CONVERTIBLE PROMISSORY NOTES | 9 Months Ended |
Sep. 30, 2014 |
Convertible Notes Payable [Abstract] | ' |
CONVERTIBLE PROMISSORY NOTES | ' |
NOTE 8 - CONVERTIBLE PROMISSORY NOTES |
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Convertible promissory notes consist of the following: |
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| | September | | | December 31, | |
30, 2014 | 2013 |
| | (Unaudited) | | |
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2008 Notes - secured and convertible - see (i) below | | $ | 1,956,945 | | | $ | 1,956,945 | |
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December 2008 Notes - secured and convertible – see (ii) below | | | 815,062 | | | | 815,062 | |
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2009 - 2011 Notes - secured and convertible - see (iii) below | | | 4,010,579 | | | | 4,010,579 | |
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2012 Notes - secured and convertible - see (iv) below | | | 962,245 | | | | 1,321,803 | |
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2014 Convertible Promissory notes - see (vii) below | | | 190,000 | | | | - | |
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2014 Notes and Series A Preferred - see (viii) below | | | 508,800 | | | | - | |
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Total | | | 8,443,631 | | | | 8,104,389 | |
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Less: Discount | | | (2,520,577 | ) | | | (3,036,146 | ) |
| | | 5,923,054 | | | | 5,068,243 | |
Less: Current Portion | | | (462,292 | ) | | | (2,125,237 | ) |
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Total | | $ | 5,460,762 | | | $ | 2,943,006 | |
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(i) Secured Convertible Promissory Notes |
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Between December 5, 2007 and January 24, 2008, the Company raised gross proceeds of $5,404,550 from the private placement to certain accredited institutional and individual investors (the “2008 Investors”) of its 10% Secured Convertible Promissory Notes (collectively, the “2008 Notes”, each a ”2008 Note”). The transactions were effected pursuant to a Subscription Agreement, dated as of December 5, 2007 between the Company and the 2008 Investors. |
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In connection with the issuance of the 2008 Notes, the Company issued to the 2008 Investors, warrants (the “2008 Investor Warrants”) to purchase up to 1,802 shares of the Company’s Common Stock at an adjusted per share price of $450. The warrants were not exercised and have expired. |
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The 2008 Notes were originally convertible into shares of Common Stock at the holder’s option at any time at an initial conversion price of $3,000 per share (the “Fixed Conversion Price”), subject to adjustment in the event of certain capital adjustments or similar transactions, such as a stock split or merger and as further described below. Interest on the 2008 Notes accrues at the rate of 10% per annum and is payable upon a required monthly repayment or upon maturity, whichever occurs first, and will continue to accrue until the 2008 Notes are fully converted and/or paid in full. |
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Commencing on the fourth month anniversary of the issuance of the 2008 Notes and on the same day of each month thereafter until the principal amount of the 2008 Notes has been paid in full, the Company was required to prepay 5% of the aggregate principal amount of the 2008 Notes originally issued, together with all accrued interest due and payable on the entire outstanding amount up to such repayment date (each such date, a “Scheduled Payment Date”). |
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The 2008 Notes were originally scheduled to mature in December 2009 and were extended several times to December 31, 2011. The non-payment of the outstanding balance of these notes upon maturity on December 31, 2011 constituted an Event of Default under the transaction documents with the 2008 Investors. The pertinent documents provide that any action by the investors upon such default (i.e., acceleration of the debt and other remedies) can only be initiated by the holders of 65% or more of the outstanding principal amount of the notes, representing the requisite Majority in Interest under the transaction documents. Such action had not been commenced by the note holders. In April 2012, the requisite Majority in Interest waived all existing Events of Default through June 30, 2012. In May 2012, July 2014 and October 2014, the requisite Majority in Interest agreed to certain modifications of the terms of the 2008 Notes (see (vi) Modifications of Debt). |
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To secure the Company’s obligations to the 2008 Investors, the Company granted a security interest in substantially all of its assets, including without limitation, its intellectual property. The security interest terminates upon payment or satisfaction of all of Company’s obligations under the 2008 Notes. |
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The Company undertook to file a registration statement by a prescribed period under the Securities Act of 1933, as amended (the “Registration Statement”) with respect to the resale of the Common Stock underlying the 2008 Notes and 2008 Investor Warrants. The Company has not filed the Registration Statement and accordingly, the Company owed to the holders of these notes approximately $540,000 in liquidated damages in respect of the delay in the filing of the Registration Statement beyond the time frame specified in the agreements with such holders. At June 30, 2014, the Company owed to the holders of these notes $516,137 in liquidated damages. The non-payment of liquidated damages constitutes an Event of Default under the 2008 Notes. The pertinent documents provide that any action by the investors upon such default (i.e., acceleration of the debt and other remedies) can only be initiated by the holders of 65% or more of the outstanding principal amount of the notes. Such action has not been commenced by the note holders. The Company does not currently intend to file such registration statement as the shares issuable upon conversion of the 2008 Notes and/or the 2008 Investor Warrants are eligible to be resold under Rule 144. |
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There were no payments of principal or interest in 2014. |
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(ii) Secured Convertible Promissory Note and Series A Convertible Preferred Stock (“Series A Preferred”) |
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Pursuant to an offering dated October 31, 2008 (the “December 2008 Private Placement”) to the holders of the 2008 Notes, on December 17, 2008, the Company realized net proceeds of $548,474, after the payment of offering related fees and expenses of $19,250, from a private placement of $1,066,540 in principal amount of 10% Secured Convertible Promissory Notes due April 20, 2010 (“collectively the “December 2008 Notes”) and 8.9 shares of Series A Preferred. In addition, the Company issued to the investors warrants (the “Warrants”; together with the December 2008 Notes and the Series A Preferred, the “Purchased Securities”) to purchase in the aggregate up to 2,370 shares of the Company’s Common Stock at a per share exercise price equal to $750 exercisable through October 31, 2013. The warrants were not exercised and have expired. |
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The December 2008 Notes are convertible into shares of Common Stock at the holder’s option at any time at an initial conversion price of $450 per share (the “Fixed Conversion Price”), subject to adjustment in the event of certain capital adjustments or similar transactions, such as a stock split or merger and as further described below. Interest on the December 2008 Notes accrues at the rate of 10% per annum and is payable upon a required repayment (discussed below) or upon maturity, whichever occurs first, and will continue to accrue until the December 2008 Notes are fully converted and/or paid in full. |
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Commencing on April 30, 2009, and thereafter on the last day of each subsequent calendar month until the principal amount of the December 2008 Notes has been paid in full, the Company is required to prepay 8.33% of the aggregate principal amount of the December 2008 Notes originally issued, together with all accrued interest due and payable on the entire outstanding amount up to such repayment date. The amount may be paid, at the Company’s election, either in (i) cash, at 110% of the principal amount due and 100% of all other amounts due or (ii) shares of Common Stock as defined; provided, that, if such monthly amount is to be paid with shares of Common Stock, it will be automatically deferred unless the holder gives notice to the Company at least five (5) days before a repayment date that the holder will accept payment of such monthly amount in the form of Common Stock. |
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The Company’s obligations under the December 2008 Notes are secured by a security interest in substantially all of its assets pursuant to a prior Security Agreement dated as of December 24, 2007 between it and the purchasers of the 2008 Notes. |
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Holders of the Purchased Securities are subject to certain limitations on their rights to convert the securities. The principal limitation is that the holder may not, with certain limited exceptions, convert into a number of shares that would, together with other shares held by the holder, exceed 4.99% or 9.99% of the then outstanding shares of the Company after such conversion and/or exercise. |
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The December 2008 Notes were originally scheduled to mature on April 30, 2010 and were extended several times to December 31, 2011. The non-payment of the outstanding balance of these notes upon maturity on December 31, 2011 constituted an Event of Default under the transaction documents. The pertinent documents provide that any action by the investors upon such default (i.e., acceleration of the debt and other remedies) can only be initiated by the holders of 65% or more of the outstanding principal amount of the notes, representing the requisite Majority in Interest under the transaction documents. Such action had not been commenced by the note holders. In April 2012, the requisite Majority in Interest waived all existing Events of Default through June 30, 2012. In May 2012, July 2014 and October 2014, the requisite Majority in Interest agreed to certain modifications of the terms of the 2008 Notes (see (vi) Modifications of Debt). |
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There were no payments of principal or interest in 2014. |
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(iii) 2009 - 2011 Notes and Series A Preferred |
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In April 2009, the holders of the 2008 Notes and the December 2008 Notes consented to the placement of 10% secured convertible promissory notes, Series A Preferred and warrants, all on the substantive terms identical to those prevailing with respect to the December 2008 Private Placement discussed at further length in Note 7(ii) above. |
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| ● | In 2009, the Company raised net proceeds of $1,332,500 from the private placement to certain holders of the December 2008 Notes. The Company issued $1,432,500 in principal amount of 2009 Notes and 11.9 post-split shares of Series A Preferred. In connection with such investment, the Company issued to the holders of the 2009 Notes, five-year warrants to purchase in the aggregate up to 3,183 post-split shares of the Company’s common stock at per share exercise price equal to $750. | | | | | | |
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| ● | In 2010, the Company raised net proceeds of $318,940 from the private placement to certain holders of the December 2008 Notes. The Company issued $318,940 in principal amount of 2010 Notes and 2.7 post-split shares of Series A Preferred. In connection with such investment, the Company issued to the holders of the 2010 Notes, five- year warrants to purchase in the aggregate up to 709 post-split shares of the Company’s common stock at per share exercise price equal to $750. | | | | | | |
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| ● | In 2011, the Company raised net proceeds of $2,359,134 which includes $1,456,880 of rolled over notes payable and accrued interest in addition to $902,254 of new invested capital, from four holders of the December 2008 Notes. The Company issued $2,359,134 in principal amount of 2011 Notes and 19.7 post-split shares of Series A Preferred. In connection with such investments, the Company issued to the holders of the 2011 Notes, five year warrants to purchase in the aggregate up to 5,242 post-split shares of the Company’s Common Stock at per share exercise price equal to $750. | | | | | | |
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The warrants include a ‘cashless exercise’ provision. |
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Commencing on the six month anniversary date of the various notes, and on the same day of each subsequent calendar month thereafter until the principal amount of the various notes has been paid in full, the Company is required to prepay 8.33% of the aggregate principal amount of the various notes originally issued, together with all accrued interest due and payable on the entire outstanding amount up to such repayment date. |
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The various notes were scheduled to mature at various dates and were extended to December 31, 2011. The non-payment of the outstanding balance of a significant portion of these notes upon maturity on December 31, 2011 constituted an Event of Default under the transaction documents. The pertinent documents provide that any action by the investors upon such default (i.e., acceleration of the debt and other remedies) can only be initiated by the holders of 65% or more of the outstanding principal amount of the notes. Such action had not been commenced by the note holders. In April 2012, the requisite Majority in Interest waived all existing Events of Default through June 30, 2012. In May 2012, July 2014 and October 2014, the requisite Majority in Interest agreed to certain modifications of the terms of the various notes (see (vi) Modifications of Debt). |
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There were no payments of principal or interest in 2014. |
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(iv) 2012 Notes and Series A Preferred |
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For the year ended December 31, 2012, the Company raised net proceeds $1,337,723 from holders of the December 2008 Notes and two new investors. The Company issued 1,337,723 in principal amount of 10% secured convertible promissory notes (“2012 Notes”) and 11.14 post-split shares of Series A Preferred. The 2012 Notes have substantive terms identical to those prevailing with respect to the December 2008 Private Placement discussed at further length in Note 8(ii) above. In connection with such investments, the Company issued five-year warrants to purchase in the aggregate up to 2,972 post-split shares of the Company’s Common Stock at per share exercise price equal to $750. The warrants include a ‘cashless exercise’ provision. |
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Commencing on the six month anniversary date of the 2012 Notes, and on the same day of each subsequent calendar month thereafter until the principal amount of the Notes has been paid in full, the Company is required to prepay 8.33% of the aggregate principal amount of the Notes originally issued, together with all accrued interest due and payable on the entire outstanding amount up to such repayment date. In May 2012, July 2014 and October 2014, the requisite Majority in Interest agreed to certain modifications of the terms of the 2012 Notes (see (vi) Modifications of Debt). |
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For the nine months ended September 30, 2014, the Company issued 374.8 million shares of Common Stock in payment of principal and interest in the amount of $374,605. No shares were issued subsequent to September 30, 2014. |
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(v) Priority of Payments of Notes |
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In December 2011, a Majority in Interest agreed that Notes issued after December 15, 2011 (“New Notes”) shall be accorded first lien priority in the collateral (as defined) and that any repayment obligations currently owing on Notes issued on or before October 26, 2011 shall be subordinated to the repayment obligations incurred by the Company in connection with the New Notes. The consenting holders represented more than the requisite Majority in Interest required under the transaction documents for this matter, and accordingly their agreement is binding upon all note holders. |
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(vi) Modifications of Debt |
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In May 2012, a Majority in Interest waived all Events of Default and consented to a modification of the note terms. Under the modification, effective January 1, 2012: |
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| ● | The Company may deem the maturity date of the outstanding notes (including any issued after January 1, 2012) to be December 31, 2015 | | | | | | |
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| ● | The interest rate payable has been reduced to 2.5% per annum | | | | | | |
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| ● | The determination of the number of shares of Common Stock for purposes of the repayment of the Monthly Amount through the issuance of Common Stock shall be made by dividing the Monthly Amount by $0.30 (post-split), subject to further adjustment as provided in the Notes with respect to certain corporate events. | | | | | | |
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The Company accounted for the modification of the terms of the notes, as described above, as an extinguishment of debt in accordance with FASB ASC Subtopic 470-50, “ Debt: Modifications and Extinguishment .” The Company deemed the terms of the modification to be substantially different and treated the Notes as extinguished and exchanged for new notes. As such, it was necessary to reflect the Notes at fair value. In addition, any remaining unamortized debt discounts were expensed. |
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In accordance with FASB ASC subtopic 820-10, “Fair Value Measurement – Overall,” the value of the Notes was determined utilizing level 3 inputs. The fair value of the Notes was determined based on an effective rate of return of approximately 31%, which approximates the return of a high risk note. As a result, the face amount of the remaining principal balance of $5,483,839 was written down to its fair market value of $1,566,704. This discount is being amortized to the amended date of maturity unless paid or converted earlier. |
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In July 2014, a Majority in Interest consented to a modification of the Note terms. The effective date of the modification was upon the receipt by the Company of signed consents representing 66.67% of the Notes. Under the modification: |
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| ● | The Company may deem the maturity date of the outstanding notes to be December 31, 2017 | | | | | | |
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| ● | For all Notes issued prior to April 30, 2012, the determination of the number of shares of Common Stock for purposes of the repayment of the Monthly Amount through the issuance of Common Stock shall be made by dividing the Monthly Amount by $0.05 (post-split), subject to further adjustment as provided in the Notes with respect to certain corporate events. | | | | | | |
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| ● | For all Notes issued after April 30, 2012, the determination of the number of shares of Common Stock for purposes of the repayment of the Monthly Amount through the issuance of Common Stock shall be made by dividing the Monthly Amount as follows: 50% discount from the lowest closing bid price in the 20 trading days prior to the day on which such payment is to be made subject to further adjustment as provided in the Notes with respect to certain corporate events. This term was modified by the October 2014 modification described below. | | | | | | |
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| ● | Effective as of the date of the consent and continuing until the end of a six month period following an Event (as defined), the Company shall not be required to accrue and/or pay the Monthly Amount. In addition, the non-accrual and non-payment shall not be deemed to be Events of Default. | | | | | | |
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| ● | As discussed above, the Company’s obligations under the Notes are secured by a security interest in substantially all of its assets of the Company. Such security interest will not include the shares of the equity capital or assets of a company in formation in Peru that is intended to become a subsidiary. | | | | | | |
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In October 2014, a Majority in Interest consented to a further modification of one of the terms of the Note. The effective date of the modification was upon the receipt by the Company of signed consents representing 66.67% of the Notes. For all Notes issued on or after April 30, 2012, the determination of the number of shares of Common Stock for purposes of the repayment of the Monthly Amount through the issuance of Common Stock shall be made by dividing the Monthly Amount by $0.05 (post-split), subject to further adjustment as provided in the Notes with respect to certain corporate events. |
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(vii) 2014 Convertible Promissory Notes |
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In March 2014, the Company entered into a consulting agreement with an affiliate of a minority stockholder of the Company for certain business, financial consulting and advisory services. The monthly fee is $30,000 in the form of a convertible promissory note payable monthly on the first day of each calendar month, in advance. The convertible promissory notes will not have registration rights, are due within six months of issuance, unless converted sooner. The notes bear interest at the rate of 10% per annum and are convertible into shares of the Company’s Common Stock at 50% of the low closing bid price for the 30 days prior to conversion. The unpaid interest is convertible into shares of the Company’s Common Stock at $0.001 per share |
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From March 15, 2014, to September 30, 2014 the Company issued seven such promissory note totaling $190,000. The conversion feature contained in the promissory note is considered to be an embedded derivative. The Company bifurcated the conversion feature and recorded a derivative liability on the consolidated balance sheet. The Company recorded the derivative liability equal to its estimated fair value. Such amount was also recorded as a discount to the convertible promissory note and is being amortized to interest expense over the term of the note. For the nine and three months ended September 30, 2014, amortization of the debt discount amounted to $120,518 and $80,482, respectively. At September 30, 2014, the unamortized discount is $49,810. In October 2014, the Company issued an eighth promissory note for $30,000. |
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The Company is in default on three of the notes issued as no payments were made by the respective due dates. No actions have been taken by the note holder. |
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The Company is required to mark-to-market the derivative liability at the end of each reporting period. For the nine and three months ended September 30, 2014, the Company recorded a gain on the change in fair value of the conversion option of $59,321 and $106,666, respectively, and as of September 30, 2014, the fair value of the conversion option was $266,667. |
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(viii) 2014 Notes and Series A Preferred |
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In July 2014, the Company converted all of the notes payable issued to two 2008 Investors into 10% secured convertible promissory notes (“2014 Notes”) and 4.05 post-split shares of Series A Preferred. The 2014 Notes have substantive terms identical to those prevailing with respect to the December 2008 Private Placement discussed at further length in Note 9(ii) above In connection with such investments, the Company issued five-year warrants to purchase in the aggregate up to 1,080 post-split shares of the Company’s Common Stock at per share exercise price equal to $750. The 2014 Notes contain terms similar to the other secured promissory notes issued previously. |
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In August 2014, the Company raised net proceeds $22,800 from one holder of the December 2008 Notes. The Company issued $22,800 in principal amount of 10% secured convertible promissory notes and 0.19 post-split shares of Series A Preferred. The note has substantive terms identical to those prevailing with respect to the December 2008 Private Placement discussed at further length in Note 9(ii) above. In connection with such investments, the Company issued five-year warrants to purchase in the aggregate up to 51 post-split shares of the Company’s Common Stock at per share exercise price equal to $750. The warrants include a ‘cashless exercise’ provision. |
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Commencing on the six month anniversary date of the 2014 Notes, and on the same day of each subsequent calendar month thereafter until the principal amount of the Notes has been paid in full, the Company is required to prepay 8.33% of the aggregate principal amount of the Notes originally issued, together with all accrued interest due and payable on the entire outstanding amount up to such repayment date. The 2014 Notes are subject to the terms of the July 2014 and October 2014 term modifications discussed above (see (vi) Modifications of Debt). |
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(ix) Maturities of Convertible Promissory Notes |
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Based on the July 2014 modification, the maturities on the Notes are $422,102 payable through 2014, $422,481 payable in 2015 and $7,599,048 payable in 2017. |