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| DYNA > SEC Filings for DYNA > Form 8-K/A on 27-Jan-2012 | All Recent SEC Filings |
27-Jan-2012
Entry into a Material Definitive Agreement, Completion of Acquisition o
On January 17, 2012, Pubco entered into an Agreement and Plan of Merger and Reorganization with Acquisition Corp. and Dynastar which we refer to in this Current Report as the "Merger Agreement", and completed the Merger. For a description of the Merger and the material agreements entered into in connection with the Merger, please see the disclosures set forth in Item 2.01 to this Current Report, which disclosures are incorporated into this item by reference.
THE MERGER AND RELATED TRANSACTIONS
The Merger
On January 17, 2012, which we refer to as the "Closing Date", Pubco, Dynastar, and Acquisition Corp. entered into the Merger Agreement and completed the Merger. As a result of the Merger, we acquired the business of Dynastar and will continue the existing business operations of Dynastar as our wholly owned subsidiary. A copy of the Merger Agreement is attached as Exhibit 2.1 to this Current Report and is incorporated herein by reference.
On October 6, 2011, Dynastar purchased an aggregate of 271,400,076 (6,742,859 pre-split) shares of Pubco's restricted common stock from the previous owner for a cash consideration of $100,000. The 271,400,076 shares purchased by Dynastar represented approximately 94.4% of Pubco's issued and outstanding common stock as of the purchase date. Dynastar surrendered those shares to Pubco for cancellation concurrent with the closing of the Merger. Prior to the Merger, no material relationship existed between Acquisition Corp. and Dynastar.
Pursuant to the Merger Agreement, on the Closing Date, Acquisition Corp., a wholly owned subsidiary of Dynastar Holdings, merged with and into Dynastar, with Dynastar remaining as the surviving entity. As a result of the Merger, each share of Dynastar common stock outstanding was cancelled and converted into the right to receive one (1) share of our common stock.
Prior to the closing of the Merger, holders of the Series A Convertible Preferred Stock of Dynastar (the "Dynastar Preferred Stock") agreed (i) that their shares of Dynastar Preferred Stock would automatically convert into shares of Dynastar common stock immediately prior to, and conditional upon, the closing of the Merger at the anti-dilution adjusted conversion price of $0.20 per share, rather than at the original conversion price of $0.33 per share, and (ii) to waive certain rights they may have had under the terms of the Dynastar Preferred Stock.
Prior to the closing of the Merger, holders of the Dynastar 10% Secured Convertible Promissory Notes (the "Bridge Notes") agreed (i) that their Bridge Notes would automatically convert into shares of our common stock upon the closing of the Merger at the anti-dilution adjusted conversion price of $0.20 per share, rather than at the original conversion price of $0.40 per share, (ii) that the Dynastar Warrants (defined below) would automatically convert upon the closing of the Merger into our warrants (on terms discussed below) and (iii) to waive certain rights they may have had under the terms of the Dynastar Warrants
As of the closing of the Merger, there were no outstanding or authorized options, warrants, rights, agreements or commitments to which Dynastar is a party or which are binding upon Dynastar providing for the issuance or redemption of any of its capital stock.
The Merger Agreement contains customary representations, warranties and covenants of Dynastar Holdings, Dynastar, and, as applicable, Acquisition Corp., for like transactions. Breaches of representations and warranties are secured by indemnification provisions. The Merger Agreement provides for a post-closing adjustment in an aggregate amount of up to 500,000 additional shares of our common stock issuable pro rata to Dynastar's pre-Merger stockholders for any breach of the Merger Agreement by us that is discovered during the two-year period following the closing of the Merger. The Merger Agreement also provides that 5% of the shares of our common stock that Dynastar's pre-Merger stockholders receive in the Merger in exchange for their shares of Dynastar are to be held in escrow for any breach of the Merger Agreement by Dynastar that is discovered during the two years following the Merger pursuant to the terms of an Escrow Agreement dated as of January 17, 2012, among the Company, John S. Henderson IV, as indemnification representative, and Gottbetter & Partners, LLP, as Escrow Agent.
For financial reporting purposes, the Merger represents a capital transaction of Dynastar or a "reverse merger" rather than a business combination, because the sellers of Dynastar controlled the combined company immediately following the completion of the Merger. As such, Dynastar is deemed to be the accounting acquirer in the transaction and, consequently, the transaction is being treated as a recapitalization of Dynastar. Accordingly, the assets and liabilities and the historical operations that will be reflected in Dynastar Holdings' ongoing financial statements will be those of Dynastar and will be recorded at the . . .
The disclosure set forth in Item 2.01 to this Current Report under the section "Recent Sales of Unregistered Securities" is incorporated into this item by reference.
As a result of the closing of the Merger, we experienced a change in control, with the former stockholders of Dynastar acquiring control of us. The disclosure set forth in Item 2.01 to this Current Report is incorporated into this item by reference.
The disclosure set forth in Item 2.01 to this Current Report is incorporated into this item by reference.
The disclosure set forth in Item 2.01 to this Current Report is incorporated into this item by reference. As a result of the completion of the Merger, we believe that we are no longer a shell company as defined in Rule 405 of the Securities Act and Rule 12b-2 of the Exchange Act.
(a) Financial Statements of Business Acquired
Financial Statements:(i) audited financial statements and notes thereto of Dynastar and Subsidiary for the period ended May 4, 2010 (inception) through December 31, 2010, (ii) unaudited condensed consolidated financial statements and notes thereto of Dynastar and Subsidiary for the nine months ended September 30, 2011 and for the period from May 4, 2010 (inception) through September 30, 2010, (ii) audited financial statements and notes thereto of My Affordable Energy for the years ended December 31, 2010 and 2009, are included with this Current Report beginning on Page F-1.
(b) Pro forma financial information
Unaudited pro-forma consolidated financial statements are included with this Current Report beginning on Page F-55.
(d) Exhibits
In reviewing the agreements included or incorporated by reference as exhibits to this Current Report on Form 8-K, please remember that they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure about the Company or the other parties to the agreements. The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the parties to the applicable agreement and:
• should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;
• have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;
• may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and
• were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about us may be found elsewhere in this Current Report on Form 8-K and in our other public filings, which are available without charge through the SEC's website at http://www.sec.gov.
DESCRIPTION OF EXHIBITS
See the Exhibit Index below and the corresponding exhibits, which are
incorporated by reference herein.
Exhibit No. Description
2.1 Agreement and Plan of Merger and Reorganization dated as of January
17, 2012 by and among Registrant, Dynastar Acquisition Corp., and
Dynastar Ventures Inc., (a Delaware corporation) (incorporated by
reference to Exhibit 2.1 to Current Report on Form 8-K filed with
the Securities and Exchange Commission (the "SEC") on January 23,
2012)
2.2 Certificate of Merger dated as of January 17, 2012 for the merger
of Dynastar Acquisition Corp. into Dynastar Ventures Inc. (a
Delaware corporation) (incorporated by reference to Exhibit 2.2 to
Current Report on Form 8-K filed with SEC on January 23, 2012)
3.1 Articles of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement
on Form SB-2 filed with the SEC on July 16, 2007)
3.2 Certificate of Amendment to Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to Current
Report on Form 8-K filed with the SEC on October 14, 2011)
3.4 By-Laws of the Registrant (incorporated by reference to Exhibit 3.2
to the Registrant's Registration Statement on Form SB-2 filed with
the SEC on July 16, 2007)
4.1 Form of Investor Warrant (incorporated by reference to Exhibit 4.1
to Current Report on Form 8-K filed with SEC on January 23, 2012)
4.2 Form of Bridge Note Exchange Warrant
4.3 Form of Broker Warrant (incorporated by reference to Exhibit 4.3 to
Current Report on Form 8-K filed with SEC on January 23, 2012)
4.4 Form of Navesink Warrant (incorporated by reference to Exhibit 4.4
to Current Report on Form 8-K filed with SEC on January 23, 2012)
10.1 Form of Subscription Agreement between the Registrant and the
investors in the Unit Private Placement Offering (incorporated by
reference to Exhibit 10.1 to Current Report on Form 8-K filed with
SEC on January 23, 2012)
10.2 Subscription Escrow Agreement dated December 15, 2011, by and among
the Registrant, Gottbetter Capital Markets, LLC, and CSC Trust
Company of Delaware (incorporated by reference to Exhibit 10.2 to
Current Report on Form 8-K filed with SEC on January 23, 2012)
10.3 Placement Agency Agreement dated as of October 27, 2011 by and
between the Placement Agent and the Registrant (incorporated by
reference to Exhibit 10.3 to Current Report on Form 8-K filed with
SEC on January 23, 2012)
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10.4 Form of Registration Rights Agreement by and between the Registrant
and the investors in the Private Placement Offering (incorporated
by reference to Exhibit 10.4 to Current Report on Form 8-K filed
with SEC on January 23, 2012)
10.5 Escrow Agreement dated January 17, 2012 among the Registrant, John
S. Henderson IV, as indemnification representative, and Gottbetter
& Partners, LLP, as escrow agent (incorporated by reference to
Exhibit 10.5 to Current Report on Form 8-K filed with SEC on
January 23, 2012)
10.6 Share Cancellation Agreement dated as of January 17, 2012 by and
between the Registrant and Dynastar Ventures Inc. (incorporated by
reference to Exhibit 10.6 to Current Report on Form 8-K filed with
SEC on January 23, 2012)
10.7 Navesink Consulting Agreement dated as of January 17, 2002 by and
between the Registrant and Navesink Capital Advisors, LLC
(incorporated by reference to Exhibit 10.7 to Current Report on
Form 8-K filed with SEC on January 23, 2012)
10.8 Undiscovered Equities Consulting Agreement dated as of December 20,
2011 by and between Dynastar Ventures, Inc. and Undiscovered
Equities, Inc. (incorporated by reference to Exhibit 10.8 to
Current Report on Form 8-K filed with SEC on January 23, 2012)
10.9 Executive Employment Agreement for John Henderson (incorporated by
reference to Exhibit 10.9 to Current Report on Form 8-K filed with
SEC on January 23, 2012)
10.10 Executive Employment Agreement for Robert Mohr (incorporated by
reference to Exhibit 10.10 to Current Report on Form 8-K filed with
SEC on January 23, 2012)
10.11 Registrant's 2011 Equity Incentive Plan (incorporated by reference
to Exhibit 10.11 to Current Report on Form 8-K filed with SEC on
January 23, 2012)
10.12 Form of Plan Agreement (incorporated by reference to Exhibit 10.12
to Current Report on Form 8-K filed with SEC on January 23, 2012)
10.13 Form of Lock-Up Agreement (incorporated by reference to Exhibit
10.13 to Current Report on Form 8-K filed with SEC on January 23,
2012)
14.1 Code of Ethics (incorporated by reference to Exhibit 14.1 to
Current Report on Form 8-K filed with SEC on January 23, 2012)
21.1 Subsidiaries of Registrant
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