SITO MOBILE, LTD. (NASDAQ:SITO) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01.
| Entry into a Material Definitive Agreement. |
On April 3, 2017, the Board of Directors (the Board) of
SITO Mobile, Ltd., a Delaware corporation (the Company),
approved and adopted a Section 382 Tax Benefits Preservation
Plan, dated as of April 3, 2017, by and between the Company and
Continental Stock Transfer Trust Company, as Rights Agent (the
Section 382 Tax Benefits Preservation Plan). to the
Section 382 Tax Benefits Preservation Plan, the Board declared a
dividend of one preferred share purchase right (each, a
Right) for each outstanding share of common stock, par
value $0.001, of the Company (the Common Stock). The
dividend is distributable to stockholders of record as of the
close of business on April 14, 2017.
The following is a summary description of the Rights. This
summary is intended to provide a general description only, does
not purport to be complete and is qualified in its entirety by
reference to the complete text of the Section 382 Tax Benefits
Preservation Plan, a copy of which is attached to this Current
Report on Form 8-K as Exhibit 4.1 and is incorporated herein by
reference. All capitalized terms used herein but not defined
herein shall have the meanings ascribed to such terms in the
Section 382 Tax Benefits Preservation Plan.
The Board adopted the Section 382 Tax Benefits Preservation Plan
in an effort to diminish the risk that the Companys ability to
utilize its net operating loss carryovers (collectively, the
NOLs) to reduce potential future federal income tax
obligations may become substantially limited. Under the Internal
Revenue Code of 1986, as amended (the Code), and the
regulations promulgated thereunder by the U.S. Treasury
Department, these NOLs may be carried forward in certain
circumstances to offset any current and future taxable income and
thus reduce federal income tax liability, subject to certain
requirements and restrictions. While the amount and timing of the
Companys future taxable income cannot be predicted with any
certainty and, accordingly, the Company cannot predict the amount
of these NOLs that will ultimately be used to reduce its income
tax liability, to the extent that the NOLs do not otherwise
become limited, these NOLs could be a potentially valuable asset
to the Company. However, if the Company experiences an ownership
change, within the meaning of Section382 of the Code (Section
382), its ability to utilize the NOLs may be substantially
limited, and the timing of the usage of the NOLs could be
substantially delayed, which could therefore significantly impair
the value of those assets.
Under Section 382, an ownership change occurs if a stockholder or
a group of stockholders that is deemed to own at least 5% of the
Common Stock increases their ownership (individually, or
collectively with other such 5-percent shareholders) by more than
50 percentage points over their lowest ownership percentage
within a rolling three year period. If an ownership change
occurs, Section 382 would impose an annual limit on the amount of
the Companys NOLs that can be used to offset the Companys income
taxes equal to the product of the total value of the Companys
outstanding equity immediately prior to the ownership change
(reduced by certain items specified in Section 382) and the
federal long-term tax-exempt interest rate in effect for the
month of the ownership change. A number of complex rules apply to
calculating this annual limit. If an ownership change were to
occur, the limitations imposed by Section 382 could result in a
substantial delay in the timing of the usage of the Companys NOLs
or in a material amount of the Companys NOLs expiring unused and,
therefore, significantly impair the value of such NOLs. While the
Company periodically monitors its NOLs and currently believes
that an ownership change that would impair the value of its NOLs
has not occurred, the complexity of Section 382s provisions and
the limited knowledge any public company has about the ownership
of its publicly traded stock make it difficult to determine
whether an ownership change has in fact occurred.
The Section 382 Tax Benefits Preservation Plan is intended to act
as a deterrent to any person or group acquiring beneficial
ownership of 4.99% or more of the outstanding Common Stock
without the approval of the Board. A person who acquires, without
the approval of the Board, beneficial ownership (other than as a
result of repurchases of stock by the Company, dividends or
distributions by the Company or certain inadvertent actions by
stockholders) of 4.99% or more of the outstanding Common Stock
(including any ownership interest held by that person’s
Affiliates and Associates as defined under the Section 382 Tax
Benefits Preservation Plan) could be subject to significant
dilution. Stockholders who beneficially own 4.99% or more of the
outstanding Common Stock prior to the first public announcement
by the Company of the Boards adoption of the Section 382 Tax
Benefits Preservation Plan will not trigger the Section 382 Tax
Benefits Preservation Plan so long as they do not acquire
beneficial ownership of additional shares of the Common Stock
(other than to a dividend or distribution paid or made by the
Company on the outstanding shares of Common Stock or to a split
or subdivision of the outstanding shares of Common Stock) at a
time when they still beneficially own 4.99% or more of such
stock. In addition, the Board retains the sole discretion to
exempt any person or group from the penalties imposed by the
Section 382 Tax Benefits Preservation Plan.
The Rights. The Board authorized the issuance of one
Right per each outstanding share of the Common Stock
distributable to the Companys stockholders of record as of the
close of business on April 14, 2017. One Right will also be
issued together with each share of the Common Stock issued after
April 14, 2017 but before the Distribution Date (as defined
below) and, in certain circumstances, after the Distribution
Date. Subject to the terms, provisions and conditions of the
Section 382 Tax Benefits Preservation Plan, if the Rights become
exercisable, each Right would initially represent the right to
purchase from the Company one one-thousandth of a share (a
Unit) of a newly-designated series of preferred stock,
Series A Junior Participating Preferred Stock, par value $0.001
per share, of the Company (the Series A Preferred Stock)
for a purchase price of $11.00 (the Purchase Price). If
issued, each Unit of Series A Preferred Stock would give the
stockholder approximately the same dividend, voting and
liquidation rights as does one share of the Common Stock.
However, prior to exercise, a Right does not give its holder any
rights as a stockholder of the Company, including, without
limitation, any dividend, voting or liquidation rights.
Acquiring Person. Under the Section 382 Tax Benefits
Preservation Plan, an Acquiring Person is any person who or
which, together with all Affiliates and Associates of such
person, is or becomes the beneficial owner of 4.99% or more of
the shares of Common Stock outstanding other than as a result of
repurchases of stock by the Company, dividends or distributions
by the Company or certain inadvertent actions by stockholders.
Beneficial ownership is determined as provided in the Section 382
Tax Benefits Preservation Plan and generally includes, without
limitation, any ownership of securities a person would be deemed
to actually or constructively own for purposes of Section 382 of
the Code or the Treasury Regulations promulgated thereunder. The
Section 382 Tax Benefits Preservation Plan provides that the
following shall not be deemed an Acquiring Person thereunder: (i)
the Company or any subsidiary of the Company; (ii) any employee
benefit plan or employee stock plan of the Company or any
subsidiary of the Company, or any person organized, appointed,
established or holding shares of Common Stock of the Company for
or to the terms of any such plan; (iii) any person who would
otherwise be an Acquiring Person upon the first public
announcement by the Company of the adoption of the Section 382
Tax Benefits Preservation Plan, unless and until such person, or
any Affiliate or Associate of such person, acquires beneficial
ownership of any additional shares of Common Stock of the Company
after the first public announcement by the Company of the
adoption of the Plan (other than to a stock split, stock dividend
or similar transaction) at a time when such person still
beneficially owns 4.99% or more of the Common Stock; (iv) any
direct public group within the meaning of Treasury Regulations
Section 1.382-2T(j)(2)(ii); (v) any person who as the result of
an acquisition of shares of Common Stock by the Company (or any
subsidiary of the Company, or any person organized, appointed,
established or holding shares of Common Stock of the Company for
or to the terms of any such plan) which, by reducing the number
of shares of Common Stock of the Company outstanding, increases
the proportionate number of shares of Common Stock of the Company
beneficially owned by such person to 4.99% or more of the shares
of Common Stock of the Company then outstanding; (vi) any person
who or which, within ten (10) business days of being requested by
the Company to advise it regarding the same, certifies to the
Company that such person acquired shares of Common Stock in
excess of 4.99% inadvertently or without knowledge of the terms
of the Rights and who or which, together with all Affiliates and
Associates, thereafter within ten (10) business days following
such certification reduces such persons (together with its
Affiliates and Associates) beneficial ownership to less than
4.99% of the shares of Common Stock then outstanding
provided, however, that (x) if the person requested to
so certify fails to do so within ten (10) business days or
breaches or violates such certification, then such person shall
become an Acquiring Person immediately after such ten (10)
business day period or such breach or violation or (y) if the
person together with its Affiliates and Associates fails to
reduce beneficial ownership to less than 4.99% within ten (10)
business days following such certification, then such person
shall become an Acquiring Person immediately after such ten (10)
business day period; and (vii) any person who the Board
determines, in its sole discretion, prior to the time such person
would otherwise be an Acquiring Person, should be permitted to
become the beneficial owner of up to a number of the shares of
Common Stock determined by the Board (the Exempted Number)
and be exempted from being an Acquiring Person, unless and until
such person acquires beneficial ownership of shares of Common
Stock of the Company in excess of the Exempted Number (other than
to a stock split, stock dividend or similar transaction) in which
case such person shall be an Acquiring Person.
A person (other than any direct public group within the meaning
of Treasury Regulations Section 1.382-2T(j)(2)(ii)) will be
treated as the beneficial owner of 4.99% or more shares of the
Common Stock if, in the determination of the Board, that person
would be treated as a 5-percent stockholder for purposes of
Section 382 (substituting 4.99 for 5 each time five or 5 is used
in or for purposes of Section 382).
Initial Exercisability. The Rights will not be
exercisable until the close of business on the earlier to occur
of (i) the tenth (10th) calendar day after the day on which a
public announcement or filing that a person or group of
affiliated or associated persons has become an Acquiring Person,
or (ii) the tenth (10th) calendar day (or such later date as may
be specified by the Board prior to such time as any person
becomes an Acquiring Person) after the commencement of a tender
or exchange offer by or on behalf of a person the consummation of
which would result in such person, together with its Affiliates
and Associates, becoming an Acquiring Person, irrespective of
whether any shares are actually purchased to such offer (the
earlier of these dates is called the Distribution Date).
Until the Distribution Date, the Common Stock certificates or the
ownership statements issued with respect to uncertificated shares
of Common Stock will evidence the Rights. Any transfer of shares
of Common Stock prior to the Distribution Date will also
constitute a transfer of the associated Rights. After the
Distribution Date, separate rights certificates will be issued
and the Rights may not be transferred other than in connection
with the transfer of the underlying shares of Common Stock unless
and until the Board has determined to effect an exchange to the
Section 382 Tax Benefits Preservation Plan (as described below).
Flip-In Event. In the event that a person becomes an
Acquiring Person, each holder of a Right, other than Rights that
are or, under certain circumstances, were beneficially owned by
the Acquiring Person (which will thereupon become void), will
thereafter have the right to receive upon exercise of a Right and
payment of the Purchase Price, and subject to the terms,
provisions and conditions of the Section 382 Tax Benefits
Preservation Plan, a number of shares of the Common Stock having
a market value of two times the Purchase Price.
Redemption. At any time until the close of business on
the tenth (10th) calendar day after the day a public announcement
or a filing is made indicating that a person has become an
Acquiring Person (and prior to the giving of notice of the
exchange or redemption, as applicable to the holders of the
Rights), or thereafter under certain circumstances, the Company
may redeem the Rights in whole, but not in part, at a price of
$0.001 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 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.
Exchange. At any time after a person becomes an
Acquiring Person, the Board may exchange all or part of the
outstanding Rights (other than those held by an Acquiring Person)
for shares of Common Stock at an exchange rate of one share of
Common Stock, or a fractional share of Series A Preferred Stock
(or of a share of a similar class or series of the Companys
preferred stock having similar rights, preferences and
privileges) of equivalent value, per Right (subject to
adjustment).
Expiration. The Rights and the Section 382 Tax Benefits
Preservation Plan will expire upon the earliest of (i) the date
on which all of the Rights are redeemed, (ii) the date on which
the Rights are exchanged, (iii) the consummation of a
reorganization transaction entered into by the Company resulting
in the imposition of stock transfer restrictions that the Board
determines will provide protection for the Companys tax
attributes similar to that provided by the Section 382 Tax
Benefits Preservation Plan, (iv) the close of business on the
effective date of the repeal of Section 382, or any other change,
if the Board determines that the Section 382 Tax Benefits
Preservation Plan, is no longer necessary or desirable for the
preservation of the Companys tax attributes, (v) the date on
which the Board otherwise determines that the Section 382 Tax
Benefits Preservation Plan is no longer necessary to preserve the
Companys tax attributes, (vi) the beginning of a taxable year of
the Company to which the Board determines that none of the
Companys tax attributes may be carried forward, and (vii) the
close of business on April 3, 2020.
Preferred Stock Purchasable Upon Exercise of Rights.
After the Distribution Date, each Right will entitle the holder,
subject to the terms, provisions and conditions of the Section
382 Tax Benefits Preservation Plan, to purchase, for the Purchase
price, one one-thousandth of a share of the Series A Preferred
Stock having economic and other terms similar to that of one
share of Common Stock. This portion of a share of Series A
Preferred Stock is intended to give a stockholder approximately
the same dividend, voting and liquidation rights as would one
share of Common Stock, and should approximate the value of one
share of Common Stock.
Anti-Dilution Provisions. The Board may adjust the
Purchase Price, the number of shares of Series A Preferred Stock
or other securities or assets issuable and the number of
outstanding Rights to prevent dilution that may occur as a result
of certain events, including among others, a stock dividend, a
stock split or a reclassification of the Series A Preferred Stock
or the Common Stock.
Amendments. Until the close of business on the tenth
(10th) calendar day after the day a public announcement or a
filing is made indicating that a person has become an Acquiring
Person, or thereafter under certain circumstances, the Company
may amend the Rights in any manner. The Company may also amend
the Section 382 Tax Benefits Preservation Plan after the close of
business on the tenth (10th) calendar day after the day a public
announcement or filing is made indicating that a person has
become an Acquiring Person, to cure ambiguities, to correct
defective or inconsistent provisions or to otherwise change or
supplement the Tax Benefits Preservation Plan in any manner that
does not adversely affect the interests of holders of the Rights.
Tax Consequences. The issuance of the Rights should not
be taxable to the Company or to stockholders under presently
existing federal income tax law. However, if the Rights become
exercisable or if the Rights are redeemed, stockholders may
recognize taxable income, depending on the circumstances then
existing.
Stockholder Ratification. While the Section 382 Tax
benefits Preservation Plan was effective upon adoption by the
Board, the Company intends to submit the Section 382 Tax Benefits
Preservation Plan for stockholder ratification at its 2017 Annual
Meeting of Stockholders.
| Item 1.02. |
Termination of a Material Definitive Agreement. |
See the description set out under Item 1.01 Entry into a Material
Definitive Agreement, which is incorporated by reference into
this Item 1.02.
| Item 3.03. |
Material Modification to Rights of Security Holders. |
See the description set out under Item 1.01 Entry into a Material
Definitive Agreement, which is incorporated by reference into
this Item 3.03.
| Item 5.03. |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
In connection with the adoption of the Section 382 Tax Benefits
Preservation Plan described in Item 1.01 above, the Board
approved a Certificate of Designation, Preferences, and Rights of
Series A Junior Participating Preferred Stock of SITO Mobile,
Inc. (the Certificate of Designation). The Company intends
to file the Certificate of Designation with the Secretary of
State of the State of Delaware on April 4, 2017. The Certificate
of Designation is attached to this Current Report on Form 8-K as
Exhibit 3.1 and is incorporated herein by reference.
| Item 8.01. | Other Events. |
Also, on April 3, 2017, the Company issued a press release
announcing that its Board has approved and adopted a Section 382
Tax Benefits Preservation Plan, a copy of which is attached to
this Current Report on Form 8-K as Exhibit 99.1 and is
incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit | Description | |
| 3.1 |
Certificate of Designation of Series A Junior Participating Preferred Stock (filed herewith). |
|
| 4.1 |
Section 382 Tax Benefits Preservation Plan, dated as of April 3, 2017, by and between SITO Mobile, Ltd. and Continental Stock Transfer Trust Company, as Rights Agent (filed herewith). |
|
| 99.1 |
Press Release issued by SITO Mobile, Ltd. on April 3, 2017 (filed herewith). |
About SITO MOBILE, LTD. (NASDAQ:SITO)
SITO Mobile, Ltd. operates a mobile location-based advertising platform serving businesses, advertisers and brands. The Company’s offerings include SITO Location-Based Advertising and SITO Mobile Messaging. SITO Location-Based Advertising delivers display advertisements and videos on behalf of advertisers, including various features, such as Geo-fencing, Verified walk-in, Behavioral Targeting, and Analytics and Optimization. Geo-fencing targets customers within a certain radius of location and uses technology to push coupons, advertisements and promotions to mobile applications. Verified Walk-in tracks foot-traffic to locations and which advertisements drive action. Behavioral Targeting tracks past behaviors over 30 to 90 day increments allowing for real-time campaign management. Analytics and Optimization is a culling and building measurement system. SITO Mobile Messaging is a platform for building and controlling programs, including messaging and customer incentive programs. SITO MOBILE, LTD. (NASDAQ:SITO) Recent Trading Information
SITO MOBILE, LTD. (NASDAQ:SITO) closed its last trading session down -0.01 at 2.56 with 154,182 shares trading hands.