Quarterly report pursuant to Section 13 or 15(d)

DEBT, COMMITMENTS AND CONTINGENCIES

v3.7.0.1
DEBT, COMMITMENTS AND CONTINGENCIES
6 Months Ended
Jun. 30, 2017
DEBT, COMMITMENTS AND CONTINGENCIES  
DEBT, COMMITMENTS AND CONTINGENCIES

 

NOTE 6 – DEBT, COMMITMENTS AND CONTINGENCIES

 

Debt consists of the following:

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

 

 

 

 

 

 

 

 

 

 

Senior secured term notes

 

9-Jul-20

 

LIBOR + 9.75%

 

 $

15,835,900

 

 $

15,620,759

 

Less: debt discount

 

 

 

 

 

(1,805,701)

 

(1,425,167)

 

 

 

 

 

 

 

 

 

 

 

Total senior-term notes, net of discount

 

 

 

 

 

 $

14,030,199

 

 $

14,195,592

 

 

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

 

 

 

 

 

 

 

 

 

 

Convertible Note

 

10-Oct-18

 

11

%

 $

500,000

 

$

500,000

 

 

 

 

 

Maturity

 

Late

 

June 30,

 

December 31,

 

 

 

Date

 

Fee

 

2017

 

2016

 

iRunway trade payable

 

On Demand

 

1.5% per month

 

 $

191,697

 

$

191,697

 

 

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

Note payable

 

31-Jan-17

 

NA

 

 $

-

 

$

103,000

 

 

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

Siemens

 

30-Sep-17

 

NA

 

 $

750,000

 

$

1,672,924

 

 

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

Dominion Harbor

 

15-Oct-17

 

NA

 

 $

-

 

$

125,000

 

 

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

Oil & Gas

 

On Demand

 

NA

 

 $

1,000,000

 

$

944,296

 

 

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

3dnano Convertible Note

 

1-Jan-18

 

15

%

 $

50,000

 

$

-

 

 

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

Medtech Note

 

1-May-18

 

NA

 

 $

600,000

 

$

-

 

 

 

 

 

Maturity

 

Interest

 

June 30,

 

December 31,

 

 

 

Date

 

Rate

 

2017

 

2016

 

3dnano Liscense Fee

 

31-Jan-17

 

NA

 

 $

-

 

$

100,000

 

 

 

 

 

 

 

 

 

June 30, 2017

 

December 31, 2016

 

Total

 

 

 

 

 

 $

17,121,896

 

 $

17,832,509

 

Less: current portion

 

 

 

 

 

(5,622,173)

 

(13,162,007)

 

 

 

 

 

 

 

 

 

 

 

Total, net of current portion

 

 

 

 

 

 $

11,499,723

 

 $

4,670,502

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Senior Secured Term Notes

 

On January 29, 2015, the Company and certain of its subsidiaries entered into a series of Agreements including a Securities Purchase Agreement with DBD Credit Funding LLC, (“DBD”) an affiliate of Fortress Credit Corp., under which the terms of the notes were:

 

(i)

$15,000,000 original principal amount of Fortress Notes (the “Initial Note”);

(ii)

a right to receive a portion of certain proceeds from monetization net revenues received by the Company (the “Revenue Stream”, after receipt by the Company of $15,000,000 of monetization net revenues and repayment of the Fortress Notes);

(iii)

a five-year Fortress Warrant to purchase 100,000 shares of the Company’s Common Stock exercisable at $7.44 per share, subject to adjustment; and

(iv)

134,409 shares of the Issuer’s Common Stock (the “Fortress Shares”).

 

On February 12, 2015, the Company issued an additional $5,000,000 of Notes (which increase proportionately the Revenue Stream).

 

The Initial Note matures on July 29, 2018. Additional Notes issued pursuant to the Fortress Purchase Agreement mature 42 months after issuance. The unpaid principal amount of the Initial Note plus the additional $5,000,000 note (including any PIK Interest, as defined below) bear cash interest at a rate equal to LIBOR plus 9.75% per annum payable on the last business day of each month. Interest is paid in cash except that 2.75% per annum of the interest due on each Interest Payment Date shall be paid-in-kind, by increasing the principal amount of the Notes by the amount of such interest. Monthly principal payments are due commencing one year after the anniversary dates of the loans.

 

The terms of the Fortress Warrant provide that until January 29, 2020, the Warrant may be exercised for cash or on a cashless basis. Exercisability of the Fortress Warrant is limited if, upon exercise, the holder would beneficially own more than 4.99% of the Company’s Common Stock. The exercise price of the warrant is $7.44 and the warrant fair value was determined to be $318,679 utilizing the Black-Scholes model, with the fair value of the warrants recorded as additional paid-in capital and reducing the carrying value of the Notes. As of June 30, 2017 and December 31, 2016, the unamortized discount on the Notes was $1,805,701 and $1,425,167, respectively.

 

Senior Secured Term Note Amendment

 

On January 10, 2017  the Company and certain of its subsidiaries entered into the Amended and Restated Revenue Sharing and Securities Purchase Agreement (“ARRSSPA”) with DBD Credit Funding LLC, under which the Company and DBD amended and restated the Revenue Sharing and Securities Purchase Agreement dated January 29, 2015 (the “Original Agreement”) pursuant to which (i) Fortress purchased $20,000,000 in promissory notes, of which $15,835,900 is outstanding as of June 30, 2017, (ii) an interest in the Company’s revenues from certain activities and warrants to purchase 100,000 shares of the Company’s common stock. The ARRSSPA amends and restates the Original Agreement to provide for (i) the sale by the Company of a $4,500,000 promissory note (the “New Note”) and (ii) the insurance of additional warrants to purchase 187,500 shares of common stock (the “New Warrant”). Pursuant to the ARRSSPA, Fortress acquired an increased revenue stream right to certain revenues generated by the Company through monetization of our patent portfolio (“Monetization Revenues”). The ARRSSPA increases the revenue stream basis to $1,225,000. The ARRSSPA provides for the potential issuance of up to $7,500,000 of additional notes (the “Additional Notes”), of which not more than $3,750,000 shall be made prior to June 30, 2017 and of which not more than $3,750,000 shall be made available during the period following June 30, 2017 and on or prior to December 31, 2017 and not more than two such issuances shall occur under the ARRSSPA.

 

The unpaid principal amount of the New Note (including any PIK Interest, as defined below) shall bear cash interest at a rate equal to LIBOR plus 9.75% per annum; provided that upon and during the continuance of an Event of Default (as defined in the Initial Note), the interest rate shall increase by an additional 2% per annum.

 

Interest on the Initial Note shall be paid on the last business day of each calendar month (the “Interest Payment Date”), commencing January 31, 2017. Interest shall be paid in cash except that 2.75% per annum of the interest due on each Interest Payment Date shall be paid-in-kind, by increasing the principal amount of the Notes by the amount of such interest, effective as of the applicable Interest Payment Date (“PIK Interest”). PIK Interest shall be treated as added principal of the New Note for all purposes, including interest accrual and the calculation of any prepayment premium. The Company paid a structuring fee of 2.0% of the New Note and would pay a 2.0% fee upon the issuance of any Additional Notes. The proceeds of the New Note and any Additional Notes may be used for working capital purposes, portfolio acquisitions, growth capital and other general corporate purposes.

 

The ARRSSPA contains certain customary events of default, and also contains certain covenants including a requirement that the Company maintain minimum liquidity of $1,250,000 in unrestricted cash and cash equivalents.

 

The terms of the New Warrants provide that from July 10, 2017 until January 10, 2022, the Warrant may be exercised for cash or on a cashless basis. Exercisability of the Warrant is limited if, upon exercise, the holder would beneficially own more than 4.99% of the Issuer’s Common Stock.

 

Pursuant to the ARSSPA, as security for the payment and performance in full of the Secured Obligations (as defined in the Security Agreement entered in favor of the Note purchasers (the “Security Agreement”) the Company and certain subsidiaries executed and delivered in favor of the purchasers a Security Agreement and a Patent Security Agreement, including a pledge of the Company’s interests in certain of its subsidiaries. As further set forth in the Security Agreement, repayment of the Note Obligations (as defined in the Notes) is secured by a first priority lien and security interest in all the assets of the Company, subject to certain permitted liens. Certain subsidiaries of the Company also executed guarantees in favor of the purchasers (each, a “Guaranty”), guaranteeing the Note Obligations.

 

As of June 30, 2017 and December 31, 2016, the outstanding balances were $15,835,900 and $15,620,759, respectively.

 

Convertible Note

 

In two transactions, on October 9, 2014 and October 16, 2014, the Company sold an aggregate $5,550,000 of principal amount of convertible notes (“Convertible Notes”) along with two-year warrants to purchase 129,499 shares of the Company’s Common Stock. The Convertible Notes are convertible into shares of the Company’s Common Stock at $7.50 per share and the Warrants have an exercise price of $8.25 per share. The Notes mature on October 10, 2018 and bear interest at the rate of 11% per annum, payable quarterly in cash on each of the three, six, nine and twelve-month anniversaries of the issuance date and on each conversion date. The Notes may become secured by a security interest granted to the holder in certain future assets under certain circumstances.  In the event the Company’s Common Stock trades at a price of at least $27.00 per share for four out of eight trading days, the Notes will be mandatorily converted into Common Stock of the Company at the then applicable conversion price per share. The Company repaid the Convertible Notes for all but one holder in early 2015, and the balance was $500,000 as of June 30, 2017 and December 31, 2016, respectively.

 

iRunway

 

The Company converted a set of outstanding invoices related to work performed by one of the Company’s vendors to a short-term payable whereby the Company agreed to pay iRunway over time for the open invoices, subject to a payment schedule as defined. To the extent that the Company does not make payments according to that schedule, the remaining balance accrues interest at 1.5% per month. As of June 30, 2017 and December 31, 2016, principal in the amount of $191,697 and $191,697, respectively, remained outstanding and the Company expects to repay the open balance during the year ended December 31, 2017.

 

Note Payable

 

The Company entered into a short-term advance with an officer related to funds the Company was transferring from its European subsidiaries. The advance carried no interest and as of June 30, 2017 and December 31, 2016, the outstanding balance was $0 and $103,000, respectively.

 

Siemens Purchase Payment

 

The Company entered into a purchase agreement to acquire ownership of certain patents.  As part of the purchase agreement, the Company agreed to certain future payments of cash consideration.  The payment obligation bears no interest and as of June 30, 2017 and December 31, 2016, the outstanding balances were $750,000 and $1,672,924, respectively, with the remaining balance expected to be made by September 30, 2017.

 

Dominion Harbor Settlement Note

 

The Company entered into a settlement agreement with Dominion Harbor, a former licensing agent for some of the Company’s subsidiaries, on October 29, 2015 whereby the Company agreed to issue 300,000 shares of the Company’s Common Stock to Dominion Harbor and make eight (8) payments of $25,000 each ending on October 15, 2017.  The shares issued to Dominion Harbor were valued at the quoted market price on the date of the grant of $1.71 per share or $513,000. As of June 30, 2017 and December 31, 2016, $0 and $125,000, respectively, remained outstanding, following an agreement between the Company and Dominion wherein the Company paid $25,000 and issued 125,000 shares of Common Stock to Dominion in full resolution of the outstanding obligaiton.

 

Oil & Gas Purchase Payment

 

The Company entered into a purchase agreement to acquire monetization rights to certain patents. As part of the purchase agreement, the Company agreed to certain future payments of cash consideration. The payment obligation bears no interest and as of June 30, 2017 and December 31, 2016, the Company had an outstanding obligation for purchase of certain Siemens patents in the net amount of $1,000,000 and $944,296, respectively, with such payments expected to be made by December 31, 2017.

 

3D Nano Purchase Payment

 

3D Nano entered into a license and purchase agreement with HP Inc. (“HP”) to acquire the rights to use if 3D Nano chooses, the right to exercise an option to acquire, ownership of certain patents, trade secrets and other intellectual property (the “Technology”). As part of the purchase agreement, the Company agreed to license the Technology for two payments of $100,000 each, with the first payment made in April 2016 and the second payment due by January 31, 2017. Under the original agreemnent, the payment obligations bear no interest and as of June 30, 2017 and December 31, 2016, 3D Nano had an outstanding obligation in the amount of $0 and $100,000, respectively. On May 1, 2017, 3D Nano entered into an amendment with HP whereby the agreement was extended for two years. While 3D Nano does not have the obligation under the amendment to make additional payments, should 3D Nano desire to do so, payments in the amount of $100,000 in each of 2018 and 2019 would be due to HP for the agreement to remain in effect.

 

Medtech Note

 

On May 31, 2017, the Company entered into a note payable with Medtronic, Inc. (“Medtronic”), the original owner of the patents in the Company’s Medtech portfolio, whereby the Company agreed to pay Medtronic a total of $750,000 in ten equal monthly installments for patent enforcement related expenses incurred by Medtronic.  The note payable carries no interest and as of June 30, 2017 and December 31, 2016, the outstanding balance, following two payments of $75,000 each in May and June 2017, was $600,000 and $0, respectively.

 

Total Future Minimum Principal Payments

 

Future minimum principal payments for all items set forth above are as follows:

 

2017

 

$

2,446,561

 

2018

 

7,208,368

 

2019

 

6,058,367

 

2020

 

3,214,301

 

 

 

 

 

Total

 

$

18,927,597

 

 

 

 

 

 

 

Office Lease

 

In October 2013, the Company entered into a net-lease for its current office space in Los Angeles, California.  The lease will commence on May 1, 2014 and runs for seven years through April 30, 2021, with monthly lease payment escalating each year of the lease.  In addition, to paying a deposit of $7,564 and the monthly base lease cost, the Company is required to pay pro rata share of operating expenses and real estate taxes.  Under the terms of the lease, the Company will not be required to pay rent for the first five months but must remain in compliance with the terms of the lease to continue to maintain that benefit.  In addition, the Company has a one-time option to terminate the lease in the 42th month of the lease.  Minimum future lease payments under this lease at June 30, 2017, for the next five years are as follows:

 

2017 (Six Months)

 

$

36,162

 

2018

 

74,540

 

2019

 

77,872

 

2020

 

81,336

 

2021

 

27,504

 

 

 

 

 

Total

 

$

297,414