13. Common shares, preferred shares and warrants

Common shares

Upon completion of the TBO Merger on March 21, 2015, TBO stockholders received the following (all reflect the 1-for-5 Reverse Split):

(a)	4,016,846 shares of TBO common stock, no par value per share (“TBO Common Stock”) converted into 4,016,846 shares of the Company’s Common Share (“Company Common Share”), par value $0.0005 per share;

(b)

8,000 shares of TBO Series A Convertible Preferred Stock, par value $0.001 per share (“TBO Series A Preferred Stock”) converted into 4,200,511 shares of the Company’s Series A Non-Voting Convertible Preferred Stock, par value $0.0001 per share (“Series A Preferred”) at closing and 1,800,220 shares of Series A Preferred subject to an earn out;

(c)	1,019,600 shares of TBO Series B Convertible Preferred Stock, par value $0.001 per share (“TBO Series B Preferred Stock”) converted into 764,791 shares of Series A Preferred;

(d)	640,000 shares of TBO Series C Convertible Preferred Stock, par value $0.001 per share (“TBO Series C Preferred Stock”) converted into 480,057 shares of Company Common Share; and

(e)	4,000 shares of TBO Series D Convertible Preferred Stock, par value $0.001 per share (“TBO Series D Preferred Stock”) converted into 2,100,252 shares of Company Common Share at closing and 900,108 shares of Company Common Share subject to an earn out.

Marlin Capital Investments, LLC (“Marlin Capital”), a company which Michael Brauser owns 50% and is one of two managers, held Restricted Stock Units (“RSUs”) representing the right to receive 2,000,000 shares of TBO Common Stock. The Company assumed these RSUs upon closing of the TBO Merger and the RSUs represent the right to receive 2,000,000 shares of Company Common Share. The RSUs vest annually beginning from October 13, 2015 only if certain performance goals of the Company are met. The shares underlying such RSUs will not be delivered until October 13, 2018, unless there is a change of control of the Company.

In addition, 960,000 RSUs held by TBO employees were assumed by the Company and represent the right to receive 960,000 shares of Company Common Stock, subject to a vesting period ranging from 2 to 4 years. 28,000 outstanding TBO warrants were assumed upon the TBO Merger and are exercisable for 28,000 shares of Company Common Stock. In June 2015, 20,122 shares of Company Common Stock were issued as a result of a cashless exercise of the 28,000 warrants.

As stated in Note 1(b), for accounting purposes, the Company has been recognized as the accounting acquiree in the TBO Merger described above, with IDI Holdings, formerly known as TBO, being the accounting acquirer. Therefore, the equity structure prior to March 21, 2015 was restated to reflect the number of common shares and preferred shares of the Company issued to TBO stockholders to effect the transaction using the exchange ratio prescribed by the TBO Merger Agreement. Pursuant to (a) – (b) above, the equity structure of IDI Holdings, the accounting acquirer, was restated to reflect the number of Company Common Share and Series A Preferred of 4,965,302 and 6,597,155, respectively, prior to March 21, 2015,

As of December 31, 2015 and 2014, the number of issued and outstanding common shares was 15,709,786 and 6,597,155, respectively. The change of number of common shares during the year ended December 31, 2015 was as a result of issuance of the following common shares:

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On March 21, 2015, for accounting purpose, 7,291,299 common shares were deemed to be issued to the accounting acquiree as a result of the reverse acquisition.

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During the year ended December 31, 2015, an aggregate of 382,300 common shares were issued to certain directors, officers and employees, as a result of the vesting of RSUs.

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On July 28, 2015, 1,280,410 shares were issued to an institutional investor as a result of a registered direct offering. Pursuant to the definitive purchase agreement (“July Securities Purchase Agreement”) with an institutional investor on July 24, 2015, the Company sold 1,280,410 shares of its common stock at a per share price of $7.81. The net proceeds to the Company from the offering, after deducting offering costs of $600, were received on July 28, 2015.

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During the year ended December 31, 2015, an aggregate of 45,000 shares were issued to four third-party consulting firms, for services to be performed in accordance with contracts.

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In December 2015, an aggregate of 93,500 shares of Series A Preferred were converted into the Company’s Common Shares, based on the conversion rate of 1:1.

Warrants

Pursuant to a concurrent private placement with the July Securities Purchase Agreement, as mentioned above, the Company issued to the investor warrants to purchase 0.5 share of common stock for each share of common stock purchased in the registered direct offering at an exercise price of $10.00 per share, for a total of 640,205 shares of common stock. The warrants will be exercisable six months from the date of issuance and will expire 36 months from the date of issuance.

As mentioned below in Series B Preferred shares, on November 16, 2015, the Company raised approximately $10.0 million in gross proceeds from the sale of 29,985 shares of Series B Preferred and Securities Purchase Agreements Warrants to purchase up to 749,625 shares of Common Share at the price of $6.67. The Securities Purchase Agreements Warrants are exercisable in whole in part at any time from the date that is the twenty first day following the mailing of an information statement to the Company’s stockholders disclosing the Company’s stockholder approval of the issuance of the Conversion Shares until November 16, 2025.

Refer to Note 11 for additional disclosure on warrants.

Series A Preferred shares

As part of the TBO Merger, the Company, as accounting acquiree, issued a total of 4,965,302 shares of Series A Preferred to TBO shareholders. An additional 1,800,220 shares of Company Series A Preferred may be issued subject to an earn-out. Terms of the Company’s Series A Preferred shares are as follows:

Conversion. The Company’s Series A Preferred will automatically convert on a one-for-one basis into Company Common Stock immediately before the closing of a qualified sale. The Certificate of Designation of the Company Preferred Stock defines qualified sale as the bona fide, arms’ length sale of Company Preferred Stock to a non-affiliate of either the holder or the Company.

Dividends. Each holder of Company Preferred Stock will be entitled to receive dividends in the same manner as holders of Company Common Stock, at the same time any dividends or other distributions will be paid or declared and set apart for payment on any shares of Company Common Stock, on the basis of the largest number of whole shares of Company Common Stock into which such holder’s shares of Company Preferred Stock could be converted.

Voting Rights. Except as required by law, holders of Company Preferred Stock will not be entitled to vote, but each holder will be entitled, on the same basis as a holder of Company Common Stock, to receive notice of an action or meeting. In addition, holders of any series of preferred stock will be entitled to vote on any changes to the Company’s Certificate of Incorporation that would modify the designations of such series of preferred stock.

Dissolution, Liquidation or Winding Up. In connection with a dissolution, liquidation or winding up of the Company, distributions to the stockholders of the Company shall be made among the holders of Company Common Stock, Company Preferred Stock and any other class or series of preferred stock entitled to participate with the Common Stock in a liquidating distribution pro rata in proportion to the shares of Company Common Stock then held by them and the maximum number of shares of Company Common Stock which they would have the right to acquire upon conversion of shares of Company Preferred Stock held by them.

No Preemptive or Redemption Rights. The Company Preferred Stock has no preemptive or redemption rights.

For the year ended December 31, 2015, a total of 93,500 shares of Series A Preferred were converted into the Company’s common shares immediately before the closing of sales to non-affiliates.

Series B Preferred shares

For the year ended December 31, 2015, the Company issued a total of 450,962 shares of Series B Preferred to the Sellers of Fluent and certain investors.

On November 16, 2015, the Company raised approximately $10.0 million in gross proceeds from the sale of 29,985 shares of the Company’s Series B Preferred and warrants to purchase up to 749,625 shares of the Common Share (the “Securities Purchase Agreements Warrants”) pursuant to securities purchase agreements (the “Securities Purchase Agreements”).

On November 16, 2015, the Company entered into a Stock Purchase Agreement with Frost Gamma, providing for the sale of 119,940 shares of Series B Preferred to Frost Gamma, in exchange for $40.0 million (the “FGIT Stock Purchase Agreement”).

As mentioned in Note 11 – Long-term debt, net, pursuant to the Bridge Loans agreement on December 8, 2015, related investors were granted a total of 1,000 shares of Series B Preferred. The fair value of such Series B Preferred as of grant date was $413. Refer to Note 11 for details.

As discussed in Note 1 (b) and Note 4, on December 8, 2015, the Company acquired Fluent pursuant to the Fluent Merger Agreement, a total of 300,037 shares of Series B Preferred were issued to the Sellers as part of the acquisition consideration.

Terms of the Company’s Series B Preferred shares are as follows:

Dividends, Redemption. Each holder of Series B Preferred shall be entitled to receive, on a pari passu basis, dividends payable, subject to the conditions and other terms hereof, out of any funds of the Company legally available when and at the time for declaration of dividends by the Company. The Company shall not have the right to redeem shares of Series B Preferred except with prior written consent of the holder thereof.

Voting Rights. Except as required by law or as specifically provided herein, the Holders of Series B Preferred shall not be entitled to vote, as a separate class or otherwise, on any matter presented to the stockholders of the Company for their action or consideration at any meeting of stockholders of the Company (or by written consent of stockholders in lieu of meeting), provided, however, that each holder of outstanding shares of Series B Preferred shall be entitled, on the same basis as holders of Common Stock, to receive notice of such action or meeting.

Liquidation. Upon any Liquidation, distributions to the stockholders of the Company shall be distributed among the holders of Common Stock, Series B Preferred and any other class or series of preferred stock of the Corporation entitled to participate with the Common Stock in a liquidating distribution, pro rata in proportion to the shares of Common Stock then held by them.

Conversion. Each share of Series B Preferred shall automatically convert into Common Share on the date that is the twenty first day (the “Conversion Date”) following the mailing of the information statement to the Company’s stockholders disclosing the Company’s stockholder approval of the issuance of the Conversion Shares, without any further action on the part of the Company or any holder. The number of duly authorized, validly issued, fully paid and non-assessable shares of Common Share issuable upon conversion of each share of Series B Preferred shall be equal to the product obtained by multiplying each such share of Series B Preferred being converted by 50.

On February 22, 2016, the Company’s Series B Preferred, 450,962 shares in total, automatically converted into 22,548,100 shares of the Company’s Common Share, by multiplying each such share of Series B Preferred being converted by 50.