UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): JANUARY 26, 2010
WORLDWIDE ENERGY AND MANUFACTURING USA, INC.
(Exact name of registrant as specified in its charter)
COLORADO 0-31761 84-1536519
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) 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))
- 1 -
EXPLANATORY NOTE:
This amendment on Form 8-K/A (the "Amendment") amends the current report of
Worldwide Energy and Manufacturing USA, Inc. on Form 8-K, as originally filed
with the Securities and Exchange Commission on January 28, 2010 (the "Original
Report"). The purpose of this Amendment is to correct certain formatting errors
which also appear in Exhibit 10.1 and Exhibit 10.3. This Amendment is an amendment and restatement of the Original Report in its entirety in order to provide a complete presentation.
<PAGE>
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
ITEM 3.02 UNREGISTERED SALES OF EQUITY SECURITIES.
On January 26, 2010, Worldwide Energy & Manufacturing USA, Inc. (the
"Company") entered into a Securities Purchase Agreement with certain
accredited investors (the "Investors") (the "Purchase Agreement") for the
sale of an aggregate of 1,777,777 shares of its common stock (the "Common
Stock") and warrants (the "Warrants") to purchase an aggregate of 1,777,777
shares of the Company's common stock for an aggregate purchase price of
$8,000,000(the Warrants and, together with the Common Stock, the "Private
Placement Securities"). Ladenburg Thalmann & Co, Inc. acted as the exclusive
placement agent on the private placement. The Warrants are exercisable for a
period of five years from closing at an exercise price of $5.65 per share.
The Series 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 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 certain insiders of the Company and the Company, as necessary,
who will place an aggregate of 1,777,777 shares of the Company's 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 EBIDTA 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 EBIDTA 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:
E MINUS C
_________
((A/B)*D)
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
- 2 -
<PAGE>
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
5,449,388 shares of common stock issued.
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 Purchase Agreement, form of Registration Rights Agreement, the
form of Warrant and the form of Share Escrow Agreement attached hereto as
Exhibits 10.1, 10.2, 4.1, and 10.3, 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 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
On January 26, 2010, the Board of Directors of the Company approved the
amendment and restatement of its Bylaws in order to increase the maximum number
of directors that constitute the Board.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
3.1 Amended and Restated Bylaws *
4.1 Form of Common Stock Purchase Warrant *
10.1 Form of Securities Purchase Agreement dated January 26, 2010
10.2 Form of Registration Rights Agreement *
10.3 Form of Share Escrow Agreement
99.1 Press Release *
* Incorporated by reference to the Company's Current Report on Form 8-K filed
with the Securities and Exchange Commission on January 28, 2010.
- 3 -
<PAGE>
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.
WORLDWIDE ENERGY AND MANUFACTURING USA, INC.
/s/ Jeff Watson
Date: January 28, 2010
______________________
Jeff Watson
Chief Financial Officer
- 4 -
