Wednesday, December 12, 2012

GMXR Files 8-K Regarding Refinancing Transaction ($GMXR)

GMXR filed an 8-K with the actual details of the new transaction. Mainly interesting for the clause regarding trading restrictions on the new shares:

Pursuant to the Purchase Agreements, the purchasers have agreed that, subject to certain exceptions for Permitted Dispositions, the purchasers (and certain Funds named in the Purchase Agreements (the “Funds”)) will not, during the 30-day period following the closing date (the “Restricted Period”), with respect to all of the Shares acquired under the Purchase Agreement and beneficially owned by such purchaser or any Fund, it will not (i) loan, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, such Shares or any security convertible into or exchangeable for such Shares, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such Shares, whether any such transaction described in clause (i) or (ii) above is settled by delivery of such Shares or other securities, in cash or otherwise (any disposition or arrangement described in clause (i) or (ii) above being referred to herein as a “Disposition”), or publicly disclose any intent to make any Disposition, without, in each case, the prior written consent of the Company. Notwithstanding the foregoing, during the Restricted Period, the purchaser or any Fund may (a) sell, transfer or otherwise dispose of such Shares in a private transaction, without the prior written consent of the Company, to any affiliate of the purchaser or any Fund managed by the purchaser that agrees in writing with the Company to be bound by the terms of the Purchase Agreement, (b) pledge the Shares as security for bona fide loans, letters of credit, interest rate or other hedging transactions and related fees, costs, indemnities and other obligations from one or more third parties who are not affiliates of such parties, or (c) sell all or a portion of such Shares as a result of any divestiture ordered by, or agreed to with, a governmental authority. In addition, the foregoing shall also not restrict or affect the manner of sale or other disposition of any Shares in connection with any foreclosure or other disposition after default of a lender or other counterparty in connection with the pledge of such securities for bona fide loans, letters of credit, interest rate or other hedging transactions and related fees, costs, indemnities and other obligations from one or more third parties who are not affiliates of such party and shall not apply to any permitted transferee who does not assume the rights and obligations of such purchaser or Fund in accordance with the Registration Rights Agreement relating to the resale of the Shares.

On December 7, 2012, in connection with issuance of an aggregate of 15,979,253 shares of the Company’s common stock pursuant to the Purchase Agreements, the Company entered into a Registration Rights Agreement (the “Shares Registration Rights Agreement”) with each of the Committed Holders, pursuant to which the Company agreed to (i) file a shelf registration statement by March 6, 2013 pursuant to Rule 415 under the Securities Act, which shelf registration statement shall provide for resales of all Transfer Restricted Securities (as defined therein) held by holders who have timely provided the information required pursuant to this agreement; and (ii) use its reasonable best efforts to cause the shelf registration statement to be declared effective on or before the 120th day after the earlier of the date the shelf registration statement is filed and March 6, 2013 (or if such 120th day is not a Business Day, the next succeeding Business Day).
Also, it looks as though several institutions participated in the deal and not just one.

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