Item 1.01 Entry into a Material Definitive Agreement.
Issuance and Sale of 4.5% Series A Convertible Preferred Stock
On
The Financing Agreement contains customary representations, warranties and
covenants of the Company and the Purchaser. The Private Placement is expected to
close (the "Private Placement Closing") on or around
After the Private Placement Closing, subject to certain customary exceptions including transfers to permitted transferees, the Purchaser, and its affiliates, will be restricted from transferring the Series A Preferred Stock until the one-year anniversary of the Private Placement Closing.
Designation of Series A Preferred Stock
The Series A Preferred Stock to be issued at the Private Placement Closing will
have the powers, designations, preferences, and other rights set forth in the
form of Certificate of Designations of the Series A Preferred Stock filed
herewith as Exhibit B to the Financing Agreements (the "Certificate of
Designations"). The Holders (as defined below) will be entitled to dividends on
the original purchase price paid by the Purchaser at the rate of 4.5% per annum
that (i) for the first three years after the Private Placement Closing will be
paid in-kind, and (ii) after the third anniversary of the Private Placement
Closing, will, at the Company's election either be paid in cash, or, if not,
will accrue and accumulate, in each case, accruing daily and paid quarterly in
arrears. The Holders (as defined below) are also entitled to participate in
dividends declared or paid on the Common Stock on an as-converted basis. The
Series A Preferred Stock will rank senior to the Common Stock with respect to
dividend rights and rights upon the voluntary or involuntary liquidation,
dissolution, or winding up of the affairs of the
Conversion Rights
The Holder will have the right, at its option, to convert its Series A Preferred
Stock, in whole or in part, into fully paid and non-assessable shares of Common
Stock at a conversion price equal to
After the third anniversary of the Private Placement Closing, subject to certain conditions, the Company may, at its option, require conversion of all of the outstanding shares of Series A Preferred Stock to Common Stock if, for at least 20 trading days during the 30 consecutive trading days immediately preceding the date the Company notifies the Holders of the election to convert, the closing price of the Common Stock is at least 175% of the conversion price.
Redemption Rights
After the seventh anniversary of the Private Placement Closing, each Holder shall have the right to require the Company to redeem all or any part of the Holder's Series A Preferred Stock for cash at a price equal to the original purchase price paid by the Purchaser plus any accrued and unpaid dividends. Upon a "Fundamental Change" (involving a change of control, bankruptcy, insolvency, . . .
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of the Registrant
The information related to the issuance and sale of 4.5% Series A Convertible Preferred Stock contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 3.02 Unregistered Sales of
Issuance and Sale of 4.5% Series A Convertible Preferred Stock
On
The Series A Preferred Stock to be issued at the Private Placement Closing will have the powers, designations, preferences, and other rights set forth in the form of Certificate of Designations. The Holders will be entitled to dividends on the original purchase price paid by the Purchaser at the rate of 4.5% per annum that (i) for the first three years after the Private Placement Closing will be paid in-kind, and (ii) after the third anniversary of the Private Placement Closing, will, at the Company's election either be paid in cash, or if not, will accrue and accumulate, in each case, accruing daily and paid quarterly in arrears. The Holders are also entitled to participate in dividends declared or paid on the Common Stock on an as-converted basis. The Series A Preferred Stock will rank senior to the Common Stock with respect to dividend rights and rights upon a Liquidation of the Company. Upon a Liquidation, each share of Series A Preferred Stock would be entitled to receive an amount per share equal to the greater of (i) the purchase price paid by the Purchaser, plus all accrued and unpaid dividends and (ii) the amount of the Liquidation Preference.
Issuance of Common Stock in Connection with Respond Software Merger
At the Closing as a result of the Merger, the Company issued to certain former
security holders of
Item 5.02 Departure of Directors or Certain Officers; Election of Directors
Election of New Director
As described in Item 1.01 of this Current Report on Form 8-K, under the terms of
the Financing Agreement,
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Departure of Director
On
Item 7.01 Regulation FD Disclosures.
The Company issued a press release, dated
The Company issued a press release, dated
In addition, a conference call to discuss the Private Placement and the Merger
will be hosted by the Company on
The information contained in this Item 7.01 and in Exhibits 99.1, 99.2 and 99.3
attached hereto are being furnished to the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1 Agreement and Plan of Reorganization, dated as ofNovember 18, 2020 , by and amongFireEye, Inc. ,Bravo Merger Acquisition Corporation ,Bravo Merger Acquisition LLC ,Respond Software, Inc. and Fortis Advisors LLC* 10.1 Securities Purchase Agreement, dated as ofNovember 18, 2020 , by and betweenFireEye, Inc. and BTO Delta Holdings DE L.P.** 10.2 Securities Purchase Agreement, dated as ofNovember 18, 2020 , by and amongFireEye, Inc. ,ClearSky Security Fund I LLC and ClearSky Power & Technology Fund II LLC** 99.1 Press release datedNovember 19, 2020 99.2 Press release datedNovember 19, 2020 99.3 Investor presentation datedNovember 19, 2020 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* The schedules and other attachments to this exhibit have been omitted. The
Company agrees to furnish a copy of any omitted schedules or attachments to
the
** Certain schedules and exhibits have been omitted. The Company agrees to
furnish a copy of any omitted schedules or attachments to the
request.
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