Page 9 of 12 – SEC Filing
The following constitutes
Amendment No. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule
13D as specifically set forth herein.
| Item 4. | Purpose of Transaction. |
Item 4 is hereby amended
to add the following:
Standby Purchase
Agreement with PW Partners
On January 29, 2018,
the Issuer entered into a Standby Purchase Agreement (the “Standby Purchase Agreement”) with PW Partners in connection
with the previously disclosed proposed non-transferable rights offering (the “Rights Offering”). The Standby Purchase
Agreement provides that PW Partners will (a) exercise its non-transferable rights to subscribe for and purchase its pro rata amount
of newly-issued Shares, at a price per Share, which the Issuer’s board of directors has set at $3.50 per Share (the “Subscription
Price”), and (b) purchase in a private placement separate from the Rights Offering, at the Subscription Price and subject
to the terms and conditions of the Standby Purchase Agreement, any Shares that are not subscribed for in the Rights Offering pursuant
to the Issuer’s stockholders’ exercise of their rights. Notwithstanding the foregoing, the Standby Purchase Agreement
also provides that PW Partners will not purchase Shares in an amount that would result in PW Partners beneficially owning 20% or
more of the outstanding Shares after such purchase.
PW Partners may terminate
the Standby Purchase Agreement upon any suspension of trading in the Shares by The Nasdaq Stock Market, any suspension of payments
with respect to banks in the United States or a declaration of war or national emergency, or if the Issuer materially breaches
any of its representations, warranties, covenants or obligations under the Standby Purchase Agreement and fails to cure such breach
within five business days of receiving written notice.
The foregoing description
of the Standby Purchase Agreement does not purport to describe all of the terms and provisions thereof and is qualified in its
entirety by reference to the Standby Purchase Agreement, which is referenced as an exhibit hereto and is incorporated herein by
reference.
Amendment to Employment
Agreement with Jeffery Crivello
On January 29, 2018,
the Issuer entered into an Amendment to the previously disclosed Employment Agreement with the Issuer’s Chief Executive Officer,
Jeffery Crivello, dated November 14, 2017 (the “Amendment”). The Amendment provides that if no Shares are available
to be granted under a stockholder approved equity compensation plan at the time Mr. Crivello’s Bonus (as defined therein)
is earned, Mr. Crivello shall be paid cash equal to the value of the number of Shares otherwise entitled to be received.
The foregoing description
of the Amendment does not purport to describe all of the terms and provisions thereof and is qualified in its entirety by reference
to the Amendment, which is referenced as an exhibit hereto and is incorporated herein by reference.
| 9 |
