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):
September 21, 2023
TOUGHBUILT INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Nevada | 001-38739 | 46-0820877 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
8669 Research Drive, Irvine, CA | 92618 | |||
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code:
(949) 528-3100
None
(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):¨ | 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)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class: | Trading Symbol(s) | Name of each exchange on which registered: | ||
Common stock | TBLT | The Nasdaq Stock Exchange, LLC | ||
Series A Warrants | TBLTW | The Nasdaq Stock Exchange, LLC |
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).
x
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.
¨
Item 3.03. Material Modification to Rights of Security Holders.
The disclosure set forth in Item 5.03 below is hereby incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Series H Preferred Stock
On”) ofToughBuilt Industries, Inc. a Nevada corporation (the “”),declaredadividendofoneone-thousandth (0.001) ofashareofSeries HPreferredStock,parvalue$0.0001pershare(“”),foreachoutstandingshareofthe Company’s”)tostockholdersofrecordat5:00 p.m. Eastern Time on October 2, 2023 (the “”).
September 21, 2023,
the board of directors (the “Board
Company
Series HPreferredStock
c
ommon stock,parvalue$0.0001pershare(“Common Stock
Record Date
On September 2”) with the Nevada Secretary of State therein establishing the Series H Preferred Stock and describing the rights, obligations and privileges of the Series H Preferred Stock. The
1
, 2023, the Company filed a certificate of designation (the “Certificate of Designation
following description
ofthe Series HPreferred Stock doesnot purport to be complete and isqualified in itsentirety by reference totheCertificateofDesignation,whichisfiledasExhibit3.1tothisCurrentReportandisincorporatedhereinbyreference.General
. The Series H Preferred Stock consists of 50,000 shares. Each share of Series H Preferred Stock has a par value of $0.0001 per share. Shares of Series H Preferred Stock will be uncertificated and represented in book-entry form. The Series H Preferred Stock is not convertible into, or exchangeable for, shares of any other class or series of stock or other securities of the Company. The Series H Preferred Stock has no stated maturity and is not subject to any sinking fund.
Dividend Rights
Voting Rights
.
Except as otherwise provided by the Company’s Amended and Restated Articles of Incorporation or bylaws or required by law, the holders of shares of Series H Preferred Stock shall have the following voting rights:
Each share of Series H Preferred Stock will entitle the holder thereof to 1,000,000 votes per share (and, for the avoidance of doubt, each fraction of a share of Series H Preferred Stock will have a ratable number of votes). Thus, each one-thousandth of a share of Series H Preferred Stock would entitle the holder thereof to 1,000 votes. The outstanding shares of Series H Preferred Stock will vote together with the outstanding shares of Common Stock of the Company as a single class exclusively with respect to (i) any proposal to adopt an amendment to the Company’s Amended and Restated Articles of Incorporation, as amended (the “
Articles of Incorporation
Reverse Stock Split
Adjournment Proposal
Unless otherwise provided on any applicable proxy or ballot with respect to the voting on the Reverse Stock Split or the Adjournment Proposal, the vote of each share of Series H Preferred Stock (or fraction thereof) entitled to vote on the Reverse Stock Split, the Adjournment Proposal or any other matter brought before any meeting of stockholders held to vote on the Reverse Stock Split, the Adjournment Proposal shall be cast in the same manner as the vote, if any, of the share of Common Stock (or fraction thereof) in respect of which such share of Series H Preferred Stock (or fraction thereof) was issued as a dividend is cast on the Reverse Stock Split, the Adjournment Proposal or such other matter, as applicable, and the proxy or ballot with respect to shares of Common Stock held by any holder on whose behalf such proxy or ballot is submitted will be deemed to include all shares of Series H Preferred Stock (or fraction thereof) held by such holder. Notwithstanding the foregoing, and for the avoidance of doubt, each share of Series H Preferred Stock (or fraction thereof) redeemed pursuant to the Initial Redemption (as defined below) shall have no voting power with respect to, and the holder of each share of Series H Preferred Stock (or fraction thereof) redeemed pursuant to the Initial Redemption shall have no voting power with respect to any such share of Series H Preferred Stock (or fraction thereof) on, the Reverse Stock Split or the Adjournment Proposal or any other matter brought before any meeting of shareholders held to vote on the Reverse Stock Split. Holders of Series H Preferred Stock will not receive a separate ballot or proxy to cast votes with respect to the Series H Preferred Stock on the Reverse Stock Split, the Adjournment Proposal or any other matter brought before any meeting of stockholders held to vote on the Reverse Stock Split.
Transferability
.No shares ofSeries H PreferredStock may be transferred by the holder thereof except in connection with a transfer by such holderofanysharesofCommon Stockheldbysuchholder,inwhichcaseanumberofoneone-thousandths(1/1,000)ofashareofSeries HPreferredStockequaltothenumberofsharesofCommon StocktobetransferredbysuchholderwillbeautomaticallytransferredtothetransfereeofsuchsharesofCommon Stock.
Redemption
.AllsharesofSeries HPreferredStockthatarenotpresentinpersonorbyproxyatanymeetingofstockholdersheldtovoteonthe Reverse Stock SplitandtheAdjournmentProposalasofimmediatelypriortotheopeningofthepollsatsuchmeeting(the“”) will automatically be redeemed in whole, but notinpart,bytheCompanyattheInitialRedemptionTimewithoutfurtheractiononthepartoftheCompanyortheholderofsharesofSeries HPreferredStock(the“”).
InitialRedemptionTime
InitialRedemption
Any outstanding shares of Series H Preferred Stock that have not been redeemed pursuant to an Initial Redemption shall be redeemed in whole, but not in part, (i) if such redemption is ordered by the Board in its sole discretion, automatically and effective on such time and date specified by the Board in its sole discretion or (ii) automatically upon the approval by the Company’s shareholders of the Reverse Stock Split at any meeting of the shareholders held for the purpose of voting on such proposal (the “” and, together with the Initial Redemption, the “” and each a “”).
Subsequent Redemption
Redemptions
Redemption
Each share of Series H Preferred Stock redeemed in any Redemption shall be redeemed in consideration for the right to receive an amount equal to One Cent ($0.01) in cash for each hundred (100) whole shares of Series H Preferred Stock that are “beneficially owned” by the “beneficial owner” (as such terms are defined below) thereof as of the applicable Redemption Time and redeemed pursuant to such Redemption, payable upon receipt by the Company of a written request submitted by the applicable holder to the corporate secretary of the Company (each a “”) following the applicable Redemption Time. Such Redemption Payment Request shall (i) be in a form reasonably acceptable to the Company, (ii) set forth in reasonable detail the number of shares of Series H Preferred Stock beneficially owned by the holder at the applicable Redemption Time and include evidence reasonably satisfactory to the Company regarding the same, and (iii) set forth a calculation specifying the amount in cash owed to such Holder by the Company with respect to the shares of Series H Preferred Stock that were redeemed at the applicable Redemption Time. For the avoidance of doubt, the redemption consideration in respect of the shares of Series H Preferred Stock (or fractions thereof) redeemed in any Redemption: : (x) shall entitle the former beneficial owners of less than hundred (100) whole shares of Series H Preferred Stock redeemed in any Redemption to no cash payment in respect thereof and (y) shall, in the case of a former beneficial owner of a number of shares of Series H Preferred Stock (or fractions thereof) redeemed pursuant to any Redemption that is not equal to a whole number that is a multiple of one hundred (100), entitle such beneficial owner to the same cash payment, if any, in respect of such Redemption as would have been payable in such Redemption to such beneficial owner if the number of shares (or fractions thereof) beneficially owned by such beneficial owner and redeemed pursuant to such Redemption were rounded down to the nearest whole number that is a multiple of one hundred (100) (such, that for example, the former beneficial owner of one hundred and fifteen (115) shares of Series H Preferred Stock redeemed pursuant to any Redemption shall be entitled to receive the same cash payment in respect of such Redemption as would have been payable to the former beneficial owner of one hundred (100) shares of Series H Preferred Stock redeemed pursuant to such Redemption). As used herein, “
Redemption Payment Request
Person
” shall mean any individual, firm, corporation, partnership, limited liability company, trust, or other entity, and shall include any successor (by merger or otherwise) to such entity. As used herein, a Person shall be deemed the “beneficial owner
” of, and shall be deemed to “beneficially own
,” any securities which such Person is deemed to beneficially own, directly or indirectly, within the meaning of Rule l3d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended.From and after the time at which any shares of Series H Preferred Stock are called for redemption (whether automatically or otherwise), such shares of Series H Preferred Stock shall cease to be outstanding, and the only right of the former holders of such shares of Series H Preferred Stock, as such, will be to receive the applicable redemption price, if any. The shares of Series H Preferred Stock redeemed by the shall not be reissued as shares of Series H Preferred Stock and the Company shall take all action necessary to restore such shares to the status of authorized but unissued shares of Preferred Stock. Notwithstanding anything to the contrary herein or otherwise, and for the avoidance of doubt, any shares of Series H Preferred Stock (or fraction thereof) that have been redeemed pursuant to an Initial Redemption shall not be deemed to be outstanding for the purpose of voting or determining the number of votes entitled to vote on any matter submitted to shareholders (including the Reverse Stock Split or any other matter brought before any meeting of shareholders held to vote on the Reverse Stock Split) from and after the time of the Initial Redemption. Notice of any meeting of shareholders for the submission to shareholders of any proposal to approve the Reverse Stock Split shall constitute notice of a redemption of shares of Series H Preferred Stock pursuant to an Initial Redemption and result in the automatic redemption of the applicable shares of Series H Preferred Stock (and/or fractions thereof) pursuant to the Initial Redemption at the Initial Redemption Time. Notice by the Company of the shareholders’ approval of the Reverse Stock Split, by filing of any press release or through a Current Report on Form 8-K with the Securities and Exchange Commission, shall constitute a notice of a redemption of shares of Series H Preferred Stock pursuant to a Subsequent Redemption and result in the automatic redemption of the applicable shares of Series H Preferred Stock (and/or fractions thereof) pursuant to the Subsequent Redemption at the Subsequent Redemption Time. In connection with the filing of the Certificate of Designation, the Company has set apart funds for payment for the redemption of all shares of Series H Preferred Stock pursuant to the Redemptions and shall continue to keep such funds apart for such payment through the payment of the purchase price for the redemption of all such shares.
LiquidationPreference
Dissolution
.
Fractional Shares
th
) of a share or any integral multiple of such fraction, which fractions shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights, participate in distributions upon a Dissolution and have the benefit of any other rights of holders of Series H Preferred Stock.Item 7.01. Regulation FD Disclosure.
On September 21, 2023, theCompany issued a press release announcing theSeries H PreferredStock dividend. copy of that press release is furnished as Exhibit 99.1 to this Current Report and incorporated herein by reference.
Exhibit99.1,whichisincorporatedintothisItem 7.01, is being furnished pursuant toItem 7.01 and shall not be deemed “filed” for the purposes ofSection 18 of theExchangeAct,orotherwisesubjecttotheliabilitiesofthatsection,norshallitbedeemedincorporatedbyreferenceinanyfilingundertheSecuritiesExchangeActof1934,as amended,ortheSecuritiesActof1933,as amended,exceptas shallbeexpresslysetforthbyreferenceinsuchafiling.
Item 9.01. Financial Statements and Exhibits
.(d) Exhibits.
Exhibit No. | Description | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
PursuanttotherequirementsoftheSecuritiesExchangeActof1934,theregistranthasdulycausedthisreporttobe signed on its behalf by the undersigned hereunto duly authorized.
TOUGHBUILT INDUSTRIES, INC. | ||
Date: September 21, 2023 | By: | /s/ Martin Galstyan |
Name: | Martin Galstyan | |
Title: | Chief Financial Officer |