following the last
trading day of any period of three (3) or more consecutive trading days that the closing market price of the Common Stock exceeds $10.00. Each Share is convertible into such number of shares of Common Stock determined by taking the accreted
value of such Share (purchase price plus accrued but unpaid dividends) and dividing such value by the stated value of such Share ($4.00 per share, subject to adjustment for dilutive issuances, stock splits, stock dividends and the like) (the
Stated Value); provided, however, that the Company shall not convert any Shares if doing so would cause the holder thereof, along with its affiliates, to beneficially own in excess of 19.9% of the outstanding Common Stock immediately
after giving effect to the applicable conversion (the Ownership Limitation), unless waiver of this restriction has been effected by the holder requesting conversion of Shares. In general, the Shares are not entitled to vote except in
certain limited cases, including on change of control transactions where the expected price per share distributable to the Companys shareholders is expected to be less than $4.00 per share. The Certificate of Designation further provides that
in the event of, among other things, any change of control, liquidation or dissolution of the Company, the holders of Series B Preferred Stock will be entitled to receive, on a pari passu basis with the holders of Common Stock, the same amount and
form of consideration that the holders of the Companys common stock receive (on
an as-if-converted-to-common-stock basis
and without regard to the Ownership
Limitation).
The Second Closing Shares issued in the Private Placement to accredited investors were sold in reliance on the exemption
from registration provided by Section 4(a)(2) of the Securities Act of 1933 (the Securities Act) and Regulation D promulgated thereunder. The Company is relying on this exemption from registration based in part on representations
made by the Purchasers in the Purchase Agreement. The Shares have not been registered under the Securities Act or applicable state securities laws and may not be offered or sold in the United States absent registration under the Securities Act or an
exemption from such registration requirements. Neither this Current Report
on Form 8-K nor any
exhibit attached hereto shall constitute an offer to sell or the solicitation of an offer to
buy the Shares or any other securities of the Company.
The material terms of the Purchase Agreement, the Stockholder Agreement and the Certificate of
Designation were previously disclosed in the Companys Current Report on Form
8-K
filed with the SEC on December 21, 2017. The foregoing descriptions of the Purchase Agreement, the Stockholder
Agreement and the Certificate of Designation do not purport to be complete and are qualified by reference to the full text of the Purchase Agreement, the Stockholder Agreement and the Certificate of Designation, which are attached as Exhibits 10.1,
10.2 and 4.1 hereto, respectively, and incorporated herein by reference.