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
November 12, 2009
-----------------
Date of report (Date of earliest event reported)
DIGITAL FUEL, INC.
-----------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 000-16534 45-0375367
---------------------- ---------------------- ---------------
(State of Incorporation) (Commission File Number) (I.R.S. Employer
Identification)
6601 E. Grant Road, Suite 101, Tucson, Arizona 85715
---------------------------------------------- --------
(Address of Principal Executive Offices) (Zip Code)
(520) 886-5354
-------------
(Registrant's Telephone Number, Including Area Code)
Not Applicable
--------------
(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)
[ X ] 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))
Items 1.01 and 8.01. Entry into a Material Definitive Agreement; Other Events.
On November 12, 2009, our board of directors approved plans to cease the
registration of our common stock with the Securities and Exchange Commission
under the Securities Exchange Act of 1934. Our board of directors decided to
pursue taking our company private after concluding, among other things, that
the disadvantages of remaining an SEC-reporting company, including the costs
associated with regulatory compliance, outweighed the benefits of public
company status to our company and our stockholders.
In order to ensure that we will be eligible to deregister shares of our
common stock, we intend to reduce the number of our beneficial stockholders to
below 300. To accomplish this, our board of directors approved an amendment to
our certificate of incorporation to effect a 1-for-1,000 reverse stock split
of our common stock, subject to approval of our stockholders. After the
reverse stock split, any stockholder holding less than one share will receive
a cash payment of $0.001 for each share held prior to the reverse split.
Under Delaware law, implementation of the reverse stock split is subject
to the affirmative vote of at least a majority of the voting power of the
issued and outstanding shares of the capital stock of the company. Our board
of directors reserves the right to change the terms of the proposed reverse
stock split, including the split ratio, to the extent they believe it is
necessary or desirable in order to accomplish the goal of reducing the number
of beneficial holders to fewer than 300. Our board of directors may also
abandon the proposed transaction at any time prior to its completion if it
believes that the proposed transaction is no longer in the best interests of
our company or our stockholders.
Prior to consummating the going-private transaction described above, we
must file a preliminary proxy statement and a transaction statement with the
Securities and Exchange Commission. Following review by the Securities and
Exchange Commission, we intend to distribute a definitive proxy statement to
our stockholders and to effect the going-private transaction as soon as
practicable following the date that is 20 days after the distribution of the
proxy statement to stockholders. We anticipate the transaction will be
completed in early 2010. If the transaction is completed, we would no longer
file periodic reports with the SEC.
On August 27, 2009, our board of directors also determined to liquidate
the assets of our company and to dissolve it. On November 12, 2009, our board
of directors has approved a plan of liquidation and dissolution (the "Plan of
Liquidation"), subject to obtaining requisite stockholder approval. A copy of
the Plan of Liquidation is attached hereto as Exhibit 99.1 and is incorporated
herein by reference. We currently intend to hold a special meeting of
stockholders to seek approval of the Plan of Liquidation after the going-
private transaction has been consummated and our reporting obligations with
the SEC have been terminated. However, if our board of directors subsequently
determines to seek approval of the Plan of Liquidation before our reporting
obligations have been terminated, we would include the requisite information
concerning the proposed liquidation in the proxy statement filed with the SEC
in respect of the going-private transaction.
Important Additional Information Will Be Filed with the Commission
The proxy statement will contain additional important information
regarding the going private transaction and, if applicable, the liquidation
and dissolution of our company, if such proposal is submitted for approval of
stockholders prior to the termination of our reporting obligations with the
SEC. We advise our stockholders to read the definitive proxy statement when
made available. Copies of both the preliminary proxy statement, and any
amendments or supplements thereto, and the definitive proxy statement will be
available without charge at the Securities and Exchange Commission's website
at www.sec.gov or from our corporate secretary when they are mailed to
stockholders.
Cautionary Note Regarding Forward-Looking Statements
Any statements in this current report that are not historical or current
facts are forward-looking statements. All forward-looking statements in this
current report are made pursuant to the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. These statements involve known and
unknown risks, uncertainties and other factors that may cause our actual
results, performance or achievements to be materially different from any
future results, performances or achievements expressed or implied by the
forward-looking statements. In addition to the risk the transactions
described herein will not be completed, certain of these risks and
uncertainties are described in the "Risk Factors" section of our Annual Report
on Form 10-K for fiscal 2008 and other required reports, as filed with the
SEC, which are available at the SEC's Website at http://www.sec.gov.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
10.1 Plan of Liquidation and Dissolution of Digital Fuel, Inc.
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.
DIGITAL FUEL, INC.
Date: November 13, 2009 /s/ Michael R. Farley
-----------------------
Michael R. Farley
Chief Executive Officer
EXHIBIT INDEX
No. Description Manner of Filing
- --- ----------------------------------------------- ----------------
10.1 Plan of Liquidation and Dissolution of Filed
Digital Fuel, Inc. Electronically