THE ASPIRE CAPITAL TRANSACTION
General
On March 14, 2019, we entered into the
Purchase Agreement, which provides that, upon the terms and subject to the conditions and limitations set forth therein, Aspire Capital is committed to purchase up to an aggregate of $10.0 million of our shares of common stock over the term of
the Purchase Agreement. In consideration for entering into the Purchase Agreement, concurrently with the execution of the Purchase Agreement, we issued to Aspire Capital the 69,444 Commitment Shares. Upon execution of the Purchase Agreement, we also
sold to Aspire Capital the 272,479 Initial Purchase Shares for proceeds of $1.0 million. Concurrently with entering into the Purchase Agreement, we also entered into the Registration Rights Agreement, in which we agreed to file one or more
registration statements as permissible and necessary to register under the Securities Act, the sale of the shares of our common stock that have been and may be issued to Aspire Capital under the Purchase Agreement.
As of March 20, 2019, there were 10,503,097 shares of our common stock outstanding, excluding the 2,018,271 shares offered that have been issued or may
be issuable to Aspire Capital pursuant to the Purchase Agreement. If all of such 2,018,271 shares of our common stock offered hereby were issued and outstanding as of the date hereof, such shares would represent 16.1% of the total common stock
outstanding. The number of shares of our common stock ultimately offered for sale by Aspire Capital is dependent upon the number of shares purchased by Aspire Capital under the Purchase Agreement.
The aggregate number of shares that we may issue to Aspire Capital under the Purchase Agreement, including the Commitment Shares, may in no case exceed
2,018,271 shares of our common stock, or the Exchange Cap, which is equal to 19.99% of the common stock outstanding on the date of the Purchase Agreement, unless stockholder approval is obtained to issue more than such 19.99%; provided, however,
that the Exchange Cap percentage shall be reduced below 19.99% to the extent that the Nasdaq Capital Market deems this transaction aggregated with any other transaction in which we issue equity securities. The foregoing limitation shall not apply if
stockholder approval has not been obtained and at any time the Exchange Cap is reached and at all times thereafter the average price paid for all shares issued under the Purchase Agreement (including the Commitment Shares) is equal to or greater
than $4.32, referred to as the Minimum Price, a price equal to the arithmetic average of the closing sale prices of our common stock on the five business days prior to the date of the Purchase Agreement; provided that at no one point in time shall
Aspire Capital (together with its affiliates) beneficially own more than 19.99% of our common stock.
Pursuant to the Purchase Agreement and the
Registration Rights Agreement, we have registered 2,018,271 shares of our common stock under the Securities Act, which includes the Commitment Shares and Initial Purchase Shares that have already been issued to Aspire Capital and 1,676,348 shares of
common stock which we may issue to Aspire Capital after the date of this prospectus. All 2,018,271 shares of common stock are being offered pursuant to this prospectus. Under the Purchase Agreement, we have the right but not the obligation to issue
more than the 2,018,271 shares of common stock included in this prospectus to Aspire Capital under some circumstances. If we elect to sell more than the 2,018,271 shares of common stock offered hereby, we must first register under the Securities Act
the sale by Aspire Capital of any such additional shares.
On April 23, 2019, the conditions necessary for purchases under the Purchase Agreement to
commence are satisfied. On any trading day on which the closing sale price of our common stock is not less than $0.25 per share, we have the right, in our sole discretion, to present Aspire Capital with a Purchase Notice, directing Aspire Capital
(as principal) to purchase up to 60,000 shares of our common stock per business day, up to $9.0 million of our common stock in the aggregate over the term of the Purchase Agreement, at a Purchase Price calculated by reference to the prevailing
market price of our common stock over the preceding
10-business
day period (as more specifically described below); however, no sale pursuant to a Purchase Notice may exceed $300,000 per trading day.
In addition, on any date on which we submit a Purchase Notice to Aspire Capital for 60,000 Purchase Shares, we also have the right, in our sole discretion, to
present Aspire Capital with a VWAP Purchase Notice directing
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