Attached files
| file | filename |
|---|---|
| EX-10.6 - ECOTALITY, INC. | v164689_ex10-6.htm |
| EX-10.4 - ECOTALITY, INC. | v164689_ex10-4.htm |
| EX-10.3 - ECOTALITY, INC. | v164689_ex10-3.htm |
| EX-10.1 - ECOTALITY, INC. | v164689_ex10-1.htm |
| EX-10.2 - ECOTALITY, INC. | v164689_ex10-2.htm |
| EX-10.5 - ECOTALITY, INC. | v164689_ex10-5.htm |
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): October 31, 2009
ECOTALITY,
INC.
(Exact
name of Registrant as specified in its charter)
|
Nevada
|
000-50983
|
68-0515422
|
|
(State
of Other Jurisdiction of Incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
|
6821
E. Thomas Road
|
|
|
Scottsdale,
Arizona
|
85251
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Registrant’s
telephone number, including area code: (480) 219-5005
(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:
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
|
|
o
|
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; AND
ITEM
3.02 UNREGISTERED SALES OF EQUITY SECURITIES
Securities
Exchange Agreement
On
October 31, 2009, Ecotality, Inc. (“Ecotality” or the “Company”) signed a
Securities Exchange Agreement with all holders of its convertible
debentures and holders of certain warrants to convert all outstanding
amounts ($9,111,170) under these debentures and all related warrants into an
aggregate of 9,270,804 shares of Series A Convertible Preferred Stock
(while not impacted by the current common stock split discussed herein, it could
be subject to adjustment for future forward and reverse stock splits, stock
dividends, recapitalizations and the like). The Series A Convertible
Preferred Stock has no redemption or preferential dividend rights, but may be
converted into shares of the Company’s common stock (the “Common
Stock”). At the date of this filing the Series A Convertible
Preferred Stock is convertible at a1:60 ratio. Following the reverse
split of common shares (see below) the Company expects that the preferred shares
will be convertible at a 1:1 ratio.
Concurrent
with the signing of the Securities Exchange Agreement, the Ecotality Board of
Directors approved a 1:60 reverse stock split (the “Reverse Split”) of its
common stock and authorized Company management to affect the Reverse Split after
providing the required notice to the Financial Industry Regulatory Authority
(FINRA). The Reverse Stock split was approved by shareholders at the
August 26, 2009 Annual Shareholder Meeting. In addition, the Board
authorized Company management to submit an application to be listed on The
NASDAQ Stock Market after affecting the Reverse Split. There can be no assurance
that the Company can meet the listing requirements of the NASDAQ Stock
Market.
The descriptions of the terms and
conditions of the Securities Exchange Agreement and the terms of the Series A
Convertible Preferred Stock are qualified in their entirety by the full text of
the Securities Exchange Agreement and Certificate of Designation, which are
attached as Exhibits hereto and incorporated herein by
reference. The
issuance of the securities in the transaction described above will be effected
without registration under the Securities Act of 1933, as amended (the
“Securities
Act”), in reliance on
Section 4(2) thereof or Rule 506 of Regulation D thereunder based on the status of each
investor as an accredited investor as defined under the Securities Act, and such
transaction will be effected without using any form of general advertising or
general solicitation as such terms are used in Regulation D.
On
October 31, 2009, Ecotality signed a Securities Purchase Agreement and a
Registration Rights Agreement with certain accredited investors (the
“Investors”) pursuant to which the Investors agreed to purchase shares of the
Common Stock at a pre-Reverse Split purchase price of $0.12 per
share. The funds from the private placement will be utilized as
working capital to support the initial requirements of the contract signed with
the Department of Energy on September 30, 2009.
Terms of
the private placement include:
|
1.
|
A
minimum aggregate purchase of $15,500,000 of Common Stock by the
Investors.
|
|
2.
|
Each
Investor will receive a Warrant to purchase the equivalent number of
shares of Common Stock that it purchases under to the Securities Purchase
Agreement. The exercise price of the Warrants will be equal to
$0.15 per share (pre-Reverse Split). The Company may call the
Warrants if the closing price of shares of the Common Stock is at least
$0.45 per share (pre-Reverse Split) for 20 consecutive trading days,
subject to certain conditions, including the existence of an effective
registration statement for the shares of Common Stock issuable upon
exercise of the Warrants (the “Warrant Shares”) and minimum volume
provisions.
The Company may not effect any exercise of the Warrants in an amount that
would result in any Investor or its affiliates beneficially
owning more than 9.99% of the outstanding Common Stock upon such an
exercise. The Warrants will have a five-year term during which
they can be exercised and shall contain a cashless exercise provision
which shall apply if there is not an effective registration statement
covering the resale of the shares issuable upon
exercise.
|
|
3.
|
The
Company shall file a shelf registration statement for the resale of the
shares of Common Stock purchased under the Securities Purchase Agreement
and the Warrant Shares on Form S-3 or another appropriate form (the
“Registration Statement”). Such Registration Statement shall be
filed as soon as practicable, but in any event within 45 days of the
closing date of the Securities Purchase
Agreement.
|
|
4.
|
The
Investors haved agree not to exercise “short sales” for a period of
9-months after the date of the Securities Purchase
Agreement.
|
|
5.
|
The
Company will initiate the process to effect the Reverse Split prior to the
closing, and the Company will submit its application to be listed on The
NASDAQ Stock Market as soon as possible thereafter. The Company is
obligated to consummate the Reverse Split within 30 days of the date of
the Securities Purchase Agreement.
|
The
descriptions of the terms and conditions of the Securities Purchase Agreement,
Registration Rights Agreement and Warrants are qualified in their entirety by
the full text of such documents, which are attached hereto as
Exhibits.
The
securities offered and described above have not been registered under the
Securities Act and may not be offered or sold in the United States absent
registration or an applicable exemption from registration
requirements. Subject to the restrictions contained in the definition of
“Exempt Issuance” contained in the Securities Purchase Agreement, the Company
has a limited ability to sell additional securities to new investors on the same
terms as the securities being sold to the Investors pursuant to the Securities
Purchase Agreement. The issuance of the securities in the transaction
described above will be effected without registration under the Securities Act
in reliance on Section 4(2) thereof or Rule 506 of Regulation D thereunder based
on the status of each investor as an accredited investor as defined under the
Securities Act, and such transaction will be effected without using any form of
general advertising or general solicitation as such terms are used in Regulation
D.
Third
Amendment
Concurrent
with, or prior to the closing of the transactions under the Securities Exchange
Agreement, and Securities Purchase Agreement, the Company will enter
into a Third Amendment to the Amendment to Debentures and Warrants,
Agreement and Waiver dated May 15, 2009 with the debenture holders , a form of
which is filed as an exhibit hereto.
As of
October 28, 2009 there were 283,896,362 shares of common stock outstanding of
which 231,612,523 shares are held by persons who are not directors or officers
of the Company or owners of 5% or more of the outstanding Common
Stock.
This
report and the attached Exhibits contain forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act of 1934, as amended. All forward-looking
statements are inherently uncertain as they are based on current
expectations and assumptions concerning future events or future performance of
the Company. Readers are cautioned not to place undue reliance on
these forward-looking statements, which are only predictions and speak only as
of the date hereof. In evaluating such statements, prospective investors
should review carefully various risks and uncertainties identified in this
report and matters set forth in the Company’s SEC filings. These risks and
uncertainties could cause the Company’s actual results to differ
materially from those indicated in these forward-looking
statements.
|
Exhibit
Number
|
Name
and/or Identification of Exhibit
|
|
|
10.1
|
Securities
Exchange Agreement
|
|
|
10.2
|
Certificate
of Designation of Preferences, Rights, and Limitations of Series A
Convertible Preferred Stock
|
|
|
10.3
|
Securities
Purchase Agreement
|
|
|
10.4
|
Registration
Rights Agreement
|
|
|
10.5
|
Form
of Warrant
|
|
|
10.6
|
Third
Amendment to Amendment to Debentures and Warrants, Agreement and
Waiver
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Company has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
ECOTALITY,
INC.
(Company)
|
Signature
|
Title
|
Date
|
||
|
/s/
Jonathan R. Read
|
President
and CEO
|
Nov
3, 2009
|
||
|
Jonathan
R. Read
|
||||
|
/s/
Barry S. Baer
|
Chief
Financial Officer
|
Nov
3, 2009
|
||
|
Barry
S. Baer
|