ITEM
1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On
September 21, 2007, Glowpoint, Inc. (“Glowpoint”) entered in to an amendment to
the terms of its outstanding 10% Senior Secured Convertible Notes (the “Existing
Notes”) to, among other things, extend the maturity date to March 31, 2009 from
September 30, 2007. This brief description of the amendment to the Existing
Notes is qualified by reference to the provisions of the form of Amendment
No. 1
to Senior Secured Promissory Notes attached to this report as Exhibit 4.1.
In
consideration for the amendment to the Existing Notes, Glowpoint issued Series
A-2 Warrants to the noteholders to purchase an aggregate of approximately
4,772,820 shares of common stock (which represents thirty-three (33%) percent
of
the shares of common stock issuable upon conversion of the Existing Notes)
at an
exercise price of $0.65 per share. The Series A-2 warrants are exercisable
for a
period of five years and are otherwise subject to the terms and conditions
of
the form of Series A-2 Warrant attached hereto as Exhibit 4.2.
Additionally,
Glowpoint issued $3.538 million of additional 10% senior secured convertible
notes and warrants in a private placement, the investors of which included
(but
are not limited to) some of the holders of its Existing Notes and participating
Glowpoint officers and directors, including Michael Brandofino, Aziz Ahmad,
Bami
Bastani, Edwin F. Heinen, Joseph Laezza and David W. Robinson. Attached as
Exhibit 10.1 is the Note and Warrant Purchase Agreement among Glowpoint and
the
purchasers named therein. In the transaction, Glowpoint issued $3,538,000
aggregate principal amount of its 10% Senior Secured Convertible Notes (the
“New
Notes”) and additional Series A-2 Warrants to purchase 3,538,000 shares of
common stock at an exercise price of $0.65 per share. The New Notes bear
interest at 10% per annum (which increases to 12% commencing one (1) year
following the issuance date), mature on March 31, 2009 and are convertible
into
common stock at a conversion rate of $0.50 per share. The form of the New
Note
is attached hereto as Exhibit 4.3, which is materially the same as the amended
Existing Notes. The New Notes and other transaction documents provide that
the
participating Glowpoint officers and directors will not be entitled to all
of
the rights and benefits available to the other purchasers upon the occurrence
of
certain events, including, but not limited to, an event of default, the failure
by the Company to achieve specified EBITDA, and the failure to timely file
the required registration statement. The proceeds of the offering will be
used
to pay outstanding aged payables and for working capital.
Pursuant
to an Exchange Agreement, dated September 21, 2007, Glowpoint also issued
an
aggregate of approximately 474.8126 shares of a new Series C Preferred Stock
in
exchange for cancelling all of its issued and outstanding Series B Preferred
Stock, cancelling approximately $1,097,614 of accrued but unpaid dividends
due
on the Series B Preferred Stock, and surrendering 1,525,000 shares of common
stock held by North Sound Capital LLC entities. This brief description of
the
Exchange Agreement is qualified by reference to the provisions of the Exchange
Agreement attached to this report as Exhibit 10.4.
Unlike
the cancelled Series B Preferred Stock, the new Series C Preferred Stock
will
not accrue dividends and may be redeemed by Glowpoint. Each share of Series
C
Preferred Stock, par value $0.0001 per share, has a liquidation preference
equal
to its stated value, which is $10,000 per share, and is convertible at the
holder’s election into 10,000 shares of common stock, subject to adjustment.
This brief description of the Series C Preferred Stock is qualified by reference
to the provisions of the Certificate
of Designations, Preferences and Rights of Series C Preferred Stock attached
to this report as Exhibit 4.5. The shares of common stock issuable upon
conversion of the Series C Preferred Stock are entitled to registration rights
in accordance with the Registration Rights Agreement dated March 31, 2006,
as
amended by the amendment attached hereto as Exhibit 10.2.
Glowpoint
also created a new Series D Preferred Stock, which does not have any voting
rights but is convertible into Glowpoint’s common stock and is entitled to any
liquidating distribution to holders of common stock. The Existing Notes,
as
amended, the New Notes, the Series A Warrants, as amended, the Series A-2
Warrants and the Series C Preferred Stock are convertible or exercisable,
as the
case may be, into Glowpoint’s common stock, but provide that, unless
specifically waived by such holder, in no event shall any holder of such
securities own more than 4.99% or 9.99% of Glowpoint’s outstanding common stock.
In the event a holder would own more than either percentage upon conversion
or
exercise and does not waive such ownership cap, Glowpoint will issue new
Series
D Preferred Stock for the amount above such limitation. The holder may then
convert Series D Preferred Stock into common stock in the future as permitted
by
the ownership limitations or upon waiver of such restriction. This brief
description of the Series D Preferred Stock is qualified by reference to
the
provisions of the Certificate
of Designations, Preferences and Rights of Series D Preferred Stock attached
to this report as Exhibit 4.6.
In
connection with the foregoing, Glowpoint and the holders of the Existing
Notes
also: (i) amended the outstanding Series A Warrants, dated March 31, 2006
and
April 12, 2006, to amend certain definitions; (ii) amended the Registration
Rights Agreement, dated March 31, 2006, which amendment (x) included among
the
registrable securities the shares issuable upon conversion of the New Notes
and
the Series C Preferred Stock and the exercise of the Series A-2 Warrants
and (y)
provided Glowpoint additional time to file the required registration statement
and cause its effectiveness; and (iii) amended the Security Agreement, dated
March 31, 2006, to include as Permitted Liens (as defined therein) equipment
purchase money financing and a credit facility collateralized by up to $1
million of receivables, which amendment Glowpoint believes will provide it
greater flexibility to handle future liquidity issues, if any, and to finance
any equipment needs. This brief description of these amendments is qualified
in
its entirety by reference to the provisions of the documents attached to
this
report as Exhibits 4.4, 10.2, and 10.3.
Burnham
Hill Partners acted as placement agent for the new financing and acted as
financial advisor for the other transactions disclosed herein and received
a cash fee
of approximately $283,000, which equaled eight (8%) percent of the gross
proceeds received by the Company in connection with the financing. Glowpoint also issued warrants to Burnham
Hill
Partners to purchase (i) approximately 566,080 shares of common stock at an exercise price
of
$0.55 per share and (ii) 250,000 shares of common stock at an exercise price
of
$0.65 per share to Burnham Hill Partners. The placement agent warrants and
advisory warrants are subject to the terms and conditions of the form of
Warrant
attached hereto as Exhibit 4.7.
ITEM
2.03. CREATION OF A DIRECT FINANCIAL OBLIGATION OR AND OBLIGATION UNDER AN
OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.
The
information disclosed in Item 1.01 of this Form 8-K is incorporated into
this
Item 2.03.
ITEM
3.02. UNREGISTERED SALES OF EQUITY SECURITIES.
The
information disclosed in Item 1.01 of this Form 8-K is incorporated into
this
Item 3.02. The issuances were made in a private placement in reliance upon
exemptions from registration pursuant to Section 4(2) of the Securities Act
of
1933, as amended, and Rules 506 of Regulation D promulgated thereunder. Each
investor is an accredited investor as defined in Rule 501 of Regulation
D.
ITEM
3.03 MATERIAL
MODIFICATION TO RIGHTS OF SECURITY HOLDERS.
The
information disclosed in Item 1.01 of this Form 8-K is incorporated into
this
Item 3.03.
ITEM
5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS;
APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN
OFFICERS.
Glowpoint
amended the employment agreement of David W. Robinson, the Company’s Executive
Vice President and General Counsel, to provide 12 months, rather than six
months, of severance upon his termination
without Cause (as defined therein), his resignation for Good
Reason (as
defined therein) or
his
death, which is consistent with the amount provided to other Glowpoint officers.
Attached as Exhibit 99.2 is Mr. Robinson’s employment agreement
amendment.
ITEM
5.03 AMENDMENT TO ARTICLES OF INCORPORATION AND BYLAWS; CHANGE IN FISCAL
YEAR
At
the
registrant’s annual meeting of stockholders held August 14, 2007, the
stockholders of the registrant approved an amendment to the Amended and Restated
Certificate of Incorporation of Glowpoint to increase the number of authorized
shares of common stock from 100,000,000 shares to 150,000,000 shares. The
Certificate of Amendment was effective on filing with the Secretary of State
of
the State of Delaware on August 22, 2007. The Certificate of Amendment to
the
Amended and Restated Certificate of Incorporation is attached hereto as Exhibit
3.1.
ITEM
8.01 OTHER EVENTS.
At
the
2007 Annual Meeting of Stockholders, which occurred on August 14, 2007, all
of
the proposals for consideration were approved. Therefore, Jim Lusk and Peter
Rust were each elected Class I
members
of our board of directors to serve a two-year term, which expires on the
date of
the Annual Meeting in 2009 or until their respective successors are elected
and
qualified, and Bami Bastani and Michael Brandofino were each elected Class
II
members of our board of directors to serve a three-year term each, which
expires
on the date of the Annual Meeting in 2010 or until their respective successors
are elected and qualified. Stockholders also (i) approved the 2007 Stock
Incentive Plan and reserving 3,000,000 shares of common stock for issuance
under
such plan, (ii) ratified the appointment of Amper, Politziner & Mattia, P.C.
as our Registered Public Accounting Firm for the fiscal year ending
December 31, 2007, and (iii) approved an amendment to Glowpoint’s
certificate of incorporation to increase the number of authorized shares
of
common stock from 100,000,000 shares to 150,000,000 shares.
ITEM
9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial
Statements of Businesses Acquired. Not Applicable.
(b) Pro
Forma
Financial Information. Not Applicable.
(c) Shell
Company Transactions. Not Applicable
(d) Exhibits
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3.1
|
Certificate
of Amendment to the Amended and Restated Certificate of
Incorporation
|
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4.1
|
Form
of Amendment No. 1 to Senior Secured Convertible Promissory Notes,
dated
September 21, 2007.
|
| |
4.2
|
Form
of Series A-2 Warrant, dated September 21,
2007.
|
| |
4.3
|
Form
of 10% Senior Secured Convertible Promissory Note, dated September
21,
2007.
|
| |
4.4
|
Form
of Amendment No. 1 to Series A Warrant, dated September 21,
2007.
|
| |
4.5
|
Certificate
of Designations, Preferences and Rights of Series C Preferred Stock
of
Glowpoint.
|
| |
4.6
|
Certificate
of Designations, Preferences and Rights of Series D Preferred Stock
of
Glowpoint.
|
| |
4.7
|
Form
of Placement Agent Warrant, dated September 21,
2007.
|
| |
10.1
|
Note
and Warrant Purchase Agreement, dated as of September 21, 2007,
between
Glowpoint and the Purchasers set forth
therein.
|
| |
10.2
|
Amendment
No. 1 to Registration Rights Agreement, dated as of September 21,
2007,
between Glowpoint and the Purchasers set forth
therein.
|
| |
10.3
|
Amendment
No. 1 to Security Agreement, dated as of September 21, 2007, between
Glowpoint and the Secured Parties set forth
therein.
|
| |
10.4
|
Exchange
Agreement, dated September 21, 2007, between Glowpoint and the
Holders set
forth therein.
|
| |
99.1
|
Text
of press release dated September 24,
2007.
|
| |
99.2
|
Employment
Agreement Amendment between the Company and David W. Robinson,
dated
September 20, 2007
|
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.
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|
|
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GLOWPOINT,
INC. |
|
|
|
| Dated:
September 24, 2007 |
By: |
/s/
Michael Brandofino |
| |
Michael
Brandofino |
| |
Chief
Executive Officer and President |