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Note 7 - Loan Agreement
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12 Months Ended |
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Jan. 31, 2013
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| Debt Disclosure [Text Block] |
7.
Loan Agreement
Senior
Secured Six Month Term Loan Agreement
As
previously reported, the Company entered into a Senior
Secured Six Month Term Loan Agreement dated July 27, 2012
(the “Loan Agreement”) with Broadwood, a
partnership managed by Broadwood Capital, Inc., the general
partner of Broadwood. Broadwood is a significant
shareholder of the Company.
Pursuant
to that Agreement, Broadwood made a $2,000,000 senior secured
six month loan (the “Loan”) to the Company and to
CWT, as co-borrower. The Loan bore interest at 5%
per annum, ranked senior in right of payment to all other
indebtedness of the Company and was due and payable in full
on January 28, 2013. The Company originally
intended to repay the Loan and accrued interest from the $3.0
million in proceeds that was expected to be received from
Broadwood in the fourth quarter of fiscal 2013, pursuant to
the Stock Purchase Agreement (“SPA”) discussed
below.
On
January 28, 2013, the maturity date of the Loan, the Company
was informed by Broadwood, that it was Broadwood’s
position that one or more of the conditions precedent to its
obligation to purchase the Company’s shares pursuant to
the Broadwood SPA had not been satisfied and, as a result,
Broadwood would not consummate that purchase and, therefore,
the Company would have to repay the Loan in cash. Subsequent
to the fiscal year-ended January 31, 2013, the Company repaid
the amounts outstanding under the Loan Agreement in full (see
Note 14).
Stock
Purchase Agreement and Stock Purchase Warrants
Concurrently
with the execution of the Loan Agreement, the Company and
Broadwood entered into the SPA. That agreement provided for
the purchase by Broadwood of up to 3,000,000 shares of
the Company’s common stock (the “Shares”),
at a price of $1.00 per Share, subject to the following
conditions: (i) during the six month term of the Loan,
the Company would use its best commercial efforts to raise at
least $3.0 million from the sale of additional equity
securities to other investors, which could include other
shareholders of the Company, and (ii) the Company
remained in compliance with its covenants under the Loan
Agreement. The SPA provided that if, at any time between July
27, 2012 and July 27, 2013, the Company sells any shares of
its common stock (or sells or issues securities that are
convertible or exercisable into shares of common stock) at a
price less than $1.00 per share, the Company will be required
to issue outright to Broadwood, without additional
consideration from it, a number of additional Shares (the
“Make-Whole Shares”) sufficient to reduce the per
share price paid by Broadwood for the total number of the
Shares and Make-Whole Shares issued under the SPA to that
lower price.
As
consideration for the Loan and Broadwood’s entry into
the SPA, on July 27, 2012 the Company issued stock purchase
warrants (the “Warrants”) to Broadwood entitling
it to purchase up to a total of 1,704,546 shares of the
Company’s common stock (the “Warrant
Shares”), at a price of $1.00 per Warrant Share, at any
time through July 2020.
On
July 27, 2012, the Company also entered into a Warrant
Commitment Letter, which provided that if the Company raised
less than $3.0 million from sales of equity securities
to other investors during the six month term of the Loan,
then Broadwood will receive an additional Warrant (the
“Additional Warrant”) entitling it to purchase,
also at a price of $1.00 per share, an amount of shares of
the Company’s common stock to be determined based on a
formula in the Warrant Commitment Letter, with such amount
not to exceed 1,000,000 additional shares (the amount of such
additional shares, “Additional Warrant Shares”).
The exercise price is to be adjusted if the Company completes
subsequent financings at less than the current exercise price
as described below.
The
Warrants, including the Additional Warrant, provide that if
the Company sells shares of its common stock (or any
securities that are convertible or exercisable into shares of
Company common stock) at a price less than $1.00 per share,
then, subject to certain exceptions (including grants of
stock incentives and sales of shares to officers, employees
or directors under the Company’s equity incentive plans
and issuances of shares in business acquisitions), the
exercise price of the Warrants, including the Additional
Warrant, then outstanding will be reduced to that lower price
and the number of Warrant Shares purchasable by Broadwood on
exercise of the Warrants and the Additional Warrant will be
proportionately increased. The Warrants and the Additional
Warrant have been accounted for as derivative liabilities
resulting from the instruments’ price protection
features.
The
Warrants and the Additional Warrant (collectively, the
“Broadwood Warrants”) also grant to Broadwood the
right to require the Company (i) to register the Warrant
Shares under the Securities Act of 1933, as amended (the
“Securities Act”) for possible resale and
(ii) to include the Warrant Shares in any registration
statement that the Company may file to register, under the
Securities Act, the sale of Company shares for cash.
As
noted above, the Company was informed by Broadwood on January
28, 2013, that it was Broadwood’s position that one or
more of the conditions precedent to its obligation to
purchase the Company’s shares pursuant to the SPA had
not been satisfied and, as a result, Broadwood would not
consummate that purchase.
The
Company’s position is that, contrary to
Broadwood’s assertions, all of the conditions under the
SPA had been satisfied, and Broadwood’s refusal to
purchase 3,000,000 shares of Company common stock, at the
price of $1.00 per share, constituted a material breach by
Broadwood of its obligations under the SPA. As a
result, as of the date of filing this report, the Company has
not issued any Additional Warrant Shares to Broadwood and
each party has reserved its rights under and with respect to
the SPA and the Broadwood Warrants.
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