Notice of Securities of a Successor Issuer Deemed to be Registered — Form 8-K — Sect. 12(b) – SEA’34 Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: 8-K12B Notice of Securities of a Successor Issuer Deemed HTML 53K to be Registered
2: EX-2.1 Agreement and Plan of Merger HTML 36K
3: EX-3.1 Articles of Merger HTML 9K
4: EX-3.2 Articles of Incorporation of Bk Technologies HTML 16K
Corporation
5: EX-3.3 Bylaws of Bk Technologies Corporation HTML 39K
6: EX-4.1 Form of Common Stock Certificate HTML 7K
7: EX-10.1 Omnibus Amendment to Incentive Compensation Plans HTML 17K
8: EX-10.2 Form of Stock Option Agreement HTML 40K
9: EX-10.3 Form of Restricted Share Agreement HTML 23K
10: EX-10.4 Form of Restricted Stock Unit Agreement HTML 31K
11: EX-99.1 Press Release HTML 12K
8-K12B — Notice of Securities of a Successor Issuer Deemed to be Registered
Registrant’s telephone number, including area code:
(321) 984-1414
______________________________________________
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
(§ 230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§ 240.12b-2 of this
chapter).
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. [ ]
Explanatory
Note
On
March 11, 2019, BK Technologies, Inc., a Nevada corporation
(“Old BK”), announced that its board of directors had
approved the implementation of a holding company reorganization. On
March 28, 2019, Old BK implemented the holding company
reorganization pursuant to the Merger Agreement (as defined in Item
1.01 herein), which resulted in BK Technologies Corporation
becoming the direct parent company of Old BK (the
“Reorganization”) and the successor issuer to Old BK
pursuant to Rule 12g-3(a) under the Securities Exchange Act of
1934, as amended (the “Exchange Act”).
This
Current Report on Form 8-K (this “Form 8-K”) is being
filed for the purpose of establishing BK Technologies Corporation
as the successor issuer to Old BK pursuant to Rule 12g-3 under the
Exchange Act, and to disclose events required to be disclosed on
Form 8-K with respect to the Reorganization. Pursuant to Rule
12g-3(a) under the Exchange Act, the shares of BK Technologies
Corporation common stock, par value $0.60 per share (“New BK
Common Stock”), are deemed registered under Section 12(b) of
the Exchange Act.
Item
1.01
Entry into a Material Definitive Agreement.
Merger Agreement and Reorganization
On
March 28, 2019, Old BK, BK Technologies Corporation, a Nevada
corporation and formerly a direct, wholly-owned subsidiary of Old
BK (“New BK”), and BK Merger Sub, Inc., a Nevada
corporation and formerly a direct, wholly-owned subsidiary of New
BK (“Merger Sub”), entered into an Agreement and Plan
of Merger (the “Merger Agreement”) pursuant to which
Merger Sub merged with and into Old BK, with Old BK surviving as a
direct, wholly-owned subsidiary of New BK (the
“Merger”). At the effective time of the Merger, all
issued and outstanding shares of Old BK common stock, par value
$0.60 per share (“Old BK Common Stock”), were
automatically converted, on a one-for-one basis, into shares of New
BK Common Stock, evidencing the same proportional interests in New
BK and having the same designations, rights, powers and
preferences, and the same qualifications, limitations and
restrictions, as the shares of Old BK Common Stock immediately
prior to the effective time of the Merger. Accordingly, upon
consummation of the Merger, the stockholders of Old BK immediately
prior to the effective time of the Merger became stockholders of
New BK. The Merger is intended to be a tax-free transaction for
U.S. federal income tax purposes for stockholders of Old BK. As a
result of the consummation of the Merger, New BK has, on a
consolidated basis, the same assets, business and operations as Old
BK had immediately prior to the effective time of the
Merger.
Stockholder
approval of the Merger was not required under the Nevada Revised
Statutes. The conversion of Old BK Common Stock into New BK Common
Stock occurred automatically without an exchange of stock
certificates, and certificates that previously represented shares
of Old BK Common Stock now represent the same number of shares of
New BK Common Stock. In addition, upon consummation of the
Merger:
●
each unexercised
and unexpired stock option then outstanding under Old BK’s
2007 Incentive Compensation Plan, as amended, and 2017 Incentive
Compensation Plan (collectively, the “Equity Plans”),
whether or not then exercisable, ceased to represent a right to
acquire shares of Old BK Common Stock and was converted
automatically into a right to acquire the same number of shares of
New BK Common Stock, on the same terms and conditions, including,
without limitation, the vesting schedule (without acceleration
thereof by virtue of the Merger) and the per share exercise price
as were applicable under such Old BK stock option; and
●
each share of
restricted stock and each restricted stock unit of Old BK granted
under the Equity Plans ceased to represent or relate to shares of
Old BK Common Stock and was converted automatically to represent or
relate to shares of New BK Common Stock, on the same terms and
conditions as were applicable to such Old BK restricted stock and
restricted stock units, including, without limitation, the vesting
schedule or other restrictions (without acceleration thereof by
virtue of the Merger).
Following the
consummation of the Merger, shares of Old BK Common Stock were
delisted from the NYSE American and shares of New BK Common Stock
are now listed on the NYSE American under the trading symbol
“BKTI,” which was the same trading symbol used by Old
BK for shares of Old BK Common Stock. Additionally, New BK Common
Stock has been assigned a new CUSIP Number: 05587G
104.
As a
result of the Merger, New BK became the successor issuer to Old BK
pursuant to 12g-3(a) of the Exchange Act and, accordingly, the New
BK Common Stock is deemed registered under Section 12(b) of the
Exchange Act.
The
foregoing does not purport to be a complete description of the
Merger and the Reorganization and is qualified in its entirety by
reference to the full text of the Merger Agreement, a copy of which
is filed as Exhibit 2.1 to this Form 8-K and incorporated by
reference herein.
Item
2.01
Completion of Acquisition or Disposition of
Assets.
Pursuant to the
Merger Agreement, as of the effective time of the Merger, Merger
Sub merged with and into Old BK, with Old BK surviving as a
wholly-owned subsidiary of New BK. The Merger was consummated by
the filing of Articles of Merger, effective as of the effective
time specified therein, with the Secretary of State of the State of
Nevada. A copy of the Articles of Merger is attached to this Form
8-K as Exhibit 3.1 and is incorporated by reference in this Item
2.01.
Item
2.03
Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
As a
result of the Merger, on March 28, 2019, New BK assumed and
succeeded to by operation of law all of the prior debts,
liabilities, obligations and duties of Old BK, and such debts,
liabilities, obligations and duties may be enforced against New BK
to the same extent as if New BK had itself incurred or contracted
all such debts, liabilities, obligations and duties. For more
information concerning these debts, liabilities, obligations and
duties, see generally Old BK’s Annual Report on Form 10-K for
the year ended December 31, 2018, filed with the Securities and
Exchange Commission (the “Commission”) on February 27,2019.
The
information included in Item 1.01 of this Form 8-K is incorporated
by reference in this Item 2.03.
Item
3.01
Notice of Delisting or Failure to Satisfy a Continued Listing Rule
or Standard; Transfer of Listing.
In
connection with the Merger, Old BK notified the NYSE American that
the Merger was expected to close on March 28, 2019 and requested
the NYSE American to file with the Commission an application on
Form 25 to remove the shares of Old BK Common Stock from listing on
the NYSE American and to deregister the shares of Old BK Common
Stock under Section 12(b) of the Exchange Act. Following the
consummation of the Merger, at the opening of the market on March29, 2019, shares of New BK Common Stock are expected to be listed
and begin trading on the NYSE American under the trading symbol
“BKTI,” which is the same trading symbol used by Old BK
for shares of Old BK Common Stock. Old BK also intends to file a
certification and notice on Form 15 with the Commission requesting
that Old BK’s reporting obligations under Sections 13 and
15(d) of the Exchange Act be suspended (except to the extent of the
succession of New BK to the Exchange Act Section 12(b) registration
and reporting obligations of Old BK as described under the heading,
“Successor
Issuer,” under Item 8.01 below).
The
information set forth in Item 1.01 and Item 8.01 under the heading,
“Successor
Issuer,” describing the succession of New BK to
Exchange Act Section 12(b) and reporting obligations of Old BK, is
hereby incorporated by reference in this Item 3.01.
Item
3.03
Material Modification to Rights of Security
Holders.
At the
effective time of the Merger, each share of Old BK Common Stock
issued and outstanding immediately prior to the effective time of
the Merger automatically converted into an equivalent corresponding
share of New BK Common Stock, having the same designations, rights,
powers and preferences and the qualifications, limitations and
restrictions as the corresponding share of Old BK Common Stock that
was converted.
The
information set forth in Item 1.01 is hereby incorporated by
reference in this Item 3.03.
Item
5.02
Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain
Officers; Compensatory Arrangements of Certain
Officers.
Election of Directors; Appointment of Executive
Officers
The
directors of New BK and their committee memberships and titles,
which are listed below, are identical to the directors of Old BK
and their committee memberships and titles immediately prior to the
effective time of the Merger.
Name
Position
D. Kyle
Cerminara(1)(2)
Chairman
of the Board
Lewis
M. Johnson(2)
Co-Chairman
of the Board
Michael
R. Dill(1)(3)
Director
Charles
T. Lanktree(1)
Director
E. Gray
Payne(1)(2)(3)
Director
John W.
Struble(3)
Director
Ryan
R.K. Turner(1)
Director
(1)
Member
of the Compensation Committee.
(2)
Member
of the Nominating and Governance Committee.
(3)
Member
of the Audit Committee.
Identical to the
composition of the board committees of Old BK immediately prior to
the effective time of the Merger, Mr. Struble serves as chairman of
the Audit Committee of New BK, General Payne serves as chairman of
the Compensation Committee of New BK, and Mr. Johnson serves as
chairman of the Nominating and Governance Committee of New
BK.
Biographical
information about the directors of New BK is included under the
heading “Board of Directors” under Item 10.
“Directors, Executive Officers and Corporate
Governance” of Part III of Old BK’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2018, filed with
the Commission on February 27, 2019 and is incorporated by
reference herein.
Information
regarding the compensation arrangements of the directors of New BK
is included under the heading “Director Compensation”
under Item 11. “Executive Compensation” of Part III of
Old BK’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2018, filed with the Commission on February 27, 2019
and is incorporated by reference herein.
The
board of directors of New BK has determined that each director is
independent, as that term is defined by the applicable rules and
regulations of the NYSE American.
The
executive officers of New BK and their positions and titles, which
are listed below, are identical to the executive officers of Old BK
and their positions and titles immediately prior to the effective
time of the Merger.
Name
Position
Timothy
A. Vitou
President
William
P. Kelly
Executive
Vice President, Chief Financial Officer, Secretary and
Treasurer
Henry
R. (Randy) Willis
Chief
Operating Officer
James
R. Holthaus
Chief
Technology Officer
Biographical
information of the executive officers of New BK is included under
the heading “Executive Officers” under Item 10.
“Directors, Executive Officers and Corporate
Governance” of Part III of Old BK’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2018, filed with
the Commission on February 27, 2019 and is incorporated by
reference herein. Information regarding the compensation
arrangements of the executive officers of New BK is included under
Item 11. “Executive Compensation” of Part III of Old
BK’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2018, filed with the Commission on February 27, 2019,
and Old BK’s Current Report on Form 8-K, filed with the
Commission on March 21, 2019, under Item 5.02 “Departure of
Directors or Certain Officers; Election of Directors; Appointment
of Certain Officers; Compensatory Arrangements of Certain
Officers” and each is incorporated by reference herein. The
executive officers’ employment agreements and
change-of-control agreements are retained by BK Technologies, Inc.,
a wholly-owned subsidiary of New BK.
For
information regarding disclosure required pursuant to Item 404(a)
of Regulation S-K with respect to the directors and executive
officers of New BK, see the discussion under the heading
“Transactions with Related Persons” under Item 13.
“Certain Relationships and Related Transactions, and Director
Independence” of Part III of Old BK’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2018, filed with
the Commission on February 27, 2019, which is incorporated by
reference herein. Except as disclosed in this Item 5.02, there have
been no transactions involving New BK and its directors and
executive officers that New BK would be required to disclose herein
pursuant to Item 404(a) of Regulation S-K.
The
information set forth in Item 1.01 is hereby incorporated by
reference in this Item 5.02.
Equity Plans
In
connection with the Reorganization, Old BK and New BK entered into
an Omnibus Amendment to Incentive Compensation Plans, dated as of
March 28, 2019 (the “Omnibus Amendment”), pursuant to
which, as of the effective time of the Merger, Old BK transferred
to New BK, and New BK assumed, sponsorship of the Equity Plans and
each stock option award agreement, restricted stock award agreement
and restricted stock unit award agreement entered into pursuant to
the Equity Plans. The Omnibus Amendment and the related amendments
to the form of award agreements under the Equity Plans reflect New
BK’s assumption of the Equity Plans and award agreements and
the obligations thereunder and the substitution of shares of New BK
Common Stock for shares of Old BK Common Stock upon the exercise or
vesting of awards granted under the Equity Plans.
The
foregoing does not purport to be a complete description of the
Omnibus Amendment and the forms of the amended award agreements and
is qualified in its entirety by reference to the full text of the
Omnibus Amendment and the forms of the amended award agreements,
which are filed as Exhibits 10.1 through 10.4 to this Form 8-K and
are incorporated by reference herein.
In
connection with the Reorganization and as of the effective time of
the Merger, the Articles of Incorporation of New BK and the Bylaws
of New BK are the same as the Articles of Incorporation, as
amended, of Old BK, and the Second Amended and Restated Bylaws of
Old BK immediately prior to the effective time of the Merger,
respectively, other than changes permitted by the Nevada Revised
Statutes.
On
March 28, 2019, New BK issued a press release announcing the
completion of the Reorganization and the Merger and other
information related thereto. A copy of the press release is
attached as Exhibit 99.1 to this Form 8-K and is incorporated by
reference herein.
Successor Issuer
In
connection with the Reorganization and as of the effective time of
the Merger, and by operation of Rule 12g-3(a) promulgated under the
Exchange Act, New BK is the successor issuer to Old BK and has
succeeded to the attributes of Old BK as the registrant, including
Old BK’s Commission file number and CIK number. Shares of New
BK Common Stock are deemed to be registered under Section 12(b) of
the Exchange Act, and New BK is subject to the information
requirements of the Exchange Act, and the rules and regulations
promulgated thereunder, and will hereafter file reports and other
information with the Commission using Old BK’s Commission
file number (001-32644). New BK hereby reports this succession in
accordance with Rule 12g-3(f) promulgated under the Exchange
Act.
Quarterly Dividend
On
March 5, 2019, the board of directors of Old BK declared a
quarterly dividend of $0.02 per share of Old BK Common Stock,
payable on April 15, 2019 to stockholders of record of Old BK
Common Stock as of the close of business on April 1, 2019. A copy
of the press release announcing the quarterly cash dividend was
filed as Exhibit 99.1 to Old BK’s Current Report on Form 8-K,
filed with the Commission on March 6, 2019. As a result of the
consummation of the Merger prior to the record date and payment
date of the quarterly dividend declared by the board of directors
of Old BK, all stockholders of Old BK entitled to receive payment
of the dividend are now stockholders of New BK. Accordingly, the
board of directors of New BK has assumed the dividend to be paid on
April 15, 2019 to stockholders of record of New BK Common Stock as
of the close of business on April 1, 2019.
Forward-Looking Statements
This Form 8-K contains statements about future
events and expectations which are “forward-looking
statements” within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Exchange
Act, including statements about New BK’s plans, objectives,
expectations and prospects. These statements can be identified by
forward-looking words such as “may,”“might,”“could,”“would,”“will,”“anticipate,”“believe,”“plan,”“estimate,”“project,”“expect,”“intend,”“seek” and other similar expressions. Any statement
contained in this Form 8-K that is not a statement of historical
fact may be deemed to be a forward-looking statement. Although New
BK believes that the plans, objectives, expectations and prospects
reflected in or suggested by its forward-looking statements are
reasonable, those statements involve risks, uncertainties and other
factors that may cause New BK’s actual results, performance
or achievements to be materially different from any future results,
performance or achievements expressed or implied by these
forward-looking statements, and New BK can give no assurance that
its plans, objectives, expectations and prospects will be
achieved. Important factors
that might impact New BK’s plans, objectives, expectations
and prospects are contained in the “Risk Factors”
section of Old BK’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2018, and in Old BK’s and New
BK’s other current and periodic reports filed from time to
time with the Securities and Exchange Commission. All
forward-looking statements in this Form 8-K are made as of the date
hereof, based on information available to New BK as of the date
hereof, and New BK assumes no obligation to update any
forward-looking statement.
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.
