Attached files
| file | filename |
|---|---|
| EX-3.01 - EXHIBIT 3.1 - AYRO, Inc. | ex31.htm |
| EX-4.01 - EXHIBIT 4.1 - AYRO, Inc. | ex401.htm |
| EX-99.1 - EXHIBIT 99.1 - AYRO, Inc. | ex991.htm |
| EX-3.02 - EXHIBIT 3.2 - AYRO, Inc. | ex302.htm |
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): February 22,
2010
WPCS
INTERNATIONAL INCORPORATED
(Exact
name of registrant as specified in its charter)
|
Delaware
|
0-26277
|
98-0204758
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
One
East Uwchlan Avenue, Suite 301, Exton, PA 19341
(Address
of principal executive offices)
Registrant’s
telephone number, including area code: (610) 903-0400
Copy
of correspondence to:
Marc J.
Ross, Esq.
Thomas A.
Rose, Esq.
James M.
Turner, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway
New York,
New York 10006
Tel: (212)
930-9700 Fax: (212) 930-9725
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 (see General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
ITEM
1.01 Entry
into a Material Definitive Agreement.
On
February 24, 2010, WPCS International Incorporated (the “Company”) adopted a
stockholder rights plan. The stockholder rights plan is embodied in the Rights
Agreement dated as of February 24, 2010 (the “Rights Agreement”), between the
Company and Interwest Transfer Co., Inc. (the “Rights Agent”), which is attached
hereto as Exhibit 4.1. For a description of the material terms of the
Rights Agreement and the rights to be issued pursuant thereto, please refer to
Item 3.03 of this Current Report on Form 8-K, which is hereby incorporated
herein by reference.
Item 3.03 Material Modifications to Rights of
Security Holders.
On
February 24, 2010, the Company declared a dividend of one preferred share
purchase right (a “Right”) for each outstanding share of the Company’s common
stock, par value $0.0001 per share (the “Common Stock”), and authorized the
issuance of one Right for each share of Common Stock which shall become
outstanding between the Record Date (as hereinafter defined) and the earliest to
occur of the Distribution Date (as hereinafter defined), the redemption or
exchange of the Rights, or the expiration of the Rights. The dividend is payable
at the close of business on March 8, 2010 (the “Record Date”) to the
stockholders of record on that date. Each Right entitles the registered holder
to purchase from the Company one one-thousandth (1/1000th) of a share of
Series D Junior Participating Preferred Stock, $0.0001 par value (the
“Preferred Stock”), of the Company at a price of $15.00 (the “Purchase Price”),
subject to adjustment. The description and terms of the Rights are set forth in
the Rights Agreement between the Company and the Rights Agent.
Until the
close of business on the Distribution Date, the Rights will be evidenced, with
respect to any of the Common Stock certificates outstanding as of the Record
Date, by such Common Stock certificate and the Summary of Rights attached to the
Rights Agreement (the “Summary of Rights”), and no separate certificates
evidencing the rights (“Right Certificates”) will be issued. The Rights will
separate from the Common Stock, Right Certificates will be issued and the Rights
will become exercisable on the tenth day (the “Distribution Date”) after the
earlier of (i) the public announcement (including pursuant to a report
filed or amended pursuant to Section 13(d) of the Exchange Act) that, or
(ii) a determination by a majority of the Company’s Board of Directors
that, a person or group has become an Acquiring Person (as defined below) (the
“Shares Acquisition Date”). An “Acquiring Person” is a person or group that,
together with its affiliates and associates, is the beneficial owner of 15% or
more of the outstanding Common Stock. Certain persons, including the Company,
any subsidiary of the Company, and Company benefit plan related holders, are
excluded from the definition of Acquiring Person. Moreover, a person or group of
affiliated or associated persons, who (i) beneficially owns 15% or more of
the Common Stock outstanding on the date of the Rights Agreement (provided such
person or group does not accumulate additional shares of Common Stock equal to
1% or more of the shares of Common Stock then outstanding) or (ii) acquires
the beneficial ownership of 15% or more of the Common Stock then outstanding
either (a) by reason of share purchases by the Company reducing the number
of shares of Common Stock outstanding (provided such person or group does not
acquire additional shares of Common Stock), or (b) inadvertently, if the
Company’s Board of Directors determines such 15% beneficial ownership was
acquired inadvertently and as promptly as practicable such person or group
divests itself of enough shares of Common Stock or derivative securities so as
to no longer have the beneficial ownership of 15% of the outstanding Common
Stock, will not be an Acquiring Person.
2
For
purposes of the Rights Agreement, “beneficial ownership” includes not only the
right to vote or dispose of the Company’s Common Stock, but also rights related
to derivative transactions or derivative securities which grant to the holder
thereof the economic equivalent of ownership of an amount of Company Common
Stock (whether or not such derivative (i) conveys voting rights in the
Company Common Stock or (ii) may be settled through delivery of Company
Common Stock, and whether or not the economic effect of such derivative has been
hedged).
The
Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be transferable only in
connection with the transfer of the Common Stock. Until the Distribution Date
(or earlier redemption, exchange or expiration of the Rights), new Common Stock
certificates issued after the Record Date, upon transfer or new issuance of
Common Stock, will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), the surrender for transfer of any certificates for
shares of Common Stock outstanding as of the Record Date, with or without a copy
of the Summary of Rights, also will constitute the transfer of the Rights
associated with the shares of Common Stock represented by such certificate. As
soon as practicable following the Distribution Date, separate Right Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and such separate Right Certificates alone
will evidence the Rights.
The
Rights are not exercisable until the Distribution Date. The Rights will expire
at 5:00 p.m. (Eastern time) on February 24, 2020 (the “Expiration Date”), unless
the Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The
Purchase Price payable, and the number of shares of Preferred Stock or other
securities or property issuable, upon exercise of the Rights, are subject to
adjustment from time to time to prevent dilution (i) in the event of a
stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of
certain rights, options or warrants to subscribe for or purchase Preferred Stock
at a price, or securities convertible into Preferred Stock with a conversion
price, less than the then current market price of the Preferred Stock, or
(iii) upon the distribution to holders of the Preferred Stock of evidences
of indebtedness or assets (excluding regular periodic cash dividends paid out of
earnings or retained earnings or dividends payable in Preferred Stock) or of
subscription rights or warrants (other than those referred to above). The number
of interests in Preferred Stock or other securities or property issuable upon
exercise of the Rights is also subject to adjustment from time to time to
prevent dilution in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Common Stock.
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional shares of Preferred Stock (other than fractions which are
integral multiples of one one-thousandth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts) will
be issued, and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Stock on the last trading day prior to the date of
exercise.
Preferred
Stock will not be redeemable and will be, in ranking as to dividend and
liquidation preferences, senior to the Common Stock. Each share of Preferred
Stock will be entitled to a minimum preferential quarterly dividend payment of
the greater of (i) $0.10 per share, or (ii) 1,000 times the aggregate per share
amount of all cash dividends and 1,000 times the aggregate per share amount of
all non-cash dividends and other distributions (other than dividends payable in
Common Stock) declared per share of Common Stock. In the event of liquidation,
the holders of the interests in Preferred Stock will receive a preferential
liquidation payment of $1,000 per share, plus accrued and unpaid dividends,
provided that such holders will be entitled to receive an aggregate liquidation
payment equal to 1,000 times the payment made on one share of Common Stock. Each
share of Preferred Stock will have 1,000 votes, voting together with the Common
Stock. If dividends on any Preferred Stock are in arrears in an amount equal to
six quarterly dividends thereon, all holders of Preferred Stock with dividends
in arrears in an amount equal to six quarterly dividends thereon, voting as a
class, have the right to elect one director. The term of such director will
terminate automatically upon the expiration of the default period. The rights of
the Preferred Stock as to dividends, liquidation and voting, and in the event of
mergers and consolidations, are protected by customary antidilution provisions
as more fully described in the Rights Agreement. Because of the nature of the
Preferred Stock dividend, liquidation and voting rights, the value of the one
one-thousandth interest in a share of Preferred Stock purchasable upon exercise
of each Right (subject to adjustment) should approximate the value of one share
of Common Stock.
3
In the
event any person becomes an Acquiring Person, then each holder of a Right, other
than Rights beneficially owned by the Acquiring Person and its affiliates and
associates (which will thereafter be null and void for all purposes of the
Rights Agreement and the holder thereof shall thereafter have no rights with
respect to such Rights, whether under the Rights Agreement or otherwise), will
thereafter have the right to receive upon exercise, in lieu of Preferred Stock,
that number of shares of Common Stock having a market value of two times the
Purchase Price. Under some circumstances, upon payment of the Purchase Price,
the Company may substitute other equity and debt securities, property, cash or
combinations thereof, including combinations with Common Stock, of equal value
to the number of shares of Common Stock for which the Right is
exercisable.
If,
following the Shares Acquisition Date, (i) the Company is acquired in a
merger or other business combination transaction, (ii) the Company is the
surviving corporation in a merger or other business combination transaction and
the shares of Common Stock are changed or exchanged or (iii) 50% or more of
its consolidated assets or earning power is sold, proper provision will be made
so that each holder of a Right (other than Rights beneficially owned by an
Acquiring Person or affiliates or associates thereof) will thereafter generally
have the right to receive, upon the exercise thereof at the then current
Purchase Price, that number of shares of the senior voting stock of the
acquiring company that, at the time of such transaction, would have a market
value of two times the Purchase Price.
At any
time prior to the earlier of (i) 5:00 p.m., Eastern time, on the
Distribution Date, or (ii) 5:00 p.m., Eastern time, on the Expiration Date, the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $0.001 per Right (the “Redemption Price”), which may be paid
in cash or with Common Stock or any other form of consideration deemed
appropriate by the Board of Directors of the Company. Immediately upon the
action of the Board of Directors of the Company to redeem or exchange the
Rights, the Company shall make announcement thereof, and upon such action, the
right to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price, or the shares of Common Stock or
Preferred Stock exchangeable for the Rights, as applicable.
A
committee of independent directors of the Company will review and evaluate the
Rights Agreement at least every five years in order to consider whether the
maintenance of the Rights Agreement continues to be in the best interests of the
Company and its stockholders. Following each such review, the committee shall
communicate its conclusions to the full Board of Directors of the Company,
including any recommendation in light thereof as to whether the Rights Agreement
should be modified or the Rights should be redeemed.
Under
certain circumstances, after the Shares Acquisition Date but prior to the time
the Acquiring Person, together with all affiliates and associates of such
Acquiring Person, becomes the Beneficial Owner of 50% or more of the outstanding
Common Stock, the Board of Directors of the Company may exchange the Rights
(other than Rights that were or are beneficially owned by an Acquiring Person or
its affiliates and associates), in whole or in part, at an exchange ratio of one
share of Common Stock (or, if there is an insufficient number of issued but not
outstanding or authorized but unissued shares of Common Stock to permit such
exchange, then one one-thousandth of a share of Preferred Stock) per Right
(subject to adjustment).
Until a
Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or
to receive dividends.
Except as
otherwise provided in the Rights Agreement, and prior to the Distribution Date,
the Company may, in its sole and absolute discretion, amend or supplement the
Rights Agreement in any respect without the consent of the holders of
certificates representing Common Stock. At any time after the Rights are no
longer redeemable, the Company may supplement or amend the Rights Agreement
without the consent of the holders of the Right Certificates at any time to cure
any ambiguity or to correct or supplement any defective or inconsistent
provisions, to shorten or lengthen any time period hereunder, or to change or
supplement the provisions hereunder in any manner that the Company may deem
necessary or desirable and which would not adversely affect the interests of the
holders of Right Certificates (other than any holder who is an Acquiring Person
or its affiliates and associates) or to cause the Rights to again become
redeemable. The foregoing notwithstanding, no amendment may be made to the
Rights Agreement at a time when the Rights are not redeemable, except to cure
any ambiguity or correct or supplement any provision contained in the Rights
Agreement which may be defective or inconsistent with any other provision
therein.
4
The
Rights have certain anti-takeover effects. The Rights will cause substantial
dilution to a person or group that attempts to acquire the Company without
conditioning the offer on the redemption of the Rights by the Board of Directors
of the Company. The Rights should not interfere with any merger or other
business combination that is in the best interests of the Company and its
stockholders because the Board of Directors may, at its option, at any time
prior to the Shares Acquisition Date, redeem all but not less than all the then
outstanding Rights at the Redemption Price.
A copy of
each of the Rights Agreement and the Certificate of Designations for the
Preferred Stock is attached as Exhibits 4.01 and 3.01, respectively, to this
Current Report on Form 8-K. This summary description of the Rights and the
Preferred Stock does not purport to be complete and is qualified in its entirety
by reference to the Rights Agreement, which is hereby incorporated herein by
reference.
ITEM
5.03 Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The Board
of Directors of the Company amended and restated the Company’s Bylaws effective
as of February 22, 2010. The following is a summary of changes effected by
adoption of the amended and restated Bylaws, which summary is qualified in its
entirety by reference to the Amended and Restated Bylaws filed as
Exhibit 3.02 hereto. In addition to the amendments summarized below, the
amendment and restatement to the Bylaws reflects certain non-substantive changes
to conform to current provisions of Delaware law and to improve style and
readability.
Article II – Meetings of
Stockholders
|
•
|
The
provision relating to special meetings has been amended to provide that
only the Chairman of the Board, the Board or a committee of the Board has
the ability to call a special meeting of
stockholders. Previously, holders of 10% of more of the
outstanding shares were also entitled to call a special meeting of
stockholders. (Section 2.02)
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||
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•
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A
provision was added providing for notice of stockholder meetings.
(Section 2.04)
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||
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•
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The
provision for order of business at a stockholder meeting has been
eliminated. The order of business will be determined by the
Chairman of the meeting.
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||
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•
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The
Chairman of a stockholders meeting is now authorized to adjourn the
meeting from time to time, whether or not there exists a
quorum. Previously, only the stockholders were entitled to
adjourn a meeting. (Section 2.05)
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||
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•
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A
provision was added providing for prior notice by a shareholder of record
to nominate persons for election as a director or proposal of business.
(Section 2.06)
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||
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•
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Provisions
were added providing for stockholder action by written request, procedures
for establishing a record date for stockholder action by written request
and for the inspection of and form or such written requests.
(Sections 2.10 – 2.13)
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Article III –
Directors
|
•
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The
provision relating to filling vacancies on the Board of Directors was
amended to provide that any vacancies may be filled only by the
affirmative vote of a majority of the remaining
directors. Previously, vacancies could also be filled at a
special meeting of stockholders called for that purpose. (Section 3.06)
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Article IV –
Officers
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•
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Various
provisions related to officer positions and reporting relationships are
modified to reflect the Company’s current organizational structure and
provide flexibility for future changes in organizational structure.
(Article IV)
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Article VII
– Indemnification
|
•
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Provisions
relating to indemnification were expanded to provide for maximum
indemnification of officers, directors, employees and agents of the
Company and provides mechanisms for how to receive indemnification and
advancement of expenses. (Section
7.01)
|
Item 7.01 Regulation FD
Disclosure.
On
February 26, 2010, the Company issued a press release announcing the adoption of
a stockholder rights plan. A copy of the press release is furnished herewith as
Exhibit 99.1.
ITEM
9.01 Financial
Statements and Exhibits.
(d) Exhibits.
|
3.01
|
Certificate
of Designations of Series D Junior Participating Preferred Stock, as filed
with the Secretary of State of the State of Delaware on January 22,
2010.
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|
3.02
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Amended
and Restated Bylaws of WPCS International Incorporated, effective as of
February 22, 2010.
|
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4.01
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Rights
Agreement, dated as of February 24, 2010, between WPCS International
Incorporated and Interwest Transfer Co., Inc., as Rights Agent, including
the form of Certificate of Designations of Series D Junior Participating
Preferred Stock, the forms of Right Certificate, Assignment and Election
to Purchase, and the Summary of Rights attached thereto as Exhibits A, B
and C, respectively.
|
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99.1
|
WPCS International Incorporated Press Release dated February 26, 2010. |
5
SIGNATURE
Pursuant to the requirement of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
| WPCS INTERNATIONAL INCORPORATED | |||
|
Date: February
26, 2010
|
By:
|
/s/ JOSEPH HEATER | |
|
Joseph
Heater
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|||
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Chief
Financial Officer
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6