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As Of Filer Filing For·On·As Docs:Size Issuer Agent 12/06/16 MYnd Analytics, Inc. 8-K:1,3,9 11/30/16 4:405K S2 Filings LLC/FA |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 22K 2: EX-10.1 Material Contract HTML 33K 3: EX-10.2 Material Contract HTML 147K 4: EX-10.3 Material Contract HTML 75K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): November 30, 2016
MYND ANALYTICS, INC.
(Exact name of Company as specified in its charter)
| Delaware | 001-35527 | 87-0419387 | ||
| (State or other | (Commission File No.) | (I.R.S. Employer | ||
| jurisdiction of | Identification No.) | |||
| incorporation) |
26522 La Alameda
(Address of principal executive offices)
(949) 420-4400
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
| Item 1.01 | Entry into a Material Definitive Agreement. |
Private Placement Transaction
On November 30, 2016, MYnd Analytics, Inc. (the "Company") sold and issued an aggregate of 160,000 shares of its common stock, par value $0.001 per share ("Common Stock"), at a price of $6.25 per share, in a private placement to six accredited investors, for which it received gross cash proceeds of $1,000,000. These investors included Dr. Robin Smith (the Company's Chairman) who purchased 16,000 shares of Common Stock for $100,000, Mr. John Pappajohn (a director of the Company) who purchased 32,000 shares of Common Stock for $200,000 and the Thomas T. Tierney and Elizabeth C. Tierney Family Trust (a trust of which Mr. Thomas T. Tierney, a director of the Company, serves as trustee) that purchased 32,000 shares of Common Stock for $200,000.
The related subscription agreement (the "Subscription Agreement"), dated as of November 30, 2016, among the Company and the investors party thereto, provides that shares of Common Stock with an aggregate value of up to $3.0 million may be issued by the Company in the private placement until December 9, 2016, or upon the termination of the private placement by the Board of Directors of the Company, whichever occurs sooner. The private placement is not subject to a minimum subscription amount and the Company cannot provide any assurances that it will receive any particular amount of proceeds in the private placement.
A form of the Subscription Agreement is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference into this Item 1.01.
The private placement is being made pursuant to an exemption from registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the "Securities Act"), and Regulation D thereunder, as the shares of Common Stock are being issued to accredited investors, without a view to distribution, and are not issued through any general solicitation or advertisement. The shares of Common Stock have not been, and will not be, registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
Purchase Agreement and Registration Rights Agreement with Aspire Capital
On December 6, 2016, the Company entered into a common stock purchase agreement (the "Purchase Agreement") with Aspire Capital Fund, LLC, an Illinois limited liability company ("Aspire Capital") which provides that, upon the terms and subject to the conditions and limitations set forth therein, Aspire Capital is committed to purchase up to an aggregate of $10.0 million of shares of Common Stock over the 30-month term of the Purchase Agreement. Concurrently with entering into the Purchase Agreement, the Company also entered into a registration rights agreement with Aspire Capital (the "Registration Rights Agreement"), in which the Company agreed to file one or more registration statements, as permissible and necessary to register under the Securities Act, registering the sale of the shares of Common Stock that have been and may be issued to Aspire Capital under the Purchase Agreement.
Under the Purchase Agreement, after the Securities and Exchange Commission (the "SEC") has declared effective the registration statement referred to above, on any trading day selected by the Company, the Company has the right, in its sole discretion, to present Aspire Capital with a purchase notice (each, a "Purchase Notice"), directing Aspire Capital (as principal) to purchase up to 50,000 shares of Common Stock per business day, up to $10.0 million of Common Stock in the aggregate at a per share price (the "Purchase Price") equal to the lesser of:
| · | the lowest sale price of the Common Stock on the purchase date; or |
| · | the arithmetic average of the three (3) lowest closing sale prices for the Common Stock during the twelve (12) consecutive trading days ending on the trading day immediately preceding the purchase date. |
In addition, on any date on which the Company submits a Purchase Notice to Aspire Capital in an amount equal to 50,000 shares and the closing sale price of the Common Stock is equal to or greater than $0.50 per share, the Company also has the right, in its sole discretion, to present Aspire Capital with a volume-weighted average price purchase notice (each, a "VWAP Purchase Notice") directing Aspire Capital to purchase an amount of stock equal to up to 30% of the aggregate shares of Common Stock traded on its principal market on the next trading day (the "VWAP Purchase Date"), subject to a maximum number of shares the Company may determine. The purchase price per share pursuant to such VWAP Purchase Notice is generally 95% of the volume-weighted average price for the Common Stock traded on its principal market on the VWAP Purchase Date.
The Purchase Price will be adjusted for any reorganization, recapitalization, non-cash dividend, stock split, or other similar transaction occurring during the period(s) used to compute the Purchase Price. The Company may deliver multiple Purchase Notices and VWAP Purchase Notices to Aspire Capital from time to time during the term of the Purchase Agreement, so long as the most recent purchase has been completed.
The Purchase Agreement provides that the Company and Aspire Capital shall not effect any sales under the Purchase Agreement on any purchase date where the closing sale price of the Common Stock is less than $0.50. There are no trading volume requirements or restrictions under the Purchase Agreement, and the Company will control the timing and amount of sales of Common Stock to Aspire Capital. Aspire Capital has no right to require any sales by the Company, but is obligated to make purchases from the Company as directed by the Company in accordance with the Purchase Agreement. There are no limitations on use of proceeds, financial or business covenants, restrictions on future fundings, rights of first refusal, participation rights, penalties or liquidated damages in the Purchase Agreement. In consideration for entering into the Purchase Agreement, concurrently with the execution of the Purchase Agreement, the Company issued to Aspire Capital 80,000 shares of Common Stock (the "Commitment Shares"). The Purchase Agreement may be terminated by the Company at any time, at its discretion, without any cost to the Company. Aspire Capital has agreed that neither it nor any of its agents, representatives and affiliates shall engage in any direct or indirect short-selling or hedging of Common Stock during any time prior to the termination of the Purchase Agreement. Any proceeds from the Company receives under the Purchase Agreement are expected to be used for working capital and general corporate purposes.
The foregoing is a summary description of certain terms of the Purchase Agreement and the Registration Rights Agreement and, by its nature, is incomplete. Copies of the Purchase Agreement and Registration Rights Agreement are filed herewith as Exhibits 10.2 and 10.3, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. All readers are encouraged to read the entire text of the Purchase Agreement and the Registration Rights Agreement.
The issuance of the Commitment Shares and all other shares of Common Stock that may be issued from time to time to Aspire Capital under the Purchase Agreement is exempt from registration under the Securities Act, pursuant to the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act.
This Current Report on Form 8-K contains "forward-looking" statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including statements related to the potential future sale of shares of Common Stock and price for such sales under the Purchase Agreement. The words "may," "will," "could," "would," "should," "expect," "intend," "plan," "anticipate," "believe," "estimate," "predict," "project," "potential," "continue," "ongoing" and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. While the Company believes its plans, intentions and expectations reflected in those forward-looking statements are reasonable, these plans, intentions or expectations may not be achieved. The Company’s actual results, performance or achievements could differ materially from those contemplated, expressed or implied by the forward-looking statements. For information about the factors that could cause such differences, please refer to the Company’s most recent Annual Report on Form 10-K, including the information discussed under the captions "Item 1. Business," "Item 1A. Risk Factors" and "Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations," as well as the Company’s various other filings with the SEC. Given these uncertainties, you should not place undue reliance on these forward-looking statements. The Company assumes no obligation to update any forward-looking statement.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information contained above in Item 1.01 is hereby incorporated by reference into this Item 3.02 in its entirety.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
|
Exhibit Number |
Description | |
| 10.1 | Form of Subscription Agreement (common stock) by and between the Company and the investor(s) signatory thereto. | |
| 10.2 | Common Stock Purchase Agreement, dated December 6, 2016, between the Company and Aspire Capital. | |
| 10.3 | Registration Rights Agreement, dated December 6, 2016, between the Company and Aspire Capital. | |
SIGNATURES
Pursuant to the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| MYnd Analytics, Inc. | |||
| By: | /s/ Paul Buck | ||
| December 6, 2016 | Paul Buck | ||
| Chief Financial Officer | |||
| This ‘8-K’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| 12/9/16 | ||||
| Filed on: | 12/6/16 | |||
| For Period End: | 11/30/16 | 4 | ||
| List all Filings | ||||