Attached files
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| EX-4 - EXHIBIT 4.1 - FITLIFE BRANDS, INC. | ex4-1.htm |
| EX-3.1 - EXHIBIT 3.1 - FITLIFE BRANDS, INC. | ex3-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 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 26, 2021
Commission File
Number: 000-52369
FitLife
Brands, Inc.
(Exact
name of registrant as specified in its charter.)
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Nevada
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20-3464383
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer Identification
No.)
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5214 S. 136th Street, Omaha, Nebraska
68137
(Address of
principal executive offices)
402-333-5260
(Registrant's
Telephone number)
Not Applicable
(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:
[ ]
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))
Indicate by check
mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405)
or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR
240.12b-2)
Emerging growth
company [ ]
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act. [ ]
Securities
registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name
of exchange on which registered
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Common Stock, par value $0.01 per
share
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FTLF
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OTC Pink
Marketplace
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Item 1.01 Entry into a Material Definitive Agreement.
On
February 26, 2021, the Board of Directors (the “Board”) of FitLife Brands, Inc.,
a Nevada corporation (the “Company”), declared a dividend
distribution of one preferred share purchase right (each, a
“Right”) for
each outstanding share of common stock, par value $0.01 per share,
of the Company (the “Common
Shares”). The dividend was payable to holders of
record as of the close of business on February 26, 2021 (the
“Record Date”)
and with respect to Common Shares issued thereafter until the
Distribution Date (as defined below) and, in certain circumstances,
with respect to Common Shares issued after the Distribution Date.
The description and terms of the Rights are set forth in a Tax
Benefit Preservation Plan, dated as of February 26, 2021 (the
“Rights
Agreement”), by and between the Company and Colonial
Stock Transfer Company, Inc., as rights agent (the
“Rights
Agent”).
The
Rights Agreement is designed to prevent the Company from facing a
substantial limitation on its ability to use its Tax Benefits (as
such term is defined in the Rights Agreement) to offset potential
future income taxes for federal income tax purposes. The
Company’s ability to use its Tax Benefits would be
substantially limited if it experiences an “ownership
change,” as such term is defined in Section 382 of the
Internal Revenue Code of 1986, as amended (the “Code”). A company generally
experiences an ownership change if the percentage of its shares of
stock owned by its “5-percent shareholders,” as such
term is defined in Section 382 of the Code, increases by more than
50 percentage points over a rolling three-year period. The Rights
Agreement is intended to reduce the likelihood of an ownership
change under Section 382 of the Code by deterring any Person (as
such term is defined in the Rights Agreement) or group of
affiliated or associated Persons from acquiring Beneficial
Ownership (as such term is defined in the Rights Agreement) of
4.99% or more of the outstanding Common Stock.
The
following is a summary of the terms of the Rights Agreement. The
summary does not purport to be complete and is qualified in its
entirety by reference to the full text of the Rights Agreement, a
copy of which is attached as Exhibit 4.1 and incorporated herein by
reference.
Issuance of Rights
Each
holder of Common Shares as of the Record Date will receive a
dividend of one Right per Common Share. One Right will also be
issued together with each Common Share issued by the Company after
the Record Date and prior to the Distribution Date (as defined
below), and in certain circumstances, after the Distribution Date.
New certificates (or, if uncertificated, the book entry account
that evidences record ownership of such shares) for Common Shares
issued after the Record Date will contain a notation incorporating
the Rights Agreement by reference.
Until
the Distribution Date: (a) the Rights will not be exercisable; (b)
the Rights will be evidenced by the certificates for Common Shares
(or, if uncertificated, by the book entry account that evidences
record ownership of such shares) and not by separate rights
certificates; and (c) the Rights will be transferable by, and only
in connection with, the transfer of Common Shares.
Distribution Date; Exercise of Rights; Beneficial
Ownership
The
Rights are not exercisable until the Distribution Date. As of and
after the Distribution Date, the Rights will separate from the
Common Shares and each Right will become exercisable to purchase
from the Company one one-thousandth of a share of Series B Junior
Participating Preferred Stock, par value $0.01 per share, of the
Company (each whole share, a “Preferred Share”) at a purchase
price of $100.00 per one one-thousandth of a Preferred Share (such
purchase price, as may be adjusted from time to time, the
“Purchase
Price”). This portion of a Preferred Share would give
the holder thereof approximately the same dividend, voting, and
liquidation rights as would one Common Share.
The
“Distribution
Date” is the earlier of: (a) the close of business on
the tenth (10th) business day (or such later date as may be
determined from time to time by action of a majority of the Board
prior to the Distribution Date that would otherwise have occurred)
following the first date of public announcement that any person,
together with such person’s Related Persons (as defined
below) (other than the Company or certain related entities), has
become the beneficial owner of 4.99% or more of the then
outstanding Common Shares (other than as a result of repurchases of
Common Shares by the Company, certain stock option or restricted
stock grants by the Company or the exercise or conversion thereof,
certain inadvertent acquisitions or purchases of Common Shares
directly from the Company) (such person, an “Acquiring Person”) or that
discloses information which reveals the existence of an Acquiring
Person;provided, however,
that stockholders who beneficially own 4.99% or more of the
outstanding Common Shares as of the time immediately prior to the
first public announcement by the Company of the adoption of the
Rights Agreement (including any Common Shares beneficial ownership
of which is acquired on the date of such announcement pursuant to
orders placed prior to such announcement), will not be considered
an Acquiring Person unless and until such stockholder or any of its
Related Persons acquires, without the prior approval of the Board,
beneficial ownership of any additional Common Shares, subject to
certain exceptions (such date being the “Shares Acquisition Date”); and
(b) the close of business on the tenth (10th) business day (or such
later date as a majority of the Board shall determine prior to the
Distribution Date that would otherwise have occurred) after the
date of the commencement of, or first public announcement of the
intent of any person (other than the Company or certain related
entities) to commence (within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the U.S. Securities Exchange
Act of 1934, as amended (the “Exchange Act”), a tender or
exchange offer that, if successfully completed, would result in
such person becoming an Acquiring Person;provided, however, that if a tender or
exchange offer is terminated prior to the occurrence of a
Distribution Date, then no Distribution Date shall occur as a
result of such tender or exchange offer.
Issuance of Rights Certificates
As soon
as practicable after the Distribution Date, the Rights Agent will
mail rights certificates to holders of record of the Common Shares
as of the close of business on the Distribution Date and,
thereafter, the separate rights certificates alone will evidence
the Rights.
Expiration of Rights
The
Rights will expire on the earliest of (a) the Close of Business on
March 1, 2022, (b) the time at which the Rights are redeemed (as
described below), and (c) the time at which the Rights are
exchanged in full (as described below).
Change of Exercise of Rights Following Certain Events
In the
event that a person becomes an Acquiring Person, each holder of a
Right will thereafter have the right to receive, upon exercise,
Common Shares (or, in certain circumstances, other securities,
cash, or other assets of the Company) having a value equal to two
times the Purchase Price. Notwithstanding the foregoing, following
the occurrence of a person becoming an Acquiring Person, all Rights
that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person (or by
certain related parties) will be null and void. However, Rights are
not exercisable following the occurrence of a person becoming an
Acquiring Person until such time as the Rights are no longer
redeemable by the Company as set forth below.
Redemption
At any
time until ten (10) business days following the Shares Acquisition
Date, the Board may direct the Company to redeem the Rights in
whole, but not in part, at a price of $0.01 per Right (payable in
cash, Common Shares, or other consideration deemed appropriate by
the Board). Immediately upon the action of the Board directing the
Company to redeem the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the $0.01
redemption price.
Exchange of Rights
At any
time after a person becomes an Acquiring Person, but before such
person acquires beneficial ownership of fifty percent (50.0%) or
more of the outstanding Common Shares, the Board may direct the
Company to exchange the Rights (other than Rights owned by such
person or certain related parties, which will have become null and
void), in whole or in part, at an exchange ratio of one Common
Share per Right (subject to adjustment). The Company may substitute
Preferred Shares (or shares of a class or series of the
Company’s preferred stock having equivalent rights,
preferences, and privileges) for Common Shares at an initial rate
of one one-thousandth of a Preferred Share (or of a share of a
class or series of the Company’s preferred stock having
equivalent rights, preferences, and privileges) per Common Share.
Immediately upon the action of the Board directing the Company to
exchange the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the number of Common
Shares (or one one-thousandth of a Preferred Share or of a share of
a class or series of the Company’s preferred stock having
equivalent rights, preferences, and privileges) equal to the number
of Rights held by such holder multiplied by the exchange
ratio.
Anti-Dilution Provisions
The
Board may adjust the Purchase Price, the number of Preferred Shares
or other securities or assets issuable upon exercise of a Right,
and the number of Rights outstanding to prevent dilution that may
occur (a) in the event of a stock dividend on, or a subdivision,
combination, or reclassification of, the Preferred Shares, (b) in
the event of a stock dividend on, or a subdivision or combination
of, the Common Shares, (c) if holders of the Preferred Shares are
granted certain rights, options, or warrants to subscribe for
Preferred Shares or convertible securities at less than the current
market price of the Preferred Shares, or (d) upon the distribution
to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends) or of
subscription rights or warrants (other than those referred to
above). With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at
least one percent (1.0%) of the Purchase Price.
Voting Rights; Other Stockholder Rights
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.
Amendment of the Rights Agreement
The
Company (by action of the Board) may supplement or amend any
provision of the Rights Agreement in order to (a) cure any
ambiguity, (b) correct or supplement any provision contained in the
Rights Agreement that may be defective or inconsistent with other
provisions of the Rights Agreement, (c) shorten or lengthen any
time period under the Rights Agreement, or (d) make any other
provisions with respect to the Rights that the Company deems
necessary or desirable;provided,
however, that no supplement or amendment made after the time
any person becomes an Acquiring Person may adversely affect the
interests of the registered holders of rights certificates (other
than an Acquiring Person or any affiliates or associates of an
Acquiring Person). Without limiting the foregoing, the Company may
at any time before any person becomes an Acquiring Person amend the
Rights Agreement to make the provisions of the Rights Agreement
inapplicable to a particular transaction by which a person might
otherwise become an Acquiring Person or to otherwise alter the
terms and conditions of the Rights Agreement as they may apply with
respect to any such provision.
Preferred Stock Purchasable Upon Exercise of Rights
Because
of the nature of the Preferred Stock’s 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
should approximate the value of one share of Common
Stock.
Item 3.03 Material Modifications to Rights of Security
Holders.
The
information set forth in Item 1.01 of this Current Report on Form
8-K is incorporated into this Item 3.03 by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
In
connection with the adoption of the Rights Agreement, on March 2,
2021, the Company filed a Certificate of Designation of Series B
Junior Participating Preferred Stock (the “Certificate of Designation”) with
the Secretary of State of the State of Nevada. The Certificate of
Designation became effective on March 3, 2021.
The
summary of the rights, powers, and preferences of the Preferred
Stock set forth in Item 1.01 of this Current Report on Form 8-K is
incorporated by reference into this Item 5.03. A copy of the
Certificate of Designation is attached as Exhibit 3.1 and
incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits.
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Exhibit No.
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Description
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Certificate of Designation, Preferences and Rights of Series B
Junior Participating Preferred Stock of FitLife Brands,
Inc.
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Tax Benefit Preservation Plan, dated February 26, 2021, by and
between FitLife Brands, Inc. and Colonial Stock Transfer Company,
Inc.
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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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FitLife Brands,
Inc.
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March 4,
2021
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/s/
Dayton Judd
Dayton Judd
Chief Executive
Officer
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