UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): June 18, 2018 (June 15, 2018 )
ACCELERIZE INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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000-52635 |
20-385 8769 |
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(Commission File Number) |
(IRS Employer Identification No.) |
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20411 SW Birch Street, Suite 250 Newport Beach, California |
92660 |
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(Address of Principal Executive Offices) |
(Zip Code) |
(949) 5 48-2253
(Registrant’s Telephone Number, Including Area Code)
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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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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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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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in 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. ☐
Item 1.01. Entry into a Material Definitive Agreement
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On June 15, 2018, Accelerize Inc. (the “Company”) borrowed an aggregate of $500,000 (the “Borrowings”) from five lenders (the “Lenders”) and issued promissory notes for the repayment of the amounts borrowed. The Lenders are all accredited investors, one of the Lenders is an affiliate of the Company’s Chief Financial Officer, Anthony Mazzarella, two of the Lenders are related to the Company’s Chairman and Chief Executive Officer, Brian Ross, and two of the Lenders are employees of the Company. The promissory notes are unsecured, have a maturity date of May 30, 2021 and all principal is due upon maturity. Amounts borrowed accrue interest at 12% per annum and accrued interest is payable monthly. In the event the Company prepays the promissory notes prior to the end of two years, at prepayment the Lender will be paid the difference between accrued interest already paid and the amount of accrued interest payable for two years on the amount borrowed. The Company must repay the promissory notes within 30 days of retiring or refinancing all of its outstanding secured subordinated debt. The Company also issued to the Lenders six-year warrants to purchase an aggregate of 750,000 shares of the Company’s common stock exercisable for cash at an exercise price of $0.35 per share. The warrants were issued under the exemption provided by Section 4(a)(2) of the Securities Act of 1933, as amended, as not involving a public offering. The descriptions of the promissory notes and the warrants are not complete and each is subject to and qualified in its entirety by reference to the form of promissory note or form of warrant, a copy of which is incorporated by reference as Exhibit 10.1 and 4.1, respectively, to this Current Report and is incorporated herein by reference. The promissory notes and warrants are the same form as those issued to lenders in the transactions described in the Company’s Current Report on Form 8-K filed on June 6, 2018.
On June 13, 2018, the Company entered into a eighth amendment (the “SaaS Amendment”) of the loan and security agreement dated as of May 5, 2016 with SaaS Capital Funding II, LLC, and into a second amending agreement (the “Beedie Amendment”) of the credit agreement dated as of January 25, 2018 with Beedie Investments Limited, to permit the Borrowings. The descriptions of the SaaS Amendment and Beedie Amendment are not complete and each is subject to and qualified in its entirety by reference to the SaaS Amendment and Beedie Amendment, a copy of which is filed as Exhibit 10.2 and 10.3, respectively, to this Current Report and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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4.1 |
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10.1 |
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10.2 |
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10.3 |
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.
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ACCELERIZE INC. |
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By: |
/s/ Brian Ross |
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Name: |
Brian Ross |
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Title: |
President and Chief Executive Officer |
Date: June 18, 2018
Exhibit 10.2
EXECUTION VERSION
Eighth Amendment
To
Loan And Security Agreement
THIS EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “ Amendment ”) is entered into as of June 13, 2018, by and between ACCELERIZE INC. , a Delaware corporation (“ Borrower ”) and SAAS CAPITAL FUNDING II , LLC , a Delaware limited liability company (“ Lender ”).
Recitals
A. Lender and Borrower have entered into that certain Loan and Security Agreement dated as of May 5, 2016, as amended by that certain First Amendment to Loan and Security Agreement, dated as of November 29, 2016, as further amended by that certain Second Amendment to Loan and Security Agreement, dated as of May 5, 2017, as further amended by that certain Third Amendment to Loan and Security Agreement, dated as of June 16, 2017, as further amended by that certain Fourth Amendment to Loan and Security Agreement, dated as of August 14, 2017, as further amended by that certain Fifth Amendment to Loan and Security Agreement, Limited Waiver and Consent, dated as of November 8, 2017, as further amended by that certain Sixth Amendment to Loan and Security Agreement and Consent, dated as of January 25, 2018, and as further amended by that certain Seventh Amendment to Loan and Security Agreement, dated as of May 31, 2018 (and as it may be further amended, modified, supplemented or restated from time to time prior to the date hereof, the “ Loan Agreement ”).
B. Lender has extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower has requested that Lender agree to (i) amend certain provisions of the Loan Agreement and add certain provisions thereto, and (ii) consent to the issuance by Borrower of additional Subordinated Debt.
D. Lender has agreed to (i) amend certain provisions of the Loan Agreement and add certain provisions thereto, and (ii) consent to the issuance by Borrower of additional Subordinated Debt, but, in each case, only to the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below.
Agreement
Now, Therefore , in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined in this Amendment shall have the respective meanings given to such terms in the Loan Agreement.
2. Amendments to Loan Agreement.
2.1 Schedule 1 of the Loan Agreement shall be amended by deleting the definition of “ Shareholder Debt ” contained therein and replacing it with, respectively, the following:
“ Shareholder Debt ” means that certain Subordinated Debt issued by Borrower to certain of Borrower’s shareholders on or about the Seventh Amendment Effective Date and the Eighth Amendment Effective Date, respectively, in an aggregate principal amount of Two Million Dollars ($2,000,000).
2.2 Schedule 1 to the Loan Agreement shall be amended by adding the following definitions for “ Eighth Amendment ” and “ Eighth Amendment Effective Date ” in their appropriate alphabetical places:
“ Eighth Amendment ” means that certain Eighth Amendment to Loan and Security Agreement, between Borrower and Lender, dated as of June 13, 2018.
“ Eighth Amendment Effective Date ” means the date that all of the conditions to the effectiveness of the Eighth Amendment have been either satisfied by Borrower or waived in writing by Lender.
3. Limitations.
3.1 The amendments set forth in Section 2 above are effective solely for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right or remedy which Lender may now have or may have in the future under or in connection with any Loan Document.
3.2 This Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.
4. Representations and Warranties. To induce Lender to enter into this Amendment, Borrower hereby represents and warrants to Lender as follows:
4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents, are true, accurate and complete as of the Eighth Amendment Effective Date (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Event of Default has occurred and is continuing;
4.2 Borrower has the power and authority to execute and deliver this Amendment and to perform its obligations under this Amendment and the Loan Agreement, as amended by this Amendment;
4.3 The organizational documents of Borrower delivered to Lender on or about May 5, 2016, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;
4.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under this Amendment and the Loan Agreement, as amended by this Amendment, have been duly authorized;
4.5 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under this Amendment and the Loan Agreement, as amended by this Amendment, do not and will not contravene (a) any law or regulation binding on or affecting Borrower, (b) any contractual restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d) the organizational documents of Borrower;
4.6 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under this Amendment and the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on Borrower, except as already has been obtained or made;
4.7 This Amendment has been duly executed and delivered by Borrower and each of this Amendment and the Loan Agreement as amended by this Amendment, is the binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
4.8 Borrower has not assigned the Loan Agreement or any of its rights or obligations (including, without limitation, the Obligations) thereunder.
5. Counterparts. This Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. The exchange of copies of this Amendment and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Amendment as to the parties hereto and may be used in lieu of the original Amendment for all purposes.
6. Expenses. Without limitation of the terms of the Loan Documents, and as a condition to the effectiveness of this Amendment, Borrower shall reimburse Lender for all its costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Lender in connection with this Amendment or that are otherwise outstanding. Lender, at its discretion, is authorized (x) to charge said fees, costs and expenses to Borrower’s loan account or any of Borrower’s deposit accounts or (y) to directly invoice Borrower for such fees, costs and expenses.
7. No Third Party Beneficiaries. This Amendment does not create, and shall not be construed as creating, any rights enforceable by any person not a party to this Amendment.
8. Loan Documents; Indemnity. For purposes of clarity and not by way of limitation, Borrower and Lender acknowledge and agree that this Amendment is one of the Loan Documents and that the indemnification provided pursuant to Section 12.2 of the Loan Agreement applies hereto.
9. Effectiveness. This Amendment shall be deemed effective and the consent set forth herein is conditioned upon (a) the due execution and delivery of this Amendment by each party hereto, (b) the delivery to Lender of true, accurate and complete copies of any amendments to the Beedie Subordinated Debt Documents, as in effect as of the Eighth Amendment Effective Date, in form and substance reasonably satisfactory to Lender, duly executed by the parties thereto, (c) the receipt by Borrower of the proceeds of the Shareholder Debt from certain of Borrower’s shareholders, and (d) the payment by Borrower of the fees and expenses set forth in Section 6 above.
[Signatures on next page]
In Witness Whereof , the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.
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LENDER |
BORROWER |
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SAAS CAPITAL FUNDING II , LLC
By: /s/ Todd Gardner Name: Todd Gardner Title: President |
ACCELERIZE INC .
By: /s/ Anthony Mazzarella Name: Anthony Mazzarella Title: Chief Financial Officer |
Signature page to Eighth Amendment to Loan and Security Agreement
Exhibit 10.3
SECOND
AMENDING AGREEMENT
BETWEEN
:
ACCELERIZE INC.
- AND -
BEEDIE INVESTMENTS LIMITED
dated as of
JUNE 13,
201
8
SECOND AMENDING AGREEMENT
This Second Amending Agreement is made effective as of the 13 day of June, 2018 between:
ACCELERIZE INC.
as Borrower
(the "
Borrower
")
and
BEEDIE INVESTMENTS LIMITED
as Lender
(the "
Lender
")
WHEREAS the Borrower and the Lender have entered into a credit agreement dated as of January 25, 2018 as amended by a first amending agreement (the “First Amending Agreement” ) dated as of May 31, 2018 (collectively, the " Credit Agreement ");
AND WHEREAS the parties have agreed to enter into this second amending agreement (the " Second Amending Agreement ") to amend the Credit Agreement as provided for herein (the Credit Agreement as amended by this Second Amending Agreement is referred to as the " Amended Credit Agreement ");
NOW THEREFORE in consideration of the payment of the sum of one dollar ($1.00) by each of the parties hereto to the others and other good and valuable consideration, including the issuance by the Borrower to the Lender of the Additional Warrants (as defined below), the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant and agree with each other as follows:
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1. |
Amendments to Credit Agreement |
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1.1 |
The Credit Agreement is hereby amended as of the date that the conditions precedent in Section 3 herein have been satisfied or waived by the Lenders (the " Effective Date ") as follows: |
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(a) |
Section 1.1(f) of the First Amending Agreement is hereby deleted in its entirety and replaced with the following: |
“Pursuant to clause (f) of the definition of “Permitted Funded Debt” in Section 1.1 of the Credit Agreement:
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(i) |
unsecured debt of the principal amount of US $2,000,000 (the “Junior Unsecured Debt” ) shall constitute “other Subordinated Obligations approved in writing by the Lender in its sole discretion” and “Permitted Funded Debt” provided that (A) the Borrower incurs such Junior Unsecured Debt by way of money borrowed, (B) the principal amount of US $1,000,000 of the Junior Unsecured Debt is funded on May 31, 2018, (C) the remaining principal amount of the Junior Unsecured Debt of US $1,000,000 is funded on or before June 30, 2018, (D) no agreement evidencing or relating to the Junior Unsecured Debt (each, a “Junior Debt Document” ) contains any financial covenants, (E) the Borrower causes such Junior Unsecured Debt to be subordinated and postponed on terms satisfactory to the Lender pursuant to the Subordination and Postponement Agreement (as defined below) and (F) except as provided in clauses (ii) and (iii) below, the Borrower incurs such Junior Unsecured Debt in compliance with all other covenants, terms and provisions of the Credit Agreement; |
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(ii) |
notwithstanding Section 8.3(r) of the Credit Agreement, the Borrower may pay interest in cash on the Junior Unsecured Debt at periodically scheduled intervals at a rate not to exceed 12% per annum so long as no “Blockage Period” (as defined in the Subordination and Postponement Agreement) is in effect; and |
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(iii) |
notwithstanding Section 8.3(n) of the Credit Agreement, the Borrower may enter into Junior Debt Documents with lender(s) that are Related Parties. |
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(b) |
The following is added as Section 2.6 of the Credit Agreement: |
“ 2. 6 Additional Warrants
In partial consideration for the Lender entering into the second amending agreement to the Credit Agreement, the Borrower shall issue common share purchase warrants (the “ Additional W arrants ”) registered in the name of the Lender to purchase an aggregate of 100,000 common shares of the Borrower (“ Common Shares ”), at an exercise price of US $0.35 per Common Share, as set forth in the certificates representing such Warrants (the “ Additional W arrant Certificates ”), such Additional Warrant Certificates to be substantially in the form as set out in Schedule D attached hereto. The Additional Warrants shall be issued on the Effective Date and shall be exercisable at any time on or before January 25, 2024.”
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2. |
Certification |
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2.1 |
The Borrower confirms to and agrees with the Lender that: |
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(a) |
each of the representations and warranties made in the Amended Credit Agreement is true and correct (except for qualifications to representations and warranties disclosed to the Lender and consented to in writing by the Lender in its sole discretion, and provided however that those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date); and |
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(b) |
no Default or Event of Default has occurred which is continuing. |
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3. |
Conditions Precedent |
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3.1 |
This Second Amending Agreement shall become effective at such time as: |
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(a) |
the Lender shall have received the following documents, each in full force and effect, and in form and substance satisfactory to the Lender: |
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(i) |
this Second Amending Agreement, duly executed and delivered by the Borrower; |
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(ii) |
duly issued Additional Warrants; |
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(iii) |
a postponement and subordination agreement made by the lender(s) and agent (if any) of the Junior Unsecured Debt in favour of the Lender and acknowledged by the Borrower (the “Postponement and Subordination Agreement” ); and |
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(iv) |
stock exchange, dealer network or other Governmental Authority approval and, if required under the Permitted SaaS Debt, SaaS consent for the issuance of the Additional Warrants; |
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(b) |
the Borrower shall in respect of the preparation, execution and delivery of this Second Amending Agreement have paid all fees, costs and expenses of the kind referred to in Section 10.11 of the Credit Agreement; |
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(c) |
no event or circumstance shall have occurred that in the opinion of the Lender would reasonably be expected to have a Material Adverse Effect; |
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(d) |
no Default or Event of Default shall have occurred and be continuing; |
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(e) |
an amendment to the SaaS Credit Agreement, inter alia , permitting the incurrence by the Borrower of the Junior Unsecured Debt shall have been executed and delivered by SaaS and the Borrower and a copy thereof provided to the Lender; |
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(f) |
the Lender shall be satisfied with all terms and conditions of the Junior Unsecured Debt, the Junior Debt Documents shall have been executed and delivered by the lender(s) and agent (if any) of the Junior Unsecured Debt and the Borrower and copies thereof provided to the Lender, and the last advance of the Junior Unsecured Debt in the amount of US $1,000,000 shall have been made; and |
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(g) |
receipt of all regulatory, securities and/or third party consents and/or approvals in respect of this Second Amending Agreement and the Warrants, in form, and on terms, satisfactory to the Lender. |
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3.2 |
The terms and conditions of this Section 3 are inserted for the sole benefit of the Lender and may be waived by the Lender in whole or in part without terms and conditions. |
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4. |
Miscellaneous |
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4.1 |
All capitalized terms used but not otherwise defined herein shall have the meanings respectively ascribed thereto in the Amended Credit Agreement. |
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4.2 |
The Credit Agreement and all covenants, terms and provisions thereof, as amended by this Second Amending Agreement, shall be and continue to be in full force and effect and is hereby ratified and confirmed. |
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4.3 |
This Second Amending Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original, and such counterparts together shall constitute one and the same Second Amending Agreement. For the purposes of this Section, the delivery of a facsimile copy or pdf emailed copy of an executed counterpart of this Second Amending Agreement shall be deemed to be valid execution and delivery of this Second Amending Agreement, but the party delivering a facsimile copy or pdf emailed copy shall deliver an original copy of this Second Amending Agreement as soon as possible after delivering the facsimile copy or pdf emailed copy. |
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4.4 |
This Second Amending Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable in British Columbia. Each party to this Second Amending Agreement hereby irrevocably and unconditionally attorns to the non-exclusive jurisdiction of the courts of British Columbia and California and all courts competent to hear appeals therefrom. |
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4.5 |
This Second Amending Agreement shall enure to the benefit of and be binding upon the Borrower and the Lender and their respective successors and assigns. |
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF the parties hereto have executed this Second Amending Agreement as of the day and year first written above.
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ACCELERIZE INC. , as Borrower |
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By: |
/s/ Brian Ross |
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Name: Brian Ross |
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Title: CEO |
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BEEDIE INVESTMENTS LIMITED , as Lender |
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By: |
/s/ Ryan Beedie |
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Name: Ryan Beedie |
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Title: President |
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CONSENT AND AGREEMENT OF GUARANTOR
The undersigned unlimited guarantors of the Obligations of the Borrower to the Lender does hereby consent and agree to the Borrower entering into this Second Amending Agreement.
Dated as of June 13, 2018. |
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CAKE MARKETING UK LTD. |
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By: |
/s/ Brian Ross |
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Name: Brian Ross |
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Title: CEO |
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