Attached files
| file | filename |
|---|---|
| EX-3.1 - GetFugu, Inc. | v165106_ex3-1.htm |
| EX-3.3 - GetFugu, Inc. | v165106_ex3-3.htm |
| EX-3.2 - GetFugu, Inc. | v165106_ex3-2.htm |
| EX-10.3 - GetFugu, Inc. | v165106_ex10-3.htm |
| EX-10.2 - GetFugu, Inc. | v165106_ex10-2.htm |
| EX-99.1 - GetFugu, Inc. | v165106_ex99-1.htm |
| EX-10.1 - GetFugu, Inc. | v165106_ex10-1.htm |
| EX-14.1 - GetFugu, Inc. | v165106_ex14-1.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): May 18, 2009
GetFugu,
Inc.
(Exact
name of registrant as specified in its charter)
|
Nevada
|
333-143845
|
20-8658254
|
||
|
(State
of incorporation)
|
(Commission
File Number)
|
(IRS
Employer Number)
|
||
|
8560
W. Sunset Blvd., 7th Floor
West
Hollywood, California
|
90069
|
|
|
(Address
of principal executive offices)
|
Zip
Code
|
|
(424)
354-4800
(Registrant’s
telephone number, including area code)
600
Townsend Street, Suite 129E
San
Francisco, California 94101
(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))
Item 1.01 Entry into a Material Definitive Agreement.
On November 6, 2009, we entered into a
Settlement Agreement with SpongeTech Delivery Systems, Inc., pursuant to which
the pending litigation between us was dismissed with each party to bear its own
costs. We also entered into our standard form of Augmented Reality
Link Terms of Service Agreement with SpongeTech, providing that it will be
placed on the GetFugu platform and will not be charged any service fee for up to
20 ARLs.
Item
3.02 Unregistered Sales of Equity Securities
On November 2, 2009, we entered into a
stipulation with Amber Capital Corporation for the issuance of 16 million shares
of our common stock, in order to resolve claims for compensation for advisory
services. The transaction was exempt under Section 3(a)(10) of the
Securities Act, as securities issued in exchange for outstanding claims, where
the terms and conditions of such issuance and exchange are approved by a court,
after a hearing upon the fairness of such terms and conditions.
On November 5, 2009, we entered into a
stipulation with Summit Trading Limited for the issuance of 4 million shares of
our common stock, in order to resolve claims for compensation for consulting
services. The transaction was exempt under Section 3(a)(10) of the
Securities Act, as securities issued in exchange for outstanding claims, where
the terms and conditions of such issuance and exchange are approved by a court,
after a hearing upon the fairness of such terms and conditions.
On November 6, 2009, we entered into a
Subscription Agreement with R.M. Enterprises International, Inc. for the
purchase of 5,250,525 shares of our common stock in exchange for $1,750,000
which was previously paid to us. The shares issued to R.M. are
restricted. R.M. was also granted piggy-back registration
rights. The issuance was exempt under Section 4(2) of the Securities
Act, as a transaction by an issuer not involving any public
offering.
Item
5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
Appointment
of Carl Freer as President and Director
Carl Freer, 39, was appointed as our
president and as a member of our board of directors effective November 2,
2009. Mr. Freer has more than 15 years experience as a marketing and
technology entrepreneur, successfully raising over $350 million in investment
capital, and amassing $2.5 billion in market capitalization for his
companies. Prior to co-founding GetFugu in April 2009, he served as
SVP Business Development of Media Power Inc. in 2008. Mr. Freer
founded mobile gaming platform Gizmondo in 2002, and was chairman of the board
of directors at its parent company, Tiger Telematics Inc. until October
2005. He has been recognized as a pioneer in mobile technology and
innovative approaches to advertising.
Appointment
of Michael Solomon as Chairman of the Board
Michael Jay Solomon, 71, was appointed
to our board of directors on May 18, 2009, and has served as chairman since
July. Mr. Solomon served as President of Warner Bros. International
Television (NYSE: TWX) from 1989 to 1994. Since that time, he has
helmed television communications company Solomon Entertainment Enterprises,
distributing independent content to the international market. Mr.
Solomon co-founded television syndication company Telepictures Corporation
(Nasdaq) in 1978, and served as president of Lorimar Telepictures Corp. until
1989. He also served eight years with United Artists and fourteen
years with MCA/Universal. Mr. Solomon was a founder of the American
Film Market Association and The Sam Spiegel Film & Television School, and
has served on the Board of Overseers of New York University’s Stern School of
Business for twenty years.
Appointment
of Alan J. Bailey as Director
Alan J. Bailey, 62, joined our board
effective November 2, 2009. Mr. Bailey is a veteran of the
entertainment industry with 35 years of senior level corporate finance, audit
and compliance experience. He served as Senior Vice President and
Treasurer at Paramount Pictures from 1975 through March 2009. Mr.
Bailey is an operating partner in Transworld Capital Group which specializes in
structuring complex financial transactions. Mr. Bailey is also Vice
President of the Shanghai Film Art Academy , a motion picture and television
college based in Shanghai with more than 3,000 active film
students. In April 2009, he formed new media company Dynamic Media
International Inc. where he serves as chief operating officer and chief
financial officer. Mr. Bailey previously served as Vice President in
charge of offshore financial operations at Gulf + Western Industries, and served
in public accounting with an affiliate of Ernst & Young and with Grant
Thornton as a senior audit supervisor. He is a Fellow of the English
Institute of Chartered Accountants.
Appointment
of Derek Norton as Chief Operating Officer
Derek Norton, 45, was appointed our
chief operating officer effective October 19, 2009. Mr. Norton is an
accomplished entrepreneur and venture capitalist with 20 years of business
building and executive management experience in technology, Internet and
media. Prior to joining us he served as managing partner of
Watertower Group, a boutique venture capital fund he founded in February
2002. From July 1999 to January 2002, Mr. Norton served as a
Principal with Entertainment Media Ventures, a $120 million early stage fund
focused on broadband infrastructure, consumer internet and digital media
sectors. From 1991 until 1998, he founded and built Jeffries
Technologies into one of Inc.
Magazine’s 500 fastest growing privately held U.S. companies, providing
network enterprise architecture and systems integration to Global 2000
businesses. In 1995, Mr. Norton founded Digital Boardwalk, a provider
of web based service solutions. He holds a BA in Communications from
University of Southern California.
Appointment
of Michael O’Connor as Director
Michael J. O’Connor, 43, joined our
board effective July 26, 2009. Mr. O'Connor has served as
Vice-Chairman of telecommunications provider Globalive Communications
Corporation since August 2008. He has twenty years experience in finance,
mergers and acquisitions in telecommunications, as well as designing and
implementing sophisticated financial planning tools in support of major capital
raises. Mr. O’Connor served as one of six founding members
of the Executive Committee of Orascom Telecom from November 1999 to
July 2008, whose parent company Weather Investments boasts more than 110 million
subscribers. He founded the Center for Economic and Financial
Analysis at Science Applications International Corporation, one of the largest
consultancy companies in the country. He began his career at the
Economic Council of Canada/School of Policy Studies Queens
University. He holds a Masters Degree in Economics from Carleton
University.
Appointment
of Chuck Timpe as Director
Chuck Timpe, 62, joined our board
effective November 2, 2009. Mr. Timpe is a senior financial executive
with extensive experience in public company finance, compliance and technical
accounting issues. He has served as a director since 1998 and
chairman of the audit committee since 2002 for IPC The Hospitalist Company, Inc.
(NasdaqGM: IPCM), and as a director of Internet social network CrowdGather, Inc.
(CRWG.OB) since May 2009. From 2003 to November 2008, Mr. Timpe
served as the chief financial officer of Hythiam, Inc. (NasdaqGM: HYTM). He was
chief financial officer from its inception in 1998 to 2003 of Protocare,
Inc. Mr. Timpe was a principal in two consulting firms he co-founded,
chief financial officer of National Pain Institute, treasurer and corporate
controller for American Medical International, Inc., now Tenet Healthcare Corp.
(NYSE: THC). He specialized in public company audits at Arthur
Andersen, LLP. Mr. Timpe received a B.S. from University of
Missouri, School of Business and Public Administration, and is a certified
public accountant.
Directors
Each of our new directors was granted
10-year options to purchase 2 million shares of our common stock at an exercise
price of $0.37 per share, one-sixth of which vest in six months and the
remainder monthly over 3 years. Non-employee directors will accrue
board compensation of $10,000 per month, $15,000 per month for the
chairman. Each of our directors has entered into our standard form of
Board of Directors Service and Indemnification Agreement, providing that we will
indemnify them to the fullest extent permitted by applicable law.
In October 2005, Mr. Freer was
sentenced to probation and fined by a court in Germany, for buying four luxury
cars with a bad check, though Mr. Freer contended he had canceled the check
after believing the cars did not have proper title and immediately informed the
authorities. Upon being informed that only one of the four cars had a
title issue, Mr. Freer resubmitted the check. None of our other
directors has, during the last five years, been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors). None of our directors has, during the last five years,
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and, as a result of such proceeding, was or is subject to
a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws, or finding
any violation with respect to such laws.
Mr. Freer resigned as managing director
of Gizmondo, the company went into liquidation in February 2006, due to
increasing costs of pre-ordering long lead components and the inability to
trade-finance the orders as the Gizmondo was a new product. None of
our other directors has, during the last five years, been a party of any
bankruptcy petition filed by or against any business of which he was a general
partner or executive officer either at the time of the bankruptcy or within two
years prior to that time.
There are
no family relationships between any of our new directors or executive
officers. Other than with regard to Messrs. Freer and Solomon’s
interests as stockholders, there have been no transactions, or proposed
transactions, to which we were or are to be a party, in which any new director
or member of his immediate family had or is to have a direct or indirect
material interest.
Departures
As of September 17, 2009, David Warthen
was terminated as chief technology officer. Effective October 20,
2009, Mark Lapresle and Christine Peters resigned from our board of directors,
following the election of two new directors. Effective November 2,
2009, Bernard Stolar resigned as president, due to the appointment of Mr. Freer
to that position. None resigned because of any disagreement on a
matter relating to our operations, policies or practices. Mr.
Lapresle will continue to serve as an employee, Ms. Peters as a consultant, and
Mr. Stolar as our chief executive officer.
Item
7.01 Regulation FD Disclosure
Appointment
of Ivan Kozhuharov as Chief Software Architect
Effective as of September 21, 2009,
Ivan Kozhuharov, 33, was appointed our Chief
Software Architect. Mr. Kozhuharov brings more than 15 years
experience in software architecture, parallel programming, mobile systems and
project management. From June 2007 to November 2009 he served as
president of IKData, Inc., a software research and development
company. From April 2008 to May 2009, Mr. Kozhuharov served as Chief
Technology Officer and Vice President of Engineering at GetFugu Inc./Media Power
Inc., a mobile marketing network company and global developer of high technology
products. From October 2005 to June 2007, Mr. Kozhuharov served
as Senior Software Architect and Business Analyst at ASISTONE
LLC. ASIATONE, LLC was the first developer of an open, extensible,
account based real-time mobile payment system, engineered specifically for cross
border mobile money transactions. From June 2005 to October 2005, Mr.
Kozhuharov served as Lead Senior Solution Engineer at NMK, LLC, a mobile
solutions company specializing in wireless mobile music
applications. From January 2004 to June 2005, Mr. Kozhuharov served
as Software Architect and Vision Recognition Engineer at MILARA,
Inc. MILARA, Inc. is a world leader in the development,
manufacturing, servicing and/or licensing of manual, or semi-automatic
stencil/screen printers, dispensers, and wafer printers for the Surface Mount
Technology and Semiconductor Industries. Mr. Kozhuharov architected
and managed a first place prize winner for one of the biggest trading platforms
in Eastern Europe, architected and engineered a Semicon West award-winning
semiconductor wafers system, created a real-time mobile payment system
engineered for mobile cross border money transactions, and a mobile platform
that allows wireless audio recognition. He is a Microsoft Certified
Solution Developer, Microsoft Certified Professional, Cognex Computer Vision
Certified Engineer and Motion Controllers Advanced Level Certified Engineer, and
an active member of the International Association of Software Architects (IASA)
and the International .NET Association (INETA). Mr. Kozhuharov has a
Post Master in Telecommunications from Technical University, Sofia, Bulgaria and
a BS/MS in Industrial Management and Product Development from University of
Chemical Technology and Metallurgy, Sofia, Bulgaria.
No
Litigation
There is no litigation of any kind
pending against us.
Item
8.01 Other Events
Audit
Committee
Our Audit Committee consists of Chuck
Timpe (Chair), Alan Bailey and Michael O’Connor. Our board of
directors has determined that all three are independent directors under the
independence standards of the American Stock Exchange, as well as audit
committee financial experts as defined in Item 407(d)(5) of Regulation
S-B.
Compensation
Committee
Our Compensation Committee consists of
Donald Kurz (Chair) and Leathem Stearn. Our board has determined that
both are independent directors under the independence standards of the American
Stock Exchange.
Nominating
and Governance Committee
Our Nominating and Governance Committee
consists of Alan Bailey (Chair) and Donald Kurz. As noted above, our
board has determined that both are independent directors.
Strategic
Planning Committee
Our Strategic Planning Committee
consists of Michael O’Connor (Chair) and Leathem Stearn. As noted
above, our board has determined that both are independent
directors.
Special
Committee
Our Special Committee consists of
Leathem Stearn (Chair) and Michael Solomon. Our board has determined
that both are independent directors under the independence standards of the
American Stock Exchange. Mr. Solomon also serves as chairman of our
board of directors.
Committee
Charters and Code of Ethics
On November 2, 2009, our board adopted
an Audit Committee Charter, Compensation Committee Charter, Nominating and
Governance Committee Charter, Code of Ethics and Insider Trading Policy, copies
of which are filed herewith.
New
Offices
Our new executive offices are located
at 8560 West Sunset Boulevard, 7th Floor, West Hollywood,
California.
Unless otherwise required by law, we
disclaim any obligation to release publicly any updates or changes in our
expectations or any change in events, conditions, or circumstances on which any
forward-looking statements are based.
Item
9.01 Financial Statements and Exhibits
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(d)
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Exhibits. The
following exhibits are filed herewith
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Exhibit
3.1
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Audit
Committee Charter
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Exhibit
3.2
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Compensation
Committee Charter
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Exhibit
3.3
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Nominating
and Governance Committee Charter
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Exhibit
10.1
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Settlement
Agreement, dated November 5, 2009, among GetFugu, Inc., and SpongeTech
Delivery Systems, Inc. and R.M. Enterprises International
Inc.
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Exhibit
10.2
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Subscription
Agreement, dated November 6, 2009 among GetFugu, Inc., and R.M.
Enterprises International Inc.
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Exhibit
10.3
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Board
of Directors Service and Indemnification Agreement
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Exhibit
14.1
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Code
of Ethics
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Exhibit
99.1
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Insider
Trading
Policy
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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.
| GETFUGU, INC. | |||
|
Date:
November 6, 2009
|
By:
|
/s/ CARL FREER | |
| Carl Freer | |||
| President | |||