Attached files
| file | filename |
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| EX-4.1 - DELTATHREE INC | v193036_ex4-1.htm |
| EX-10.2 - DELTATHREE INC | v193036_ex10-2.htm |
| EX-10.3 - DELTATHREE INC | v193036_ex10-3.htm |
| EX-10.1 - DELTATHREE INC | v193036_ex10-1.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
Date of
Report (Date of earliest event reported): August 10,
2010
deltathree,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State or
other jurisdiction of incorporation)
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000-28063
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13-4006766
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(Commission
File Number)
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(IRS
Employer Identification No.)
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224
West 35th
Street, New York, N.Y.
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10001
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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: (212)
500-4850
(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 (see General Instruction A.2.
below):
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))
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Item 1.01.
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Entry into a Material Definitive
Agreement.
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On August 10, 2010, each of deltathree, Inc. (the “Company”), Delta
Three Israel, Ltd. and DME Solutions, Inc. (collectively, the “Deltathree
Entities”) entered into the
Second Loan and Security
Agreement (the “Second
Loan
Agreement”) with D4
Holdings, LLC
(“D4
Holdings”), pursuant to
which D4
Holdings will provide to
the Deltathree
Entities a line of
credit in a principal
amount of $1,000,000. In addition, on August 10,
2010, pursuant to the
Second Loan Agreement, the Deltathree Entities issued a
Promissory Note (the
“Promissory
Note”) in a principal amount of
$1,000,000 to D4 Holdings.
Pursuant to the Second Loan Agreement and the Promissory
Note,
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·
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D4 Holdings agrees to lend from time to
time, as requested by
any of the Deltathree Entities, up to an aggregate principal amount of
$1,000,000, provided that D4 Holdings will
not be required to make loan advances to the Deltathree Entities in an
aggregate amount of more than $400,000 in any three month
period;
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·
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interest shall accrue on
any loan advances at
the rate of 12% per
annum;
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·
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the initial payment of interest shall be payable
on the first calendar day of the month following the first loan
advance made under the agreement, and monthly
thereafter;
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·
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all outstanding principal and
interest are required
to be repaid on August 10, 2012;
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·
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the Deltathree Entities granted D4 Holdings a security interest in all assets
of the Deltathree
Entities;
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·
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the Deltathree Entities made customary
representations,
warranties and
covenants to D4
Holdings;
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·
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any loan advance requires the
satisfaction of the following conditions: the Deltathree Entities
shall have received the aggregate maximum loan amount of $1,200,000
available to be borrowed under the Loan and Security Agreement dated as of
March 1, 2010, between the Deltathree Entities and D4 Holdings (the “First
Loan Agreement”);
receipt by
D4
Holdings of an
executed notice of borrowing; the representations and warranties of the
Deltathree
Entities shall be
true in all material respects on the date of the notice of borrowing and
the loan date; no event of default shall have occurred and be continuing
or result from such loan advance; there shall not have occurred, in
D4
Holdings’ sole
discretion, any material adverse change; and the Company’s revenue shall not
be 10% less than, and the Company’s EBITDA shall not be 20% less than (or,
in the case of negative EBITDA, 20% more than), the amounts set forth in
the financial projections provided by the Company to the Board of
Directors, in each case measured as of the end of each quarter;
and
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·
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upon the occurrence of an event of
default (which
includes any failure of the Deltathree Entities to timely pay any
of the principal and/or any accrued interest or other amounts due under
the First Loan Agreement when the same becomes due and payable), (1) D4 Holdings may require repayment of all
outstanding amounts
under the Second Loan Agreement, terminate its commitment to make
additional loans to the Deltathree Entities, and exercise its rights with
respect to the security interest in all of the assets of the Deltathree Entities and (2) all outstanding amounts under the
Second Loan
Agreement
will bear interest at the rate of
18% per
annum.
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In connection with the parties entering
into the Second Loan Agreement and the Deltathree Entities issuing the
Promissory Note, on August 10, 2010, the Company issued a Warrant (the
“Warrant”) to D4 Holdings, exercisable for ten years, to purchase up to
4,000,000 shares of common stock, par value $0.01 per share, of the Company at
an exercise price of $[___] per share. In addition, on August 10,
2010, the Deltathree Entities and D4 Holdings entered into the First Amendment
to Loan and Security Agreement (the “Amendment”, and together with the Second
Loan Agreement, Promissory Note and Warrant, the “Transaction Documents”), which
provides that any failure of the Deltathree Entities to timely pay any of
the principal and/or any accrued interest or other amounts due under the Second
Loan Agreement when the same becomes due and payable will constitute an event of
default under the Loan and Security Agreement entered into between the parties
on March 1, 2010.
The
Company is majority-owned by D4 Holdings. Each of Robert Stevanovski,
Anthony Cassara, David Stevanovski and Gregory Provenzano, members of the
Company’s Board of Directors, has an indirect ownership interest in D4
Holdings. As a result, each of these individuals and D4 Holdings may
be deemed to have a direct or indirect interest in the transactions contemplated
by the Transaction Documents. In accordance with the Company’s Audit
Committee Charter, the Transaction Documents and the transactions contemplated
thereby were approved by the Audit Committee, which includes those directors who
are not affiliated with D4 Holdings.
The foregoing description of the Second Loan Agreement, the Promissory Note, the Warrant and
the Amendment does not
purport to be a complete summary and is qualified in its entirety by reference
to the full texts of the Second Loan Agreement, the
Promissory Note, the Warrant and the Amendment, each of which is filed as an exhibit to this
Report.
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Item 2.03
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Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement of a
Registrant.
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The
information in Item 1.01 of this Current Report on Form 8-K is incorporated by
reference into this Item 2.03.
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Item
3.02
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Unregistered Sales of Equity
Securities.
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The
information in Item 1.01 of this Current Report on Form 8-K is incorporated by
reference into this Item 3.02. The
Warrant was issued pursuant to an exemption from registration under the
Securities Act of 1933, as amended.
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Item 9.01
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Financial Statements and
Exhibits.
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(d) Exhibits
| Exhibit No. | Description |
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4.1
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Promissory
Note, dated August 10, 2010, by deltathree, Inc., Delta Three
Israel, Ltd. and DME Solutions, Inc. in favor of D4 Holdings, LLC in a principal amount of
$1,000,000.
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10.1
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Second
Loan and Security Agreement, dated as of August
10, 2010, by and
among deltathree,
Inc., Delta Three Israel, Ltd., DME Solutions, Inc. and D4 Holdings,
LLC.
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10.2
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Warrant,
dated August 10, 2010, between deltathree, Inc., and D4 Holdings,
LLC.
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10.3
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First Amendment to Loan and
Security Agreement, dated as of August 10, 2010, by and among deltathree, Inc., Delta Three
Israel, Ltd., DME Solutions, Inc. and D4 Holdings,
LLC.
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SIGNATURE
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.
| DELTATHREE, INC. | |||
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By:
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/s/ Peter Friedman | |
| Name: | Peter Friedman | ||
| Title: | General Counsel and Secretary | ||
Dated:
August 11, 2010
EXHIBIT
INDEX
| Exhibit No. | Description |
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4.1
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Promissory
Note, dated August 10, 2010, by deltathree, Inc., Delta Three
Israel, Ltd. and DME Solutions, Inc. in favor of D4 Holdings, LLC in a principal amount of
$1,000,000.
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10.1
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Second
Loan and Security Agreement, dated as of August
10, 2010, by and
among deltathree,
Inc., Delta Three Israel, Ltd., DME Solutions, Inc. and D4 Holdings,
LLC.
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10.2
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Warrant,
dated August 10, 2010, between deltathree, Inc., and D4 Holdings,
LLC.
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10.3
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First Amendment to Loan and
Security Agreement, dated as of August 10, 2010, by and among deltathree, Inc., Delta Three
Israel, Ltd., DME Solutions, Inc. and D4 Holdings,
LLC.
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