Ekso Bionics Holdings, Inc. (NASDAQ:EKSO) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry Into A Material Definitive Agreement.
Loan and Security Agreement
On December 30, 2016 (the Closing Date), Ekso Bionics Holdings,
Inc. (the Company) and Ekso Bionics, Inc., the Companys
wholly-owned subsidiary (Ekso Bionics, and together with the
Company, the Borrower), entered into a Loan and Security
Agreement (the Loan Agreement) with Western Alliance Bank (the
Lender), to which the Lender agreed to loan up to an aggregate of
$10 million to the Borrower in two tranches of $7 million (the
Term A Loan) and $3 million (the Term B Loan, and together with
the Term A Loan, the Term Loans), respectively. The Term A Loan
was disbursed to the Borrower on the Closing Date. If the Company
receives net cash proceeds of at least $15 million in connection
with the sale or issuance of its equity securities, including in
connection with the exercise of warrants, prior to December 31,
2017, the Company may request on or prior to December 31, 2017,
and the Lender agrees to make, the Term B Loan so long as no
event of default has occurred.
to the Loan Agreement, the proceeds from the Term Loans may only
be used for working capital purposes and to fund general business
requirements. The Term Loans will bear interest, on the
outstanding daily balance thereof, at a floating per annum rate
equal to the 30 day U.S. LIBOR rate plus 5.41%.
The Borrower is required to pay accrued interest on the Term
Loans on the first day of each month through and including
January 1, 2018, if the Term B Loan is not made (or July 1, 2018,
if the Term B Loan is made). Commencing on February 1, 2018, if
the Term B Loan is not made (or August 1, 2018, if the Term B
Loan is made), the Borrower shall make equal monthly payments of
principal, together with accrued and unpaid interest. The
principal balance of the Term Loans amortizes ratably over 36
months, if the Term B Loan is not made (or 30 months, if the Term
B Loan is made). The maturity of the Term Loans is January 1,
2021, at which time all unpaid principal and accrued and unpaid
interest shall be due and payable in full.
The Borrower was required to pay a non-refundable loan fee of
$35,000 as of the Closing Date and will be required to pay an
additional non-refundable loan fee of $15,000 if the Lender
advances the Term B Loan. The Borrower may elect to prepay a Term
Loan at any time, in whole but not in part. If the Borrower
prepays a Term Loan prior to the first anniversary of the funding
date of the Term Loan, it will owe a prepayment fee to the Lender
equal to 1.0% of the principal amount of such Term Loan prepaid.
The prepayment fee is also payable in connection with any
acceleration of a Term Loan by the Lender prior to the first
anniversary of the funding date of the Term Loan following a
default by the Borrower. In addition, the Borrower is required to
pay a fee in an amount equal to 3.50% of each Term Loan upon the
earlier to occur of (a) acceleration of such Term Loan by the
Lender following a default by the Borrower, (b) voluntary
prepayment of such Term Loan by the Borrower and (c) the maturity
of such Term Loan.
The Loan Agreement includes funding conditions, representations
and warranties and covenants customary to similar credit
facilities. The covenants include, among others, restrictions on
the ability of the Borrower and its subsidiaries to dispose of
assets, enter into mergers or acquisitions, incur indebtedness,
incur liens, pay dividends or make distributions on the Companys
capital stock, make investments or loans, enter into certain
affiliate transactions, license or pledge its intellectual
property, make any capital expenditure in excess of $150,000 over
projected amounts, permit a Change of Control (as defined in the
Loan Agreement) to occur, or permit a foreign subsidiary to
maintain certain excess cash deposits or other assets, in each
case subject to exceptions customary to similar credit
facilities. The Borrower and its domestic subsidiaries are also
required to maintain substantially all of their cash and cash
equivalents in accounts at the Lender. In addition, the Company
agreed to a liquidity covenant requiring that it maintain
unrestricted cash and cash equivalents in accounts at Lender or
subject to control agreements in favor of Lender in an amount
equal to at least three months of Monthly Cash Burn, which is the
Companys average monthly net income (loss) for the trailing
six-month period plus certain expenses and plus the average
monthly principal due and payable on interest-bearing liabilities
in the immediately succeeding three-month period.
The Loan Agreement creates a first priority security interest in
favor of the Lender with respect to substantially all assets of
the Borrower and its domestic subsidiaries, including proceeds of
intellectual property, but expressly excluding intellectual
property itself. The Borrower was also required to pledge 100% of
the stock of each of its domestic subsidiaries and 65% of the
stock of each of its foreign subsidiaries.
Events of default which may cause repayment of the Term Loans to
be accelerated include, among other customary events of default,
(1) non-payment of any obligation when due, (2) the Borrowers
failure to comply with its affirmative and negative covenants,
(3) the Borrowers failure to perform any other obligation
required under the Loan Agreement and to cure such default within
a 30 days after becoming aware of such failure, (4) the
occurrence of a Material Adverse Effect (as defined in the Loan
Agreement), (5) the attachment or seizure of a material portion
of the Borrowers assets if such attachment or seizure is not
released, discharged or rescinded within 10 days, (6) bankruptcy
or insolvency of the Borrower, (7) default by the Borrower under
any agreement (i) resulting in a right by a third party to
accelerate indebtedness in an amount in excess of $250,000 or
(ii) that would reasonably be expected to have a Material Adverse
Effect, (8) entry of a final, uninsured judgment or judgments
against the Borrower for the payment of money in an amount,
individually or in the aggregate, of at least $250,000, or (9)
any material misrepresentation or material misstatement with
respect to any warranty or representation set forth in the Loan
Agreement.
The foregoing description of the Loan Agreement does not purport
to be complete and is qualified in its entirety by reference to
the copy of the Loan Agreement attached hereto as Exhibit 10.1,
which is incorporated herein by reference.
Success Fee Agreement
In connection with the Loan Agreement, the Borrower
simultaneously entered into a Success Fee Agreement (the Success
Fee Agreement) with the Lender. to the Success Fee Agreement, the
Borrower shall pay to the Lender a success fee of $250,000 (the
Success Fee) upon the first to occur of any of the following
events: (a) a sale or other disposition by the Borrower of all or
substantially all of its assets; (b) a merger or consolidation of
the Borrower into or with another person or entity, where the
holders of the Borrowers outstanding voting equity securities
immediately prior to such merger or consolidation hold less than
a majority of the issued and outstanding voting equity securities
of the successor or surviving person or entity immediately
following the consummation of such merger or consolidation; or
(c) the closing price per share for the Companys common stock
being $8.00 or more for five successive business days. The
Success Fee Agreement will terminate on December 30, 2026 if the
Success Fee has not been paid by such date.
The Success Fee is payable, at the option of the Company, in cash
or in shares of the Companys common stock to the extent such
shares may be sold without volume limitations to Rule 144 under
the Securities Act of 1933, as amended (the Securities Act) or
are registered for resale under the Securities Act.
The foregoing description of the Success Fee Agreement does not
purport to be complete and is qualified in its entirety by
reference to the copy of the Success Fee Agreement attached
hereto as Exhibit 10.2, which is incorporated herein by
reference.
Item 2.03 Creation of a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement of a
Registrant.
The information included in Item 1.01 above is incorporated
herein by reference.
Item 7.01. Regulation FD Disclosure.
On January 6, 2017, the Company issued a press release announcing
its entry into the Loan Agreement. A copy of the press release is
attached hereto as Exhibit 99.1.
The information in this Item 7.01, including the exhibit attached
hereto, is furnished to Item 7.01 and shall not be deemed filed
for any other purpose, including for the purposes of Section 18
of the Securities Exchange Act of 1934, as amended (the Exchange
Act), or otherwise subject to the liabilities of that Section.
The information in this Item 7.01 of this Current Report on Form
8-K shall not be deemed incorporated by reference into any filing
under the Securities Act or the Exchange Act regardless of any
general incorporation language in such filing unless specifically
provided otherwise.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit | Description | |
| 10.1 |
Loan and Security Agreement dated as of December 30, 2016 by and among Ekso Bionics Holdings, Inc., Ekso Bionics, Inc. and Western Alliance Bank |
|
| 10.2 |
Success Fee Agreement dated as of December 30, 2016 by and among Ekso Bionics Holdings, Inc., Ekso Bionics, Inc. and Western Alliance Bank |
|
| 99.1 | Press Release dated January 6, 2017 |
Ekso Bionics Holdings, Inc. (NASDAQ:EKSO) Recent Trading Information
Ekso Bionics Holdings, Inc. (NASDAQ:EKSO) closed its last trading session up +0.08 at 4.16 with 59,021 shares trading hands.