Amended Current Report Filing (8-k/a)
November 14 2017 - 4:09PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K/A
(Amendment No. 1)
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of Report (Date of earliest event reported): October 11, 2017
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InterCloud
Systems, Inc.
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(Exact
name of registrant as specified in its charter)
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Delaware
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000-32037
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65-0963722
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(State
or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S.
Employer
Identification No.)
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1030
Broad Street
Suite
102
Shrewsbury,
NJ
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07702
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (561) 988-1988
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(Former
name or former address, if changed since last report.)
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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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☐
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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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 240.13a-4(c))
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Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Explanatory
Note
On
October 19, 2017, the Registrant filed with the Securities and Exchange Commission a Current Report on Form 8-K to report, among
other things, its entry into an Exchange Agreement with a debtholder.
This
Amendment No. 1 on Form 8-K/A is being filed to include a copy of the Certificate of Designation as Exhibit 3.1 herewith.
Item
1.01 Entry into a Material Definitive Agreement.
InterCloud
Systems, Inc. (the “Company”) entered into an Exchange Agreement, dated as of October 12, 2017 (the “Exchange
Agreement”) with a debtholder (the “Holder”), pursuant to which the Holder agreed to exchange $5,429,873.36
held in promissory notes, in consideration of the Company’s issuance and delivery to the Holder of 227 shares of Series
L Convertible Preferred Stock (“Series L Preferred”) of the Company.
The
Company has designated up to 1,000 shares of the 50,000,000 authorized shares of preferred stock as Series L Preferred. The shares
of Series L Preferred are convertible into shares of common stock based on a conversion calculation equal to the stated value
of the Series L Preferred divided by the conversion price. The stated value of each share of Series L Preferred is $10,000, and
the initial conversion price is 105% of the highest volume weighted average price for the five (5) days immediately preceding
the conversion date, each subject to adjustment for stock splits, stock dividends, recapitalizations, combinations, subdivisions
or other similar events. The holders of Series L Preferred are not entitled to receive dividends or entitled to any voting rights.
Upon any liquidation, dissolution or winding-up of the Company, the holders of Series L Preferred shall be entitled to receive
an amount equal to the stated value of the Series L Preferred, before any distribution or payment shall be made on any of the
common stock of the Company.
The
holders of Series L Preferred are prohibited from exercising any conversion right more than three (3) times in any five (5) day
trading period, and the right to convert by any holder on any such trading day shall be limited to ten (10) percent of the average
daily trading volume for the common stock of the Company over the prior ten (10) day period. If on the ten (10) year anniversary
of the date of issuance of the Series L Preferred (the “Maturity Date”), the holder thereof has not yet converted
such Series L Preferred into common stock of the Company, then the remaining Series L Preferred shall automatically convert into
common stock of the Company at a conversion price equal to the closing price of the common stock of the Company on the last trading
day immediately preceding the Maturity Date.
The
foregoing description of the Series L Preferred does not purport to be complete and is qualified in its entirety by reference
to the complete text of the Certificate of Designation of Series L Convertible Preferred Stock of InterCloud Systems, Inc. (the
“Certificate of Designation”), a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated
by reference herein.
Item
8.01 Other Events.
On
October 11, 2017, the U.S. District Court for the District of New Jersey (the “District Court”) entered a judgment
in favor of White Winston Select Asset Funds, LLC (“White Winston”) against the Company in the amount of $675,564.68.
White Winston previously sought a break-up fee of $500,000 and attorney fees and costs allegedly due in connection with a contemplated
but ultimately unsuccessful financing transaction. The Company filed a motion to dismiss, which was granted in its entirety by
the District Court. White Winston subsequently appealed, and the United States Court of Appeals for the Third Circuit ultimately
reversed. After considering the parties cross-motions for summary judgment, the District Court ruled in White Winston’s
favor and rendered the judgment above. The Company is in settlement discussions with White Winston, while it also weighs exercising
its rights to appeal.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
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INTERCLOUD
SYSTEMS, INC.
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November
14, 2017
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By:
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/s/
Daniel Sullivan
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Daniel
Sullivan
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Chief
Accounting Officer
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EXHIBIT
INDEX
4
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