Unassociated Document
UNITED
STATES
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):
August 10, 2007
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NEONODE
INC.
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(Exact
name of registrant as specified in its
charter)
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Delaware
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0-8419
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94-1517641
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer Identification No.)
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of
incorporation)
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Biblioteksgatan
11
S111
46 Stockholm, Sweden
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
+468
678 18 50 — Sweden
(925)
355-7700 — USA
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Not
Applicable
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(Former
name or former address, if changed since last
report.)
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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):
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item 2.01
Completion of Acquisition or Disposition of Assets.
On
August
10, 2007, SBE, Inc., a Delaware corporation, completed the previously announced
merger of its wholly-owned subsidiary, Cold Winter Acquisition Corporation
(Merger Sub), with and into Neonode Inc., a Delaware corporation (Neonode)
pursuant to the terms of the Agreement and Plan of Merger and Reorganization,
dated January 19, 2007 and amended on May 16, 2007 (the Merger Agreement)
entered into among SBE, Merger Sub and Neonode. As a result of the merger,
SBE changed its name to Neonode Inc. and the newly-acquired wholly-owned
subsidiary, formerly known as Neonode Inc., changed its name to Cold Winter,
Inc. (Cold Winter). The stockholders of Neonode (formerly SBE) approved the
transaction in a special meeting of stockholders held on August 10, 2007.
Following the closing of the merger, the business and operations of Cold Winter
prior to the merger will become the primary business and operations of the
newly-combined company. The newly-combined company's headquarters will be in
Stockholm, Sweden. Unless the context otherwise requires, all references herein
to “Neonode” refer to Neonode and its wholly-owned subsidiaries after the
effective time of the merger.
Merger
Consideration
In
exchange for the 5.8 million outstanding shares of Cold Winter common stock
and
the assumption of outstanding options and warrants to purchase an additional
7.9
million shares of Cold Winter common stock, Neonode issued approximately 20.4
million shares of its common stock. As of the closing of the Merger, former
Cold
Winter stockholders, option holders and warrant holders owned approximately
90.5% of Neonode common stock on a fully-diluted basis and the stockholders,
option holders and warrant holders of Neonode prior to the merger owned
approximately 9.5% of Neonode common stock on a fully-diluted basis. The
securities offered in the merger were not registered under the Securities Act
of
1933 and may not be offered or sold in the United States absent registration
or
an applicable exemption from registration requirements. Neonode’s common stock
is expected to continue trading on the Nasdaq Capital Market and is anticipated
to started trading under the new ticker symbol “NEON” on August 13, 2007.
Board
of Directors and Officers
John
Reardon, a member of the Neonode’s board of directors, was named as a member of
the board of directors of Cold Winter in May 2007. He was not a member of Cold
Winter’s board of directors at the time the Merger Agreement was negotiated and
executed by the parties. Mr. Reardon will continue as a member of the Neonode’s
board of directors. Mr. David Brunton, Neonode’s Chief Financial Officer, will
continue as the Chief Financial Officer of Neonode. Pursuant to the terms of
the
Merger Agreement, and as described in the definitive proxy statement filed
by
Neonode with the Securities and Exchange Commission on July 3, 2007 (the
Definitive Proxy Statement), all other employees, officers and directors of
Neonode resigned or were terminated effective as of the closing of the merger.
The
foregoing description of the transactions consummated pursuant to the Merger
Agreement does not purport to be complete and is qualified in its entirety
by
reference to the Merger Agreement and Amendment No. 1 to Merger Agreement,
which
are filed as Exhibits 2.1 and 2.2 hereto and are incorporated herein by
reference.
Item 3.02
Unregistered Sales of Equity Securities.
The
disclosure set forth in Item 2.01 above is hereby incorporated into this
Item 3.02 by reference. The Neonode common stock, and options and warrants
to
purchase Neonode common stock, issued to the former holders of Cold Winter
common stock and options and warrants to purchase Cold Winter common stock
in
connection with the merger were issued in reliance upon the exemptions from
the
registration requirements under the Securities Act of 1933, as amended (the
“Securities Act”), pursuant to Section 4(2) thereof and Regulation D
and Regulation S thereunder. Neonode relied upon representations,
warranties, certifications and agreements of such holders, including their
agreement with respect to restrictions on resale, in support of the satisfaction
of the conditions contained in Section 4(2) of the Securities Act or
Regulation D or Regulation S under the Securities Act.
Item 5.01.
Change in Control of Registrant
Reference
is made to Items 2.01 and 5.02 of this Current Report on Form 8-K, which is
incorporated into this Item 5.01 by reference.
Item
5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Reference
is made to Item 2.01 of this Current Report on Form 8-K, which is hereby
incorporated into this Item 5.02 by reference.
Board
of Directors and Committees of the Board of Directors
Effective
as of the closing of the merger, the Neonode board of directors of is now
comprised of the following individuals:
Serving
until the 2008 Annual Meeting of Stockholders:
Magnus
Goertz and Johan Ihrfelt
Serving
until the 2009 Annual Meeting of Stockholders:
Susan
Major and Per Bystedt
Serving
until the 2010 Annual Meeting of Stockholders:
John
Reardon and Mikael Hagman
Messrs.
Ihrfelt and Reardon and Ms. Major, each of whom is deemed to be an independent
director, will serve on the audit committee of the board of directors. Mr.
Reardon will serve as chair of the audit committee. Messrs. Ihrfelt and Reardon
and Ms. Major will also serve on the compensation and nominating and corporate
governance committees of the board of directors. Ms. Major will serve as chair
of the compensation committee and Mr. Ihrfelt will serve as chair of the
nominating and corporate governance committee. Prior to the merger, each of
Mr.
Reardon and Ms. Major received options to purchase 50,000 shares of Cold Winter
common stock and Mr. Ihrfelt received options to purchase 5,000 shares of Cold
Winter common stock in consideration of their services on the Cold Winter board
of directors. Effective as of the closing of the merger, these options were
converted into options to purchase 176,595 shares of Neonode common stock with
respect to Mr. Reardon and Ms. Major and 17,659 with respect to Mr. Ihrfelt.
Other than as set forth in this current report on Form 8-K, there are no other
plans, contracts or arrangements between Neonode and the members of its board
of
directors.
Executive
Officers
Effective
as of the closing of the merger, Mikael
Hagman
was
appointed as Neonode’s Chief Executive Officer and President, replacing Gregory
Yamamoto as Neonode’s principal executive officer. A description of Mr. Hagman’s
business background can be found in the Definitive Proxy Statement beginning
on
page 89 in the section entitled “Directors and Executive Officers of SBE
Following the Merger,” which is incorporated herein by reference.
On
November 30, 2006, Mr. Hagman entered into an employment agreement with Cold
Winter in respect of his position as chief executive officer of Cold Winter
effective March 5, 2007. Neonode intends to assume the obligations of Cold
Winter under this agreement. Under the agreement, Mr. Hagman is entitled to
(i)
an annual base salary of 1,560,000 SEK, or approximately $232,000 USD, (ii)
an
annual bonus in an amount not to exceed his annual base salary, and (iii) an
option to purchase 286,944 Neonode common shares over a period of four years.
Mr. Hagman may terminate his employment only upon six months notice.
Mr. Hagman may be terminated from his position as chief executive officer
only upon one year of notice to Mr. Hagman unless Mr. Hagman neglects his
statutory or contractual obligations as chief executive officer in which case
he
may be dismissed without notice. If Mr. Hagman is terminated for any reason
other than neglect of statutory or contractual obligations or Mr. Hagman
terminates his employment as a result of a breach by the company of the
employment agreement, Mr. Hagman is entitled to continue to receive his annual
base salary for a period of one year or until such earlier time as he accepts
other employment. Mr. Hagman’s employment agreement also contains a
non-competition provision which provides that Mr. Hagman will not compete
directly or indirectly with the business activities of the company for a period
of 12 months following termination of his employment. Each breach by
Mr. Hagman of the non-competition provision would entitle the company to a
penalty payment of 500,000 SEK, approximately $74,000, and any additional
damages the company suffered as a result of the breach. Mr. Hagman’s employment
agreement is filed as Exhibit 10.1 hereto and is incorporated herein by
reference.
Amendment
to Equity Incentive Plan
At
the
special meeting of stockholders held on August 10, 2007, the stockholders of
Neonode prior to the merger, upon the recommendation of the Neonode board of
directors in office prior to the merger, approved, among other items, an
amendment to the Neonode Inc. 2006 Equity Incentive Plan (the 2006 Plan) to
increase the number of shares authorized for issuance under the 2006 Plan to
an
aggregate total of 1,300,000 shares of Neonode common stock.
A
more
detailed description of the 2006 Plan, and the amendments thereto, is contained
in the Definitive Proxy Statement under the heading "Proposal 2—Approval of
Option Plan Increase" and such description is incorporated herein by reference.
A
copy of
the 2006 Plan and the Purchase Plan is attached hereto as Exhibits 10.2 and
is
incorporated herein by reference.
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
In
connection with the merger, on August 10, 2007, Neonode amended its Certificate
of Incorporation to (i) change its name to Neonode Inc. and (ii) increase the
authorized shares of its common stock from 25,000,000 to
40,000,000.
Item
8.01. Other Events.
On
July
31, 2007, Cold Winter entered into a Note Purchase Agreement, as amended on
August 1, 2007, with certain investors pursuant to which the investors agreed
to
loan up to $4,000,000 to Cold Winter for working capital purposes, referred
to
in this report as the loan. The loan is evidenced by Senior
Secured Notes (referred to in this report as the Notes), that are repayable
on
December 31, 2007, bear an interest rate of 8% per annum and are secured by
all
of Cold
Winter’s
stock
in Neonode AB, its operating subsidiary. Pursuant to the terms of the Notes,
upon consummation of the merger, the
rights to convert the Notes became enforceable against Neonode. If Neonode
completes an offering of its securities with gross proceeds aggregating at
least
$5,000,000, such financing referred to as a qualified financing, prior to
December 31, 2007, the principal and interest due under the Notes may be
converted at the option of the investors into the securities sold in the
qualified financing. If
no
qualified financing is completed by December 31, 2007, the principal and
interest due under the notes may be converted at the option of the investor
into
Neonode
securities on substantially the same terms as Cold Winter’s outstanding notes
issued on February 28, 2006, November 20, 2006, January 22, 2007 and June 4,
2007, which notes were converted in the merger.
Item
9.01. Financial Statements and Exhibits.
(a) Financial
Statements of Business Acquired.
The
required audited financial statements of Cold Winter as of and for the years
ended December 31, 2006, 2005 and 2004 are attached hereto as
Exhibit 99.2 and are incorporated in their entirety herein by reference.
The
required unaudited interim financial statements of Cold Winter as of and for
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three months ended March 31, 2006 and 2005 are attached hereto as
Exhibit 99.3 and are incorporated in their entirety herein by reference.
(b) Pro
Forma Financial Information.
The
required pro forma financial information as of and for the three months ended
March 31, 2007 and for the twelve months ended December 31, 2006 is
attached hereto as Exhibit 99.4 and is incorporated in its entirety herein
by reference.
(d)
Exhibits.
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Exhibit
Number
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Description
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2.1
(1)
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Agreement
and Plan of Merger and Reorganization, dated January 19, 2007, by
and
among SBE, Inc., Neonode Inc. and Cold Winter, Inc.*
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2.2
(2)
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Amendment
No. 1 to Agreement and Plan of Merger and Reorganization, dated May
18,
2007, by and among SBE, Inc., Neonode Inc. and Cold Winter,
Inc.
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3.1
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Certificate
of Amendment of Certificate of Incorporation, dated August 10,
2007.
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10.1
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Employment
Agreement between Neonode Inc. and Mikael Hagman, dated November
30,
2006.
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10.2
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Neonode
Inc. 2006 Equity Incentive Plan, as amended.
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99.1
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Press
Release, dated August 10, 2007, entitled “SBE and Neonode Announce Closing
of Merger.”
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99.2
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Consolidated
audited financial statements of Cold Winter, Inc. as of and for the
years
ended December 31, 2006, 2005 and 2004 and Report of Independent
Auditors therein.
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99.3
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Consolidated
unaudited interim financial statements of Cold Winter, Inc. as of
and for
the three months ended March 31, 2007 and 2006.
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99.4
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Pro
forma financial information as of and for the three months ended
March 31,
2007 and for the twelve months ended December 31,
2006.
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Previously
filed as an exhibit to Neonode’s Current Report on Form 8-K filed on
January 22, 2007.
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Previously
filed as an exhibit to Neonode’s Current Report on Form 8-K filed on May
29, 2007.
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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, thereunto
duly authorized.
Dated:
August 10, 2007
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Neonode
Inc.
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By: |
/s/ David
Brunton |
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David
Brunton
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Chief
Financial Officer
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INDEX
TO EXHIBITS
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Exhibit
Number
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Description
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2.1
(1)
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Agreement
and Plan of Merger and Reorganization, dated January 19, 2007,
by and
among SBE, Inc., Neonode Inc. and Cold Winter, Inc.*
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2.2
(2)
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Amendment
No. 1 to Agreement and Plan of Merger and Reorganization, dated
May 18,
2007, by and among SBE, Inc., Neonode Inc. and Cold Winter,
Inc.
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3.1
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Certificate
of Amendment of Certificate of Incorporation, dated August 10,
2007.
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10.1
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Employment
Agreement between Neonode Inc. and Mikael Hagman, dated November
30,
2006.
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10.2
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Neonode
Inc. 2006 Equity Incentive Plan, as amended.
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99.1
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Press
Release, dated August 10, 2007, entitled “SBE and Neonode Announce Closing
of Merger.”
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99.2
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Consolidated
audited financial statements of Cold Winter, Inc. as of and for
the years
ended December 31, 2006, 2005 and 2004 and Report of Independent
Auditors therein.
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99.3
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Consolidated
unaudited interim financial statements of Cold Winter, Inc. as
of and for
the three months ended March 31, 2007 and 2006.
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99.4
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Pro
forma financial information as of and for the three months ended
March 31,
2007 and for the twelve months ended December 31,
2006.
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