SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange of 1934
Date of Report July 31, 1997
DCX, Inc.
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(Exact name of registrant as specified in its charter)
Colorado 0-14273 84-0868815
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(State of (Commission (IRS Employer
incorporation) File Number) Identification No.)
3002 North State Highway 83, Franktown, CO 80116-0569
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (303) 688-6070
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Not Applicable
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(Former name or former address, if changed since last report)
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Item 5, Other Events.
Postponement of Annual Shareholders' Meeting
The Board of Directors of the Company has postponed the annual meeting to
September 29, 1997 when said meeting will be held at 2:30 PM in the Denver
Holiday Inn--Southeast, 3200 South Parker Road, Aurora, Colorado.
Designation of Series A Preferred Stock
On July 31, 1997, the Company received notice of the acceptance of the filing of
an amendment to its Articles of Incorporation on the same date modifying the
designation of its Series A 6% Cumulative Convertible Redeemable Preferred Stock
par value $.001 ("Series A Preferred). The Amendment to the Articles of
Incorporation is attached to this Report as Exhibit 3.2d, and sets forth the
relative rights, designations, and preferences of the Series A Preferred.
Item 7. Financial Statements and Exhibits.
Exhibit
Number Exhibit Page
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3.2d Articles of Amendment to the Articles 4
of Incorporation of DCX, Inc.
Item 9. Sales of Equity Securities Pursuant to Regulation S.
On August 1, 1997, the Company sold a total of 650 shares of Series A 6%
Cumulative Convertible Redeemable Preferred Stock par value $.001 ("Series A
Preferred"), pursuant to Regulation S. The total offering price was $650,000.
Intercontinental Holdings, Inc., Atlanta, GA, acted as the Company's placement
agent for the transaction. The sale was made in a private offshore transaction
to two non US entities who represented to the Company that they were
sophisticated investors.
Terms of the Series A Preferred provide for cumulative dividends at a 6% annual
interest rate payable when, as and if declared, payable in cash or, at the
option of the Company, in additional shares of Series A Preferred at the rate of
one share of Series A Preferred for each $1,000 of such dividend not paid in
cash. The dividends are cumulative whether or not earned. The Series A Preferred
has a stated value of $1,000 per share. The Series A Preferred do not have
voting rights.
Shares of Series A Preferred Stock have the following conversion rights:
(a) Each holder of shares of Series A Preferred Stock shall have the right at
any time and from time to time after sixty (60) days from the date on which a
share of Series A Preferred Stock was issued provided that the aggregate value
submitted is at least $10,000 (unless at the time of such conversion the
aggregate Stated Value registered to the Holder is less than $10,000), to
convert some or all such share(s) into fully paid and non-assessable shares of
Common Stock of the Corporation determined in accordance with the Conversion
Rate provided in Paragraph (b) below (the "Conversion Rate").
(b) The number of shares of Common Stock issuable upon conversion of each share
of Series A Preferred Stock shall equal (1) the sum of (A) the Stated Value per
share and (B) accrued and unpaid dividends on such share(s), divided by (2) the
Conversion Price. The Conversion Price shall be equal to the less of: (1) the
average of the closing bid price of the Corporation's Common Stock for five (5)
trading days immediately preceding the date of issuance of the Series A
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Preferred Stock; or (2) seventy five percent (75%) of the average of the Closing
Bid Price for the five trading days immediately preceding the conversion of the
Series A Preferred Stock. The closing bid price shall mean the closing bid price
of the Corporation's Common Stock as reported NASDAQ (or if not reported by
NASDAQ as reported by such other exchange or market where traded).
The Series A Preferred is subject to mandatory conversion one year after the
date of issue. The Company may not issue any additional preferred stock which
would be senior to the Series A Preferred Stock so long as any Series A
Preferred is outstanding.
The Company paid a commission of ten percent of the total offering price to the
placement agent and five per cent to its consultants, Transition Partners, Ltd.
The holders of the 650 shares of Series A Preferred each have a demand and piggy
back registration
The private sale of the Series A Preferred was exempt from registration under
Regulation S. The sale was made in an offshore transaction to non US persons,
and the purchasers made representations to the Company regarding their status
and actions necessary to comply with Regulation S.
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.
DCX, Inc.
(Registrant)
August 14, 1997 /S/ Frederick G. Beisser
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(Signature)
Frederick G. Beisser
Secretary, Treasurer & Vice President -
Finance & Accounting
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ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF DCX, INC.
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is DCX, Inc.
SECOND: The following amendment to the Articles of Incorporation was duly
adopted by the Board of Directors on July 28, 1997 without shareholder action,
as prescribed by Section 7-106-102 of the Colorado Business Corporation Act, and
shareholder action was not required.
Article V, Section 6 of the Articles of Incorporation are amended to read
as follows:
6. Series A 6% Cumulative Convertible Redeemable Preferred Stock $.001 par
value.
The Corporation shall have 1,000,000 shares designated as Series A 6%
Cumulative Convertible Redeemable Preferred Stock $.001 par value, as part of
the authorized class of preferred shares. Set forth hereinafter is a statement
of the voting powers, preferences, limitations, restrictions, and relative
rights of shares of Series A 6% Cumulative Convertible Redeemable Preferred
Stock $.001 par value:
1. Designation: Number of Shares. The designation of said series of
Preferred Stock shall be Series A 6% Cumulative Convertible Redeemable Preferred
Stock (the "Series A Preferred Stock"). The number of shares of Series A
Preferred Stock shall be 1,000,000. Each share of Series A Preferred Stock shall
have a stated value equal to $1,000 (as adjusted for any stock dividends,
combinations or splits with respect to such shares) (the "Stated Value").
2. Dividends.
(a) The holders of outstanding shares of Series A Preferred Stock shall be
entitled to receive preferential dividends in cash out of any funds of the
Corporation legally available at the time for declaration of dividends before
any dividend or other distribution will be paid or declared and set apart for
payment on any shares of any Common Stock or other class of stock junior to the
Series A Preferred Stock (the Common Stock and such junior stock being
hereinafter collectively the "Junior Stock") at the rate of 6% simple interest
per annum on the Stated Value per share payable quarterly when as and if
declared; provided however that dividend payments may be made in the sole
discretion of the Board of Directors of the Corporation in additional fully paid
and non assessable shares of Series A Preferred Stock at a rate of one share of
Series A Preferred Stock for each $1,000 of such dividend not paid in cash, and
the issuance of such additional shares shall constitute full payment of such
dividend.
(b) The dividends on the Series A Preferred Stock at the rates provided
above shall be cumulative whether or not earned so that if at any time full
cumulative dividends at the rate aforesaid on all shares of the Series A
Preferred Stock then outstanding from the date from and after which dividends
thereon are cumulative to the end of the quarterly dividend period next
preceding such time shall not have been paid or declared and set apart for
payment, or if the full dividend on all such outstanding Series A Preferred
Stock for the then current dividend period shall not have been paid or declared
and set apart for payment, the amount of the deficiency shall be paid or
declared and set apart for payment (but without interest thereon) before any sum
shall be set apart for or applied by the Corporation or a subsidiary of the
Corporation to the purchase redemption or other acquisition of the Series A
Preferred Stock or any shares of any other class of stock ranking on a parity
with the Series A Preferred Stock ("Parity Stock") and before any dividend or
other distribution shall be paid or declared and set apart for payment on any
Junior Stock and before any sum shall be set aside for or applied to the
purchase, redemption or other acquisition of Junior Stock.
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(c) Dividends on all shares of the Series A Preferred Stock shall begin to
accrue and be cumulative from and after the date of issuance thereof. A dividend
period shall be deemed to commence on the day following a quarterly dividend
payment date herein specified and to end of the next succeeding quarterly
dividend payment date herein specified.
3. Liquidation Rights.
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(a) Upon the dissolution, liquidation or winding-up of the Corporation,
whether voluntary or involuntary, the holders of the Series A Preferred Stock
shall be entitled to receive before any payment or distribution shall be made on
the Junior Stock, out of the assets of the Corporation available for
distribution to stockholders, the Stated Value per share of Series A Preferred
Stock and all accrued and unpaid dividends to and including the date of payment
thereof. Upon the payment in full of all amounts due to holders of the Series A
Preferred Stock the holders of the Common Stock of the Corporation any other
class of Junior Stock shall receive all remaining assets of the Corporation
legally available for distribution. If the assets of the Corporation available
for distribution to the holders of the Series A Preferred Stock shall be
insufficient to permit payment in full of the amounts payable as aforesaid to
the holders of Series A Preferred Stock upon such liquidation, dissolution or
winding-up, whether voluntary or involuntary, then all such assets of the
Corporation shall be distributed to the exclusion of the holders of shares of
Junior Stock ratably among the holders of the Series A Preferred Stock.
(b) Neither the purchase nor the redemption by the Corporation of shares of
any class of stock nor the merger or consolidation of the Corporation with or
into any other corporation or corporations nor the sale or transfer by the
Corporation of all or any part of its assets shall be deemed to be a
liquidation, dissolution or winding-up of the Corporation for the purposes of
this paragraph 3. Holders of the Series A Preferred Stock shall not be entitled
upon the liquidation, dissolution or winding-up of the Corporation to receive
any amounts with respect to such stock other than the amounts referred to in
this paragraph 3.
4. Conversion into Common Stock. Shares of Series A Preferred Stock shall
have the following conversion rights and obligations:
(a) Subject to the further provisions of this paragraph 4 each holder of
shares of Series A Preferred Stock shall have the right at any time and from
time to time after sixty (60) days from the date on which a share of Series A
Preferred Stock was issued, to convert some or all such shares into fully paid
and non-assessable shares of Common Stock of the Corporation (as defined in
paragraph 4(i) below) determined in accordance with the Conversion Rate provided
in paragraph 4(b) below (the "Conversion Rate"); provided, that the aggregate
Stated Value to be converted shall be at least $10,000 (unless if at the time of
such conversion the aggregate Stated Value of all shares of Series A Preferred
Stock registered to the Holder is less than $10,000, then the whole amount may
be converted).
(b) The number of shares of Common Stock issuable upon conversion of each
share of Series A Preferred Stock shall equal (i) the sum of (A) the Stated
Value per share and (B) accrued and unpaid dividends on such share, divided by
(ii) the Conversion Price. The Conversion Price shall be equal to the lesser of:
(i) the average of the Closing Bid Price (as hereinafter defined) of the
Corporation's Common Stock for the five (5) trading days immediately preceding
the date of issuance of the Series A Preferred Stock; or (ii) seventy five
percent (75%) of theaverage of the Closing Bid Price for the five trading days
immediately preceding the conversion of the Series A Preferred Stock. The
Closing Bid Price shall mean the closing bid price of the Corporation's Common
Stock as reported by NASDAQ (or if not reported by NASDAQ as reported by such
other exchange or market where traded).
(c) The holder of any certificate for shares of Series A Preferred Stock
desiring to convert any of such shares may give notice of its decision to
convert the shares into common stock by telecopying an executed and completed
notice of conversion to the Corporation and delivering within three business
days thereafter, the original notice of conversion and the certificate for the
Preferred Stock properly endorsed for or accompanied by duly executed
instruments of transfer (and such other transfer papers as said Transfer Agent
may reasonably require) to the Corporation. Each date on which a notice of
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conversion is telecopied to and received by the Corporation in accordance with
the provisions hereof shall be deemed a Conversion Date. The Corporation will
transmit the certificates representing the shares of common stock issuable upon
conversion of any Preferred Stock (together with the Preferred Stock
representing the shares not converted) to the Holder via express courier, by
electronic transfer or otherwise, within three business days after receipt by
the Corporation of the original notice of conversion and the Preferred Stock
representing the shares to be converted. The holder of the shares so surrendered
for conversion shall be entitled to receive (except as otherwise provided
herein) a certificate or certificates which shall be expressed to be fully paid
and non-assessable for the number of shares of Common Stock to which such
stockholder shall be entitled upon such conversion registered in the name of
such holder or in such other name or names as such stockholder in writing may
specify. In the case of any Series A Preferred Stock which is converted in part
only the holder of shares of Series A Preferred Stock shall upon delivery of the
certificate or certificates representing Common Stock also receive a new share
certificate representing the unconverted portion of the shares of Series A
Preferred Stock. Nothing herein shall be construed to give any holder of shares
of Series A Preferred Stock surrendering the same for conversion the right to
receive any additional shares of Common Stock or other property which results
from an adjustment in conversion rights under the provisions of paragraph (d) or
(e) of this paragraph 4 until holders of Common Stock are entitled to receive
the shares or other property giving rise to the adjustment.
In the case of the exercise of the conversion rights set forth in paragraph
4(a) the conversion privilege shall be deemed to have been exercised and the
shares of Common Stock issuable upon such conversion shall be deemed to have
been issued upon the date of receipt by such Transfer Agent for conversion of
the certificate for such shares of Series A Preferred Stock. The person or
entity entitled to receive Common Stock issuable upon such conversion shall, on
the date such conversion privilege is deemed to have been exercised and
thereafter, be treated for all purposes as the record holder of such Common
Stock and shall on the same date cease to be treated for any purpose as the
record holder of such shares of Series A Preferred Stock so converted.
Notwithstanding the foregoing, if the stock transfer books are closed on
the date such shares are received by the Transfer Agent, the conversion
privilege shall be deemed to have been exercised and the person or entity shall
be treated as a record holder of shares of Common Stock on the next succeeding
date on which the transfer books are open, but the Conversion Rate shall be that
in effect on the date such conversion privilege was exercised. The Corporation
shall not be required to deliver certificates for shares of its Common Stock or
new certificates for unconverted shares of its Series A Preferred Stock while
the stock transfer books for such respective classes of stock are duly closed
for any purpose; but the right of surrendering shares of Series A Preferred
Stock for conversion shall not be suspended during any period that the stock
transfer books of either of such classes of stock are closed.
Upon the conversion of any shares of Series A Preferred Stock no adjustment
or payment shall be made with respect to such converted shares on account of any
dividend on shares of such stock or on account of any dividend on the Common
Stock, except that the holder of such converted shares shall be entitled to be
paid any dividends declared on shares of Common Stock after conversion thereof.
The conversion privilege shall also be subject to the following terms and
conditions:
(i) if any shares of Series A Preferred Stock shall be called for
redemption, the conversion privilege in respect of such shares shall
terminate at the close of business on the last business day next preceding
the applicable Conversion Date; and
(ii) if the Corporation shall at any time be liquidated, dissolved or
wound-up the conversion privilege shall terminate at the close of business
on the last business day next preceding the effective date of such
liquidation, dissolution or winding-up.
The Corporation shall not be required in connection with any conversion of
Series A Preferred Stock to issue a fraction of a share of its Common Stock nor
to deliver any stock certificate representing a fraction thereof. For
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administrative efficiency and simplicity, in the event the number of shares
issuable to a shareholder results in a fractional share, said number shall be
rounded up to the next higher whole number of shares. No cash shall be paid for
any fractional share.
(d) The Conversion Rate shall be subject to adjustment from time to time as
follows:
(i) In case the Corporation shall at any time (A) declare any dividend
or distribution on its Common Stock or other securities of the Corporation
other than the Series A Preferred Stock, (B) split or subdivide the
outstanding Common Stock, (C) combine the outstanding Common Stock into a
smaller number of shares, or (D) issue by reclassification of its Common
Stock any shares or other securities of the Corporation, then in each such
event the Conversion Rate shall be adjusted proportionately so that the
holders of Series A Preferred Stock shall be entitled to receive the kind
and number of shares or other securities of the Corporation which such
holders would have owned or have been entitled to receive after the
happening of any of the events described above had such shares of Series A
Preferred Stock been converted immediately prior to the happening of such
event (or any record date with respect thereto). Such adjustment shall be
made whenever any of the events listed above shall occur. An adjustment
made to the Conversion pursuant to this paragraph 4(d)(i) shall become
effective immediately after the effective date of the event retroactive to
the record date, if any, for the event.
(e) (i) In case of any merger of the Corporation with or into any
other corporation (other than a merger in which the Corporation is the
surviving or continuing corporation and which does not result in any
reclassification, conversion, or change of the outstanding shares of Common
Stock) then unless the right to convert shares of Series A Preferred Stock
shall have terminated, as part of such merger lawful provision shall be
made so that holders of Series A Preferred Stock shall thereafter have the
right to convert each share of Series A Preferred Stock into the kind and
amount of shares of stock and/or other securities or property receivable
upon such merger by a holder of the number of shares of Common Stock into
which such shares of Series A Preferred Stock might have been converted
immediately prior to such consolidation or merger. Such provision shall
also provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in paragraph (d) of this
paragraph 4. The foregoing provisions of this paragraph 4(e) shall
similarly apply to successive mergers.
(ii) In case of any sale or conveyance to an other person or entity of
the property of the Corporation as an entirety, or substantially as an
entirety, in connection with which shares or other securities or cash or
other property shall be issuable, distributable, payable, or deliverable
for outstanding shares of Common Stock, then, unless the right to convert
such shares shall have terminated, lawful provision shall be made so that
the holders of Series A Preferred Stock shall thereafter have the right to
convert each share of the Series A Preferred Stock into the kind and amount
of shares of stock or other securities or property that shall be issuable,
distributable, payable, or deliverable upon such sale or conveyance with
respect to each share of Common Stock immediately prior to such conveyance.
(f) Whenever the number of shares to be issued upon conversion of the
Series A Preferred Stock is required to be adjusted as provided in this
paragraph 4, the Corporation shall forthwith compute the adjusted number of
shares to be so issued and prepare a certificate setting forth such adjusted
conversion amount and the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Transfer Agent for the Series A
Preferred Stock and the Common Stock; and the Corporation shall mail to each
holder of record of Series A Preferred Stock notice of such adjusted conversion
price.
(g) In case at any time the Corporation shall propose:
(i) to pay any dividend or distribution payable in shares upon
its Common Stock or make any distribution (other than cash dividends) to
the holders of its Common Stock; or
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(ii) to offer for subscription to the holders of its Common Stock
any additional shares of any class or any other rights; or
(iii) any capital reorganization or reclassification of its
shares or the merger of the Corporation with another corporation (other
than a merger in which the Corporation is the surviving or continuing
corporation and which does not result in any reclassification, conversion,
or change of the outstanding shares of Common Stock); or
(iv) the voluntary dissolution, liquidation or winding-up of the
Corporation;
then, and in any one or more of said cases, the Corporation shall cause at
least fifteen (I5) days prior notice of the date on which (A) the books of
the Corporation shall close or a record be taken for such stock dividend,
distribution, or subscription rights, or (B) such capital reorganization,
reclassification, merger, dissolution, liquidation or winding-up shall take
place, as the case may be, to be mailed to the Transfer Agent for the
Series A Preferred Stock and for the Common Stock and to the holders of
record of the Series A Preferred Stock.
(h) So long as any shares of Series A Preferred Stock shall remain
outstanding and the holders thereof shall have the right to convert the
same in accordance with provisions of this paragraph 4 the Corporation
shall at all times reserve from the authorized and unissued shares of its
Common Stock a sufficient number of shares to provide for such conversions.
(i) The term Common Stock as used in this paragraph 4 shall mean
Common Stock of the Corporation as such stock is constituted at the date of
issuance thereof or as it may from time to time be changed or shares of
stock of any class of other securities and/or property into which the
shares of Series A Preferred Stock shall at any time become convertible
pursuant to the provisions of this paragraph 4.
(j) The Corporation shall pay the amount of any and all issue taxes
(but not income taxes) which may be imposed in respect of any issue or
delivery of stock upon the conversion of any shares of Series A Preferred
Stock, but all transfer taxes and income taxes that may be payable in
respect of any change of ownership of Series A Preferred Stock or any
rights represented thereby or of stock receivable upon conversion thereof
shall be paid by the person or persons surrendering such stock for
conversion.
5. Mandatory Conversion.
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(a) The shares of Series A Preferred Stock not previously converted into
shares of Common Stock shall be converted into shares of Common Stock without
further action of the Holder on the date that is one year from the date of
issuance thereof, at the Conversion Price and on the conversion terms specified
in paragraph 4(b).
(b) Notice of conversion of Series A Preferred Stock by the Corporation
pursuant to this paragraph 5 shall be given by mail or in such other manner as
may be prescribed by resolution of the Board not less than thirty (30) days
prior to the applicable date of mandatory conversion (the "Conversion Date"). As
applicable, the notice shall specify the number of shares to be converted, the
date fixed for conversion, and the conversion price per share.
(c) The holder of any certificate for shares of Series A Preferred Stock
that is converted pursuant to this Section 5 shall surrender such certificate at
the principal office of any transfer agent for said stock (the "Transfer Agent")
properly endorsed for or accompanied by duly executed instruments of transfer
(and such other transfer papers as said Transfer Agent may reasonably require).
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The holder of the shares so surrendered for conversion shall be entitled to
receive (except as otherwise provided herein) a certificate or certificates
which shall be expressed to be fully paid and non-assessable for the number of
shares of Common Stock to which such stockholder shall be entitled upon such
conversion registered in the name of such holder or in such other name or names
as such stockholder in writing may specify.
(d) On and after the applicable Conversion Date and notwithstanding that
any certificate for shares of Series A Preferred Stock so called for conversion
shall not have been surrendered for cancellation, all dividends on the Series A
Preferred Stock called for conversion shall cease to accrue and the shares
represented thereby shall no longer be deemed outstanding and all rights of the
holders thereof as stockholders of the Corporation shall cease and terminate,
except the right to receive the shares of Common Stock upon conversion as
provided herein.
6. Voting Rights. The shares of Series A Preferred Stock shall not have
voting rights.
7. Status of Converted or Redeemed Stock. In case any shares of Series A
Preferred Stock redeemed or converted pursuant to paragraphs 4 or 5 hereof or
otherwise repurchased or reacquired, the shares so redeemed, converted, or
reacquired shall resume the status of authorized but unissued shares of
Preferred Stock and shall no longer be designated as Series A Preferred Stock.
8. Additional Restrictions. For as long as any shares of the Series A
Preferred Stock are outstanding, the Corporation will not issue any preferred
stock that is senior to the Series A Preferred Stock, and will not amend the
terms of the Series A Preferred Stock without the consent of the holders of the
Series A Preferred Stock.
THIRD: The amendment does not effect any exchange, reclassification, or
cancellation of issued shares.
FOURTH: The amendment does not effect a change in the amount of stated
capital.
DCX, Inc. Dated July 30, 1997
By: /S/ STEPHEN CARREKER
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Stephen Carreker, President
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