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):
April 3, 2008
DAYBREAK
OIL AND GAS, INC.
(Exact
Name of Registrant as Specified in its Charter)
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Washington
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000-50107
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91-0626366
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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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601
W. Main Ave., Suite 1012
Spokane,
WA
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99201
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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:
(509) 232-7674
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
(17CFR230.425)
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[
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17CFR
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
communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
5.02. Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On April
3, 2008, the Board of Directors of Daybreak Oil and Gas, Inc. (the “
Company
”) appointed
Mr. James F. Westmoreland to the position of Executive Vice President
and Chief Financial Officer of the Company. With this appointment,
Mr. Westmoreland will no longer hold the position of Interim Chief Financial
Officer.
The
following is a synopsis of Mr. Westmoreland’s business experience:
James F.
Westmoreland, 52, has served as the Interim Chief Financial Officer of the
Company since December 17, 2007 and previously consulted with the Company on
various accounting and finance matters commencing in August 2007. Prior to
that time, Mr. Westmoreland served in various financial and accounting
capacities for The Houston Exploration Company for 21 years, including Vice
President, Controller and Corporate Secretary, serving as its Vice President and
Chief Accounting Officer from October 1995 until its acquisition by Forest Oil
Company in June 2007. Mr. Westmoreland has over 25 years of experience in
oil and gas accounting, finance, corporate compliance and governance, both in
the public and private sector. He earned his B.A. in accounting from
the University of Houston.
There are
no family relationships between Mr. Westmoreland and any of the other members of
the Board of Directors or the Company’s officers.
Other
than his employment by the Company as a consultant and then as Interim Chief
Financial Officer, Mr. Westmoreland has not been involved in any transactions
with the Company since the beginning of the Company’s last fiscal
year.
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
On April
3, 2008, the Board of Directors amended and restated the Company’s
Bylaws. Set forth below is a summary of the changes to the Company’s
previous Bylaws (the “
Previous
Bylaws
”) by adoption of the Amended and Restated Bylaws (the “
Amended Bylaws
”), which
summary is qualified in its entirety by reference to the full text of the
Amended and Restated Bylaws of the Company filed as Exhibit 3.1 to this Form 8-K
and incorporated herein by reference.
Article
I (Name, Seal and Offices)
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●
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The
Amended Bylaws reflect the change in the name of the Company from Daybreak
Uranium, Inc. to Daybreak Oil and Gas,
Inc.
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The
Amended Bylaws provide that the principal office and place of business of
the Company will be located at either
the principal
place of business of the Company, or the office of the Company’s
registered agent, in the State of Washington. The Previous
Bylaws had provided that the Company’s registered office would be in the
Town of Opportunity, Washington.
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Article
II (Shareholders)
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Under
the Amended Bylaws, the annual meeting of the shareholders will be held
each year on the date and at the time as determined by the Board of
Directors. The Previous Bylaws set the annual meeting date as
the first Friday in the month of June each year. In addition,
the Amended Bylaws provide that, except as provided by law, special
meetings of shareholders shall be held whenever called by the Board of
Directors. The Previous Bylaws stated that special meetings of
the shareholders could be called by the Board of Directors, any director,
or any shareholder(s) holding one-fifth of the voting power of all
shareholders, or by any shareholder if more than 18 months elapsed without
the annual shareholders’ meeting being
held.
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The
Amended Bylaws provide for not less than 10 nor more than 60 days notice
of each shareholders’ meetings (subject to applicable law), which may be
given in any manner and by any means permitted under Title 23B of the
Revised Code of Washington (the “
WBCA
”). The
Previous Bylaws contained only the ten-day reference. The
Amended Bylaws also clarify and expand the procedures set forth in the
Previous Bylaws for shareholders to waive notice of
meetings.
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The
Amended Bylaws change the time period with respect to which the Board of
Directors may fix a record date for a shareholders meeting from not more
than 40 days prior to the date of the meeting, as provided in the Previous
Bylaws, to not less than ten nor more than 70 days prior to the date of
the meeting.
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The
Amended Bylaws provide that director nominations for election to the Board
of Directors must be made by the Board of Directors or a Board of
Directors committee or by any shareholder entitled to vote for the
election of directors, and set forth the procedures and time limits for
nominations by shareholders. The Amended Bylaws also set forth
the procedures pursuant to which business may be properly brought before
any shareholders meeting, including the time limits for proposals by
shareholders. The Previous Bylaws did not contain any
provisions relating to these
matters.
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Article
III (Directors)
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Consistent
with the Articles of Incorporation of the Company (the “
Articles
”), the Amended
Bylaws provide that the Board of Directors will consist of not less than
three nor more than nine directors, subject to increases or decreases as
determined by the Board of Directors in accordance with the Articles and
applicable law. The Previous Bylaws provided for a Board of
Directors of at least five directors, or such other number as determined
by the Board of Directors, but which could not be less than three nor more
than five directors.
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The
Amended Bylaws also provide for the election of a Chair of the Board of
Directors to preside at meetings of the Board of Directors and have such
other powers as the Board of Directors determines. The Previous
Bylaws did not contain any provision regarding the election of a Chair,
but provided that the President would preside at all meetings of the
shareholders and the Board of
Directors.
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While
the Previous Bylaws provided for annual meetings and special meetings as
called by the President or any Vice-President or any director, the Amended
Bylaws provide that (i) regular meetings of the Board of Directors are to
be held at such times as the Board of Directors may determine, (ii) an
annual meeting of the Board of Directors will be held each year on the day
of the Annual Meeting of Shareholders and (iii) special meetings may be
called by the President or any Vice President or by any two or more
members of the Board of Directors. The Amended Bylaws also
provide that notice of special meetings shall be given at least two days
prior to the date of the meeting (while the Previous Bylaws provided for
one day), and permit notice by various means of communication, including
by facsimile, email or telephone (which were not included in the Previous
Bylaws). The Amended Bylaws also provide that meetings of the
Board of Directors may be held via telephone or similar communications
equipment.
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The
Amended Bylaws provide that any action permitted or required to be taken
at a meeting of the Board of Directors may be taken without a meeting if
one or more consents are executed by all of the directors in a tangible
written form, in an electronic transmission or in any other form then
allowed under the WBCA or other applicable law. The Previous
Bylaws did not contain any provisions relating to these
matters.
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The
Amended Bylaws also provide that a director who is present at a Board of
Directors meeting at which action on any matter is taken shall be presumed
to have assented to the action taken unless he or she takes certain
specified actions, which was not included in the Previous
Bylaws.
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The
Amended Bylaws clarify that the Board of Directors may designate
committees with powers as delegated by the Board of Directors, and set
forth procedures with respect to the meetings and actions of the
committee. The Previous Bylaws did not contain any provisions
relating to these matters.
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Article
IV (Officers)
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The
Amended Bylaws clarify that the officers of the Company may be a
President, one or more Vice Presidents, a Secretary, and a Treasurer, and
such other officers and assistant officers as may be
necessary. Under the Amended Bylaws, the officers are to be
appointed annually and hold office until a successor shall have been
appointed and qualified or until said officer’s earlier death,
resignation, or removal, which was not expressly provided for in the
Previous Bylaws. The Amended Bylaws also set forth specific
powers and duties with respect to the President, Vice Presidents,
Secretary and Treasurer that expand and clarify the powers and duties set
forth in the Previous Bylaws.
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Article
V (Certificates of Shares and Their Transfer)
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The
Amended Bylaws provide that no shares of the Company shall be issued
unless authorized by the Board of Directors. Additionally, the
Amended Bylaws provide for the form and contents of stock certificates,
but state that shares may but need not be represented by
certificates.
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The
Amended Bylaws also provide for the procedures for stock transfers, and
the provision of duplicate stock certificates in case of the loss,
mutilation, or destruction of
certificates.
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The
Previous Bylaws did not contain any provisions covering the items
above.
Article
VI (Books and Records)
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The
Amended Bylaws set forth the Company’s responsibilities with respect to
maintaining books and records of the Company, including minutes and
records relating to meetings and actions of the shareholders and Board of
Directors, accounting and financial records, and other corporate
information. The Previous Bylaws did not contain any provisions
relating to these items, other than with respect to the maintenance of the
Company’s Bylaws.
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Article
VII (Indemnification of Officers, Directors, Employees and
Agents)
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The
Amended Bylaws provide for indemnification by the Company for any person
against liability arising out of any action, suit, or proceeding to which
such person was made a party because the individual is or was a person
serving as a director or officer of the Company, or serving as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise at the request of the Company, to
the full extent permitted by applicable law. The Amended Bylaws
expressly provide that the Company may maintain insurance to protect
against any liability, enter into contracts with any indemnitee in
furtherance of such indemnification rights and consistent with the WBCA,
and create a trust fund, grant a security interest, or use other means to
ensure the payment of such indemnification
amounts.
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The
Amended Bylaws also provide for advances of expenses incurred by
indemnitees under certain specified circumstances, and set forth the
procedures with respect to the payment of indemnification
claims.
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The
Previous Bylaws did not contain any provisions covering the items
above.
Article
VIII (Amendment of Bylaws)
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The
Amended Bylaws provide that, in accordance with the WBCA and the Articles,
the Amended Bylaws may be amended or repealed (a) at any regular or
special meeting of the shareholders and (b) by the affirmative vote of a
majority of the whole Board of Directors of any meeting of the Board of
Directors, in each case if notice of the amendment is contained in the
notice of the meeting. The Previous Bylaws did not contain any
provisions relating to these items.
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Item
5.05. Amendments to the Registrant’s Code of Ethics, or Waiver of a
Provision of the Code of Ethics.
On April
3, 2008, the Board of Directors adopted amendments to the Company’s Ethical
Business Conduct Policy Statement (the “
Ethical Conduct Policy
”),
which applies to each director, officer, employee and private contractor of the
Company, and adopted a new Code of Ethics for Senior Financial Officers (the
“
Code of Ethics
”),
which applies to all individuals designated as senior financial officers of the
Company. Senior financial officers consist of the Company’s Chief
Executive Officer, Chief Financial Officer, Chief Accounting Officer,
Controller, and other persons whom the Audit Committee of the Board of Directors
designates as such. The Code of Ethics relates to ethical conduct in
the financial and accounting areas of the Company and promotes honest and
ethical conduct, including the ethical handling of actual or apparent conflicts
of interest between personal and professional relationships, proper disclosure
of financial information in the Company’s periodic reports, and compliance with
applicable laws, rules, and regulations by the Company’s senior financial
officers.
The
Ethical Conduct Policy was amended, among other things:
(i) to
define certain terms, including "family member" and "significant financial
interest;"
(ii) to
clarify the Company's prohibition on facilitating payments;
(iii) to
cover violations of antitrust and competition laws;
(iv) to
expressly prevent retaliation against anyone that in good faith reports a
possible violation of law or of the Ethical Conduct Policy;
(v) to
provide for regular, annual certification of compliance with the Ethical Conduct
Policy;
(vi) to
provide that exceptions to the Ethical Conduct Policy must be approved by the
Nominating and Corporate Governance Committee of the Board of
Directors;
(vii) to
expressly prohibit discrimination and harassment in the workplace and the
employment process; and
(viii) to
express the Company's commitment to providing safe and healthy working
conditions and compliance with laws relating to health, safety and the
environment.
A copy of
the Ethical Conduct Policy, as amended, is attached hereto as Exhibit 99.1 and
is incorporated herein by reference. In addition, the Ethical Conduct
Policy is available on the Company’s website at
www.daybreakoilandgas.com
.
A copy of
the newly adopted Code of Ethics is attached hereto as Exhibit 99.2 and is
available on the Company’s website at
www.daybreakoilandgas.com
.
Item 7.01. Regulation FD
Disclosure.
Also on
April 3, 2008, the Company’s Board of Directors adopted charters for its Audit
Committee, Compensation Committee and Nominating and Corporate Governance
Committee, as well as numerous new guidelines and policies, including Corporate
Governance Guidelines, Qualifications for Nominations to the Board of Directors,
Related Party Transactions Policy, Securities Compliance Policy, Fair Disclosure
Policy, Director Education Policy and Audit Committee Fee Pre-Approval
Policy. Each of these charters, guidelines and policies is available
on the Company’s website at
www.daybreakoilandgas.com
.
d) Exhibits:
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3.1
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Amended
and Restated Bylaws
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99.1
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Ethical
Business Conduct Policy Statement, as
amended
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99.2
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Code
of Ethics for Senior Financial
Officers
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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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DAYBREAK
OIL AND GAS, INC.
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By:
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/s/ James
F. Westmoreland
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James
F. Westmoreland, Executive Vice
President
and Chief Financial Officer
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Date:
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April
9, 2008
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Exhibits
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3.1
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Amended
and Restated Bylaws
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99.1
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Ethical
Business Conduct Policy Statement, as
amended
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99.2
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Code
of Ethics for Senior Financial
Officers
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7
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