Page 8 of 10 – 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: On August 24, 2016, Nokomis Capital and certain of its affiliates (“Nokomis”) entered into an agreement (the “Agreement”) with the Issuer with respect to certain matters related to the 2016 annual meeting of stockholders (the “2016 Annual Meeting”). Pursuant to the terms of the Agreement, the Issuer agreed to appoint Wes Cummins, an employee of Nokomis Capital, to the Issuer’s Board of Directors (the “Board”) as a Class I director with a term expiring at the 2016 Annual Meeting and to renominate and solicit proxies for the election of Mr. Cummins at the 2016 Annual Meeting. Concurrent with his appointment to the Board, the Issuer agreed to appoint Mr. Cummins to the Nominating & Governance Committee of the Board. Nokomis and the Issuer also agreed to search for an additional independent director to join the Board, and to the extent that such independent director is not identified by January 30, 2017, Brett Hendrickson, manager of Nokomis Capital, will be appointed as a Class II director with a term expiring at the 2017 annual meeting of stockholders (the “2017 Annual Meeting”) until such time as an independent director is identified. The Issuer also agreed that, during the Restricted Period (as defined below), the Board shall not exceed eight members and the Issuer shall not take any action to reconstitute or reconfigure the classes in which the directors serve without the consent of Nokomis. Pursuant to the Agreement, Nokomis is subject to certain standstill restrictions during the period from the date of the Agreement until 11:59 p.m., Pacific Time, on the day that is 15 days prior to the deadline for stockholder nominations of directors for election at the 2017 Annual Meeting (such period, the “Restricted Period”). During the Restricted Period, Nokomis is subject to customary standstill and voting obligations. During the Restricted Period, Nokomis has agreed to vote all voting securities which it is entitled to vote in accordance with the recommendation of the Board at any annual or special meeting. The foregoing description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
Item 6 is hereby amended to add the following: On August 24, 2016, Nokomis and the Issuer entered into the Agreement as defined and described in Item 4 above and attached as Exhibit 99.1 hereto. Item 7. Material to be Filed as Exhibits.
Item 7 is hereby amended to add the following exhibit: 99.1 Agreement, dated August 24, 2016.
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:
On August 24, 2016, Nokomis Capital and certain of its affiliates (“Nokomis”) entered into an agreement (the “Agreement”) with the Issuer with respect to certain matters related to the 2016 annual meeting of stockholders (the “2016 Annual Meeting”). Pursuant to the terms of the Agreement, the Issuer agreed to appoint Wes Cummins, an employee of Nokomis Capital, to the Issuer’s Board of Directors (the “Board”) as a Class I director with a term expiring at the 2016 Annual Meeting and to renominate and solicit proxies for the election of Mr. Cummins at the 2016 Annual Meeting. Concurrent with his appointment to the Board, the Issuer agreed to appoint Mr. Cummins to the Nominating & Governance Committee of the Board. Nokomis and the Issuer also agreed to search for an additional independent director to join the Board, and to the extent that such independent director is not identified by January 30, 2017, Brett Hendrickson, manager of Nokomis Capital, will be appointed as a Class II director with a term expiring at the 2017 annual meeting of stockholders (the “2017 Annual Meeting”) until such time as an independent director is identified. The Issuer also agreed that, during the Restricted Period (as defined below), the Board shall not exceed eight members and the Issuer shall not take any action to reconstitute or reconfigure the classes in which the directors serve without the consent of Nokomis.
Pursuant to the Agreement, Nokomis is subject to certain standstill restrictions during the period from the date of the Agreement until 11:59 p.m., Pacific Time, on the day that is 15 days prior to the deadline for stockholder nominations of directors for election at the 2017 Annual Meeting (such period, the “Restricted Period”). During the Restricted Period, Nokomis is subject to customary standstill and voting obligations. During the Restricted Period, Nokomis has agreed to vote all voting securities which it is entitled to vote in accordance with the recommendation of the Board at any annual or special meeting.
The foregoing description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 is hereby amended to add the following:
On August 24, 2016, Nokomis and the Issuer entered into the Agreement as defined and described in Item 4 above and attached as Exhibit 99.1 hereto.
| Item 7. | Material to be Filed as Exhibits. |
Item 7 is hereby amended to add the following exhibit:
| | 99.1 | Agreement, dated August 24, 2016. |
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