UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
8-K/A
Amendment
No. 1
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 22, 2010
WEIKANG
BIO-TECHNOLOGY GROUP COMPANY, INC.
(Exact
name of registrant as specified in its charter)
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Nevada
(State
or other
jurisdiction
of incorporation)
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333-1365354
(Commission
File
Number)
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26-2816569
(I.R.S.
Employer
Identification
No.)
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No.
365 Chengde Street, Daowai District, Harbin
Heilongjiang
Province, The People’s Republic of China 150020
(Address
of principal executive offices) (zip code)
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(86)
0451-88355530
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(Registrant’s
telephone number, including area code)
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Not Applicable.
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(Former
name or former address, if changed since last
report.)
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Copies
to:
Marc J.
Ross, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway, 32nd
Floor,
New York,
NY 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:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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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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Explanatory
Note
Weikang
Bio-Technology Group Company, Inc. (the “Company”) is filing this amendment to
its Current Report on Form 8-K originally filed with the SEC on December 29,
2010 (the “Original Filing”). This Current Report on Form 8-K/A is being filed
solely to correct a typographical error to report that 25,833 Units were sold
rather than 103,333 Units as was previously reported.
Except as
noted above there have been no other changes to the Original
Filing.
Item
3.02. Unregistered Sales of Equity
Securities.
On
December 22, 2010, Weikang Bio-Technology Group Company, Inc., a Nevada
corporation (the “Company”), sold in a private placement a total of 25,833
Units, each unit comprised of (i) four shares of common stock, (ii)
a three-year warrant to purchase one share of common stock at an exercise
price of $3.60 per share (the “Series C Warrant”), and (iii) a three-year
warrant to purchase one share of common stock at an exercise price of $4.80 per
share (The “Series D Warrant”), for an aggregate purchase price of
$247,980.00.
In
connection with the private placement transactions, the Company engaged Hunter
Wise Securities, LLC (“Hunter Wise”) as exclusive placement agent, with Pacific Summit
Capital serving as an authorized participating agent. As consideration for
Hunter Wise’s placement agent services, the Company paid Hunter Wise
$11,778.00, and issued Hunter Wise and/or its designees three-year warrants
to purchase an aggregate of 2,433 shares of common stock at an exercise price of
$2.40 per share. As consideration for Pacific Summit Capital’s services,
the Company paid Pacific Summit Capital $13,000.00 and issued Pacific Summit
Capital three-year warrants to purchase an aggregate of 5,833 shares of common
stock at an exercise price of $2.40 per share.
The
Series C and Series D Warrants (collectively, the “Warrants”) issued to the
investors and the placement agents are immediately exercisable and have a term
of three years. Such warrants may be exercised cashlessly in the
event that there is no effective registration statement providing for the resale
of the common stock underlying the warrants pursuant to the time frame described
in more detail below. The exercise prices of the Warrants are subject to
customary adjustments provisions for stock splits, stock dividends,
recapitalizations and the like. Additionally, for a period of three
years following the final closing of the private placement, anti-dilution
protection shall be afforded the investors, as described in more detail
below.
In
connection with the private placement and pursuant to the financing transaction
to which this private placement as a part:
● The
Company agreed to list and trade its shares of common stock on the Nasdaq
Capital Market, Nasdaq Global Market, or the NYSE Amex (each, a “National Stock
Exchange”) and shall take all commercially reasonable actions to file an
application to trade its shares on a National Stock Exchange within 90 days
after the final closing date of the Offering. In the event the shares of common
stock are not approved for trading on a National Stock Exchange within 120 days
from the final closing date of the private placement and commercially reasonable
actions have not been taken to meet such requirement, the Company shall pay cash
liquidated damages to the Subscriber in the amount equal to 0.5% of the purchase
price paid by each investor, to be paid each month until the listing of the
Company’s shares on a National Stock Exchange is completed.
● The
Company agreed to file a registration statement covering the shares of common
stock issued as part of the Units and issuable upon exercise of the warrants
issued to the investors and the placement agent. The Company is to
file the registration statement within 45 days following the final closing of
the private placement and have the registration statement declared effective
within 120 days after such closing, except that the effective date shall be
extended by 30 days in the event that the SEC undertakes a full review of the
registration statement. If the registration statement is not filed or
declared effective within the above-mentioned periods, the Company shall pay
cash liquidated damages to each investor in the amount equal to 0.5% of the
amount subscribed for by such investor, to be paid each month from the required
effectiveness date until the registration statement is filed or declared
effective, as applicable.
● Pursuant
to a make good escrow agreement dated December 2, 2010 as
amended, Lucky Wheel Limited, the principal shareholder of the Company,
whose shares in the Company Yin Wang, the Company’s chief executive officer, has
dispositive and voting power, agreed to deposit into escrow 2,083,333 shares of
common stock, which are to be held in escrow to be returned to Lucky Wheel
Limited or delivered to the investors on a pro-rata basis, depending on whether
the Company meets certain financial performance targets for the years ending
December 31, 2010 and December 31, 2011. The performance target for
2010 is after-tax net income, as defined, of at least $21,000,000. The
performance target for 2011 is after-tax net income of at least
$25,000,000. If the performance target for either 2010 or 2011 is not
met, the Company shall allocate to the investors that number of escrowed shares
as equals the shortfall for such year, based on each investor’s actual
investment, on a pro-rata basis.
In determining after-tax net income,
the following items shall be excluded: (i) any losses suffered as a result of a
force majeure event; (ii) the effects of EITF 07-5; (iii) any items of expense
or deduction arising directly or indirectly from the private placement and the
transaction contemplated by the private placement; and (iv) any costs and
expense incurred in 2010 or 2011 in establishing an employee stock option plan
and granting stock options thereunder.
● Except
for certain exempt issuances, in the event that the Company shall, at any time
within three years following the final closing of the private placement, issue
or sell any additional shares of common stock or securities convertible or
exchanged into common stock (the “Subsequent Issuance”) at a price per share
less than $3.12, or in the event that additional shares are issued pursuant to
the terms of the make good escrow agreement, at a price per share less than
$2.40, then the investors have full-ratchet anti-dilution protection, such
that:
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(i)
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the
Company shall issue such additional shares of common stock to each
investor representing the difference between the number of shares of
common stock issued to such investor as part of the Units
purchased and the number of shares of common stock that the investor
would have received if the Units were sold at a per share price equivalent
to the purchase price for the securities in the Subsequent
Issuance.
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(ii)
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The
respective exercise prices for the Warrants shall be reduced to such
lesser per share price in the Subsequent
Issuance.
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● Pursuant
to the terms of the Investor Relations Escrow Agreement dated December 2, 2010,
$150,000 of the gross proceeds in the private placement have been placed in an
escrow account to be used by the Company in connection with services rendered by
an investor and public relations firm that has been retained by the Company and
is reasonably acceptable to the placement agent.
● Pursuant
to the terms of a lock-up agreement, the Company’s executive officers and
directors agreed not to offer, sell, contract to sell, assign, transfer,
hypothecate, pledge or grant a security interest in, or otherwise dispose of, or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition of (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise, directly or
indirectly) any of the shares of the Company’s common stock that such person
owns as of December 2, 2010 or may acquire, for a period of 9 months following
the final closing of the private placement.
The
above-mentioned securities were offered and sold to the Investors in private
placement transactions made in reliance upon exemptions from registration
pursuant to Section 4(2) under the Securities Act of 1933 and Regulation S
thereunder. Based on representations from the investors, the Company determined
that the Investors are not a “U.S. person” as that term is defined in Rule
902(k) of Regulation S under the Securities Act of 1933, and such Investors
acquired our common stock, for investment purposes for their own respective
accounts and not as nominees or agents, and not with a view to the resale or
distribution thereof, and that the investors understood that the shares of our
common stock may not be sold or otherwise disposed of without registration under
the Securities Act of 1933 or an applicable exemption
therefrom.
The
foregoing information is a summary of the agreements involved in the
transactions described above, is not complete, and is qualified in its entirety
by reference to the full text of such agreements, copies of which are attached
as exhibits to this Current Report on Form 8-K/A. Readers should
review such agreement for a complete understanding of the terms and conditions
associated with this transaction.
Item
9.01 Financial Statements and
Exhibits.
(d) Exhibits.
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99.1
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Form
of Subscription Agreement, by and between Weikang Bio-Technology Group
Company, Inc. and the investors.*
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99.2
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Form
of Registration Rights Agreement, by and between Weikang Bio-Technology
Group Company, Inc. and the
investors.*
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99.3
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Make
Good Securities Escrow Agreement, dated December 2, 2010, by and between
Weikang Bio-Technology Group Company, Inc., Sichenzia Ross Friedman
Ference LLP, as escrow agent, and Lucky Wheel
Limited.*
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99.4
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Investor
and Public Relations Escrow Agreement, dated December 2, 2010, by and
between Weikang Bio-Technology Group Company, Inc., Sichenzia Ross
Friedman Ference LLP, as escrow agent, and MidSouth Investor Fund LP, as
representative for the investors.*
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99.5
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Escrow
Deposit Agreement, dated October 25, 2010 and amendment thereto dated
November 24, 2010, by and between Weikang Bio-Technology Group Company,
Inc., Hunter Wise Securities, LLC, and Signature Bank, as escrow
agent.*
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99.6
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Form
of Series C Warrant issued to the
investors.*
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99.7
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Form
of Series D Warrant issued to the
investors.*
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99.8
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Form
of Series C Warrant issued to the placement
agents.*
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| 99.9 | Form of Lock-Up Agreement, dated December 2, 2010.* | |
| 99.10 | Amendment to Make Good Securities Escrow Agreement, dated December 22, 2010, by and between Weikang Bio-Technology Group Company, Inc., Sichenzia Ross Friedman Ference LLP, as escrow agent, and Lucky Wheel Limited. ** |
*
Incorporated by reference to the exhibit to our Current Report on Form 8-K filed
with the SEC on December 8, 2010.
**
Incorporated by reference to the exhibit to our Current Report on Form 8-K filed
with the SEC on December 29, 2010.
SIGNATURE
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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Dated:
January 4, 2011
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WEIKANG
BIO-TECHNOLOGY GROUP
COMPANY, INC. |
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By:
/s/ Yin Wang
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Yin
Wang
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Chief
Executive Officer and Chairman of the
Board
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