UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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) OCTOBER 6, 2006
_______________________________
DHB INDUSTRIES, INC.
________________________________________________________________________________
(Exact name of registrant as specified in its charter)
DELAWARE 001-13112 11-3129361
________________________________________________________________________________
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2102 SW 2nd Street, Pompano Beach, Florida 33069
________________________________________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (954) 630-0900
____________________________
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:
[ ] 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 Rule13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
ITEM 1.01 - ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
The information required by this item is included in Item 3.03.
ITEM 3.03 - MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS.
On October 6, 2006, the Board of Directors of DHB Industries, Inc. (the
"Company") declared a dividend of one preferred share purchase right (a "Right")
for each outstanding share of Common Stock, par value $0.001 per share, of the
Company (the "Common Stock"). The dividend distribution is payable on October
10, 2006 (the "Record Date") to the stockholders of record at the close of
business on that date. Each Right entitles the registered holder to purchase
from the Company one one-thousandth of a share of Series B Junior Participating
Preferred Stock, par value $0.001 per share (the "Preferred Stock") of the
Company at a price of $15.00 per one one-thousandth of a share of Preferred
Stock (the "Purchase Price"), subject to adjustment. The description and terms
of the Rights are set forth in a Rights Agreement dated as of October 6, 2006,
as the same may be amended from time to time (the "Rights Agreement"), between
the Company and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent").
Until the earlier to occur of (i) the close of business on the tenth
business day following the date of public announcement or the date on which the
Company first has notice or determines that a person or group of affiliated or
associated persons (other than the Company, any subsidiary of the Company or any
employee benefit plan of the Company, or certain "grandfathered persons"
described below) (an "Acquiring Person") has acquired, or obtained the right to
acquire, 15% or more of the outstanding shares of voting stock of the Company
without the prior written consent of the Company executed on behalf of the
Company by a duly authorized officer of the Company following express approval
by action of at least a majority of the members of the Board of Directors then
in office (the "Stock Acquisition Date") or (ii) the close of business on the
tenth business day (or such later date as may be determined by action of the
Board of Directors but not later than the Stock Acquisition Date) following the
commencement of a tender offer or exchange offer, without the prior written
consent of the Company, by a person (other than the Company, any subsidiary of
the Company or an employee benefit plan of the Company) which, upon
consummation, would result in such party's control of 15% or more of the
Company's voting stock (the earlier of the dates in clause (i) or (ii) above
being called the "Distribution Date"), the Rights will be evidenced, with
respect to any of the Common Stock certificates outstanding as of the Record
Date, by such Common Stock certificates. For purposes of the Rights Agreement, a
"grandfathered person" is a person who, as of the close of business on October
10, 2006, together with all affiliates and associates, was the beneficial owner
of more than 15% of the outstanding shares of voting stock of the Company;
provided, that such person together with all affiliates and associates does not
increase its or their percentage ownership of the outstanding shares of voting
stock of the Company by more than one (1) percentage point without the prior
written consent of the Company.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the Company's Common Stock. Until the Distribution Date (or
earlier redemption, exchange or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or new issuances of
Common Stock will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), the surrender for transfer of any certificates for
shares of Common Stock outstanding as of the Record Date, even without such
notation or a copy of this Summary of Rights, will also constitute the transfer
of the Rights associated with the Common Stock represented by such certificate.
As soon as practicable following the Distribution Date, separate certificates
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evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Stock as of the close of business on the Distribution Date and
such separate certificates alone will then evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire, if not previously exercised, on October 10, 2016 (the "Final
Expiration Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company.
The Purchase Price payable, and the number of shares of Preferred Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of the
Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of
certain rights or warrants to subscribe for or purchase Preferred Stock at a
price, or securities convertible into Preferred Stock with a conversion price,
less than the then-current market price of the Preferred Stock or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular periodic cash dividends or dividends payable in
Preferred Stock) or of subscription rights or warrants (other than those
referred to above).
The number of outstanding Rights and the number of one one-thousandths
of a share of Preferred Stock issuable upon exercise of each Right are also
subject to adjustment in the event of a stock split of the Common Stock or a
stock dividend on the Common Stock payable in shares of Common Stock or
subdivisions, consolidations or combinations of the Common Stock occurring, in
any such case, prior to the Distribution Date.
Shares of Preferred Stock purchasable upon exercise of the Rights will
not be redeemable and will be junior to any other series of preferred stock the
Company may issue (unless otherwise provided in the terms of such stock). Each
share of Preferred Stock will have a preferential dividend in an amount equal to
1,000 times any dividend declared on each share of Common Stock. In the event of
liquidation, the holders of the Preferred Stock will receive a preferred
liquidation payment of equal to the greater of $1,000 and 1,000 times the
payment made per share of Common Stock. Each share of Preferred Stock will have
1,000 votes, voting together with the Common Stock. In the event of any merger,
consolidation or other transaction in which shares of Common Stock are converted
or exchanged, each share of Preferred Stock will be entitled to receive 1,000
times the amount and type of consideration received per share of Common Stock.
The rights of the Preferred Stock as to dividends, liquidation and voting, and
in the event of mergers and consolidations, are protected by customary
antidilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation
and voting rights, the value of the one one-thousandth interest in a share of
Preferred Stock purchasable upon exercise of each Right should approximate the
value of one share of Common Stock.
If any person or group (other than the Company, any subsidiary of the
Company or any employee benefit plan of the Company or certain grandfathered
persons) acquires 15% or more of the Company's outstanding voting stock without
the prior written consent of the Board of Directors, each Right, except those
held by such persons, would entitle each holder of a Right to acquire such
number of shares of the Company's Common Stock as shall equal the result
obtained by multiplying the then current Purchase Price by the number of one
one-thousandths of a share of Preferred Stock for which a Right is then
exercisable and dividing that product by 50% of the then current per share
market price of Company Common Stock.
If any person or group (other than the Company, any subsidiary of the
Company or any employee benefit plan of the Company or certain grandfathered
persons) acquires more than 15% but less than 50% of the outstanding Company
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Common Stock without prior written consent of the Board of Directors, each
Right, except those held by such persons, may be exchanged by the Board of
Directors for one-half of a share of Company Common Stock. The exercise of the
Rights is also subject to suspension under certain circumstances to enable the
Company to register the shares being issued upon exercise under the Securities
Act of 1933, as amended. The Company is not currently able to file a
registration statement as it is not in compliance with its periodic filing
requirements under Securities and Exchange Commission rules and regulations.
If the Company were acquired in a merger or other business combination
transaction where the Company is not the surviving corporation or where Company
Common Stock is exchanged or changed or 50% or more of the Company's assets or
earnings power is sold in one or several transactions without the prior written
consent of the Board of Directors, each Right would entitle the holders thereof
(except for the Acquiring Person) to receive such number of shares of the
acquiring company's common stock as shall be equal to the result obtained by
multiplying the then current Purchase Price by the number one one-thousandths of
a share of Preferred Stock for which a Right is then exercisable and dividing
that product by 50% of the then current market price per share of the common
stock of the acquiring company on the date of such merger or other business
combination transaction.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Preferred Stock will be issued
(other than fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts), and in lieu thereof an adjustment in cash
will be made based on the market price of the Preferred Stock on the last
trading day prior to the date of exercise.
At any time prior to the time an Acquiring Person becomes such, the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $0.01 per Right (the "Redemption Price"). The redemption of
the Rights may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including, but not
limited to, an amendment to lower certain thresholds described above to not less
than the greater of (i) any percentage greater than the largest percentage of
the voting power of all securities of the Company then known to the Company to
be beneficially owned by any person or group of affiliated or associated persons
(other than an excepted person) and (ii) 10%, except that from and after such
time as any person or group of affiliated or associated persons becomes an
Acquiring Person no such amendment may adversely affect the interests of the
holders of the Rights.
A committee of independent directors will review the Rights Agreement
at least every three years and, if a majority of the members of the committee
deems it appropriate, may recommend a modification or termination of the Rights
Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the form of Rights Agreement,
as the same may be amended from time to time, which is hereby incorporated
herein by reference.
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ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BY-LAWS; CHANGE IN FISCAL
YEAR
Effective October 12, 2006, the Company filed a Certificate of
Designation, Preferences and Rights of Series B Junior Participating Preferred
Stock with the Secretary of State of the State of Delaware. The Company's Board
of Directors authorized the filing of this certificate at a meeting of the Board
of Directors pursuant to the designation and reservation of 70,000 shares of the
Company's preferred stock as Series B Junior Participating Preferred Stock in
connection with the Rights Agreement, dated as of October 6, 2006 between the
Company and American Stock Transfer & Trust Company. See description set out
under "Item 3.03 Material Modification to Rights of Security Holders" for a more
complete description of the rights and preferences of the Series B Junior
Participating Preferred Stock, a copy of which is attached as Exhibit 3.1 to
this Form 8-K and incorporated herein by reference.
On October 6, 2006, the Company's Board of Directors adopted certain
amendments to the Bylaws of the Company. Article II, Section 2.1 of the Bylaws
previously provided that the number of directors which constitute the entire
Board of Directors would be such number as the Board of Directors may determine
from time to time, and that until changed by action of the Board of Directors,
the number of directors constituting the entire Board of Directors shall be
three (3). This section of the Bylaws was amended to fix the size of the Board
at a minimum of three and a maximum of nine directors, with the authorized
number of directors initially set at five, and with the Board of Directors
having the sole power and authority to increase or decrease the number of
directors acting by an affirmative vote of at least a majority of the total
number of authorized directors most recently fixed by the Board of Directors.
The Bylaws also used to provide, in Article IV, Section 4.3, that any
vacancy on the Board of Directors, or newly created directorships resulting from
any increase in the authorized number of directors, may be filled by a majority
of the directors then in office, though less than a quorum, or by the
stockholders, but that section was amended to provide that a vacancy on the
Board of Directors, including a vacancy created by an increase in the authorized
number of directors, may be filled only by an affirmative vote of at least a
majority of the remaining directors then in office, even if less than a quorum,
or by the sole remaining director.
Under the previous Article I, Section 1.2 of the Bylaws, special
meetings of stockholders could be called by the President, the Board of
Directors, the Chairman of the Board, a majority of the Board of Directors or at
the request in writing by one or more holders in the aggregate entitled to cast
not less than a record majority of the outstanding stock of all classes entitled
to vote at such meeting under the Bylaws prior to amendment. That section of the
amended Bylaws now requires that special meetings of stockholders be called only
by the Board of Directors acting by a majority of the then authorized number of
directors, or by the Chairman of the Board or Co-Chairman of the Board and that
the business permitted to be conducted at any such special meeting be limited to
that brought before the meeting by or at the direction of the Board of Directors
or Chairman of the Board. Pursuant to the amendments, stockholders of the
Company are not permitted to call a special meeting or to require that the Board
of Directors or Chairman of the Board or Co-Chairman of the Board call a special
meeting of stockholders.
Prior to amendment, Article I, Section 1.1 of the Bylaws provided that
stockholders may bring business before an annual meeting, subject to certain
submission requirements. The amendment to this section of the Bylaws refined
this concept, continuing to allow but limit, subject to the rights of the
holders of any series of Preferred Stock established pursuant to the provisions
of the Certificate of Incorporation, stockholder director nominees and business
proposals that may be brought before an annual meeting of stockholders to those
that are received timely by the Company in proper written form. Pursuant to the
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amendments, to be timely, a stockholder's notice must be delivered to or mailed
and received by the Secretary of the Company not less than 60 days nor more than
90 days prior to the annual meeting; provided, however, that in the event that
less than 70 days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must be
so received not later than the close of business on the tenth day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made, whichever occurs first. Section 1.1 of the amended Bylaws
sets forth the following requirements for a stockholder's notice to the
Secretary to be in proper written form:
(i) the name and address of the stockholder who intends to
make the nominations or propose the business as they appear on the Company's
books and, as the case may be, of the person or persons to be nominated or of
the business to be proposed;
(ii) a representation that the stockholder is a holder of
record of stock of the Company entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice;
(iii) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;
(iv) such other information regarding each nominee or each
matter of business to be proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or intended
to be nominated, or the matter been proposed, or intended to be proposed, by the
Board of Directors, and such other information about the nominee as the Board of
Directors deems appropriate, including, without limitation, the nominee's age,
business and residence addresses, principal occupation and the class and number
of shares of Common Stock beneficially owned by the nominee, or such other
information about the business to be proposed and about the stockholder making
such business proposal before the annual meeting as the Board of Directors deems
appropriate, including, without limitation, the class and number of shares of
Common Stock beneficially owned by such stockholder; and
(v) if applicable, the consent of each nominee to serve as
director of the Company if so elected.
Under the amended Bylaws, the chairman of the meeting may refuse to acknowledge
the nomination of any person or the proposal of any business not made in
compliance with the foregoing procedure.
Section 2.4 of the Bylaws was also amended to provide for a shorter
notice period for a special meeting of the Board of Directors and to allow
notice to be given by telephone, e-mail, facsimile or other electronic means.
The Bylaws had provided that notice of a special meeting of the Board of
Directors would be given by mail at least five days before the meeting, or by
telegram, cable, radiogram, or personal service at least two days before the
meeting. As amended, the Bylaws now provide for 72 hour notice by mail or 24
hour notice by the means set forth above.
The descriptions contained herein of the amendments to the Bylaws are
qualified in their entirety by reference to the full text of the amendments,
which are attached as Exhibit 3.2 to this Form 8-K and incorporated herein by
reference.
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ITEM 8.01 OTHER EVENTS.
On October10, 2006, the Company issued a press release announcing the
declaration of the dividend of Rights and the adoption of the Rights Agreement.
A copy of the press release is attached to this Form 8-K as Exhibit 99.1.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
3.1 Certificate of Designation, Preferences and Rights of Series
B Junior Participating Preferred Stock
3.2 Amendments to the Bylaws of DHB Industries, Inc.
4.1 Form of Rights Agreement, dated as of October 6,
2006 between DHB Industries, Inc. and American Stock
Transfer & Trust Company, as Rights Agent, which
includes the form of Certificate of Designation,
setting forth the terms of the Series B Junior
Participating Preferred Stock, par value $0.001 per
share, as Exhibit A, the form of Right Certificate,
as Exhibit B, and the Summary of Preferred Stock
Purchase Rights, as Exhibit C.
99.1 Press release dated October 10, 2006.
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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.
DHB INDUSTRIES, INC.
Date: October 12, 2006 /s/ LAWRENCE E. YOUNG
_____________________________________
Name: Lawrence E. Young
Title: Chief Financial Officer
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EXHIBIT INDEX
___________________ __________________________________________________________
EXHIBIT NO. DESCRIPTION OF EXHIBIT
___________________ __________________________________________________________
3.1 Certificate of Designation, Preferences and Rights
of Series B Junior Participating Preferred Stock
___________________ __________________________________________________________
3.2 Amendments to the Bylaws of DHB Industries, Inc.
___________________ __________________________________________________________
4.1 Form of Rights Agreement, dated as of October 6,
2006 between DHB Industries, Inc. and American Stock
Transfer & Trust Company, as Rights Agent, which
includes the form of Certificate of Designation,
setting forth the terms of the Series B Junior
Participating Preferred Stock, par value $0.001 per
share, as Exhibit A, the form of Right Certificate,
as Exhibit B, and the Summary of Preferred Stock
Purchase Rights, as Exhibit C.
___________________ __________________________________________________________
99.1 Press release dated October 10, 2006.
___________________ __________________________________________________________