UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): December 27, 2016
Smith Micro Software, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 01-35525 | 33-0029027 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
51 Columbia
Aliso Viejo, California 92656
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (949) 362-5800
None
(Former name or former address, if changed since last report)
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:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
As previously announced, on September 2, 2016, Smith Micro Software, Inc. (the Company ) entered into a Note and Warrant Purchase Agreement (the Purchase Agreement ) with Unterberg Koller Capital Fund L.P. ( Unterberg ) and William W. and Dieva L. Smith (collectively, Smith ), pursuant to which the Company issued and sold to Unterberg and Smith in a private placement senior subordinated promissory notes in the aggregate principal amount of $4,000,000 (the Notes ) and five-year warrants (the Warrants ) to purchase an aggregate of 1,700,000 shares of the Companys common stock at an exercise price of $2.74 per share. The Company completed these transactions and issued the Notes and Warrants on September 6, 2016.
On December 27, 2016, the Company entered into an Amendment to the Note issued to Unterberg and an Amendment to the Note and Warrant issued to Smith. The Amendments were made to accommodate comments received by the Company from the NASDAQ Listing Qualifications staff.
The Amendments impose an explicit cap of 19.99% on the number of shares issuable upon conversion of interest under the Notes and upon exercise of Warrants issued under the Purchase Agreement, calculated as a percentage of the Companys outstanding shares as of September 6, 2016. In addition, the Amendment entered into with Smith fixes the conversion price of accrued interest under the Smith Note at $2.3825 per share and establishes a floor exercise price of the Smith Warrant at $2.3825 per share (as adjusted for stock dividends, splits and combinations), notwithstanding the anti-dilution provisions of the Smith Warrant.
The foregoing description of the Amendments does not purport to be complete and is qualified in its entirety by reference to the complete text of the Amendments, forms of which are filed as exhibits to this Current Report on Form 8-K.
Item 9.01 Financial Statement and Exhibits.
(d) Exhibits.
Exhibit
|
Description |
|
10.1 | Amendment to Note issued to Unterberg Koller Capital Fund L.P. | |
10.2 | Amendment to Note and Warrant issued to William W. and Dieva L. Smith |
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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.
SMITH MICRO SOFTWARE, INC. | ||||||
Date: December 28, 2016 | /s/ Steven M. Yasbek | |||||
Steven M. Yasbek | ||||||
Vice President and Chief Financial Officer |
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Exhibit 10.1
AMENDMENT TO NOTE
(Unterberg Koller)
This AMENDMENT TO NOTE (this Amendment ) is made as of December 27, 2016, by and between Smith Micro Software, Inc., a Delaware corporation (the Company ), and Unterberg Koller Capital Fund, L.P., a Delaware limited partnership ( Holder ), and amends that certain Senior Subordinated Promissory Note, dated September 6, 2016, issued by the Company to Holder in the principal amount of $2,000,000 (the Note ).
RECITALS
WHEREAS, on or about September 6, 2016, the Company issued the Note to Holder pursuant to a Note and Warrant Purchase Agreement, dated September 2, 2016, by and among the Company and the Purchasers identified therein (the Purchase Agreement ); and
WHEREAS, the parties desire to amend certain provisions of the Note as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendment to Note . Effective as of the date hereof, paragraph (a) of Section 1.3 of the Note (entitled Form of Payment of Interest ) shall be amended and restated in its entirety to read as follows:
(a) Interest shall be payable (i) in cash, or (ii) at the election of the Holder with respect to any installment, in shares of Common Stock of the Maker at a conversion price equal to the five-day volume weighted average closing price of the Common Stock on the Nasdaq Stock Market (or such other public market on which the Common Stock is principally traded), measured on the third trading day prior to the date that interest is due, provided however , that in no event shall any installment of interest (or portion thereof) be convertible into shares of Common Stock if the aggregate number of shares proposed to be issued by the Maker upon conversion of such installment (or portion thereof), plus the sum of (x) shares previously issued by the Maker upon conversion of interest under all Notes issued under the Purchase Agreement and (y) shares issued or issuable by the Maker upon exercise of all Warrants issued by the Maker under the Purchase Agreement (regardless of whether such shares were issued or are issuable to Holder or any other person) exceed 19.99% of the number of outstanding shares of Common Stock of the Maker as of the Issuance Date (it being understood that such share amounts shall be subject to pro rata adjustment in connection with stock splits, stock dividends, or similar changes to the Makers capitalization occurring after the Issuance Date).
Section 2. Effect of Amendment . Except as expressly set forth in this Amendment, no other changes or modifications to the Note are intended or implied by this Amendment. To the extent of any conflict between the terms of this Amendment and the Note, the terms of this Amendment shall control. The Note, as amended hereby, and this Amendment shall be read and be construed as one agreement.
Section 3. Miscellaneous . This Amendment may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties to this Amendment may execute this Amendment by signing any such counterpart. Facsimile and electronically copied signatures on this Amendment shall be deemed the equivalent of original signatures. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have executed or caused this Amendment to be duly executed by their respective authorized representatives as of the date first written above.
COMPANY: | ||
SMITH MICRO SOFTWARE, INC. |
By: |
/s/ Steven M. Yasbek |
Name: |
Steven M. Yasbek |
Title: |
Chief Financial Officer |
HOLDER: | ||
UNTERBERG KOLLER CAPITAL FUND, L.P. |
By: |
/s/ Thomas Unterberg |
Name: |
Thomas Unterberg |
Title: |
Chief Executive Officer |
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Exhibit 10.2
AMENDMENT TO NOTE AND WARRANT
(William W. and Dieva L. Smith)
This AMENDMENT TO NOTE AND WARRANT (this Amendment ) is made as of December 27, 2016, by and between Smith Micro Software, Inc., a Delaware corporation (the Company ), and William W. Smith, Jr. and Dieva L. Smith, JT/WROS ( Holder ), and amends that certain Senior Subordinated Promissory Note, dated September 6, 2016, issued by the Company to Holder in the principal amount of $2,000,000 (the Note ), and that certain Warrant to Purchase Common Stock, dated September 6, 2016, issued by the Company to Holder and exercisable for 850,000 shares of the Companys common stock, $0.001 par value per share (the Warrant ).
RECITALS
WHEREAS, on or about September 6, 2016, the Company issued the Note and Warrant to the Holder pursuant to a Note and Warrant Purchase Agreement, dated September 2, 2016, by and among the Company and the Purchasers identified therein (the Purchase Agreement ); and
WHEREAS, the parties desire to amend certain provisions of the Note and Warrant as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendment to Note . Effective as of the date hereof, paragraph (a) of Section 1.3 of the Note (entitled Form of Payment of Interest ) shall be amended and restated in its entirety to read as follows:
(a) Interest shall be payable (i) in cash, or (ii) at the election of the Holder with respect to any installment, in shares of Common Stock of the Maker at a conversion price per share equal to $2.3825 (the Floor Price ), provided however , that in no event shall any installment of interest (or portion thereof) be convertible into shares of Common Stock if the aggregate number of shares proposed to be issued by the Maker upon conversion of such installment (or portion thereof), plus the sum of (x) shares previously issued by the Maker upon conversion of interest under all Notes issued under the Purchase Agreement and (y) shares issued or issuable by the Maker upon exercise of all Warrants issued by the Maker under the Purchase Agreement (regardless of whether such shares were issued or are issuable to Holder or any other person) exceed 19.99% of the number of outstanding shares of Common Stock of the Maker as of the Issuance Date (it being understood that such Floor Price and share amounts shall be subject to pro rata adjustment in connection with stock splits, stock dividends, or similar changes to the Makers capitalization occurring after the Issuance Date).
Section 2. Amendment to Warrant . Effective as of the date hereof, paragraph (c) of Section 9 of Warrant (entitled Sales of Common Stock at less than the Exercise Price ) shall be amended to add the following sentence at the end of such paragraph:
Notwithstanding the foregoing, in no event shall the Exercise Price be adjusted to an amount below $2.3825 (the Floor Price ) pursuant to this Section 9(c), provided , that the Floor Price shall be adjusted for stock dividends, splits and combinations under the provisions of Section 9(a).
Section 3. Effect of Amendment . Except as expressly set forth in this Amendment, no other changes or modifications to the Note or Warrant are intended or implied by this Amendment. To the extent of any conflict between the terms of this Amendment and the Note or Warrant, the terms of this Amendment shall control. Each of the Note and Warrant, as amended hereby, and this Amendment shall be read and be construed as one agreement.
Section 4. Miscellaneous . This Amendment may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties to this Amendment may execute this Amendment by signing any such counterpart. Facsimile and electronically copied signatures on this Amendment shall be deemed the equivalent of original signatures. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have executed or caused this Amendment to be duly executed by their respective authorized representatives as of the date first written above.
COMPANY: | ||
SMITH MICRO SOFTWARE, INC. |
By: |
/s/ Steven M. Yasbek |
Name: |
Steven M. Yasbek |
Title: |
Chief Financial Officer |
HOLDER: | ||
William W. Smith, Jr. | ||
/s/ William W. Smith, Jr. |
||
Dieva L. Smith | ||
/s/ Dieva L. Smith |
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