Attached files
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 9, 2010
Worldwide
Energy and Manufacturing USA, Inc .
(Exact
name of registrant as specified in its charter)
|
Colorado
(State
or other jurisdiction
of
incorporation)
|
0-31761
(Commission
File Number)
|
84-1536519
(IRS
Employer
Identification
No.)
|
|
408
N. Canal Street, Unit A&B, South San Francisco, CA
94080
|
||
|
(Address
of principal executive offices and Zip
Code)
|
||
Registrant's
telephone number, including area code: (650) 794-9888
Copies
to:
Darrin M.
Ocasio, Esq.
Sichenzia
Ross Friedman Ference LLP
61
Broadway, 32 nd
Floor
New York,
New York 10006
Phone:
(212) 930-9700
Fax:
(212) 930-9725
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):
[ ]
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))
Amendment
Agreement
On February 9, 2010, Worldwide Energy
& Manufacturing USA, Inc. (the "Company") entered into an Amendment
Agreement with
approximately 74% of prior investors (the "Amendment Agreement") which
amended the terms of the Securities Purchase Agreement (the “Initial Purchase
Agreement”) and Registration Rights Agreement (the “Initial Registration Rights
Agreement”), both dated January 26, 2010, between the Company and the such
investors. Pursuant to the terms of the Amendment Agreement, Section
2.1 of the Initial Purchase Agreement was amended to replace the term
“$8,000,000” with “$9,000,000” and Section 1.1 was amended to amend the
definitions of “Exempt Issuance” and “Transaction Documents”,
respectively. Additionally, Section 1 of the Initial Registration
Rights Agreement was amended to amend the definition of “Registrable
Securities”.
Securities
Purchase Agreement
On
February 9, 2010 the Company entered in a Securities Purchase Agreement with
certain accredited investors (the “Investors”) (the “Purchase Agreement”) for
the sale of up to 193,179 shares of its common stock (the “Common Stock”) and
warrants (the “Warrants”) to purchase an aggregate of 193,179 shares of the
Company’s common stock for an aggregate purchase price of $869,307 (the Warrants
and, together with the Common Stock, the “Private Placement
Securities”). Ladenburg
Thalmann & Co., Inc. acted as placement agent with respect to $149,307 of
the Private Placement Securities and the Company did not use a placement agent
with respect to the remaining Private Placement Securities.. The Warrants
are exercisable for a period of five years from closing at an exercise price of
$5.65 per share. The
Warrants provide the investors with full ratchet anti-dilution protection
with relation to the exercise price of the warrant for a period of 18 months
from the closing. The Warrants may not be exercised if, after such
exercise, such holder would beneficially own, as determined in accordance
with Section 13(d) of the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder, more than 4.99% of the number of shares of
common stock then issued and outstanding.
In connection with the transaction, the
Company also entered into a registration rights agreement (the "Registration
Rights Agreement") with the Investors. The Registration Rights Agreement
provides that the Company will file a "resale" registration statement (the
"Initial Registration Statement") with the Securities and Exchange Commission
(the "SEC") covering all of the Private Placement Securities within 30 days from
the date of the closing of the transaction. If any of the Private Placement
Securities are unable to be included on the Initial Registration Statement, the
Company has agreed to file subsequent registration statements until all of the
Private Placement Securities have been registered.
As further consideration for the
transaction, the Company, along with the Investors, entered into a share escrow
agreement (the "Share Escrow Agreement") with the Company, which will
place 193,179 shares of the Company's newly-issued common stock into
escrow (the "Make Good Shares"), to be distributed to Investors if certain
financial milestones of the Company are not met. Pursuant to the terms of the
Share Escrow Agreement, if the Adjusted EBITDA
as reported in the Company's 2010 Annual Report on Form 10-K is less than
$4,000,000 (subject to certain exclusions) (the "2010 EBITDA
Milestone"), then the Investors shall be entitled to receive on a "pro rata"
basis (determined by dividing each Investor's investment amount by the aggregate
of all investment amounts delivered to the Company by the Investors under the
Agreement) for no consideration other than their part of their respective
Subscription Amount at Closing, some or all of the Make Good Shares determined
according to the following formula:
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E
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Minus
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C
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((A
/ B) X D)
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For the
purposes of the foregoing formula:
A =
2010 Adjusted EBITDA
B = 2010
EBITDA Milestone
C = Total
number of Shares issued to the Purchasers hereunder
D =
4.50
E = Total
Subscription Amount
In addition, if the Company's Adjusted
EBITDA as reported in the Company's 2010 Annual Report on Form 10-K is less than
the 2010 EBITDA Milestone, the exercise price of the Warrant will be adjusted to
a price equal to $4.50 multiplied by a fraction the numerator of which is the
2010 Adjusted EBITDA and the denominator of which is the 2010 EBITDA
Milestone.
Upon the issuance of the shares of Common Stock, the Company will have
5,642,567
shares of common stock issued. Upon the
closing of the private placement, the total dollar amount raised was
$8,869,307.
The
foregoing is not a complete summary of the terms of the private placement
described in this Item 1.01 and reference is made to the complete text of the
form of Amendment Agreement, Purchase Agreement, form of Registration Rights
Agreement, the, form of Warrant, the form of Share Escrow Agreement and the form
of Securities Purchase Agreement for certain investors, attached hereto as
Exhibits 10.1, 10.2, 10.3, 4.1, 10.4 and 10.5,
respectively.
The
Company relied upon an exemption from registration requirements pursuant to Rule
506 of Regulation D promulgated under the Securities Act of 1933, as amended.
Item
3.02 Unregistered Sales of Equity Securities.
See Item
1.01 above.
Item
9.01 Financial Statements and Exhibits.
(c)
Exhibits.
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Exhibit
Number
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Description
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4.1
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Form
of Warrant
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10.1
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Form
of Amendment Agreement dated February 9, 2010
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|
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10.2
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Form
of Securities Purchase Agreement dated February 9 2010
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10.3
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Form
of Registration Rights Agreement
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| 10.4 | Form of Share Escrow Agreement | |
| 10.5 | Securities Purchase Agreement dated February 9,2010 with investors who were not introduced to the Company by Ladenburg Thalmann & Co., Inc. |
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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.
| Worldwide Energy and Manufacturing USA, Inc. | |||
|
Date:
February 10, 2010
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By:
|
/s/ Jimmy Wang | |
| Jimmy Wang | |||
| Chief Executive Officer | |||
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