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This Amendment No. 3 to Schedule 13D (this "Amendment No. 3") amends and
restates, where indicated, the statement on Schedule 13D relating to the Common
Stock of the Issuer filed by The Quercus Trust ("Trust"), David Gelbaum and
Monica Chavez Gelbaum (collectively as the "Reporting Persons") with the
Securities and Exchange Commission on July 19, 2007 (the "Initial Schedule
13D"). Capitalized terms used in this Amendment No. 3 but not otherwise defined
herein have the meanings given to them in the Initial Schedule 13D or prior
amendments thereto. Except as otherwise set forth herein, this Amendment No. 3
does not modify any of the information previously reported by the reporting
persons in the Initial Schedule 13D or prior amendments thereto.
Item 4. Purpose of Transaction
Reporting Persons currently beneficially own 95,663,041 shares of
Issuer's Common Stock (the "Shares") representing 45.2% of the issued and
outstanding securities of Issuer on a fully diluted basis. This Amendment No. 3
is being made to disclose that Reporting Persons (i) are no longer holding the
Shares strictly for investment purposes and (ii) have presented to the Board of
Directors of the Issuer (the "Board") on August 20, 2008, a proposed non-binding
Term Sheet to purchase Preferred Stock and Warrants (the "Proposed Terms"),
pursuant to which the Issuer will issue to the Reporting Persons 1,000,000
shares of Preferred Stock (the "Preferred Stock") for a purchase price of
$67,000, convertible into up to 1,000,000 shares of Common Stock, and warrants
(the "Warrants") to purchase 296,650,000 shares of Common Stock, at a purchase
price of $0.02 per warrant (for an aggregate purchase price of $5,933,000) with
an exercise price of $0.067 per share. The Proposed Terms include the following,
which are qualified in their entirety by reference to the Term Sheet attached
hereto as Exhibit "B":
(a) The Preferred Stock, voting as a separate class, will have the right
to appoint a majority of the Board, and, at the closing (the
"Closing") of the proposed transaction, persons designated by the
Trust shall be appointed to and shall constitute a majority of the
Board of Directors.
(b) The issuance of the Preferred Stock will be subject to approval by the
Company's stockholders of an amendment to the Company's Certificate of
Incorporation authorizing the creation of such class of securities.
(c) The consideration for the purchase of the Warrant and the Preferred
Stock will consist of $4.2 million in cash and $1.8 million in the
form of payment of past due interest on debt from the Issuer to the
Trust and a loan modification fee relating to the reduction of
collateral requirements relating to secured debt held by the Trust
(the parties have also discussed an extension of the maturity of such
debt, which currently matures on October 30, 2008).
(d) The conversion price of a $20,000,000 Convertible Debenture
previously issued by the Issuer to the Trust will be reduced to
$0.067, and the Convertible Debenture will become entitled to vote on
all matters presented to Common Stockholders on an as-converted basis,
to the extent permitted by law. All future interest payable in respect
of such Convertible Debenture shall be payable in warrants to purchase
Common Stock at an exercise price of $0.067 per share, for a purchase
price equal to $0.02 per Warrant.
(e) The exercise price of the 43,618,541 currently outstanding warrants
held by the Trust shall be reduced to $0.067 per share.
(f) The Trust shall have the right to fund the next $5.1 million in
financing required by the Company by purchasing, for $0.02 per
warrant, additional warrants to purchase Common Stock of the Company
at an exercise price of $0.067 per share.
(g) The Company will use its best efforts following the Closing to
increase its authorized Common Stock from 1.25 billion shares to a
number sufficient to allow the exercise and conversion of all
securities exercisable for or convertible into Common Stock of the
(h) The Registration Rights Agreement by and among Quercus, the Company
and others, shall be amended to provide that all securities issued to
Quercus shall constitute "Registrable Securities" as defined therein.
Quercus will not demand registration of its Registrable Securities
until at least six months following the Closing Date.
(i) So long as at least twenty-five percent (25%) of the Debenture(s) or
the Preferred Stock remains outstanding, consent of the holders of a
majority of the outstanding Preferred Stock and/or Debenture(s) shall
be required for any action (by merger, reclassification or otherwise)
that (i) results in the redemption or repurchase of any stock, (ii)
results in any merger or other corporate reorganization that results
in a change of control of the Company, or any transaction in which all
or substantially all of the assets of the Company are sold, (iii)
authorizes the issuance of debt in excess of Five Hundred Thousand
Dollars ($500,000), (iv) changes the business of the Company, or (v)
involves any transaction or compensation arrangements between the
Company and its officers and directors.
(j) 15% of the Company's Common Stock, on a fully-diluted basis, will be
set aside as an option pool for management and other key employees.
Options will be awarded by the Board post-closing in accordance with
Exhibit A hereto. Existing options will be left in place or exchanged
for new options in the case of employees granted new options.
(k) Certain officers of the Company will be offered retention agreements
pursuant to which they shall be entitled to three month's severance in
the event they are terminated without cause or terminate their
employment voluntarily for "good reason." Other severance packages
will be waived and there shall be no employment or consulting
agreements other than those terminable at will without payment of
severance or other consideration.
(l) Mr. Saltman shall resign all positions with the Company; his
employment agreement shall be terminated, and he shall grant a full
release to the Company; in exchange, the Company shall pay to Mr.
Saltman $173,000, which shall be applied to pay taxes on prior share
grants by the Company.
(m) The term sheet is non-binding, and neither party has committed to
consummate any transaction.
In addition to potentially acquiring the above described securities of the
Issuer, the Reporting Persons are considering exercising their voting power with
respect to the Shares to take one or more of the following actions with respect
to Issuer: (i) effecting a change in the present board of directors or
management of the Issuer, including possibly changing the number or term of
directors and filling any existing vacancies on the board; (ii) materially
changing the present capitalization of Issuer; (iii) changing the Issuer's
charter, bylaws or instruments corresponding thereto or other actions which may
impede the acquisition of control of the Issuer by any other person; and/or (iv)
effecting other material changes in the Issuer's business or corporate
Moreover, the Reporting Persons expressly retain their rights to further
modify their plans with respect to the transactions described in this Amendment
No. 3 or any prior amendment or the Initial Schedule 13D, to vote, acquire or
dispose of securities of the Issuer and to formulate different plans and
proposals which could result in the occurrence of any other actions specified in
clauses (a) through (j) of Item 4 of Schedule 13D, subject to applicable laws
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer
(a) Pursuant to the Power of Attorney filed as Exhibit "B" to Amendment
No. 1 to Schedule 13D filed on August 24, 2007 with respect to the
issuer Emcore Corp., David Gelbaum has been appointed as Monica Chavez
CUSIP No. 683707103
Item 7. Material to Be Filed as Exhibits
Exhibit A: Agreement Regarding Joint Filing of Amendment No. 3 to
Exhibit B: A copy of the Term Sheet for Offering of Preferred Stock
and Warrants presented to the Board of Directors of the
Issuer on August 20, 2008
CUSIP No. 683707103
After reasonable inquiry and to the best of its knowledge and belief, each
of the undersigned certifies that the information set forth in this statement is
true, complete and correct and agrees that this statement may be filed jointly
with the other undersigned parties.
Dated: August 25, 2007 /s/ David Gelbaum
David Gelbaum, Co-Trustee of The Quercus Trust
/s/ David Gelbaum, Attorney-In-Fact for Monica Chavez
Monica Chavez Gelbaum, Co-Trustee of The Quercus Trust
/s/ David Gelbaum
The Quercus Trust, David Gelbaum, Co-Trustee of
The Quercus Trust
Signaler un abus
28 août 2008•09:28
c'est que gelbaum assure ainsi la survie de la société et son apport en cash mais au prix d'une dillution monstrueuse : + de 100% de titres en plus a terme .il semble donc qu'il ne soit plus que le seul maître à bord : notez le limogeage du pdg , ça vous rappelle pas une autre histoire ?
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