Unassociated Document
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): June 30, 2010
BACTERIN INTERNATIONAL
HOLDINGS, INC.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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333-158426
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20-5313323
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer)
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of
incorporation)
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Identification
No.)
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600
Cruiser Lane
Belgrade,
Montana
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59714
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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: (406) 388-0480
K-Kitz,
Incorporated
1630
Integrity Drive East, Columbus, Ohio
43209
(Former
Name or Former Address, if Changed Since Last Report)
Copies
to:
Greenberg
Traurig, LLP
The Tabor
Center
1200
Seventeenth Street, Suite 2600
Denver,
Colorado 80123
Tel.:
(303) 572-6586
Fax:
(303) 572-6540
Attn: C.
Ben Huber, Esq.
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:
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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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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Pre-commencement
communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR
240.13e-4(c))
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CURRENT
REPORT ON FORM 8-K
BACTERIN
INTERNATIONAL HOLDINGS, INC.
June
30, 2010
Items
1.01, 5.01, 5.02, and 5.03. Entry into a Material Definitive
Agreement / Changes in Control of Registrant / Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers / Amendments to Articles of Incorporation or
Bylaws;
Summary
On June
30, 2010, we completed a reverse merger transaction (the “Reverse Merger”), in
which we caused Bacterin International, Inc., a Nevada corporation (“Bacterin”
or the “Company”), to be merged with and into KB Merger Sub, Inc., a Nevada
corporation and our newly-created, wholly-owned subsidiary (“Merger
Sub”). The reverse merger was consummated under Nevada corporate law
and pursuant to an Agreement and Plan of Merger, dated as of June 30, 2010 (the
“Merger Agreement”), as discussed below. Concurrently with the
closing of the Reverse Merger, we also completed a private placement of common
stock and warrants to purchase common stock to accredited investors, and
received gross proceeds of approximately $7,508,000 at the closing of the
private placement.
As a
result of the Reverse Merger, we are now engaged, through Bacterin, in the
business of biomaterials research, development, and
commercialization. Bacterin is expanding its intellectual property
base and has successfully leveraged its technical expertise and knowledge of
biofilms into multiple product areas. Bacterin is well positioned for future
growth through established partnerships with major medical device manufacturers
and provider networks, as well as through its own in-house sales force and its
ongoing Bacterin product development of innovative tissue constructs and
bioactive coated devices. Revenues for Bacterin come from product
manufacturing, sales, distribution, licensing agreements and
grants.
Before
the Reverse Merger, our corporate name was K-Kitz, Inc., and our trading symbol
was KKTZ.OB. On June 29, 2010, the Company changed its corporate name
to “Bacterin International Holdings, Inc.” which name change will become
effective for trading purposes on July 1, 2010. The Company intends
to request a trading symbol change to correspond with its name change at the
appropriate time and in accordance with current FINRA regulations that went into
effect June 1, 2010. Accordingly, the trading symbol for the Company will remain
KKTZ.OB until such time as the Company moves to another market or otherwise can
effect a trading symbol change through FINRA. As a result of the Reverse
Merger, consummated pursuant to the Merger Agreement, Bacterin became our
wholly-owned subsidiary, with the former shareholders of Bacterin acquiring
28,237,543 shares of our common stock, representing approximately 96% of our
outstanding common stock prior to taking into account the issuance of any shares
pursuant to the private placement.
Concurrently
with the closing of the Reverse Merger, we completed an initial closing of a
private placement to selected qualified investors of shares of our common stock
at a purchase price of $1.60 per share and detachable warrants to purchase
one-quarter share of our common stock (at an exercise price of $2.50 per
share). In total, we sold 4,934,534 shares of our common stock and
warrants to purchase 1,233,634 shares of common stock as part of this initial
closing, and may sell up to an additional 6,268,472 shares of our common stock
and warrants to purchase 1,567,118 shares of common stock to investors that
participated in the initial closing, management and certain note holders until
July 30, 2010, when the offering period expires. We received gross
proceeds of $7,508,329 in consideration for the sale of the shares of common
stock and warrants, which consisted of (i) $4,026,000 from investors in the
private placement and (ii) $3,482,329 from note holders in an earlier Bacterin
bridge financing who converted into the private placement at a discount to the
purchase price and received warrants with a discounted exercise price, as
described below.
In order
to fund Bacterin’s working capital and capital expenditures during the months
prior to the Reverse Merger and during the offering period, Bacterin and certain
placement agents conducted two bridge financings of approximately $5,250,000 in
aggregate principal amount of convertible notes and warrants, of which
$3,400,000 plus $82,329 in interest accrued thereon was converted into the
private placement (at a discount to the per share purchase
price).
Concurrently
with the closing of the Reverse Merger and the private placement, we repurchased
4,319,404 shares of our common stock from one of our shareholders for aggregate
consideration of $100, as well as certain other good and valuable consideration,
and immediately thereafter cancelled those shares.
We are
filing this current report on Form 8-K for the purpose of providing summary
information regarding the Reverse Merger and the private
placement. We expect to file a more complete Form 8-K setting forth
the information required by Items 1.01, 2.01, 3.02, 4.01, 5.01, 5.02, 5.03, 5.06
and 9.01 of that form within the time periods permitted.
The
Reverse Merger
General
At the
closing of the Reverse Merger, the former shareholders of Bacterin received
shares of our common stock for all of the outstanding shares of common stock of
Bacterin held by them. As a result, at the closing of the Reverse
Merger, we issued an aggregate of 28,237,543 shares of our common stock to the
former shareholders of Bacterin. The shares issued to Bacterin’s
former shareholders represent approximately 96% of our outstanding shares of
common stock, exclusive of 4,934,534 shares of common stock issued in the
initial closing of the private placement, or approximately 82% of our
outstanding shares of common stock, inclusive of such shares issued in the
initial closing of the private placement. The consideration issued in
the Reverse Merger was determined as a result of arm’s-length negotiations
between us and Bacterin.
Immediately
prior to the closing of the Reverse Merger, the former shareholders of Bacterin
and the note holders who participated in an earlier bridge financing conducted
by Bacterin also held outstanding stock options and warrants to purchase shares
of common stock of Bacterin. Pursuant to the Merger Agreement, we
have agreed to issue shares of our common stock upon the exercise of these stock
options and warrants in lieu of shares of Bacterin’s common stock previously
issuable thereunder, and, based upon the ratio used to determine the number of
shares issuable to Bacterin stockholders in connection with the Reverse Merger,
we are obligated upon the exercise of those stock options and warrants to issue
4,213,196 shares and 4,879,075 shares of our common stock,
respectively.
To the
extent any of Bacterin’s former stockholders elect to exercise any dissenters
rights in connection with the Reverse Merger, we will be obligated to purchase
any such dissenter’s shares of Bacterin common stock for “fair value” as
determined immediately prior to the Reverse Merger, all in accordance with
Nevada law. In addition, we will also be obligated to issue
additional shares of our common stock to the non-dissenting Bacterin
stockholders such that the non-dissenting stockholders would have held
approximately 96% of our outstanding shares of common stock immediately upon
consummation of the Reverse Merger, exclusive of any shares of our common stock
issued in the private placement. Certain of Bacterin’s former
stockholders, who held approximately 743,940 shares of Bacterin common stock in
the aggregate, provided proper notice to perfect their ability to exercise
dissenters rights (or 371,970 shares of our common stock that they will receive
in the Reverse Merger if they ultimately elect not to exercise such
rights).
Changes
Resulting from the Reverse Merger
We intend
to carry on Bacterin’s biomaterials business as our sole line of business. We
have relocated our executive offices to those of Bacterin at 600 Cruiser Lane,
Belgrade, Montana 59714. Our new telephone number is (406) 388-0480,
fax number is (406) 388-1354, and corporate website is www.bacterin.com. The
contents of our website are not part of this current report.
Our
pre-Reverse Merger stockholders will not be required to exchange their existing
K-Kitz, Inc., stock certificates for new certificates of Bacterin Holdings
International, Inc. since the OTC Bulletin Board will consider our existing
stock certificates as constituting “good delivery” in securities transactions
subsequent to the Reverse Merger. The Nasdaq Capital Market, where we intend to
apply to list our common stock for trading as soon as reasonably practicable,
will also consider the submission of existing stock certificates as “good
delivery.” We cannot be certain that we will receive approval to list our common
stock on the Nasdaq Capital Market.
Change
of Board Composition and Executive Officers
Prior to
the closing of the Reverse Merger and private placement, our board of directors
was composed only of Jennifer Jarvis and Michael Funtjar. On June 30, 2010,
concurrently with such transactions, Ms. Jarvis and Mr. Funtjar expanded the
size of the board of directors to five members, and appointed Guy S. Cook,
Mitchell Godfrey, and Kent Swanson to fill the vacancies created
thereby. The new directors then accepted the resignations of Ms.
Jarvis and Mr. Funtjar and appointed Ken Calligar and Daniel Frank to fill the
two vacancies created by their resignations. Upon their appointment,
the new directors further expanded the size of the board of directors to six
members, and appointed Gary Simon to fill the vacancy created
thereby.
Mr. Cook,
Mr. Godfrey and Mr. Swanson are all former Bacterin directors. Mr.
Swanson, Mr. Calligar, Mr. Frank and Mr. Simon are independent of management.
All directors will hold office until the next annual meeting of stockholders and
the election and qualification of their successors.
Prior to
the closing of the Reverse Merger and private placement, Ms. Jarvis was our
President, Chief Executive Officer, and Chief Financial Officer and Mr. Funtjar
was our Secretary and Chief Operating Officer. Ms. Jarvis and Mr.
Funtjar resigned from all of those offices effective on June 30,
2010.
On June
30, 2010, our board of directors named the following persons as our new
executive officers: Guy S. Cook - Chairman of the Board, Chief Executive Officer
and President; Mitchell Godfrey - Secretary and Treasurer; and John P. Gandolfo
- Interim Chief Financial Officer. These individuals held those same
positions with Bacterin, our wholly-owned subsidiary through which we conduct
our business, prior to the Reverse Merger and will continue to carry on in the
same capacities with Bacterin as will Darrell Holmes - Executive Vice President
of Medical Devices and Jesus Hernandez - Executive Vice President of
Sales. Officers are elected annually by our board of directors and
serve at the discretion of our board.
We have
assumed all of such officers’ current employment agreements (including
intellectual property ownership provisions and restrictive covenants relating to
confidential information) and they have agreed to such assumption.
Change
of Stockholder Control
Except as
described above under “Change of Board Composition and Executive Officers,” no
arrangements or understandings exist among our present or former controlling
stockholders with respect to the election of persons to our board of directors
and, to our knowledge, no other arrangements exist that might result in a change
of control of our company. Further, as a result of our repurchase of shares from
an existing stockholder and the issuance of 28,237,543 shares of common stock to
the former stockholders of Bacterin, a change of stockholder control has
occurred. Prior to the repurchase and the closing of the Reverse Merger,
Jennifer Jarvis beneficially owned 82% of our outstanding shares of common
stock. After these transactions, the former shareholders of Bacterin own
approximately 96% of our outstanding shares of common stock, exclusive of shares
of common stock acquired in the private placement through purchase or conversion
or approximately 82% of our outstanding shares of common stock, inclusive of
such shares of common stock acquired in the private placement through purchase
or conversion. We are continuing as a “smaller reporting company,” as defined
under the Securities Exchange Act of 1934, following the exchange
transaction.
Accounting
Treatment
In
accordance with Statement of Financial Accounting Standards No. 141, “Business
Combinations,” and the assumptions and adjustments described in the accompanying
notes to the unaudited pro forma combined condensed financial statements,
Bacterin is considered the accounting acquiror in the Reverse Merger. Because
Bacterin’s former shareholders as a group retained or received the larger
portion of the voting rights in the combined entity and Bacterin’s senior
management represents all of the senior management of the combined entity,
Bacterin was considered the acquiror for accounting purposes and will account
for the exchange transaction as a reverse acquisition. The acquisition will be
accounted for as the recapitalization of Bacterin since, at the time of the
acquisition, we were a company with minimal assets and liabilities.
Consequently, the assets and liabilities and the historical operations that will
be reflected in the consolidated financial statements will be those of Bacterin
and will be recorded at the historical cost basis of Bacterin.
Amendments
to Articles of Incorporation and Bylaws
In connection with
the Reverse Merger, our board of directors and stockholders have approved and we
filed on June 29, 2010, an amendment to our certificate of incorporation with
the Secretary of State of the State of Delaware to change our name to Bacterin
International Holdings, Inc.
Prior to
the Reverse Merger, we amended our by-laws to permit us to set the size of our
board of directors from between one and nine directors.
Bacterin
International Equity Incentive Plan
We
recently adopted the Bacterin International Equity Incentive Plan, which became
effective just prior to the Reverse Merger, under which 6,000,000 shares of our
common stock are reserved for issuance as equity awards. The purpose
of this plan is two fold. First, in connection with the Reverse
Merger, we are substituting each equity award granted under the Bacterin
International, Inc. 2004 Stock Incentive Plan, as most recently amended
effective April 1, 2009, with a substantially similar equity award granted under
our new plan (subject to proportionate adjustments to reflect the ratios used in
consummating the Reverse Merger). Accordingly, of the 6,000,000
shares of our common stock that are reserved for issuance as awards under this
plan, 4,213,196 have been or will be issued as substitute awards, leaving an
additional 1,786,804 shares for issuance thereunder, representing approximately
13.3%,9.3% and 4%, respectively, of the fully-diluted shares of our common stock
immediately following the Reverse Merger and the private
placement. Second, the shares of stock remaining available for
issuance under this plan will be used for attracting and retaining employees,
management, directors and outside consultants, who will be granted awards at
fair market value from time to time under the guidance and approval of our
compensation committee or such other group as is vested by our board with the
power to administer the plan, and in accordance with the terms of such equity
incentive plan.
The
Private Placement
Concurrently
with the closing of the Reverse Merger, we completed the sale of 4,934,534
shares of our common stock and warrants to purchase an additional 1,233,634
shares of our common stock in a private placement to accredited investors in
reliance upon the exemption from registration provided by Section 4(2) of the
Securities Act of 1933 and Regulation D promulgated thereunder. We
sold each share and warrant for an aggregate price of $1.60 per share pursuant
to the terms of a subscription agreement executed and delivered by each investor
on or before the closing of the private placement. Each warrant
entitles the holder to purchase one-quarter share of our common stock at an
exercise price of $2.50 per share for a period of five years from the date of
the closing on their subscription. The form of private placement
subscription agreement is filed as Exhibit 10.1 to this
report. Certain Bacterin note holders also participated in the
private placement by converting certain debt into shares of our common stock and
warrants; however, the conversion of their debt was effected at a 10% discount
to the price per share at which investors purchased securities in such private
placement, being $1.44 per share, and the exercise price of the warrants they
received also carried a 10% discount to the exercise price of the warrants
received by new investors in such private placement, being $2.25 per
share.
We
received gross proceeds from the private placement of $7,508,329 from both
purchases of our common stock and warrants and conversions by existing
convertible note holders into such securities. Placement agents
received an aggregate of $322,080 in cash fees in connection with the private
placement (including the prior bridge financings) and reimbursements of their
out-of-pocket expenses. In addition, the placement agents received
67,686 shares of our common stock and warrants to purchase 251,625 shares of our
common stock at an exercise price of $1.60 per share.
After the
closing of the Reverse Merger and the private placement, we had outstanding
34,420,359 shares of common stock. In addition, we are obligated to
issue 4,213,196 shares of common stock upon the exercise of stock options held
by former holders of Bacterin options, 4,879,075 shares of common stock upon the
exercise of warrants held by former holders of Bacterin warrants, and 1,485,259
shares of common stock upon the exercise of warrants received by investors,
including converting note holders, and placement agents in our private
placement.
Following
the initial closing, the private placement will remain open until July 30, 2010,
subject to the earlier termination at the election of us and the placement
agent. During this time period, we may close on additional
subscriptions and bridge note conversions under the private placement; provided,
however, that the only persons who may participate in the private placement
pursuant to any subsequent closings after the initial closing are (i) investors
or note holders who participate in the initial closing, (ii) members of our
management, and (iii) holders of our convertible bridge notes, regardless if
they participated in the initial closing, so long as the amount raised in the
private placement then meets the conditions for it to constitute a “Qualified
Offering” under the terms of such notes.
Lock-Up
Agreements
All
shares of common stock issued in the Reverse Merger to the former holders of
shares in Bacterin will be considered “restricted securities” under U.S. federal
securities laws and may not be resold for a period of one year after the closing
date. Each of the former Bacterin shareholders who served as
directors or executive officers of Bacterin as of the closing of the Reverse
Merger or who have joined as members of our Board of Directors of concurrently
with the consummation of the Reverse Merger (collectively, “Management”), have
executed one-year a lock-up agreement with us which provide that their shares,
including any shares that are now owned or are subsequently acquired by them,
will not be, directly or indirectly, publicly sold, subject to a contract for
sale or otherwise transferred for a period of 12 months following the Reverse
Merger and the private placement; provided, however, that (a) the restrictions
set forth in such lock-up agreement will not to any securities acquired by
Management in the private placement and (b) Guy Cook is permitted to
hypothecate, pledge and grant a security interest in up to 5,000,000 of his
existing shares received from us in connection with the Reverse Merger as
collateral for borrowed funds used to acquire securities in the private
placement and, if such collateral is executed against, shall be permitted to
assign and transfer such shares to the secured party free of any restrictions
set forth therein.
Registration
Rights
We have
agreed to use our best efforts to file a shelf registration statement on Form
S-1 with the U.S. Securities and Exchange Commission (SEC) covering the resale
of all shares of common stock and all shares of common stock underlying the
warrants issued in connection with the private placement (as well as up to
1,177,196 shares of our common stock held by certain of our shareholders at the
time of the closing of the Reverse Merger and the shares underlying the
placement agents’ warrants) on or before the date which is 90 days after the
closing date and use our best efforts to have such shelf registration statement
declared effective by the SEC as soon as practicable thereafter, but in any
event not later than 150 days after the closing date (or 180 days after the
closing date in the event of a full review of the registration statement by the
SEC). We are also obligated to respond to any SEC comments within a
stipulated period of time after receiving any such comments and to maintain the
effectiveness of the shelf registration statement from the effective date
through the earlier of (a) the date on which all the investors in the private
placement have completed the sales or distribution described in the registration
statement relating thereto or, if earlier, until all securities covered by the
registration rights agreement may be sold by the investors in the private
placement under Rule 144(b)(1), and (b) the date that is 18 months following the
private placement closing date. In the event the shelf registration
statement is not filed with, or declared effective by, the SEC on or prior to
the dates set forth above, or we fail to timely satisfy our reporting
requirements, each investor in the private placement will receive cash
liquidated damages equal to 1% of the purchase price for the shares of common
stock and warrants acquired in the private placement for each month (or portion
thereof) that the registration statement is not so filed or effective, or has
failed to timely file required reports, provided that the aggregate payment as a
result of the registration default will in no event exceed 12% of the purchase
price for the shares of common stock and warrants.
Item 7.01. Regulation FD
Disclosure.
A copy of the press release announcing
the matters described in Items 1.01, 5.01, 5.02 and 5.03 above is attached as
Exhibit 99.1 and incorporated herein. The information in this Item
7.01 and the document attached as Exhibit 99.1 are being furnished and shall not
be deemed “filed” for purposes of Section 18 of the Securities and Exchange Act
of 1934, as amended (the “Exchange Act”), nor incorporated by reference in any
filing under the Securities Act of 1933, as amended, or the Exchange Act, except
as shall be expressly set forth by specific reference in such a
filing.
(d) Exhibits.
The
exhibits listed in the following Exhibit Index are filed as part of this current
report.
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Description
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2.1
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Agreement
and Plan of Merger, dated as of June 30, 2010, by and among K-Kitz, Inc.,
KB Merger Sub, Inc. and Bacterin International, Inc.
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3.1
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Certificate
of Incorporation, including all amendments to date
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4.1
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Form
of Warrant to Purchase Common Stock
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10.1
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Form
of Private Placement Subscription Agreement to purchase Shares and
Warrants.
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99.1
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Press
Release
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________________
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.
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Date:
June 30, 2010
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BACTERIN
INTERNATIONAL HOLDINGS, INC.
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By:
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/s/
Guy S. Cook
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Guy
S. Cook
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President
and Chief Executive
Officer
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