SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of Earliest Event Reported):
January
7, 2010 (December 31, 2009)
CNS
RESPONSE, INC.
(Exact
name of Company as specified in its charter)
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Delaware
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0-26285
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87-0419387
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(State
or other
jurisdiction
of
incorporation)
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(Commission
File No.)
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(I.R.S.
Employer
Identification
No.)
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2755
Bristol Street, Suite 285
Costa
Mesa, CA 92626
(Address
of principal executive offices)
(714)
545-3288
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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| o |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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CNS
Response, Inc. (the “Company”) sold and issued the Investment Units described in
Item 8.01 in a transaction that was not registered under the Securities Act of
1933, as amended. The terms of those securities described in Item
8.01 are incorporated by reference into this Item 3.02, as is the description of
the exemption relied on by the Company in completing the offering and other
information required to be disclosed pursuant to this Item.
Item
8.01 Other
Events.
The
Company recently completed two closings of its private placement, on December
31, 2009 and January 4, 2010, resulting in gross proceeds to the Company of
approximately $540,000 in a private placement transaction (the “Private
Placement”) with accredited investors, thereby completing the
placement.
Pursuant
to Subscription Agreements entered into with the investors, the Company sold
approximately 10 Investment Units at $54,000 per Investment Unit. Each
“Investment Unit” consists of 180,000 shares of the Company’s common stock and a
five year non-callable warrant to purchase 90,000 shares of the Company’s common
stock at an exercise price of $0.30 per share.
After
commissions and expenses, the Company received net proceeds of approximately
$480,000 in the Private Placement. The Company intends to use the net
proceeds from the Private Placement for general corporate purposes, including
clinical trial expenses, research and development expenses, and general and
administrative expenses, including payment of accrued legal expenses incurred in
connection with successfully defending the Company from actions brought in the
Delaware Court of Chancery by the Company’s former CEO, Leonard
Brandt.
A FINRA
member firm acted as lead placement agent (the “Placement Agent”) in connection
with the Private Placement. For its services in connection with the
December 31, 2009 closing of the Private Placement, the Placement Agent received
(i) a cash fee of $4,320, (ii) a cash expense allowance of $8,640, and (iii) a
five year non-callable warrant to purchase 14,400 shares of the Company’s common
stock at an exercise price of $.33 per share.
For its
services in connection with the January 4, 2010 closing of the Private
Placement, the lead Placement Agent received (i) a cash fee of $1,080, (ii) a
cash expense allowance of $2,160, and (iii) a five year non-callable warrant to
purchase 3,600 shares of the Company’s common stock at an exercise price of $.33
per share.
Pursuant
to a Registration Rights Agreement entered into with each investor, the Company
agreed to file a registration statement covering the resale of the common stock
and the common stock underlying the warrants sold in the Private Placement, as
well as the common stock underlying the warrants issued to the Placement
Agent. In addition, the Company agreed to use its best efforts to
have the registration statement declared effective no later than 180 days
following the closing of the offering and maintain such effectiveness until the
earlier of the second anniversary of the date of such effectiveness or the date
that all of the securities covered by the registration statement may be sold
without restriction.
In
issuing the shares and warrants to the investors without registration under the
Securities Act of 1933, as amended (the “Securities Act”), the Company relied
upon one or more of the exemptions from registration contained in Sections 4(2)
of the Securities Act, and in Regulation D promulgated thereunder, as the shares
and warrants were issued to accredited investors, without a view to
distribution, and were not issued through any general solicitation or
advertisement. The Company made this determination based on the
representations of each investor which included, in pertinent part, that such
investor is an “accredited investor” within the meaning of Rule 501 of
Regulation D promulgated under the Securities Act, that such investor was
acquiring the shares and the warrant for investment purposes for its own
account, and not with a view to, or for resale in connection with, any
distribution or public offering
thereof within the meaning of the Securities Act, and that such investor
understood that the shares, the warrant and the securities issuable upon
exercise thereof may not be sold or otherwise disposed of without registration
under the Securities Act or an applicable exemption therefrom.
This
announcement does not constitute an offer to sell or the solicitation of an
offer to buy nor will there be any sale of these securities in any state or
jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of such state or
jurisdiction.
Safe Harbor
Statement Under the Private Securities Litigation Reform Act of
1995
Except
for the historical information contained herein, the matters discussed are
forward-looking statements made pursuant to the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995, as amended. These statements
involve risks and uncertainties as set forth in the Company's filings with the
Securities and Exchange Commission. These risks and uncertainties could cause
actual results to differ materially from any forward-looking statements made
herein.
None.
SIGNATURES
Pursuant
to the Securities Exchange Act of 1934, as amended, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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CNS
Response, Inc.
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By:
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/s/
George Carpenter
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January
7, 2010
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George
Carpenter
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Chief
Executive Officer
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