Dyadic International Inc - Current report filing (8-K)
29 December 2007 - 5:01AM
Edgar (US Regulatory)
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):
December 21
,
2007
Dyadic
International,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware
333-102629
45-0486747
(State
or
other jurisdiction of incorporation)
(Commission
File Number)
(IRS
Employer Identification No.)
140
Intracoastal Pointe Drive, Suite
404
Jupiter,
Florida
33477
(Address
of principal executive offices)
(Zip
Code)
Registrant’s
telephone number, including area code:
(561)
743-8333
(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
3.01 Notice of Delisting or
Failure to Satisfy a Continued Listing Rule or Standard; Transfer of
Listing.
On
December 10, 2007, the American Stock Exchange ("
AMEX
")
notified
Dyadic International, Inc. (the "
Company
" or
"
Dyadic
")
of the date
for the Company's oral hearing to review the AMEX Listing Qualifications
Department staff (the "
Staff
")
determination
to proceed with the delisting of the Company's common stock from
AMEX. The oral hearing, which will be held before an AMEX Listing
Qualifications Panel, is scheduled for January 8, 2008. By way of
background, as previously disclosed in the Company's Current Reports
on Form 8-K
(filed on July 9, 2007, August 28, 2007, November 19, 2007 and December
3,
2007), the Company received notice from the Staff on November 27, 2007
that the
Company had failed to regain compliance with AMEX's continued listing
standards
set forth in Sections 134 and 1101 of the AMEX Company Guide by the November
16,
2007 deadline previously imposed by AMEX, because the Company failed
to timely
file its Quarterly Reports on Form 10-QSB for the periods ended March
31, 2007,
June 30, 2007 and September 30, 2007. Accordingly, the Staff provided
notice to the Company of AMEX's intent to file a delisting application
with the
Securities and Exchange Commission (the "
SEC
")
to strike the
Company's common stock from listing and registration on AMEX. In
accordance with applicable AMEX rules, the Company appealed this determination
and requested a hearing before an AMEX Listing Qualifications Panel (which
oral
hearing, as noted above, has now been scheduled for January 8, 2008).
On
December 21, 2007, the Company
received another notice from the Staff (the "
December 21
Notice
")
indicating that the Company was not in compliance with AMEX's continued
listing
standards set forth in Section 704 of the AMEX Company Guide because
the Company
failed to hold an annual meeting of its stockholders in 2007 to elect
directors
and to take action on other corporate matters. As previously
disclosed in the Company's Current Report on Form 8-K (filed on November
19,
2007), the Company has been unable to call, notice and hold an annual
stockholders' meeting for the election of directors in 2007 because of
its
inability to comply with the SEC's proxy rules in connection with any
such
meeting (which proxy rules require that the Company's related proxy or
information statement be accompanied or preceded by an annual report
to
stockholders that includes audited financial statements and meets the
other
applicable requirements of the proxy rules). In accordance with
applicable AMEX rules and the December 21 Notice, the Company will have
the
opportunity to address this Staff determination at the January 8, 2008
oral
hearing before the AMEX Listing Qualifications Panel. For additional
information regarding the Company's
desire
to notice, convene and hold an annual
meeting of stockholders if legally permitted to do so
,
see the
discussion in
Item 8.01
below
regarding the 211 Action (as defined below) and the Company's answer
to the 211
Action.
There
can
be no assurance that the Company's appeal of the Staff's delisting determination
will be successful or that the Company's request for continued listing
(or any
delay in delisting) by AMEX will be granted. The halt on trading in
the Company's shares remains in effect at the direction of AMEX, and
there can
be no assurance that trading (whether on AMEX or any other listing, trading
or
quotation system) will ever resume. Based on information available as
of the date of this filing, the Company believes it is unlikely that
its appeal
before the AMEX Listing Qualifications Panel will be successful. The
Company is considering its options available under the circumstances
should AMEX
strike the Company's common stock from listing and registration on AMEX.
Item
8.01. Other
Events.
As
previously disclosed in the Company's Current Reports on Form 8-K (filed
on
October 24, 2007, November 19, 2007 and December 3, 2007), the Company
has
engaged Gordian Group, LLC ("
Gordian
Group
") to
serve as the Company’s investment banker and financial adviser to assist the
Company in evaluating, exploring and, if deemed appropriate, pursuing
and
implementing certain strategic and financial options that may be available
to
the Company, including a possible sale, merger, restructuring, recapitalization,
reorganization or other strategic or financial transaction. On
December 7, 2007, the Company commenced implementing a process (the
"
Strategic
Process
")
designed to maximize the realizable value of the Company's business and
assets for all Dyadic stockholders, by soliciting indications of interest
from
identified third parties concerning the possible sale of the Company
(or the
Company's outstanding stock or assets). The Company's Strategic
Process is being administered by Gordian Group under the direction
of the
Executive Committee of the Board of Directors. No person is authorized to
speak for the Company in connection with the Strategic Process other
than
Gordian Group and other persons authorized by the Executive
Committee. Although implementation of the Strategic Process has
commenced, no conclusion as to any specific option or transaction has
been
reached, nor has any specific timetable been fixed for accomplishing
this
effort, and there can be no assurance that any strategic, financial
or other
option or transaction will be p
resented, implemented
or
consummated.
On
December 10, 2007, the Company filed
an answer to the petition previously filed by Mark A. Emalfarb, in
his capacity
as trustee of the Mark A. Emalfarb Trust, a stockholder
of
the
Company, in the Court of Chancery of
the State of Delaware pursuant to Section 211 of the General Corporation
Law of
the State of Delaware (the “
211
Action
”). By
way of background, as previously disclosed in the
Company's Current
Report
on Form 8-K (filed
on November 19,
2007), Mr. Emalfarb's petition in the 211 Action seeks an order of
the
C
ourt
directing the Company to call and
hold an annual meeting of its stockholders for the election of
directors.
As
noted above (in the disclosure under
Item
3.01
), t
he
Company has been unable to call,
notice and hold an annual stockholders' meeting for the election of
directors in
2007 because of its inability to comply with the SEC's proxy rules
in connection
with any such meeting (which proxy rules require that the
Company's
related
proxy or information statement
be accompanied or preceded by an annual report to stockholders that
includes
audited financial statements and meets the other applicable requirements
of the
proxy rules). However, the Company desires to notice, convene and
hold an annual meeting of stockholders if legally permitted to do
so. In response to Mr. Emalfarb’s petition, the Company joined in
the
request
that the
C
ourt
enter an order requiring it to hold
an annual meeting and, in particular,
requested that
the C
ourt enter an
order: (1)
directing the Company to hold an annual meeting of stockholders for
the election
of two directors; (2)
designating
a
date, time and place for such meeting
and the record date for the determination of stockholders of the Company
entitled to vote at
such
meeting,
and approving the form of
notice of the annual meeting; and (3) directing the Company
to
make
prompt application to the SEC for
any necessary exemptive relief, waiver, order or “no action letter” to ensure
that the Company will be permitted to provide notice of the annual
meeting, to
make recommendations, to solicit proxies and to make public disclosures
about
the annual meeting in order to provide information
that
the
Company's
Board
of Directors believes to be
material to stockholders in connection with such annual meeting. The
Company intends to vigorously pursue its interests in connection with
the 211
Action, but no assurance can be given as to the timing, costs to defend
or the
ultimate outcome of this matter.
Mr.
Emalfarb's petition and the
Company's answer
in the 211
Action
are attached
hereto
as Exhibits 99.1 and 99.2 respectively and are incorporated by reference
herein. The foregoing description of the 211 Action is a summary
only, does not purport to be complete and is qualified in its entirety
by
reference to the full text of Mr. Ema
l
farb's
petition and the Company's
answer.
On
December 12, 2007,
the
six
putative class action lawsuits filed
in the
United States
District Court for the
Southern District
of Florida were
consolidated
,
and
the
C
ourt
selected a lead plaintiff who is
tasked with litigating the claims against the Company on behalf of
all putative
class members.
By way of background, as previously disclosed
in the Company's Current Reports on Form 8-K (filed on October 24,
2007,
November 19, 2007 and December 3, 2007), each
individual putative
class action
complaint
name
s
the Company and certain current and
former officers and directors of the Company as defendants. The
putative
class
action lawsuits
allege
that the defendants, among other
things, violated federal securities laws by issuing various materially
false and
misleading statements that had the effect of artificially inflating
the market
price of the Company’s securities and causing putative class members to overpay
for securities purchased during the period from March 30, 2006 through
April 23,
2007. The complaints seek, among other things, unspecified monetary
damages and the costs and expenses incurred in prosecuting the
action. The Company
and lead plaintiff’s counsel have
filed
a proposed schedule with the Court that would require, subject to the
Court's
approval, the lead plaintiff to file an
amended and consolidated
complaint
by February 25,
2008 and
the Company to respond to that complaint by April 28,
2008.
The
Company intends to vigorously contest and defend the allegations under
the
amended and consolidated
putative class
action
complaint, but
no assurance can be given
as to the timing, costs to defend or the ul
timate outcome
of this
matter.
On
December
28
, 2007, the Company
issued a press
release regarding the matters described in this Current Report on Form
8-K. The complete text of the press release is attached hereto as
Exhibit 99.
3.
Item
9.01. Financial Statements and
Exhibits.
(c)
The
following exhibits are filed with this report:
Exhibit
Number
|
Description
of
Exhibit
|
99.1
|
Verified
Complaint brought by Mark A. Emalfarb against Dyadic International,
Inc.
pursuant to Delaware General Corporate Law Section 211 dated
November 14,
2007
|
99.2
|
Dyadic
International, Inc.'s Answer to the Verified Complaint brought
by Mark A.
Emalfarb against Dyadic International, Inc. pursuant to Delaware
General Corporate Law Section 211 dated December 10,
2007
|
99.3
|
Press
Release of Dyadic International, Inc. dated December 28,
2007
|
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.
DYADIC
INTERNATIONAL,
INC.
Date:
December 28,
2007
By:
/s/
Lisa De La
Pointe
___
Name:
Lisa
De La
Pointe
|
Title:
|
Executive
Vice President and Chief Financial
Officer
|
Index
to
Exhibits
Exhibit
Number
|
Description
of
Exhibit
|
99.1
|
Verified
Complaint brought by Mark A. Emalfarb against Dyadic International,
Inc.
pursuant to Delaware General Corporate Law Section 211 dated
November 14,
2007
|
99.2
|
Dyadic
International, Inc.'s Answer to the Verified Complaint brought
by Mark A.
Emalfarb against Dyadic International, Inc. pursuant to Delaware
General Corporate Law Section 211 dated December 10,
2007
|
99.3
|
Press
Release of Dyadic International, Inc. dated December 28,
2007
|
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