Form 8-K DAIS ANALYTIC CORP For: Feb 27

 

 

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) February 27, 2015

 

DAIS ANALYTIC CORPORATION

(Exact name of registrant as specified in its charter)

 

New York		000-53554		14-760865
(State or other jurisdiction of incorporation or organization)		(Commission File No.)		(IRS Employer Identification No.)

 

11552 Prosperous Drive

Odessa, Florida 33556

(Address of Principal Executive Offices)(Zip Code)

 

(727) 375-8484

(Registrant’s telephone number, including area code)

 

N/A

(Former name or former address, if changed since last report)

 

Copies to:

 

Peter DiChiara, Esq.

SICHENZIA ROSS FRIEDMAN FERENCE LLP

61 Broadway, 32nd Floor

New York, New York 10006

Telephone: (212) 930-9700

Facsimile: (212) 930-9725

 

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 Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Dais Analytic Corporation 2015 Stock Incentive Plan

 

On February 27, 2015, the shareholders of Dais Analytic Corporation (the “Company”) approved the Dais Analytic Corporation 2015 Stock Incentive Plan (the “2015 Plan”) at the Company’s 2015 Annual Meeting of Shareholders (the “Annual Meeting”). The 2015 Plan was previously approved by the Company’s board of directors (the “Board”), subject to shareholder approval at the Annual Meeting.

 

The following is a summary of the principal provisions of the 2015 Plan. The following summary does not purport to be complete and is qualified in its entirety by reference to the full text of the 2015 Plan, which was attached as Exhibit A to the Company’s Definitive Proxy Statement on Schedule 14A filed on February 5, 2015 (the “Definitive Proxy Statement”), and is incorporated herein by reference.

 

The number of shares of our common stock reserved for issuance under the 2015 Plan is 10,000,000. The 2015 Plan authorized the grant to eligible individuals of (1) Stock Options (Incentive and Nonstatutory), (2) Restricted Stock, (3) Stock Appreciation Rights, or SARs, (4) Restricted Stock Units, (5) Other Stock-Based Awards, and (6) Cash-Based Awards. Employees of, and consultants to, our Company or its affiliates and members of our Board are eligible to receive equity awards under the Plan. Unless otherwise determined by the Board, it will administer the 2015 Plan. The Board has the power, in its discretion, to grant awards under the 2015 Plan, to select the individuals to whom awards are granted, to determine the terms of the grants, to interpret the provisions of the 2015 Plan and to otherwise administer the 2015 Plan. If approved, the 2015 Plan is effective February 27, 2015 and awards may be granted through February 27, 2025. No awards may be granted under the 2015 Plan subsequent to that date. The Board may suspend or terminate the 2015 Plan without stockholder approval or ratification at any time or from time to time.

 

Amendment to Amended and Restated Employment Agreement of Chief Executive Officer

 

On February 27, 2015, the Company and Timothy N. Tangredi, the Company’s Chief Executive Officer (the “Employee”), entered into the Amendment to Amended and Restated Employment Agreement (the “Amendment”). Currently, the Company has non-interest bearing accrued compensation due to the Employee for deferred salaries earned and unpaid equal to approximately $1.3 million (the “Unpaid Compensation”).

 

The Amendment provides that, if at any time during a calendar year, the Unpaid Compensation is greater than $500,000, the Employee must convert $100,000 of Unpaid Compensation into the Company’s Common Stock during such calendar year. The conversion rate shall be equal to 75% of the average closing price for the Company’s Common Stock for the 30 trading days prior to the date of conversion. The Company shall also pay the Employee a cash payment equal to 20% of the compensation income incurred by the Employee as a result of the conversion. Further, at any time any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act) of greater of 40% of the then-outstanding voting power of Company’s voting equity interests or a person or group initiate a tender offer for the Company’s Common Stock, the Employee may convert Unpaid Compensation to Class A Convertible Preferred Stock of the Company at $1.50 per share.

 

This brief description of the Amendment is only a summary of the material terms and is qualified in its entirety by reference to the full text of the Amendment attached hereto as Exhibit 10.1.

  

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

On March 5, 2015, the Company amended its Certificate of Incorporation to increase the number of authorized shares to 250,000,000, cancel the designated but unissued Series A-D Preferred Stock and create a new series of Preferred Stock designated as the “Class A Preferred Stock”. There are no shares of Class A Preferred Stock currently issued by the Company.

 

Any holder of the Class A Preferred Stock shall not be entitled to any dividends. Each share of Class A Preferred Stock shall entitle the holder thereof to 150 votes on all matters submitted to a vote of the stockholders of the Corporation. The holders of shares of Class A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation. The Holder of the Class A Preferred Stock may convert all or part of the outstanding and unpaid Stated Amount into fully paid and non-assessable shares of the Corporation’s Common Stock. The number of shares receivable upon conversion equals the Stated Amount divided by the “Conversion Price”. The Conversion Price shall be equal to the 75% of the average closing price for the 30 trading days prior to the election to convert. At no time will the Corporation convert any of the Stated Amount into Common Stock if that would result in the Holder beneficially owning more than 49% of the sum of the voting power of the Company’s outstanding shares of Common Stock plus the voting power of the Class A Preferred Stock.

 

This brief description of the Class A Preferred Stock is only a summary of the material terms and is qualified in its entirety by reference to the full text of the Certificate of Amendment attached hereto as Exhibit 3.1.

 

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Item 5.07. Submission of Matters to a Vote of Security Holders.

 

On February 27, 2015, the Company held its Annual Meeting, at which the Company’s shareholders approved six proposals. The proposals are described in the Company’s proxy statement filed with the Securities and Exchange Commission on February 5, 2015.

 

Proposal 1

 

The Company’s shareholders elected five individuals to the Board of Directors as set forth below:

 

Name		Votes For		Votes Withheld
Timothy Tangredi		86,266,307		4,044,900
Robert W. Schwartz		86,207,445		4,103,762
Ira William McCollum, Jr.		90,265,245		45,962
Thomas E. Turner		90,303,807		7,400
Sharon Han		70,342,525		19,968,682

 

Proposal 2

 

Approved an amendment to the Company’s Certificate of Incorporation to effect a reverse stock split of our common stock by a ratio of not less than 1-for-5 and not more than 1-for-20 (the “Reverse Stock Split”) at any time prior to March 31, 2016, with the Board of Directors having the discretion as to whether or not the Reverse Stock Split is to be effected, and with the exact ratio of any Reverse Stock Split to be set at a whole number within the above range as determined by the Board in its discretion.

 

Votes For		Votes Against		Abstentions
7,419,650		953,808		17,227

 

Proposal 3

 

Approved an amendment to Certificate of Incorporation to increase the number of shares the corporation is authorized to issue to 250,000,000 shares, of which 240,000,000 shares of common stock and 10,000,000 shares of preferred stock shall be authorized.

 

Votes For		Votes Against		Abstentions
97,246,683		4,945,028		28,627

 

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Proposal 4

 

Approved the 2015 Plan.

 

Votes For		Votes Against		Abstentions		Broker Non-Votes
86,440,217		3,856,935		13,600		11,909,131

 

Proposal 5

 

Voted on an advisory, nonbinding resolution to approve the compensation of the Company's named executive officers as disclosed in this proxy statement pursuant to the compensation disclosure rules of the Securities and Exchange Commission.

 

Votes For		Votes Against		Abstentions		Broker Non-Votes
86,140,217		4,145,835		25,155		11,909,131

 

Proposal 6

 

Voted on an advisory, nonbinding resolution to approve the frequency of advisory votes on named executive officer compensation.

 

Three Years		Two Years		One Year		Abstain
82,520,268		7,037,602		733,537		14,800

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

3.1	Certificate of Amendment
10.1	Amendment to Amended and Restated Employment Agreement

 

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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. 

 

	Dais Analytic Corporation
Dated: March 5, 2015	By:	/s/ Timothy N. Tangredi
		Timothy N. Tangredi Chief Executive Officer and President

 

 

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EXHIBIT 3.1

 

CERTIFICATE OF AMENDMENT

of

THE CERTIFICATE OF INCORPORATION

of

DAIS ANALYTIC CORPORATION

 

(Pursuant to Section 805 of the Business Corporation Law)

 

It is hereby certified that:

 

1. The name of the corporation is Dais Analytic Corporation (hereinafter called the “Corporation”).

 

2. The Corporation’s Certificate of Incorporation was filed by the Department of State on April 8, 1993, under the name The Dais Corporation (such certificate of incorporation, as amended and restated and in effect thereafter, the “Certificate of Incorporation”).

 

3. This Certificate of Amendment (1) deletes the existing Section 3.1 of Article FOURTH of the Certificate of Incorporation to increase the number of authorized shares, cancel the designated but unissued Series A-D Preferred Stock and create a new series of Preferred Stock designated as the “Class A Preferred Stock”.

 

4. To effect the foregoing, Article FOURTH of the Certificate of Incorporation, is amended to read in its entirety as follows:

 

Section 1. Authorized Capital. The Corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock;” and collectively referred to herein as the “Capital Stock.” The total number of shares of Capital Stock which the Corporation shall have authority to issue shall be 250,000,000 shares, consisting of 240,000,000 shares of Common Stock, having a par value of $0.01 per share, and 10,000,000 shares of Preferred Stock, having a par value of $0.01 per share.

 

Section 2. Common Stock. Subject to any preferential or other rights granted to any series of Preferred Stock, the holders of shares of Common Stock shall be entitled to receive dividends out of funds of the Corporation legally available therefore, at the rate and at the time or times as may be provided by the Board of Directors and shall be entitled to receive distributions legally payable to stockholders on the liquidation of the Corporation. The holders of the Common Stock, on the basis of one vote per share, shall have the right to vote for the election of members of the Board of Directors of the Corporation and the right to vote on all other matters, except where a separate class or series of the Corporation’s stockholders vote by class or series.

 

Section 3. Preferred Stock. Except as otherwise expressly prohibited by the provisions of this certificate of incorporation, shares of Preferred Stock may be issued from time to time in one or more classes or series in any manner permitted by law as determined from time to time by the Board of Directors (any such issuance to require the affirmative vote of a majority of the independent directors) and stated in the resolution or resolutions providing for the issuance thereof, prior to the issuance of any shares thereof. The Board of Directors shall have the authority to fix and determine, subject to the provisions hereof, the rights and preferences of the shares of any class or series so established.

 

Section 3.1 Designated Series of Preferred Stock. Of such 10,000,000 shares of Preferred Stock, 2,000,000 are hereby designated as “Class A Convertible Preferred Stock (the “Class A Preferred Stock”).

 

(a) Voting Rights. The holders of shares of Class A Preferred Stock shall have the following voting rights:

 

(A) Subject to the provision for adjustment hereinafter set forth, each share of Class A Preferred Stock shall entitle the holder thereof to 150 votes on all matters submitted to a vote of the stockholders of the Corporation

 

(B) Except as otherwise provided herein, in any other Certificate of Amendment creating a series of Preferred Stock or any similar stock, or by law, the holders of shares of Class A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.

 

(C) Except as set forth herein, or as otherwise provided by law, holders of Class A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.

 

 

(b) Liquidation. Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Class A Preferred Stock unless, prior thereto, the holders of shares of Class A Preferred Stock shall have received $1.50 per share (the “Stated Amount”). The Class A Preferred Stock shall rank, with respect to the payment of liquidation, dividends and the distribution of assets, senior to the Corporation’s Common Stock.

 

(c) Conversion. The Holder of the Class A Preferred Stock may convert all or part of the outstanding and unpaid Stated Amount into fully paid and non-assessable shares of the Corporation’s Common Stock at the Conversion Price. The number of shares receivable upon conversion equals the Stated Amount divided by the Conversion Price. The Conversion Price shall be equal to the 75% of the average closing price for the 30 trading days prior to the election to convert. At no time will the Corporation convert any of the Stated Amount into Common Stock if that would result in the Holder beneficially owning more than 49% of the sum of the voting power of the Company’s outstanding shares of Common Stock plus the voting power of the Class A Preferred Stock.

 

(d) Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Class A Preferred Stock shall, at the option of the Holder, (1) at the same time be similarly exchanged or changed into an amount of Common Stock at the Conversion Price or (2) payable in cash at the Stated Amount.

 

(e) No Redemption. The shares of Class A Preferred Stock shall not be redeemable by the Corporation.

 

5. The Certificate of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Class A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Class A Preferred Stock, voting together as a single class.

 

6. This amendment to the Certificate of Incorporation was authorized, pursuant to Section 502 of the New York Business Corporation Law and the Certificate of Incorporation, by a vote of the Board of Directors and the Corporation’s shareholders. The Board of Directors adopted resolutions on December 17, 2014 authorizing the amendment of the Certificate of Incorporation, which was approved by the Corporation’s shareholders on February 27, 2015.

 

The Certificate of Incorporation provides that the Board of Directors may, by delivering an appropriate Certificate of Amendment to the Department of State of the State of New York, fix the designation and number of shares of one or more series of Preferred Stock, and may establish all relative rights, preferences and limitations pertaining to such series, without the approval of the stockholders of the Corporation.

 

 

IN WITNESS WHEREOF, we have subscribed this document on this 5th day of March, 2015 and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by me and are true and correct.

 

 

	By:	/s/ Timothy N. Tangredi
		Timothy N. Tangredi
		President and Chief Executive Officer
	By:	/s/ Peter DiChiara
		Peter DiChiara
		Secretary

 

 

 

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EXHIBIT 10.1

 

AMENDMENT TO

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

 

Amendment to Amended and Restated Employment Agreement (this “Amendment”), dated effective as of February 27, 2015 (the “Effective Date”), is entered into by and between Dais Analytic Corporation, a New York corporation (the “Company”), and Timothy N. Tangredi (the “Executive” and, together with the Company, the “Parties”).

 

W I T N E S E T H:

 

WHEREAS, the Company and Executive are parties to an Amended and Restated Employment Agreement dated as of April 11, 2013 (the “Original Agreement”), pursuant to which the Company employed the Executive;

 

WHEREAS, the Company and Executive desire to make certain amendments and supplements to the Original Agreement; and

 

WHEREAS, subject to the terms and conditions of this Amendment, the Company and Executive agree to the amendments and supplements to the Original Agreement set forth below.

 

NOW, THEREFORE, in consideration of the premises, the mutual agreements set forth below and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

 

1. Amendments and Supplements to the Original Agreement. Subject to the terms and conditions set forth herein, the Original Agreement is hereby amended and supplemented as follows:

 

(a) Article 3 is amended by adding Section 3.4 as follows:

 

3.4 Unpaid Compensation. (a) Optional Conversion. At any time there is unpaid salary, bonus or benefits due and payable to the Executive (“Unpaid Compensation”), Executive may, at his discretion, convert the Unpaid Compensation into the Company’s Common Stock, after giving a written conversion notice to the Board of Directors and receiving written approval from a majority of the Board of Directors (provided that if no written response is received from a majority of the Board of Directors within three business days, the Board of Directors shall be deemed to have approved the conversion), at a conversion price equal to 75% of the average closing price for Company’s Common Stock the 30 trading days prior to the date of conversion. If the Board does not approve the conversion, the Company must pay the Executive 120% of the Unpaid Compensation within five business days of the written conversion notice. Upon conversion, the Company shall pay the Chief Executive Officer a cash payment equal to 20% of the compensation income incurred by the Executive as a result of the conversion. Upon termination for any reason specified in this Agreement, the Executive (or his successors or assigns) shall have 30 calendar days to convert any Unpaid Compensation under this Section 3.4(a) in lieu of payment in cash. If at any time during a calendar year, the Unpaid Compensation is greater than $500,000, the Executive shall convert $100,000 of Unpaid Compensation into the Company’s Common Stock during such calendar year.

 

(b) Conversion upon Threatened Change of Control (i) At any time any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act) of more than 40% of the then-outstanding voting power of Company’s voting equity interests or a person or group initiate a tender offer for the Company’s Common Stock, the Executive may convert, after giving a written conversion notice to the Board of Directors, Unpaid Compensation to Class A Convertible Preferred Stock (the “Preferred Stock”) of the Company at $1.50 per share (the “Stated Amount”) with each share of such Preferred Stock voting with the Common Stock as a single class and having voting rights equal to 150 shares of Common Stock on all matters to be voted on by holders of the Common Stock; provided, however, that in no event shall the Executive be able to continue to convert Unpaid Compensation into Preferred Stock at such time that the Executive’s voting power exceeds more than 49% of the sum of the voting power of the Company’s outstanding shares of Common Stock and voting power of the Company’s outstanding Preferred Stock. Further, upon such conversion to Preferred Stock, the Company shall pay the Executive a cash payment equal to 20% of the compensation income incurred by the Executive as a result of the conversion.

 

(ii) The Stated Amount of the Preferred Stock may be converted by the Executive, at his discretion, into Common Stock of the Company at a conversion price equal to 75% of the average closing price for the Company’s Common Stock 30 trading days prior to the date of conversion. Upon conversion, the company shall pay the Chief Executive Officer a cash payment equal to 20% of the compensation income incurred by the Executive as a result of the conversion.

 

(iii) This Section 3.4(b) shall terminate if (a) required by any national securities exchange prior to listing after an application for such listing is submitted by the Company or (b) required by any investor purchasing with cash equity securities of the Company greater than the Unpaid Compensation.

 

2. Entire Agreement. The Original Agreement, as amended by this Amendment, collectively sets forth the entire understanding and agreements of the Parties in relation to the subject matter hereof and supersede any prior negotiations and agreements between the Parties relative to such subject matter.

 

3. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same instrument. Delivery of an executed counterpart by facsimile or by electronic delivery in printable document format (“pdf”) shall be equally effective as delivery of a manually executed counterpart.

 

4. Enforceability. Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the Parties.

 

5.  Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns and legal representatives.

 

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IN WITNESS WHEREOF, each Party has caused this Amendment to Amended and Restated Employment Agreement to be made, executed and delivered as of the date first above written.

 

EXECUTIVE:				COMPANY:
Timothy N. Tangredi				Peter DiChiara, Secretary and Treasurer

 

 

 

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