Attached files
| file | filename |
|---|---|
| EX-3.1 - NEAH POWER SYSTEMS, INC. | v210456_ex3-1.htm |
| EX-10.1 - NEAH POWER SYSTEMS, INC. | v210456_ex10-1.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 3, 2011
Neah
Power Systems, Inc.
(Exact
Name of Registrant as Specified in Charter)
|
Nevada
|
000-49962
|
88-0418806
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
No.)
|
|
22118
20th
Avenue SE, Suite 142
Bothell,
Washington
|
98021
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Registrant’s
Telephone Number, Including Area Code: (425) 424-3324
(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 (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))
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Item
1.01. Entry
into a Material Definitive Agreement.
On
February 3, 2011, Neah Power Systems, Inc. (the “Company”) entered into a
Series A Preferred Stock Purchase Agreement (the “Purchase Agreement”) with
Investor Relations Services, Inc. (the “Purchaser”). Pursuant
to the Purchase Agreement, the Purchaser agreed to purchase 2,312,727 shares of
the Company’s newly designated Series A Preferred Stock (the “Series A Preferred Stock”) in
exchange for $127,200 or $0.055 per share.
The
rights, preferences and privileges of the Series A Preferred Stock is summarized
in Item 5.03, below, which is incorporated by reference into this Item
1.01.
The
closing of the Purchase Agreement will take place on a day of the Company’s
choosing within fifteen business days following the date the Purchase Agreement
was signed. The Company will provide the Purchaser notice at least 24
hours in advance of the closing date.
In
accordance with the terms of the Series A Preferred Stock, the Purchaser will be
entitled, after the issuance of the Series A Preferred Stock, to vote as a
single class with the Company’s outstanding common stock (the “Common Stock”) only with
respect to any proposal to increase the Company’s authorized Common
Stock. With respect to such a proposal, Purchaser is entitled to
forty votes per share of the Series A Preferred Stock. Accordingly,
the Purchaser will be entitled to 92,509,080 votes or 53% of the Company’s
voting power with respect to any proposal to increase the Company’s authorized
Common Stock.
The
summary description of the Purchase Agreement is qualified in its entirety by
reference to the copy thereof that is attached as an exhibit to this report and
is incorporated herein by reference.
Item
3.02. Unregistered
Sales of Equity Securities.
The
information provided in response to Item 1.01 and Item 5.03 of this report is
incorporated by reference into this Item 3.02. The sale of the shares
of the Series A Preferred Stock pursuant to the Purchase Agreement was made in a
private placement transaction under Section 4(2) of the Securities Act of 1933,
as amended, and Rule 506 promulgated thereunder. The offering was not
conducted in connection with a public offering and no public solicitation or
advertisement was made or relied upon by the investors in connection with the
offering.
Item
3.03. Material
Modification to Rights of Security Holders.
The
information provided in response to Item 5.03 of this report is incorporated by
reference into this Item 3.03.
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Item
5.03. Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
February 7, 2011, the Company filed a Certificate of Designation with the Nevada
Secretary of State. The Certificate of Designation sets forth the
rights, preferences and privileges of the Company’s Series A Preferred
Stock. Pursuant to the Certificate of Designation, the Series A
Preferred Stock has the following terms:
|
|
·
|
The
Company may issue up to 2,500,000 of the Series A Preferred
Stock. The number of authorized shares of the Series A
Preferred Stock may be increased or decreased by the Company’s board of
directors. However, the Company’s board of directors may not
decrease the number of authorized Series A Preferred Stock below the
number of shares of Series A Preferred Stock then outstanding or those
issuable upon the conversion of a convertible
security.
|
|
|
·
|
The
Series A Preferred Stock ranks on parity with the Company’s Common Stock
and any class or series of capital stock of the Company later created
specifically ranking by its terms on parity with the Series A Preferred
Stock or Common Stock, in each case as to the distribution of the
Company’s assets upon liquidation, dissolution or winding up of the
Company.
|
|
|
·
|
In
the event the Company declares a dividend payable to holders of any class
of stock, the holder of each share of the Series A Preferred Stock will be
entitled to receive a dividend equal to that payable to the holder of the
number of shares of Common Stock that the Series A Preferred Stock is
convertible on the record date for the
dividend.
|
|
|
·
|
The
Holders of the Series A Preferred Stock are not entitled to voting rights
except for with respect to any proposal to increase the authorized Common
Stock of the Company. In the event of such a proposal, the
holders of the Series A Preferred Stock shall vote together as a single
class with the holders of the Company’s Common Stock and shall be entitled
to forty votes per share of Series A Preferred Stock. The
voting rights with respect to a proposal to increase the authorized Common
Stock expire on February 7, 2012.
|
|
|
·
|
The
Series A Preferred Stock are convertible into the Company’s Common Stock
at the sole option of the Company at any time. The number of
shares of Common Stock to be issued upon a conversion is calculated by,
first, multiplying the number of Series A Preferred Stock being converted
by the per share purchase price received by the Company for such Series A
Preferred Stock, and then, dividing such number by the average closing bid
price of the Common Stock during the seven trading days prior to the date
the Series A Preferred Stock was issued to the
holder.
|
The
summary of the rights, preferences and privileges of the Series A Preferred
Stock described above is qualified in its entirety by reference to the
certificate of designation, a copy of which is attached as an exhibit to this
report and is incorporated herein by reference.
Item
9.01. Financial
Statements and Exhibits.
|
Exhibit
Number
|
Description
of Exhibit
|
|
|
3.1
|
Certificate
of Designation of Series A Preferred Stock
|
|
|
10.1
|
Series
A Preferred Stock Purchase
Agreement
|
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SIGNATURES
Pursuant
to the requirements of 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.
| Neah Power Systems, Inc. | |||
|
|
By:
|
/s/ Stephen M. Wilson | |
|
Stephen
M. Wilson
|
|||
| Chief Financial Officer | |||
Date: February
9, 2011
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