Attached files
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| EX-3.1 - MobileSmith, Inc. | v171857_ex3-1.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
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Date
of Report (Date of Earliest Event Reported):
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January
13, 2010
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Smart
Online, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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001-32634
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95-4439334
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(State
or other jurisdiction
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(Commission
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(I.R.S.
Employer
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of
incorporation)
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File
Number)
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Identification
No.)
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4505 Emperor Blvd., Suite 320, Durham, North
Carolina
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27703
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
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919-765-5000
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Not
Applicable
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.
On January 19, 2010, Smart Online, Inc.
(the “Company”) and Atlas Capital S.A., a Swiss business organization (“Atlas”),
entered into an amendment (the “Second Amendment”) to the Reimbursement
Agreement, dated November 10, 2006, between the Company and Atlas (as
subsequently amended, the “Reimbursement Agreement”).
The terms
of the Reimbursement Agreement were previously reported in the Forms 8-K filed
by the Company on November 14, 2006 and February 22, 2008. Atlas
previously procured a letter of credit in favor of Paragon Commercial Bank
(“Paragon”) to serve as security under the Company’s revolving credit
arrangement between the Company, as borrower, and Paragon, as lender. The
Reimbursement Agreement sets forth the terms by which Atlas may be reimbursed by
the Company for any drawdowns by Paragon on the letter of credit. The Second
Amendment provides that Atlas may elect, in its sole discretion, to be
reimbursed by the Company for any such drawdowns in either common stock of the
Company, bonds, or cash. Prior to such amendment, the Reimbursement
Agreement allowed the Company to reimburse Atlas in either cash or stock, at the
Company’s election.
As
previously reported in the Company’s filings with the Securities and Exchange
Commission, Atlas is a beneficial owner of 10% or more of the Common Stock of
the Company, and an “Investor” as defined in the Convertible Secured
Subordinated Note Purchase Agreement, dated November 14, 2007 (as amended, the
“Note Purchase Agreement”), between the Company and certain Investors, under
which the Company is entitled to elect to sell to the Investors, and the
Investors are obligated to buy convertible promissory notes (the
“Notes”). The terms of the Note Purchase Agreement and the Notes were
previously described, as applicable, in the Form 10-Q filed by the Company on
November 14, 2007, and the Forms 8-K filed by the Company on November 21,
2008 and February 25, 2009.
The
Company entered into the Second Amendment in consideration for a waiver from the
Investors. Sales of Notes to the Investors are subject to certain conditions,
including the absence of events or conditions that could reasonably be expected
to have a material adverse effect on the ability of the Company to perform its
obligations under the Note Purchase Agreement. The agent for the Investors has
advised the Company that the Company’s obligations to Dennis Michael Nouri and
Reza Eric Nouri, former officers of the Company who have obtained a judgment
against the Company for the advancement of expenses incurred by them in
connection with their defense of certain criminal and civil actions, may
constitute such a material adverse effect. However, Atlas, as the majority
Investor, advised the Company that it would be willing to waive the foregoing
funding conditions relating to the judgment if, and for so long as, the
Nouris do not actively pursue enforcement of such judgment, and, in addition, if
the Company entered into the Second Amendment.
Item
5.02 Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
To fill a
vacancy in the Board of Directors (the “Board”), the members of the Board
unanimously appointed Amir Elbaz as a director of the Company, effective January
15, 2009, to serve until his successor is duly elected and
qualified.
Mr. Elbaz currently advises technology
and renewable energy companies on business strategy, restructuring and business
development initiatives. Mr. Elbaz served as the Executive Vice
President & Chief Financial Officer of Lithium Technology Corporation
(“LTC”) until November 2008. Mr. Elbaz joined LTC in 2006 to oversee
finances and marketing, as well as business development.
Prior to joining LTC, Mr. Elbaz served
as a Senior Associate of Arch Hill Capital NV, a Dutch venture firm, from
2005-2006. During 2004 and most of 2005 Mr. Elbaz served as Vice
President of Corporate Finance at Yorkville Advisors, where Mr. Elbaz sourced,
structured and managed investments in more than a dozen public and private
companies. Prior to joining Yorkville Advisors, Mr. Elbaz served for
several years as an Analyst with the Economic Department in the Procurement
Mission of the Israeli Ministry of Defense in New York City. In that
capacity Mr. Elbaz co-headed multi-million dollar negotiations with first tier
technology companies, and was in charge of the financial aspects of the
day-to-day operations.
Mr. Elbaz
holds a B.A. from the University of Haifa, Israel, and an MBA in Finance &
Investments from Bernard Baruch College, CUNY, New York. Following
his MBA graduation, Mr. Elbaz was elected to the International Honorary Finance
Society of Beta Gamma Sigma.
There is
no arrangement or understanding between Mr. Elbaz and the Company, or to the
Company’s knowledge, between Mr. Elbaz and any other person pursuant to which
Mr. Elbaz was selected as a director.
Mr.
Elbaz has been determined by the Board to be “independent” within the meaning of
the Nasdaq Marketplace Rules definition of that term. Mr. Elbaz
was appointed by the Board to serve on the Audit Committee of the
Board.
There
have been no transactions, and no transactions are proposed, by Mr. Elbaz
with related persons as defined by Item 404(a) of
Regulation S-K.
Mr. Elbaz
will receive compensation in the amount of $1,500 per month as a director of the
Company.
Item
5.03 Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year
Effective January 13, 2010, the Company
amended and restated the Fifth Amended and Restated Bylaws of the Company in its
entirety. The Sixth Amended and Restated Bylaws (the “Bylaws”)
modifies the prior bylaws by providing for changes to the Company’s policies on
the indemnification and advancement of directors and officers, which previously
required the Company to provide indemnification and advancement rights to the
greatest extent permitted under law. The Bylaws now require the
Company to indemnify and advance certain expenses to directors and officers and
others acting on the Company’s behalf as may be required by Delaware law, or if
a majority of the disinterested members of the Board, or a duly appointed
committee thereof, determine that the person requesting indemnification acted in
good faith in the performance of his or her duties to the
Company. Furthermore, under the Bylaws, indemnification would not be
available for any director or officer who was terminated for “cause” or who was
convicted of a felony.
A copy of the Bylaws are attached as
Exhibit 3.1 to this Form 8-K, and is incorporated into this Item 5.03 by
reference.
Item
9.01 Financial
Statements and Exhibits
(d)
Exhibits
The
following Exhibit is furnished with this Report:
Exhibit
3.1 Sixth
Amended and Restated Bylaws of Smart Online, Inc., effective January 13,
2009.
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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Smart
Online, Inc.
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January
20, 2010
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By:
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/s/Dror Zoreff
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Name:
Dror Zoreff
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Title:
Chairman of the Board
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