UNITED
STATES
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): December 31, 2009 (December 24,
2009)
SPONGETECH DELIVERY
SYSTEMS, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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333-100925
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54-2077231
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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10
West 33rd Street,
Suite 518
New
York, New York 10001
(Address
of principal executive offices and Zip Code)
Registrant's
telephone number, including area code: (212) 695-7850
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:
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
SpongeTech
Delivery Systems, Inc., a Delaware corporation (“SpongeTech”) acknowledges that
this Current Report on Form 8-K as well as other filings with the Securities and
Exchange Commission and SpongeTech’s releases issued to the public contain
various statements relating to future results, including certain projections and
business trends. These statements constitute “forward-looking statements” within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. These include
statements about SpongeTech’s expectations, beliefs, intentions or strategies
for the future, which are indicated by words or phrases such as “anticipate,”
“expect,” “intend,” “plan,” “will,” “believe,” and similar language. These
forward-looking statements are based on SpongeTech’s current expectations and
are subject to certain risks, uncertainties and assumptions, including, but not
limited to, those set forth in SpongeTech’s Annual Report on Form 10-KSB for the
year ended May 31, 2008, which was filed with the Securities and Exchange
Commission on August 29, 2008. Other important factors that could cause actual
results to differ materially include the following: business conditions and the
amount of growth in SpongeTech’s industry and the general economy; competitive
factors; ability to attract and retain personnel; the price of SpongeTech’s
common stock; and the risk factors set forth from time to time in the reports
SpongeTech files with the Securities and Exchange Commission. SpongeTech’s
actual results may differ materially from results anticipated in these
forward-looking statements. SpongeTech bases its forward-looking statements
on information currently available to it, and SpongeTech assumes no obligation
to update them. In addition, SpongeTech’s historical financial performance is
not necessarily indicative of the results that may be expected in the future and
SpongeTech believes that such comparisons cannot be relied upon as indicators of
future performance.
Item
8.01. Other Events
On
December 24, 2009, the Staff of the U.S. Securities and Exchange Commission (the
“Commission”) sent a written Wells notice, which was received on December 28,
2009, to each of SpongeTech Delivery Systems, Inc. (“SpongeTech”), Michael L.
Metter, SpongeTech’s Chief Executive Officer, and Steven Y. Moskowitz,
SpongeTech’s Chief Financial and Chief Operating Officer. The Wells notices
advised that the Commission Staff intends to recommend that the Commission bring
civil injunctive actions against them alleging violations of the federal
securities laws contained in Sections 5(a), 5(c) and 17(a) of the Securities Act
of 1933, as amended (“Securities Act”) and Sections 10(b), 13(b)(5) of the
Exchange Act of 1934, as amended (“Exchange Act”) and Exchange Act Rules 10b-5,
13b2-1, and 13b2-2 thereunder; and Sections 13(a), 13(b)(2)(A), and 13(b)(2)(B)
of the Exchange Act and Exchange Act Rules 12b-20, 13a-1, 13a-11, 13a-13, and
13a-14 thereunder. The recommended actions would seek, among other
things, permanent injunctions and civil penalties.
Under the
Wells process established by the Commission, SpongeTech, Mr. Metter and Mr.
Moskowitz have been offered the opportunity to submit a written or videotaped
submission to the Staff setting forth any reasons of law, policy or fact why
they believe that the civil injunctive action should not be brought or bringing
forth any facts to the Commission’s attention in connection with its
consideration of these matters (a “Wells Submission”) before the Staff makes its
formal recommendation to the Commission regarding what action, if any, should be
brought against them. SpongeTech, Mr. Metter and Mr. Moskowitz are
consulting with their counsel with respect to these matters. There can be no
assurance that the Commission will decide not to bring actions against them, nor
can SpongeTech predict the outcome of any such action(s), if
brought.
SpongeTech does not anticipate any
material interruption in its business operations by virtue of the Wells notices
or any action(s) that may be brought by the Commission. SpongeTech will continue
to conduct its operations in the normal course of business, including receiving
orders, shipping its goods and servicing its customers and suppliers.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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SpongeTech
Delivery Systems, Inc.
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Date:
December 31, 2009
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By:
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/s/ Steven
Y. Moskowitz
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Steven
Y. Moskowitz
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Chief
Financial Officer and Chief Operating Officer
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