Attached files
file | filename |
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EX-10.4 - FORM OF CONVERTIBLE NOTE - Tri-Mark MFG, Inc. | v199481_ex10-4.htm |
EX-10.1 - AGREEMENT AND PLAN OF MERGER DATED OCTOBER 15, 2010 - Tri-Mark MFG, Inc. | v199481_ex10-1.htm |
EX-10.2 - INDEMNIFICATION AGREEMENT - Tri-Mark MFG, Inc. | v199481_ex10-2.htm |
EX-3.1 - CERTIFICATE OF OWNERSHIP AND MERGER, DATED OCTOBER 15, 2010 - Tri-Mark MFG, Inc. | v199481_ex3-1.htm |
EX-10.3 - SUBSCRIPTION AGREEMENT DATED OCTOBER 15, 2010 - Tri-Mark MFG, Inc. | v199481_ex10-3.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): October 15, 2010
FTOH
CORP.
(Exact
Name of Registrant as Specified in Charter)
Delaware
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333-149546
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20-8069359
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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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101
Middlesex Turnpike, Burlington, MA
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01803
|
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (310) 430-5771
Tri-Mark Mfg, Inc.
643 S. Olive Street,
Suite 777
Los Angeles, CA 90014
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(Former
name or former address, if changed since last
report)
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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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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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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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Item
1.01
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Entry
into a Material Definitive
Agreement.
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Reincorporation
On
October 15, 2010, we entered into an agreement and plan of
merger (the “Merger Agreement”) with Tri-Mark MFG, Inc. a Delaware corporation
(the “Company”) and our wholly-owned subsidiary. Pursuant to the Merger
Agreement we were merged with and into our wholly-owned
subsidiary and our separate existence ceased (the
“Merger”). Our shareholders approved the Merger on October 15, 2010
by written consent in accordance with California law and we approved the Merger
as shareholder on behalf of the Company. The purpose of the Merger
was to provide for a Delaware corporate organization that would continue our
business and pursue additional opportunities. Our Board of Directors
believes that Delaware is a more favorable jurisdiction for incorporation of
companies with shares that are publicly traded because, among other things, the
Delaware courts and legislature have established a significant and predictable
body of law relating to corporate governance and affairs. Among other
things, Delaware law provides protection from unwanted takeovers and protection
from liability for officers and directors who perform their duties in good faith
and without conflicts of interest.
Additionally,
pursuant to the Merger Agreement and in connection with out reincorporation into
the State of Delaware, we adopted additional changes to our organization, and
the following occurred:
|
·
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We
changed our name to “FTOH Corp.” as a result of amendment to
the Company’s Certificate of
Incorporation;
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·
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Our
Certificate of Incorporation was amended to provide authority to issue
190,000,000 shares of Common Stock, par value $0.0001 per share and
10,000,000 shares of blank check preferred, par value $0.0001 per share
(the “Preferred Stock”). We may issue any class of our
Preferred Stock in any series. Our Board of Directors shall
have authority to establish and designate series, and to fix the number of
shares included in each such series and the variations in the relative
rights, preferences and limitations as between series, provided that, if
the stated dividends and amounts payable on liquidation are not paid in
full, the shares of all series of the same class shall share ratably in
the payment of dividends including accumulations, if any, in accordance
with the sums which would be payable on such shares if all dividends were
declared and paid in full, and in any distribution of assets other than by
way of dividends in accordance with the sums which would be payable on
such distribution if all sums payable were discharged in
full. Shares of each such series when issued shall be
designated to distinguish the shares of each series from shares of all
other series.
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·
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All
or our property, real, personal and mixed and all debts vested in the
Company and all property, rights, privileges, powers and
franchises, and all and every other interest are thereafter the property
of the Company.
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·
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As
of October 28, 2010 (the record date for issuance of the dividend
shares)(or such later date as FINRA approval is obtained), the holders of
our common stock will be entitled to 8.344159089 shares of common stock of
the Company as consideration and in exchange for each one share of our
common stock and all of the common stock of the Company held by us shall
be surrendered and canceled.
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·
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Eliminated
certain rights in our certificate of incorporation and bylaws, including
the right provided in our bylaws to cumulative voting in the election of
directors, as well as changes in the time periods and notices required in
order to call special meetings of directors and shareholders and
increasing the potential number of directors that would comprise our
entire board of directors from 1 to up to
15.
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1
In
connection with the Merger, Barry Sytner, our chief executive officer and
director and Betty (Sytner) Soumekh, our chief financial officer, resigned
from their positions and Glenn Kesner the president, chief executive
officer and sole director of the Company continues to serve in these
positions with the Company.
Glenn
Kesner is founder of Auracana, LLC a media and entertainment company. As
creative director he has branded, produced content and developed promotions for,
among others, Speed Network, NASCAR, Discovery Channel, Food Network, Yahoo,
Turner, Disney and MTV Networks. He has held various positions with Turner
Classic Movies, CNN and VH1. Mr. Kesner holds a Bachelor’s degree from
Syracuse University, Newhouse School of Communications. Currently, he is a
member of the board of directors of Eclips Media Technologies, Inc. (EEMT.OB).
The
Company issued Mr. Kesner 5,000 restricted shares of common stock (which shares
will not be adjusted for the above-referenced forward split) in connection with
his agreement to serve on the board of directors of the Company and entered into
an Indemnification Agreement with Mr. Kesner. Under the terms of the
Indemnification Agreement the Company agrees to indemnify and hold harmless the
director in connection with his service to the Company and any additional
company in which he has been requested to serve on behalf of the Company and
also provides for advancement of expenses in certain
circumstances.
Convertible
Note Financing
On
October 15, 2010, the Company entered into a Subscription Agreement (the
“Subscription Agreement”) with the subscribers listed therein (the
“Subscribers”). The Subscription Agreement provides for, among other
things, the sale by the Company of convertible notes in the original aggregate
principal amount of $2,100,000 (the “Convertible Notes”). The Company
received gross proceeds of $2,100,000 from the sale of the Convertible Notes in
escrow pending closing on the sale.
The
Convertible Notes will mature six months from the issuance date and will accrue
interest at the rate of six (6%) per annum, payable on the maturity
date. During an Event of Default (as defined in the Convertible
Notes), the interest rate of the Convertible Notes will be increased to eighteen
(18%) percent per annum until paid in full. In addition, upon the
occurrence of an Event of Default, all principal and interest then remaining
unpaid shall immediately become due and payable upon demand. Events of Default
include but are not limited to: (i) the Company’s failure to make payments when
due or (ii) breaches by the Company of its representations, warranties and
covenants in the Subscription Agreement.
Pursuant
to the terms of the Convertible Notes, the Subscribers have the right, so long
as the Convertible Notes are not fully repaid, to convert the Convertible Notes
into shares of the Company’s common stock at a conversion price of $1.40 per
share (giving effect to the effectiveness of our 8.344159089 for one forward),
as may be adjusted. The Convertible Notes contain anti-dilution
provisions, including but not limited to if the Company issues shares of its
common stock at less than $1.00 per share within 18 months after conversion of
the Notes, the conversion price of the Convertible Notes will automatically be
reduced to such lower price. The Convertible Notes contain limitations on
conversion, including the limitation that the holder may not convert its
Convertible Note to the extent that upon conversion the holder, together with
its affiliates, would own in excess of 4.99% of the Company’s outstanding shares
of common stock (subject to an increase upon at least 61-days’ notice by the
Subscriber to the Company, of up to 9.99%).
Pursuant
to the terms of the Subscription Agreement, the Company agreed to file a
registration statement covering the resale of the shares of common stock
underlying the Convertible Notes no later than 180 days from the closing of the
offering and to have such registration statement declared effective no later
than 365 days from the closing of the offering. If the Company does
not timely file the registration statement or cause it to be declared effective
by the required dates, then: each Subscriber shall be entitled to liquidated
damages equal to 1% of the aggregate purchase price paid by such Subscriber for
the Convertible Notes for each month that the Company does not file the
registration statement or cause it to be declared effective.
2
The
Company also granted the Subscribers, until the later of one year from the
closing or so long as the Convertible Notes are outstanding, a right of first
refusal in connection with future sales by the Company of its common stock or
other securities or equity linked debt obligations, except in connection with
certain Excepted Issuances (as defined in the Subscription
Agreement).
The
foregoing description of the Subscription Agreement and the Convertible Note
does not purport to be complete and is qualified in its entirety by reference to
the complete text of the Subscription Agreement and Convertible Note, which are
filed herewith as Exhibits 10.2 and 10.3, respectively, and are incorporated
herein by reference.
Business
As a
result of the foregoing, the Company is presently exploring additional business
opportunities. As a result, the Company’s historical business may be
discontinued due to the departure of Mr. Sytner, among other
reasons. The Company has entered into informal non-binding
confidential discussions with several companies concerning possible business
acquisition opportunities, however there exists no agreement or understanding as
to any such opportunity as of the date of this current report.
The
foregoing descriptions of the Merger Agreement, Indemnification Agreement,
Subscription Agreement, and Convertible Note are qualified in their entirety to
these documents which are filed herewith as exhibits 10.1, 10.2, 10.3 and 10.4
respectively.
Item
3.02
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Unregistered
Sales of Equity Securities
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See Item
1.01
On
October 15, 2010 we issued certain 101,868 shares to a consultant pursuant
to a consulting agreement engaged to represent the Company in investors’
communications and public relations with existing and prospective shareholders,
brokers, dealers and other investment professionals with respect to the
Company’s current and proposed activities, and to consult with the Company’s
management concerning such activities. The issuance of our shares was not
required to be registered in reliance upon the exemption from registration
provided under Section 4(2) of the Securities Act of 1933, as
amended.
Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officer; Compensatory Arrangements of Certain
Officers.
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See Item
1.01
3
Item
9.01
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Financial
Statements and Exhibits.
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(d)
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Exhibits.
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Exhibit No.
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Description
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2.1
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Certificate
of Incorporation of FTOH Corp. (Delaware)
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2.2
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Bylaws
of FTOH Corp. (Delaware)
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3.1
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Certificate
of Ownership and Merger, dated October 15, 2010
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10.1
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Agreement
and Plan of Merger dated October 15, 2010
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10.2
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Indemnification Agreement | |
10.3
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Subscription
Agreement dated October 15, 2010
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10.4
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Form
of Convertible
Note
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4
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 thereunto
duly authorized.
Date: October 21, 2010
FTOH
Corp.
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By:
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/s/ Glenn Kesner
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Name:
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Glenn Kesner
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Title:
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President
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5
INDEX
TO EXHIBITS
Exhibit No.
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Description
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2.1
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Certificate
of Incorporation of FTOH Corp. (Delaware)
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2.2
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Bylaws
of FTOH Corp. (Delaware)
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3.1
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Certificate
of Ownership and Merger, dated October 15, 2010
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10.1
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Agreement
and Plan of Merger dated October 15, 2010
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10.2
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Indemnification Agreement | |
10.3
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Subscription
Agreement dated October 15, 2010
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10.4
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Form
of Convertible Note
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i