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 19, 2010
SheerVision,
Inc.
|
(Exact
name of registrant as specified in its
charter)
|
Delaware
|
000-27629
|
23-2426437
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
4030
Palos Verdes Drive N., Suite 104, Rolling Hills, CA
|
90274
|
(Address
of principal executive offices)
|
(Zip
Code)
|
Registrant
’
s telephone number, including area code
(310) 265-8918
|
(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))
Item
3.02
Unregistered Sales of
Equity Securities
On February 19, 2010, the Board of
Directors of the Registrant authorized the grant of five-year warrants to
acquire 200,000 shares of common stock, par value $0.001 per share of the
Registrant (the “
Common
Stock
”) at an exercise price of $0.04 per share in partial consideration
for services being rendered by a financial and strategic advisor to the
Registrant. The warrants may be exercisable on a cashless or net issuance
basis and the warrants contain a registration right covering the resale of the
Common Stock underlying the warrants.
The Registrant will issue the
warrants referred to above in reliance upon an exemption from registration
pursuant to Section 4(2) of the Securities Act of 1933, as amended.
Item
1.01
Entry into a Material
Agreement
Item
3.03
Material Modification
of Rights to Security Holders
Effective
as of February 19, 2010, the Board of Directors of the Registrant adopted a
Rights Agreement (the “
Rights
Agreement
”) and, subject to entering into such agreement, authorized and
declared a dividend of one common share purchase right (a “
Right
”) for each outstanding
share of Common Stock. The dividend is payable on February 19, 2010, to the
stockholders of record on that date (the “
Record Date
”), and with
respect to shares of Common Stock issued thereafter until the Distribution Date
(as hereinafter defined) or the expiration or earlier redemption or
exchange of the Rights. Except as set forth below, each Right entitles the
registered holder to purchase from the Registrant, at any time after the
Distribution Date, one share of Common Stock at a price per share of $1,200,
subject to adjustment (the “
Purchase Price
”). The
description and terms of the Rights are as set forth in the Rights
Agreement.
Initially
the Rights will be attached to all certificates representing shares of Common
Stock then outstanding, and no separate Rights Certificates will be distributed.
The Rights will separate from the shares of Common Stock upon the earlier to
occur of (i) 10 days after the public announcement of a person's or group of
affiliated or associated persons' having acquired beneficial ownership of 15% or
more of the outstanding shares of Common Stock or, in the case of any Person or
group of affiliated or associated persons' beneficially owning in excess of 15%
of the outstanding shares of Common Stock as of February 19, 2010, the increase
in the beneficial ownership of such person or group of affiliated or associated
person by 1% or more (such person or group being hereinafter referred to as an
“
Acquiring Person
”); or (ii) 10 days (or
such later date as the Board of Directors may determine) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in a person or group's
becoming an Acquiring Person (the earlier of such dates being called the “
Distribution Date
”).
The
Rights Agreement provides that, until the Distribution Date, the Rights will be
transferred with, and only with, the shares of Common Stock. Until the
Distribution Date
(or earlier redemption or expiration), new
Common Stock certificates issued after the Record Date
upon transfer or new issuance of shares of
Common Stock will contain a notation
incorporating the Rights Agreement by
reference. Until the Distribution Date (or
earlier redemption or expiration of the Rights), the surrender for
transfer of any certificates for shares of
Common Stock outstanding as of the
Record Date, will also constitute the transfer of the Rights
associated with the shares of Common Stock
represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights (the “
Right
Certificates
”) will be mailed to holders of record of the shares of
Common Stock as of the close of business on the Distribution Date (and to each
initial record holder of certain shares of Common Stock issued after the
Distribution Date), and such separate Right Certificates alone will evidence the
Rights.
The
Rights are not exercisable until the Distribution Date. The Rights will expire
on February 19, 2015 (the “
Final Expiration Date
”),
unless the Final Expiration Date is extended or unless the Rights are earlier
redeemed or exchanged by the Registrant, in each case, as described
below.
In the
event that any person becomes an Acquiring Person (except pursuant to a tender
or exchange offer or other offer which is for all outstanding shares of Common
Stock at a price and on terms which a majority of certain members of the Board
of Directors determines to be adequate and in the best interests of the
Registrant, its stockholders and other relevant constituencies, other than
such
Acquiring Person, its affiliates and associates (a “
Permitted Offer
”)), each
holder of a Right will thereafter have the right (the “
Flip-In Right
”) to acquire
one share of Common Stock for a purchase price equal to 33⅓% of the
then current market price. Notwithstanding the foregoing, all Rights
that are, or were, beneficially owned by an Acquiring Person or any affiliate or
associate thereof will be null and void and not exercisable.
In the
event that, at any time following
the Distribution Date, (i) the Registrant is
acquired in a merger or other business combination transaction in
which the holders of all of the outstanding shares of Common
Stock immediately prior to the consummation of
the transaction are not the holders of all of the
surviving corporations' voting power, or (ii) more than 50% of the
Registrant's
assets
or earning power is sold
or transferred, then each holder of a Right
(except Rights which have
been previously voided as set
forth above) shall thereafter have the right (the “
Flip-Over Right
”) to receive,
upon exercise and payment of the Purchase Price, shares of Common Stock of the
acquiring company having a value equal to two times the
Purchase Price. If a transaction would otherwise result in a holder's
having a Flip-In as well as a Flip-Over Right, then only the Flip-Over Right
will be exercisable; if a transaction results in a holder's having a Flip-Over
Right subsequent to a transaction resulting in a holder's having a Flip-In
Right, a holder will have Flip-Over Rights only to the extent such holder's
Flip-In Rights have not been exercised.
The Purchase Price payable, and
the number of shares of Common Stock or other securities or
property issuable, upon exercise of Rights are subject to
adjustment from time to time
to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination,
or reclassification of the Common Stock, (ii) upon the grant
to holders of shares of Common Stock
of certain rights or warrants to subscribe for
or purchase Common Stock at a price, or
securities convertible into shares of Common Stock with a conversion price, less
than the then current market price of
the Common Stock, or (iii) upon the
distribution to holders of the shares of Common Stock of evidences of
indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or dividends payable in
shares of Common Stock) or of subscription rights
or
warrants
(other than those referred to
above). However, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1%.
No
fractional shares of Common Stock will be issued and in lieu thereof, an
adjustment in cash will be made based on the market price of the Common Stock on
the last trading day prior to the date of exercise.
At any
time prior to the time a person becomes an Acquiring Person, the Board of
Directors of the Registrant may redeem the Rights in whole, but not in part, at
a price of $0.0001 per Right (the “
Redemption Price
”). The
redemption of the Rights may be made effective at such time on such basis and
with such conditions as the Board of Directors in its sole discretion may
establish.
Immediately
upon any redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
At any
time after any person becomes an Acquiring Person and prior to the acquisition
by such person or group of shares of Common Stock representing 50% or more of
the then outstanding shares of Common Stock, the Board of Directors of the
Registrant may exchange the Rights (other than Rights which have become null and
void), in whole or in part for shares of Common Stock, at an exchange ratio of
one share of Common Stock per Right (subject to adjustment).
All of
the provisions of the Rights Agreement may be amended prior to the Distribution
Date by the Board of Directors of the Registrant for any reason it deems
appropriate. Prior to the Distribution Date, the Board is also authorized, as it
deems appropriate, to lower the thresholds
for distribution and Flip-In Rights to not less than the greater of
(i) any percentage greater than the
largest
percentage then held by any stockholder (other than certain exempted
parties), or (ii) 10%. After the Distribution Date, the provisions of the Rights
Agreement may be amended by
the Board of Directors in order to
cure any ambiguity, defect or inconsistency, to make changes which do
not adversely affect the interests of holders of Rights
(excluding the interests of any
Acquiring
Person), or, subject to certain limitations, to shorten or lengthen any time
period under the Rights Agreement.
Until a
Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Registrant, including, without limitation, the right to vote
or to receive dividends. While the distribution of the Rights will not be
taxable to stockholders of the
Registrant, stockholders may, depending upon
the circumstances, recognize taxable income should the Rights become exercisable
or upon the occurrence of certain events thereafter.
Notwithstanding
anything herein to the contrary, no Right shall constitute an offer to sell or
the solicitation of an offer to buy any securities, nor shall there by any sale
of Rights or the issuance of securities upon exercise of the Rights in any state
in which such offer, solicitation, or sale would be unlawful prior to
registration or qualification under the securities laws of any such
states.
Notwithstanding the
foregoing, the Rights shall not be exercisable under any
circumstances unless there shall be at the time of exercise
an effective registration statement under the Securities Act of 1933,
as amended, relating to the issuance of the shares of
Common Stock issuable upon the exercise or exchange of the
Rights.
A copy of
the Rights Agreement shall be filed with the Securities and Exchange
Commission as an Exhibit to the Registrant's Registration Statement on Form 8-A
with respect to the Rights filed with the Securities and Exchange Commission
(Commission File No. 00027629). A copy of the Rights Agreement is
available free of charge from the Registrant. This summary description of the
Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement which is attached as Exhibit 4.1 hereof and is
incorporated herein by reference.
Item
5.02
|
Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
|
Appointment of
Secretary
Effective February 19, 2010, the
Registrant appointed Patrick Adams as Secretary of the Registrant. Mr. Adams
serves also as the Registrant’s Chief Financial Officer, a position he has held
since April 2009.
Prior to joining the Registrant, Mr.
Adams was Chief Financial Officer for Dualstar Entertainment Group, Inc. from
2007 until 2008 and for Performance Publishing Group, Inc. from 1994 until 2007.
He has over 25 years of experience in operational finance and accounting
positions. Prior to his position at Performance Publishing Group, Inc. he held
management positions in large, publicly held companies including Northwest
Natural Gas Company (NYSE), The Times Mirror Company (NYSE), and Knott’s Berry
Farm. He holds a Master of Business Administration degree from American
University in Washington, D.C. and a Bachelor of Arts degree from Duke
University in Durham, North Carolina.
Entry into Employment
Agreements
On
February 19, 2010, the Registrant entered into employment agreements with each
of Suzanne Lewsadder, Chief Executive Officer of the Registrant, and Patrick
Adams, Chief Financial Officer and Secretary of the Registrant.
Ms. Lewsadder’s employment agreement
provides for an annual salary of $175,000 while Mr. Adams’s employment agreement
provides for an annual salary of $106,000. On each anniversary of the
commencement of the employment agreements, the employment agreements provide for
an annual increase in compensation to be determined by the Board of Directors of
not less than 5% and that the Board of Directors may approve additional amounts
based on the Registrant’s performance. In the case of Mr. Adams’s employment
agreement, his base salary is subject to an additional 6% increase effective
August 19, 2010, if it is anticipated that the Registrant will close the fiscal
year with an operating profit. In addition, Mr. Adams is entitled to a minimum
guaranteed annual bonus of $25,000. Ms. Lewsadder and Mr. Adams are
eligible under the terms of their employment agreements to participate in
standard company employee benefit plans or programs as are made available to top
executive personnel.
Both
agreements are for four-year terms ending on February 19, 2014, unless earlier
terminated in accordance with the terms of the respective agreements. If there
is a change of control, the employment agreements provide that all options,
warrants or restricted shares which are unvested at the time of a change of
control will immediately vest. In addition, the employment agreements provide
that if employment is terminated for any reason (except voluntary termination by
the employee under certain circumstances) following a change of control, then
the employee is entitled to two times the employee’s then current
salary.
Change of
control is deemed to have occurred under the employment agreements
upon:
(i) the
consummation of the sale or transfer of voting power representing effective
control of the Registrant to a person or group who on February 19, 2010 is a
non-affiliate,
(ii) the
consummation of a merger or consolidation in which the Registrant is a
constituent corporation and its stockholders immediately prior thereto
beneficially own, immediately thereafter, less than a majority of the voting
power of the Registrant or any surviving or new corporation resulting therefrom,
or
(iii) the
consummation of a sale or disposition of all or substantially all of the
Registrant’s assets.
The
employment agreements further provide that if the employment of the employee is
terminated by the Registrant as a result of the employee’s death, disability or
without cause or terminated by the employee as a result of default by the
Registrant in its obligations under the employment agreement or as a result of
an adverse change in duties, then the employee is entitled to a lump sum
severance payment equal to the then current annual salary in addition to all
unpaid compensation through the date of termination.
The foregoing description of employment
agreements is not complete and is qualified in its entirety by reference to the
text of the employment agreements, which is filed as Exhibits 10.1 and 10.2
respectively and incorporated by reference herein.
Item
5.03
|
Amendments
to Articles of Incorporation or By-Laws; Change in Fiscal
Year.
|
Effective
February 19, 2010, the Board of Directors of the Registrant adopted two
amendments to its by-laws to regulate the introduction of business at annual
meetings of stockholders and the nomination of directors to serve on the Board
of Directors.
Introduction of Business at
Annual Meeting of Stockholders
At an
annual meeting of the stockholders, only such business shall be conducted as
shall have been brought before the annual meeting (i) by or at the direction of
the Board of Directors or (ii) by any stockholder of the corporation who is a
stockholder of record at the time of giving of notice provided for herein, who
shall be entitled to vote at such annual meeting and who complies with the
notice procedures set forth in this amendment. For business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a stockholder's notice must be delivered or mailed to, and received
at, the principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the annual meeting, regardless of any postponement,
deferrals, or adjournments of that meeting to a later date; provided, however,
that in the event that less than 70 days' notice or prior public disclosure of
the date of the annual meeting is given or made to stockholders, notice by the
stockholder to be timely must be received no later than the close of business on
the 10th day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A stockholder's notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting the following:
(i) a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual
meeting;
(ii) the
name and address, as they appear on the corporation's books, of the stockholder
proposing such business;
(iii) the
class and number of shares of the corporation which are beneficially owned by
the stockholder; and
(iv) any
material interest of the stockholder in such business.
Notwithstanding
anything in the by-laws of the Registrant to the contrary, no business shall be
conducted at the stockholder meeting, except in accordance with the notice
procedures set forth in this amendment. The chairman of the meeting, as
determined in accordance with the by-laws, shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and, in accordance with the provisions of these by-laws, and
if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this amended section of the by-laws,
a stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended (the "
Exchange Act
"), and the rules
and regulations thereunder with respect to the matters set forth in this amended
section of the by-laws.
Nomination of
Directors
Only
persons who are nominated in accordance with the procedure set forth in the
by-laws shall be eligible to serve as directors. Nominations of persons for
election to the Board of Directors of the corporation may be made at a meeting
of stockholders (i) by or at the direction of the Board of Directors or (ii) by
any stockholder of the corporation who is a stockholder of record at the time of
giving of notice provided for herein, who shall be entitled to vote for the
election of directors at the meeting and who complies with the notice provision
set forth in this amendment. Such nominations, other than those made by or at
the direction of the Board of Directors, shall be made pursuant to timely notice
in writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered or mailed to, and received at, the principal executive
offices of the corporation not less than 60 days, nor more than 90 days, prior
to the meeting, regardless of postponements, deferrals, or adjournments of that
meeting to a later date; provided, however, that in the event that less than 70
days' notice or public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting or such public disclosure was made. Such
stockholder's notice shall contain the written consent of each proposed nominee
to serve as a director if so elected and shall set forth the
following:
(i) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director and as to each person, acting alone or in conjunction
with one or more other persons as a partnership, limited partnership, syndicate
or other group, who participates or is expected to participate in making such
nomination or in organizing, directing or financing such nomination or
solicitation of proxies to vote for the nominee (A) the name, age, residence
address, and business address of each proposed nominee and of each such person;
(B) the principal occupation or employment, and the name, type of business, and
address of the corporation or other organization in which such employment is
carried on, of each proposed nominee and of each such person; (C) the amount of
stock of the corporation owned beneficially, either directly or indirectly, by
each proposed nominee and each such person; and (D) a description of any
arrangement or understanding of each proposed nominee and of each such person
with each other or any other person regarding future employment or any future
transaction to which the corporation will or may be a party; and
(ii) as
to the stockholder giving the notice (A) the name and address, as they appear on
the corporation's books, of such stockholder; and (B) the class and number of
shares of the corporation which are beneficially owned by such stockholder. At
the request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
corporation that information required to be set forth in a stockholder's notice
or nomination which pertains to the nominee. Subject to the rights of holders of
preferred stock, if any, no person shall be eligible to serve as a director of
the corporation unless nominated in accordance with the procedures set forth in
the by-laws.
The
chairman of the meeting, determined in accordance with these By-Laws, shall, if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by the by-laws, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this amended section of the by-laws.
Item
9.01
|
Financial
Statements and Exhibits
|
|
|
(a)
|
Not
applicable.
|
|
|
(b)
|
Not
applicable.
|
|
|
(c)
|
Not
applicable.
|
|
|
(d)
|
Exhibits
|
3.1
|
Form
of Amended By-laws: Sections 1.11 and 2.17
|
|
|
4.1
|
Form
of Rights Agreement, effective as of February 19, 2010, between
the Registrant and Continental Stock Transfer & Trust Company, as
rights agent
|
|
|
10.1
|
Form
of Employment Agreement, dated as of February 19, 2010, between the
Registrant and Suzanne Lewsadder
|
|
|
10.2
|
Form
of Employment Agreement, dated as of February 19, 2010, between
the Registrant and Patrick Adams
|
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.
Dated:
February 25, 2010
|
SHEERVISION,
INC.
|
|
|
|
By:
/s/ Suzanne
Lewsadder
|
|
Name:
Suzanne Lewsadder
|
|
Title:
Chief Executive Officer
|
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