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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
June 26, 2008 (June 25, 2008)
Date of Report (Date of earliest event reported)
WESTERN POWER & EQUIPMENT CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 0-26230 91-1688446
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
6407-B N.E. 117TH AVENUE, VANCOUVER, WA 98662
(Address of Principal Executive Offices) (Zip Code)
(360) 253-2346
(Registrant's telephone number, including area code)
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 communication 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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FORWARD-LOOKING STATEMENTS UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995:
This Current Report contains forward-looking statements as defined by the
Private Securities Litigation Reform Act of 1995. Forward-looking statements
include statements concerning plans, objectives, goals, strategies, future
events or performance, and underlying assumptions and other statements that are
other than statements of historical facts. These statements are subject to
uncertainties and risks including, but not limited to, demand and acceptance of
services, changes in governmental policies and regulations applicable to the
mining industry, economic conditions, the impact of competition and pricing, and
other risks defined in this document and in statements filed from time to time
with the Securities and Exchange Commission by Western Power & Equipment Corp.
(the "Company"). All readers are encouraged to review this Current Report. All
such forward-looking statements, whether written or oral, and whether made by or
on behalf of the Company, are expressly qualified by the cautionary statements
and any other cautionary statements which may accompany the forward-looking
statements. In addition, the Company disclaims any obligation to update any
forward-looking statements to reflect events or circumstances after the date
hereof.
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On June 25, 2008, the Company entered into an Asset Sale and Purchase
Agreement dated as of June 20, 2008 (the "Agreement"), with Western Power &
Equipment Corp., an Oregon corporation and a wholly owned subsidiary of the
Company ("WPE" and collectively with the Company, the "Seller"), and CNH Dealer
Holding Company LLC, a Delaware limited liability company (the "Buyer"), which
is wholly owned by CNH America, LLC.
Pursuant to the Agreement, the Company has agreed to sell, and the Buyer
has agreed to purchase all the Company's right, title and interest in and to the
assets and the ordinary course of business operations of WPE, including leases,
fixed assets, inventory, prepaid items, accounts, assigned contracts, assigned
permits, causes of action, books and records, intellectual property, service
work orders in process and other necessary assets, located at or relating to the
Acquired Locations (as such term is defined below) (the "Purchased Assets"). The
Acquired Locations include: (i) 2535 Ellis Street, Redding, CA 96001; (ii) 1751
Bell Ave., Sacramento, CA 95838; (iii) 1041 S. Pershing Ave., Stockton, CA
95206; (iv) 1455 Glendale Ave., Sparks, NV 89431; (v)1745 NE Columbia Blvd.,
Portland, OR 97211; (vi) 1655 NE Silverton Rd., Salem, OR 97303; (vii) 2702 West
Valley Hwy., North, Auburn, WA 98001; (viii) 15111 Smokey Point Blvd.,
Marysville, WA 98271; and 6407 B NE 117 Ave., Vancouver, WA 98662. At the
closing of the transactions contemplated by the Agreement, which closing is
subject to the fulfillment of various terms and conditions, the Buyer will pay
the Company the agreed upon consideration and will assume and will agree to pay
and discharge certain liabilities of WPE, including liabilities arising under
the leases, assigned contracts and assigned permits arising after the closing
date.
The consideration for the purchase of the Purchased Assets, which
consideration is subject to adjustment prior to and after the closing (as
provided in the Agreement), shall be comprised of (i) a cash payment of
approximately $31,000,000, (ii) less an amount equal to the aggregate dollar
amount of the Scheduled Liabilities (as such term is defined in the Agreement),
(iii) less the aggregate of all amounts paid by the Buyer (at the Buyer's
option) directly to creditors of WPE to discharge encumbrances on the Purchased
Assets, (iv) less an amount equal to $1,000,000 to be held by the Buyer to
pay (a) any adjustment amount owed to the Buyer and/or (b) indemnity claims, and
(v) plus the assumption of the assumed liabilities.
The closing is scheduled to occur as promptly as practicable after the
satisfaction or waiver of various conditions in the Agreement (the "Closing
Date").
The Agreement may be terminated by (i) the mutual written consent of the
Buyer and Seller, (ii) either Buyer or Seller if the closing has not occurred by
the Closing Date, (iii) the Seller if the Buyer has breached any of its
covenants under the Agreement, (iv) the Buyer if the Seller has breached any of
its covenants under the Agreement, (v) either Buyer or Seller if certain of the
closing conditions have not occurred, (vi) Seller or Buyer if there shall be in
effect a final nonappealable order of a governmental body of competent
jurisdiction restraining, enjoining or otherwise prohibiting of the transactions
contemplated by the Agreement.
At the time of entry into this material agreement, the Company and its
affiliates had the following material relationships with the Buyer and its
affiliates. Affiliates of the Buyer, pursuant to various dealer agreements and
financing agreements, have provided construction equipment and parts inventory
to the Company for retail sale at the Acquired Locations and have also provided
floor plan financing with respect to such equipment and inventory.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(a) NOT APPLICABLE.
(b) NOT APPLICABLE.
(c) NOT APPLICABLE.
(d) EXHIBITS:
EXHIBIT
NUMBER DESCRIPTION
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10.1 Assets Sale and Purchase Agreement, dated as of June 20, 2008
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 thereunto duly authorized.
Dated: June 26, 2008
WESTERN POWER & EQUIPMENT CORP.
By: /s/ Mark J. Wright
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Name: Mark J. Wright
Title: Chief Financial Officer
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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10.1 Assets Sale and Purchase Agreement, dated as of June 20, 2008