SECTION 1 REGISTRANTS BUSINESS AND OPERATIONS |
|
Item 1.01. |
|
Entry into a Material Definitive Agreement. |
|
On October 4, 2007, eLEC Communications Corp. (the Company) consummated a |
private placement pursuant to which the Company issued to Calliope Capital Corporation, |
a subsidiary of Laurus Master Fund, Ltd ("Laurus") and Valens Offshore SPV II, Corp. |
(the Investors), secured term notes in the aggregate principal amount of $4,000,000 (the |
Notes). In connection with the private placement, the Company also amended and restated two |
existing secured term notes issued to Laurus in the principal amounts of $1,966,667 (Amended |
Note 1) and $1,428,000 (Amended Note 2), and issued common stock purchase warrants (the |
Warrants) that entitle the Investors to purchase in the aggregate up to 126,296,096 shares of the |
Companys common stock, par value $.10 per share (the Common Stock). The Notes and the |
Warrants were sold to the Investors, each of which is an accredited investor (as such term is |
defined in the rules promulgated under the Securities Act of 1933, as amended (the Act)), for a |
total purchase price of $4,000,000. |
|
The following describes certain of the material terms of the financing transaction with the |
Investors and Laurus. The description below is not a complete description of the material terms |
of the transaction and is qualified in its entirety by reference to the agreements entered into in |
connection with the transaction, copies of which are included as exhibits to this Current Report |
on Form 8-K: |
|
Notes Maturity Date and Interest Rate. Absent earlier redemption with no redemption |
premium by the Company as described below, the Notes mature on September 30, 2010 (the |
Maturity Date). Interest will accrue on the unpaid principal and interest on the Notes at a rate |
per annum equal to the prime rate published in The Wall Street Journal from time to time, plus |
two percent (2%), subject to a minimum per annum rate of nine and three-quarters percent (9.75%). |
|
Payment of Interest and Principal. Interest on the Notes is payable monthly on the first |
day of each month during the term of the Notes, commencing November 1, 2007. Payments for |
the first twelve months of interest have been deposited into an escrow account that is to be used |
solely for interest payments on the Notes. Principal payments on the Notes in the aggregate |
amount of $100,000 per month shall be made by the Company commencing on October 1, 2009 |
and on the first business day of each succeeding month thereafter through and including the |
Maturity Date. Any principal amount that remains outstanding on September 30, 2010 shall be |
due and payable at that time. |
|
Amended Note 1. Amended Note 1 amends and restates in its entirety (and is given in |
substitution for and not in satisfaction of) that certain $2,000,000 Secured Term Note made by |
the Company in favor of Laurus on November 30, 2005. The principal changes effected in |
Amended Note 1 were the elimination of monthly principal payments prior to maturity and the |
change in the maturity date from November 30, 2008 to September 30, 2010. Interest payments |
must still be paid monthly at a rate per annum equal to the prime rate published in The Wall |
Street Journal from time to time, plus two percent (2%). |
Amended Note 2. Amended Note 2 amends and restates in its entirety (and is given in |
substitution for and not in satisfaction of) that certain $1,700,000 Secured Term Note made by |
the Company in favor of Laurus on May 31, 2006. The principal changes effected in Amended |
Note 2 were the elimination of monthly principal payments prior to maturity and the change in |
the maturity date from May 31, 2009 to September 30, 2010. Interest payments must still be paid |
monthly at a rate per annum equal to the prime rate published in The Wall Street Journal from |
time to time, plus two percent (2%). |
|
Security for Notes. The Notes, Amended Note 1 and Amended Note 2 are secured by a |
blanket lien on substantially all of the Companys assets pursuant to the terms of security |
agreements executed by the Company and its subsidiaries in favor of Laurus and a collateral |
agent for the Investors. In addition, the Company has pledged its ownership interests in its |
subsidiaries pursuant to stock pledge agreements executed by the Company in favor of Laurus |
and a collateral agent for the Investors securing their obligations under the Notes. If an event of |
default occurs under the security agreement, the stock pledge agreement or the promissory notes |
issued to Laurus or the Investors, the secured parties have the right to accelerate payments |
under such promissory notes and, in addition to any other remedies available to them, to |
foreclose upon the assets securing such promissory notes. |
|
Warrant Terms. Three sets of warrants that contain no registration requirements have been |
issued to the Investors (the A Warrants, B Warrants and C Warrants). The A Warrants grant to |
the Investors the right to purchase for cash up to 94,722,072 shares of Common Stock at an exercise |
price of $0.10 per share. The B Warrants grant the Investors the right to purchase for cash up to |
7,893,506 shares of Common Stock at an exercise price of $0.10 per share. The C Warrants grant the |
Investors the right to purchase for cash up to 23,680,518 shares of Common Stock at an exercise price |
of $0.10 per share. All of such warrants expire on September 30, 2017. If the Company repays the |
Notes, Amended Note 1 and Amended Note 2 in full prior to September 30, 2009, then the C Warrants |
shall be cancelled and terminated. If the Companys operating cash flow for any two consecutive |
months during the thirteen (13) month period ending October 31, 2008 is greater than $0, then |
the B Warrants shall be cancelled and terminated. The Warrants do not contain registration |
rights and require the Investors to limit the selling of any Common Stock of the Company issued |
upon the exercise of the Warrants to a maximum of twenty-five percent (25%) of the aggregate |
number of shares of the Common Stock traded on such trading day. |
|
Restrictions on Exercise of Warrant. Neither Investor is entitled to receive shares of |
Common Stock upon exercise of the Warrants if such receipt would cause such Investor to |
beneficially own in excess of 9.99% of the outstanding shares of Common Stock on the date of |
exercise of such warrants. Such provision may be waived by the Investors upon 61 days prior |
written notice to the Company. |
|
Restricted Cash Agreement. In conjunction with the funding, the Company, North Fork |
Bank (the Bank) and LV Administrative Services, Inc., as agent (the Agent) for the |
Investors, have executed an agreement under which $2,664,468 from the proceeds of the Notes |
has been deposited into an interest-bearing account (the Account) at the Bank. No funds may |
be released from the Account except upon the written direction of the Agent. Following the |
receipt of a release notice from the Agent, the Bank has agreed to promptly disburse the amount |
of cash specified in such release notice to such account as the Agent shall determine in its sole |
|
2 |
discretion. It is expected that the Agent will release such funds on a regular basis to provide cash |
to the Company for sales and marketing expenditures to grow its business, to cover its net |
operating losses and for working capital. Interest earned on funds deposited in the Account is for |
the benefit of the Company. |
|
SECTION 2 FINANCIAL INFORMATION |
|
Item 2.03. |
|
Creation of a Direct Financial Obligation or an Obligation under an Off- |
|
|
Balance Sheet Arrangement of a Registrant. |
|
Please see Item 1.01 of this Current Report on Form 8-K, which Item is incorporated |
herein by reference, for a description of the terms of the sale of the Notes to the Investors. |
|
SECTION 3 SECURITIES AND TRADING MARKETS |
|
Item 3.02. |
|
Unregistered Sales of Equity Securities. |
|
Please see Item 1.01 of this Current Report on Form 8-K, which Item is incorporated |
herein by reference, for a description of the terms of the issuance the Warrants and the associated |
excersisability features. The Notes and the Warrants were issued in reliance on the exemption |
from registration provided by Section 4(2) of the Act, on the basis that their issuance did not |
involve a public offering, no underwriting fees or commissions were paid by us in connection |
with such sale and the Investors represented to us that each was an accredited investor, as |
defined in the Act. |
|
|
10.2 |
|
Secured Term Note, dated as of September 28, 2007, of eLEC |
|
|
Communications Corp. to Calliope Capital Corporation. |
|
|
|
10.3 |
|
Secured Term Note, dated as of September 28, 2007, of eLEC |
|
|
Communications Corp. to Valens Offshore SPV II, Corp. |
|
|
|
10.4 |
|
Funds Escrow Agreement, dated as of September 28, 2007, among eLEC |
|
|
Communications Corp., Loeb & Loeb LLP and LV Administrative |
|
|
Services, Inc., as agent. |
|
|
|
10.5 |
|
Form of Common Stock Purchase Warrant, dated as of September 28, |
|
|
2007 of eLEC Communications Corp. |
|
|
|
10.6 |
|
Third Amended and Restated Secured Term Note, dated as of September |
|
|
28, 2007 of eLEC Communications Corp. to Laurus Master Fund, Ltd. |
|
|
|
10.7 |
|
Amended and Restated Secured Term Note, dated as of September 28, |
|
|
2007 of eLEC Communications Corp. to Laurus Master Fund, Ltd. |
|
|
|
10.8 |
|
Reaffirmation and Ratification Agreement, dated as of September 28, |
|
|
2007, executed eLEC Communications Corp., Vox Communications |
|
|
Corp., Line One, Inc. AVI Holding Corp. and TelcoSoftware.com Corp. |
|
|
|
10.9 |
|
Subsidiary Guarantee dated as of September 28, 2007 by Vox |
|
|
Communications Corp., AVI Holding Corp., Telcosoftware.com Corp. and |
|
|
Line One, Inc. |
|
|
|
10.10 |
|
Restricted Account Agreement, dated as of September 28, 2007 by and |
|
|
among North Fork Bank, eLEC Communications Corp. and LV |
|
|
Administrative Services, Inc., as agent. |
|
|
|
10.11 |
|
Master Security Agreement dated as of September 28, 2007 among eLEC |
|
|
Communications Corp., Vox Communications Corp., Line One, Inc., AVI |
|
|
Holding Corp., TelcoSoftware.com Corp. and LV Administrative Services |
|
|
Inc., as agent. |
|
|
|
10.12 |
|
Stock Pledge Agreement dated as of September 28, 2007 among LV |
|
|
Administrative Services Inc., as agent, eLEC Communications Corp., Vox |
|
|
Communications Corp., Line One, Inc., AVI Holding Corp. and |
|
|
TelcoSoftware.com Corp. |
|
|
|
99.1 |
|
Press release of eLEC Communications Corp. dated October 10, 2007. |
|
4 |