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)   November 25 , 2008

 

PRECISION OPTICS CORPORATION, INC.

(Exact name of registrant as specified in its charter)

 

Massachusetts

 

001-10647

 

04-2795294

(State or other jurisdiction

 

(Commission

 

(IRS Employer

of incorporation)

 

File Number)

 

Identification No.)

 

 

 

 

 

22 East Broadway, Gardner, Massachusetts

 

01440

(Address of principal executive offices)

 

(Zip Code)

 

(978) 630-1800

(Registrant’s telephone number, including area code)

 

Not applicable.

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

 

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 ( see General Instruction A.2. below):

 

o    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 1.01                      Entry into a Material Definitive Agreement.

 

On June 25, 2008, we entered into a Purchase Agreement with institutional and other accredited investors pursuant to which we sold 10% Senior Secured Convertible Notes, referred to as the “Notes,” and warrants, referred to as the “Warrants.”  Pursuant to the Purchase Agreement, the Notes and Warrants are not convertible or exercisable until we implement a 1 for 6 reverse stock split, which required the approval of our stockholders.  On November 25, 2008, we entered into a Side Letter Agreement whereby the investors agreed to amend the definition of “Amendment” in the Purchase Agreement in order to change the ratio of the reverse split from 1 for 6 to 1 for 25.

 

The foregoing description of the Side Letter Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the agreement filed as Exhibit 10.1 to this report and incorporated herein by reference.

 

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

 

On November 25, 2008, pursuant to the approval of our stockholders, our Board of Directors authorized an amendment to our Articles of Organization, as amended, to effect a reverse split of the issued and outstanding shares of our common stock, par value $0.01, on a 1 for 25 basis.  We filed the Amendment with the Massachusetts Secretary of State on November 25, 2008 with an effective date of December 11, 2008.  Nasdaq declared the reverse split effective on December 11, 2008 (the “Effective Date”).

 

As a result of the reverse split, on the Effective Date, each holder of common stock received 1 share for each 25 shares they owned immediately prior to the Effective Date. We will not issue fractional shares in connection with the foregoing stock split.  Fractional shares will be rounded up to the nearest whole share.

 

Effective at the opening of business on December 11, 2008, our common stock was traded on the Over-the-Counter Bulletin Board under the new symbol “PEYE.OB.”

 

A copy of the Amendment is attached to this report as Exhibit 3.1 and is incorporated herein by reference.

 

This report contains forward-looking statements that involve risks and uncertainties.  You should not place undue reliance on these forward-looking statements.  Our actual results could differ materially from those anticipated in the forward-looking statements for many reasons, including the risks described in our annual report on Form 10-K and other reports we file with the Securities and Exchange Commission.  Although we believe the expectations reflected in the forward-looking statements are reasonable, they relate only to events as of the date on which the statements are made.  We do not intend to update any of the forward-looking statements after the date of this report to conform these statements to actual results or to changes in our expectations, except as required by law.

 

Item 9.01                      Financial Statements and Exhibits.

 

EXHIBIT
NUMBER

 

DESCRIPTION

3.1

 

Articles of Amendment, dated December 11, 2008 (filed herewith).

 

 

 

10.1

 

Side Letter Agreement between the Company and the investor signatory to the Purchase Agreement, dated June 25, 2008, dated November 25, 2008 (filed herewith).

 

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SIGNATURE

 

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.

 

 

 

Precision Optics Corporation, Inc.

 

 

(Registrant)

 

 

 

Date

December 11, 2008

 

 

 

 

 

 

 

/s/ Richard E. Forkey

 

 

(Signature)

 

 

 

 

 

 

Name:

Richard E. Forkey

 

 

 

Title:

President and Chief

 

 

 

Executive Officer

 

3


EXHIBIT 3.1

 

The Commonwealth of Massachusetts

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512

 

Articles of Amendment

(General Laws Chapter 156D, Section 10.06; 950 CMR 113.34)

 

(1)

 

Exact name of corporation : Precision Optics Corporation, Inc.

 

 

 

(2)

 

Registered office address : 22 East Broadway, Gardner, MA 01440

 

 

( number, street, city or town, state, zip code )

 

 

 

(3)

 

These articles of amendment affect article(s) : IV

 

 

( specify the number(s) of article(s) being amended (I-VI) )

 

 

 

(4)

 

Date adopted : November 25, 2008

 

 

( month, day, year )

 

 

 

(5)

 

Approved by :

 

 

 

 

 

( check appropriate box )

 

 

 

 

 

o   the incorporators.

 

 

o   the board of directors without shareholder approval and shareholder approval was not required.

 

 

x   the board of directors and the shareholders in the manner required by law and the articles of organization.

 

 

 

(6)

 

State the article number and the text of the amendment.  Unless contained in the text of the amendment, state the provisions for

implementing the exchange, reclassification or cancellation of issued shares.

 

Article IV of the Corporation’s Articles of Organization, as amended, is amended hereby by inserting the following:

 

On December 11, 2008 (the “Effective Time”), each twenty-five (25) issued and outstanding shares of authorized Common Stock of the Corporation, $0.01 par value per share, shall be reclassified and combined into one (1) share of Common Stock.  There shall be no fractional shares issued.  Each resulting fractional share shall be rounded up to the nearest whole share.  The total number of authorized shares of Common Stock immediately after the Effective Time continue to be 50,000,000.

 



 

To change the number of shares and the par value, *if any, of any type, or to designate a class or series of stock, or change a designation of class or series of stock, which the corporation is authorized to issue, complete the following:

 

Total authorized prior to amendment:

 

WITHOUT PAR VALUE

 

WITH PAR VALUE

TYPE

 

NUMBER OF SHARES

 

TYPE

 

NUMBER OF SHARES

 

PAR VALUE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total authorized after amendment:

 

WITHOUT PAR VALUE

 

WITH PAR VALUE

TYPE

 

NUMBER OF SHARES

 

TYPE

 

NUMBER OF SHARES

 

PAR VALUE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(7)  The amendment shall be effective at the time and on the date approved by the Division, unless a later effective date not more than 90 days from the date and time of filing is specified: December 11, 2008

 


*G.L. Chapter 156D eliminates the concept of par value, however a corporation may specify par value in Article III.  See G.L. Chapter 156D, Section 6.21, and the comments relative thereto.

 

2



 

Signed by:

/s/ Richard E. Forkey

 

( Signature of authorized individual )

 

x

 

Chairman of the board of directors

 

 

x

 

President

 

 

o

 

Other officer

 

 

o

 

Court-appointed fiduciary

 

 

 

On this 25th day of November , 2008

 

3



 

THE COMMONWEALTH OF MASSACHUSETTS

 

I hereby certify that, upon examination of this document, duly submitted to me, it appears that the provisions of the General Laws relative to corporations have been complied with, and I hereby approve said articles; and the filing fee having been paid, said articles are deemed to have been filed with me on: November 25, 2008 3:00 PM

 

 

 

/s/ William Francis Galvin

 

 

WILLIAM FRANCIS GALVIN

 

Secretary of the Commonwealth

 

4


EXHIBIT 10.1

 

GRAPHIC

 

November 25, 2008

 

[Investor name]

[Investor address]

 

Subject:                                                      Side Letter Agreement to the Purchase Agreement between Precision Optics Corporation, Inc. and the investors signatory thereto, dated June 25, 2008.

 

Dear investor:

 

This Side Letter Agreement entered into on November 26, 2008, by and between Precision Optics Corporation, Inc. and the investors signatory to the Purchase Agreement, dated June 25, 2008 (the “Purchase Agreement”), will serve to modify Section 1of the Purchase Agreement. Capitalized terms used herein which are not otherwise defined shall have the same meaning as those given to them in the Purchase Agreement.

 

The definition of “ Amendment ” included in Section 1 of the Purchase Agreement is hereby modified as follows:

 

Amendment ” means an amendment to the Company’s Articles of Organization implementing a one-for-twenty-five reverse split of the Company’s Common Stock and maintaining the number of authorized shares of Common Stock at 50,000,000.

 

No other terms, rights or provisions of the Purchase Agreement are or should be considered to have been modified by the terms of this Side Letter Agreement and each party retains all other rights, obligations, privileges and duties contained in the Agreement.

 

Agreed and Accepted on November 25, 2008:

 

Very truly yours,

 

Precision Optics Corporation, Inc.

 

Name: Richard E. Forkey

 

/s/ Richard E. Forkey

 

Name: Richard E. Forkey

Title: President and Chief Executive

Officer

 

November 25, 2008

 

Date

 



 

 

Agreed to and Accepted by:

 

Special Situations Fund III QP, L.P.

 

/s/ Austin W. Marxe

 

Name:  Austin W. Marxe

Title: General Partner

 

 

 

Date

 

Special Situations Private Equity Fund, L.P.

 

/s/ Austin W. Marxe

 

Name:  Austin W. Marxe

Title: General Partner

 

 

 

Date

 

/s/ Arnold Schumsky

 

Name:  Arnold Schumsky

 

November 25, 2008

 

Date

 

2