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 earliest event reported: March 31, 2021
TSR, Inc.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-38838 | 13-2635899 | ||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
400 Oser Avenue, Suite 150, Hauppauge, NY 11788
(Address of Principal Executive Offices) (Zip Code)
(631) 231-0333
(Registrant’s telephone number, including area code)
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):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class | Trading Symbol(s) | Name of Each Exchange On Which Registered | ||
| Common Stock, par value $0.01 per share | TSRI | NASDAQ Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On March 31, 2021, TSR, Inc. (the “Company”) entered into that certain Second Amendment to Amended & Restated Rights Agreement by and between the Company and Continental Stock Transfer & Trust Company, as Rights Agent, originally dated as of August 29, 2018 and amended and restated as of September 3, 2019, as amended (collectively, the “Rights Agreement”). Pursuant to this amendment, the Expiration Date (as defined in the Rights Agreement) was advanced from August 29, 2021 to March 31, 2021. As a result of this amendment, effective as of the close of business on March 31, 2021, the Rights (as defined in the Rights Agreement) expired and are no longer outstanding and the Rights Agreement has terminated by its terms. The description herein of the amendment to the Rights Agreement is qualified in its entirety by reference to the amendment, a copy of which is filed as Exhibit 4.3 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 1.02. Termination of a Material Definitive Agreement.
The information set forth under “Item 1.01. Entry into a Material Definitive Agreement” is incorporated by reference into this Item 1.02. A copy of the Amended & Restated Rights Agreement and a summary of its material terms, which was filed with the SEC on a Form 8-K as Exhibit 4.1 on September 3, 2019, and a copy of the First Amendment to the Amended & Restated Rights Agreement, which was filed with the SEC on a Form 8-K as Exhibit 4.1 on February 4, 2021, are incorporated herein by reference into this Item 1.02.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth under “Item 1.01. Entry into a Material Definitive Agreement” 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 Rights Agreement, on August 29, 2018, the Company filed a Certificate of Designations of Class A Preferred Stock, Series One with the Secretary of State of the State of Delaware setting forth the rights, powers and preferences of the Class A Preferred Stock, Series One issuable upon exercise of the Rights (the “Class A Preferred Shares”).
Following the expiration of the Rights and the termination of the Rights Agreement, on April 1, 2021, the Company filed a Certificate of Elimination (the “Certificate of Elimination”) with the Secretary of State of the State of Delaware eliminating the Class A Preferred Shares and returning them to authorized but undesignated shares of the Company’s preferred stock. The description herein of the Certificate of Elimination is qualified in its entirety by reference to the full text of the Certificate of Elimination, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
1
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.
| TSR, Inc. | ||
| By: | /s/ John G. Sharkey | |
| John G. Sharkey | ||
| Senior Vice President and Chief Financial Officer | ||
Dated: April 1, 2021
2
Exhibit 3.1
CERTIFICATE OF ELIMINATION
OF CLASS A PREFERRED STOCK, SERIES ONE
OF TSR, INC.
TSR, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Company”), in accordance with the provisions of Section 151(g) of the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies as follows:
FIRST: That, pursuant to Section 151 of the General Corporation Law of the State of Delaware and authority granted in the Certificate of Incorporation of the Company, as theretofore amended, the Board of Directors of the Company (the “Board”), in connection with the Company’s Amended & Restated Rights Agreement between the Company and Continental Stock Transfer & Trust Company as rights agent, originally dated as of August 29, 2018 and amended and restated as of September 3, 2019, as amended (the “Rights Agreement”), by resolution duly adopted, authorized the issuance of a series of thirty thousand (30,000) shares of Class A Preferred Stock, Series One (the “Class A Preferred Stock”) and established the voting powers, designations, preferences and relative, participating and other rights, and the qualifications, limitations or restrictions thereof, and, on August 29, 2018, filed a Certificate of Designations (the “Class A Certificate of Designation”) with respect to such Class A Preferred Stock in the office of the Secretary of State of the State of Delaware.
SECOND: That no shares of said Class A Preferred Stock are outstanding and no shares thereof will be issued subject to said Class A Certificate of Designation.
THIRD: That the Board has adopted the following resolutions:
RESOLVED, the Rights Agreement shall be amended to accelerate the Expiration Date (as defined in the Rights Agreement) to March 31, 2021, and that the appropriate officers of the Company, or any one or more of them, hereby are authorized and directed in the name and on behalf of the Company to enter into an amendment to the Rights Agreement to effectuate such acceleration;
RESOLVED FURTHER, that pursuant to the authority conferred on the Board by the provisions of Section 151 of the DCGL, the Board hereby eliminates the Class A Preferred Stock, none of which is currently outstanding and none of which will be issued subject to the Class A Certificate of Designation therefor, and all such Class A Preferred Stock shall resume the status of authorized but unissued and non-designated shares of preferred stock;
RESOLVED FURTHER, that the appropriate officers of the Company, or any one or more of them, hereby are authorized, in the name and on behalf of the Company, pursuant to Section 151(g) of the DGCL, to execute and file a Certificate of Elimination of the Class A Preferred Stock with the Secretary of State of the State of Delaware, which shall have the effect when filed with the Secretary of State of the State of Delaware of eliminating from the Certificate of Incorporation of the Company, as amended, all matters set forth in the Class A Certificate of Designation with respect to such Class A Preferred Stock;
RESOLVED FURTHER, that the appropriate officers of the Company, or any one or more of them, hereby are authorized and directed in the name and on behalf of the Company to take all other actions and to execute and deliver such other documents, in addition to those set forth in the foregoing resolutions, as they may deem necessary or advisable in order to effect the purposes of the foregoing resolutions, and that all such actions heretofore so taken be, and they hereby are, in all respects ratified, confirmed and approved.
FOURTH: That, accordingly, all matters set forth in the Class A Certificate of Designation with respect to the Class A Preferred Stock be, and hereby are, eliminated from the Certificate of Incorporation, as heretofore amended, of the Company.
FIFTH: That all Class A Preferred Stock shall resume the status of authorized but unissued and non-designated shares of Preferred Stock.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by its duly authorized officer this 1st day of April, 2021.
| TSR, INC. | ||
| By: | /s/ John G. Sharkey | |
| Name: | John G. Sharkey | |
| Title: | Sr. VP & Secretary | |
Exhibit 4.3
SECOND AMENDMENT TO AMENDED & RESTATED RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO AMENDED & RESTATED RIGHTS AGREEMENT (the “Amendment”), dated as of March 31, 2021, is entered into by and between TSR, Inc. (the “Corporation”) and Continental Stock Transfer & Trust Company (the “Rights Agent”).
RECITALS
A. The Corporation and the Rights Agent entered into that certain Amended & Restated Rights Agreement, originally dated as of August 29, 2018 and amended and restated as of September 3, 2019, as amended (the “Rights Agreement”).
B. Pursuant to Section 26 of the Rights Agreement, for as long as the Rights are then redeemable, the Corporation may in its sole and absolute discretion, and the Rights Agent shall if the Corporation so directs, supplement or amend any provision of the Rights Agreement without the approval of any holders of the Rights.
C. Capitalized terms used but not defined herein shall have the respective meanings given to them in the Rights Agreement.
NOW, THEREFORE, the parties hereto, intending legally to be bound, hereby agree as follows:
1. Amendments to the Rights Agreement.
(a) Section 7(a) of the Rights Agreement is hereby deleted in its entirety and replaced with the following:
“(a) The Rights shall not be exercisable until, and shall become exercisable on, the Distribution Date (unless otherwise provided herein, including, without limitation, the restrictions on exercisability set forth in Section 11(a)(ii) and Section 23(a) hereof). Except as otherwise provided herein, the Rights may be exercised, in whole or in part, at any time commencing with the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and certificate on the reverse side thereof duly executed (with signatures duly guaranteed), to the Rights Agent at the principal office of the Rights Agent in New York, New York together with payment of the Exercise Price for each Right exercised, subject to adjustment as hereinafter provided, at or prior to the Close of Business on the earlier of (i) March 31, 2021 (or if the Distribution Date shall have occurred before March 31, 2021, at the Close of Business on the 90th day following the Distribution Date) or (ii) the date on which the Rights are redeemed as provided in Section 23 hereof (such earlier date being herein referred to as the “Expiration Date”).”
(b) All references to the date of “August 29, 2021” in Exhibit A (Summary of Rights to Purchase Class A Preferred Stock, Series One) and Exhibit B (Form of Rights Certificate) to the Rights Agreement shall hereby be changed to “March 31, 2021”.
2. Remaining Terms. Those portions of the Rights Agreement that are not expressly amended hereby shall continue in full force and effect. Notwithstanding the foregoing, the Rights Agent and the Corporation acknowledge and agree that upon the Expiration Date the Rights Agreement shall terminate and be of no further force and effect.
3. Counterparts. This Amendment may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts will be construed together and will constitute one agreement. Further, this Amendment may be executed by transfer of an originally signed document by e-mail in PDF format or other electronic means, any of which will be as fully binding as an original document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, all as of the date first above written.
| TSR, INC. | ||
| By: | /s/ John G. Sharkey | |
| Name: | John G. Sharkey | |
| Title: | Sr. VP & Secretary | |
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
| By: | /s/ Erika Young | |
| Name: | Erika Young | |
| Title: | Vice President | |