Page 9 of 12 – SEC Filing
(iv) Shared power to dispose or direct the disposition of: 7,178,372*
| * | HCPF owns directly 2,950,827 shares of Common Stock. Pursuant to investment management agreements, HCM maintains investment and voting power with respect to 2,950,827 shares of Common Stock held by HCPF and other Issuer Securities held by HCPF as described below. However, despite the delegation of investment and voting power to HCM, HCP may be deemed to be the beneficial owner of such securities under Rule 13d-3 of the Act because HCP has the right to acquire investment and voting power through termination of investment management agreements with HCM. HCP is the general partner of HCPF. Mr. Manko is the managing member of both HCM and HCP. |
In addition to 2,950,827 shares of Common Stock, as of the date of this Schedule 13D/A, the Reporting Persons beneficially owned: (i) 862,424 shares of Series
A Preferred Stock, including 112,424 shares of Series A Preferred Stock received as dividends, that are convertible into 3,382,055 shares of Common Stock; (ii) 2014 Warrants to purchase 937,500 shares of Common Stock; and (iii) 2015 Warrant to
purchase 267,857 shares of Common Stock.
However, the Series A Preferred Stock, the 2014 Warrants and 2015 Warrant contain a conversion cap that
precludes the holder thereof from converting the shares of Series A Preferred Stock into shares of Common Stock and exercising the 2014 Warrants and 2015 Warrant to the extent that the holder would, after such conversion or exercise, as applicable,
beneficially own (as determined in accordance with Section 13(d) of the Act) in excess of 4.99% (Beneficial Ownership Limitation) of the shares of Common Stock then outstanding. Upon at least 61 days prior notice to the Issuer, a
holder may increase or decrease the Beneficial Ownership Limitation, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of Common Stock outstanding upon the conversion of the Series A Preferred Stock
or the exercise of the 2014 Warrants or 2015 Warrant.
Therefore, excluded from the Reporting Persons beneficial ownership are 359,867 shares of
Common Stock issuable upon exercise of the 2014 Warrants, 2015 Warrant and conversion of the Series A Preferred Stock beneficially owned by the Reporting Persons, due to the Beneficial Ownership Limitation that precludes the holder thereof from
exercising the 2014 Warrants and 2015 Warrant or converting shares of Series A Preferred Stock to the extent that the holder would, after such exercise, beneficially own (as determined in accordance with Section 13(d) of the Act) in excess of 9.99%
of the shares of Common Stock then outstanding.
(c) Schedule A attached to this Schedule 13D/A and incorporated herein by reference lists all transaction
in the shares of Common Stock effected by the Reporting Persons during the past sixty days.
(d) No person other than the Reporting Persons is known to
have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the shares of Common Stock.
(e) Not
applicable.
| Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
HCPF entered into the August 2014 SPA and the December 2015 SPA described in Item 3 above. The description of the August 2014 SPA and December
2015 SPA and related Issuer Securities set forth in Items 3 and 5 is incorporated herein by this reference.
On May 30, 2017, the
Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D,
