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): November 14, 2008
PERFORMING BRANDS, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 000-50057 65-1082135
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
4951 Airport Parkway, #660, Addison, Texas 75001
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(Address of Principal Executive Offices) (Zip Code)
(972) 818-3862
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Registrant's Telephone Number
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(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)
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Item 2.04 Triggering Events That Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement.
Performing Brands, Inc. (the "Company") has not filed its Quarterly Report
on Form 10-Q for the period ended September 30, 2008, which filing was required
to be filed with the Securities and Exchange Commission ("SEC") on November 14,
2008. Pursuant to the covenants under the Company's Senior Secured Convertible
Promissory Note (the "Note"), failure to timely file its Form 10-Q is an event
of default, although the Holder has not notified the Company that it is
declaring an event of default.
On April 3, 2008, in connection with a legal settlement, Performing Brands,
Inc. (then known as Boo Koo Holdings, Inc.) and its subsidiary Boo Koo
Beverages, Inc. entered into an agreement with Holigan Racing, L.P. ("Holigan")
to settle the outstanding litigation between the parties, specifically Holigan
Racing, LP v. Boo Koo Beverages, Inc., BK Subsidiary, Inc. and BK Beverages, LLC
(the "Action"), in which Holigan had alleged breach of a sponsorship agreement
and sued the Defendants. The Company executed the Note on April 3, 2008 in favor
of Holigan in the amount of $1,400,000. The Note provides for payment to be made
in eight quarterly payments of $175,000, which payments shall be made, at
Holigan's election, in cash or a number of shares of the Company's common stock,
par value $0.0001 per share ("Common Stock"), equal to the quotient of $175,000
divided by $0.75, subject to certain anti-dilution adjustments. The Note was
subsequently amended on August 1, 2008 to provide that the entire remaining
principal payments of $1,225,000 are due and payable on December 15, 2008.
Pursuant to the terms of the Note, the Company is also required to make certain
prepayments equal to 25% of the gross cash proceeds received from any Capital
Transaction (as defined in the Note). In addition, repayment of the principal
amount may be accelerated upon an Event of Default (as defined in the Note). The
Note also contains certain restrictions on the Company's ability to incur
indebtedness or liens against its assets.
Upon receipt of a notice of default, the Company shall have 10 (ten)
business days to cure. If the Company is unable to cure, the entire principal
amount of $1,225,000 will become due and payable.
Item 8.01 Other Events.
As a result of the failure to file its Quarterly Report on Form 10-Q for
the period ended September 30, 2008, the Company will file a request with the
SEC to withdraw its Registration Statement on Form SB-2 (File No. 333-146419)
(the "Registration Statement"). As a result of the failure to file its Form 10-Q
and the expected request to withdraw the Registration Statement, shareholders
cannot sell shares of Common Stock held by them pursuant to the Registration
Statement or Rule 144 of the Securities Act of 1933, as amended.
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SIGNATURE
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.
PERFORMING BRANDS, INC.
By: /s/ Stephen C. Ruffini
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Name: Stephen C. Ruffini
Title: Chief Financial and Operating Officer
Date: November 18, 2008
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