- Current report filing (8-K)
20 Januar 2009 - 10:12PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of Earliest Event Reported): January 8,
2009
UpSnap,
Inc.
(Exact
Name of Registrant as Specified in Charter)
Nevada
(State
or Other Jurisdiction of Incorporation)
000-50560
(Commission
File Number)
20-0118697
(I.R.S.
Employer Identification No.)
2930 9
th
Avenue North, Lethbridge,
Alberta, Canada TIH 5E4
(Address
of Principal Executive Offices) (Zip Code)
(
403
)
320-1778
(Registrant's
Telephone Number, Including Area Code)
This
Current Report on Form 8-K is filed by UpSnap, Inc., a Nevada corporation (the
“Registrant”), in connection with the items set forth below.
ITEM 1.01
Entry Into A Material Definitive Agreement
ITEM 3.02
Unregistered Sales of Securities
The
Registrant and the individuals listed on the signature page thereof (the
“Sellers”) have entered into a Preferred Stock Exchange Agreement, dated as of
January 8, 2009 (the “Agreement”), pursuant to which the Registrant agreed to
issue 338,938,010 shares of Common Stock, when the same are authorized, and to
issue 127,568,470 options on Common Stock of UpSnap, when the same are
authorized (collectively referred to as the “UpSnap Securities”) in exchange for
not less than 3,198,362 shares of Preferred Stock of Duratech Group Inc., an
Alberta corporation and majority owned subsidiary of UpSnap (“Duratech”), and up
to 1,203,790 options on Preferred Stock of Duratech (collectively referred to as
the “Duratech Securities”). The exchange ratio under the Agreement
for the exchange of both the Common Stock of UpSnap for the Preferred Stock of
Duratech, and for the options on Common Stock of UpSnap for options on the
Preferred Stock of Duratech is equal to 105.9723627 to one.
Inasmuch
as the Sellers have agreed to exchange all of their Duratech Securities for
UpSnap Securities, and the Sellers represent the holders of all of the Preferred
Stock and options on Preferred Stock of Duratech, after the closing UpSnap will
own all of such issued and outstanding securities..
The Preferred Stock of Duratech has a
designation which entitles it to one vote per share, has a $1.00 liquidation
preference and is not entitled to any dividend or conversion
privilege. There is one remaining security, other than the common
stock of Duratech, which will be issued and outstanding after the
exchange. This is the
158,096 shares of Preferred Non-Voting
stock, which has a $1.00 liquidation preference, is not entitled to any dividend
or conversion privilege, and is to be liquidated in three years.
UpSnap
will issue, when the UpSnap securities are authorized, the UpSnap Securities in
reliance on an exemption from registration under the Securities Act
of 1933, as amended, provided by Regulation S, inasmuch as the Sellers (with one
exception) are all non-U.S. persons. UpSnap will issue, when the
UpSnap Securities are authorized, the UpSnap Securities to the one U.S. person
in reliance on an exemption from registration provided by Section 4(2) of the
Securities Act of 1933, as amended.
The
closing contemplated by the Agreement shall be held as promptly as practicable
after the Articles of Incorporation of UpSnap are amended to authorize at least
466,506,480 shares of Common Stock, $.001 par value, to be issued pursuant to
the Agreement. In this regard, the Registrant has filed with the
Commission a preliminary information statement on Schedule 14C to increase the
authorized common stock to One Billion (1,000,000,000) shares and to authorize
Ten Million (10,000,000) shares of so-called “blank check” preferred stock,
which preliminary information statement has been reviewed and commented on by
the Commission by letter dated November 3, 2008. There can be no
assurances that the increase in authorized Common Stock necessary to consummate
the exchange will be effected unless the Registrant is cleared by the Commission
to file and mail a definitive information statement on Schedule 14C to its
shareholders pursuant to SEC Rule 14c-2. The registrant intends to amend
the preliminary information statement on Schedule 14C to respond to the
Commission's comments contained in its letter of November 3, 2008, and to
incorporate the terms and conditions of the Agreement.
Consummation
of the Agreement will not result in a change in control of the Registrant,
inasmuch as the Sellers currently own 71.08% of the issued and outstanding
shares of Common Stock and options on Common Stock of the
Registrant. After the closing under the Agreement, the Sellers will
own 95% of the issued and outstanding shares of Common Stock and options on
Common Stock of the Registrant. Insofar as the transaction
contemplated by the Agreement involves an interested director transaction within
the meaning of NRS 78.140, management believes that the transaction is fair to
UpSnap at the time it was authorized and approved by its Board of
Directors. UpSnap will benefit by increasing its ownership of the
equity capitalization of Duratech from 65% to 98.76% as a result of the exchange
of the Duratech Securities for the UpSnap Securities.
Registrant currently has issued and
outstanding 73,719,666 shares of par value $.001 common stock, which trades on
the Over-The-Counter Bulletin Board under the symbol “UPSN.OB,” and 23,780,334
options on shares of common stock.
ITEM
9.01 Financial Statements and Exhibits
(d) Exhibits
2.1 Preferred Stock
Exchange Agreement dated January 8, 2009.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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UPSNAP,
INC.
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Date:
January 20, 2009
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By:
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/s/
Peter Van
Hierden
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Peter
Van Hierden
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Chief
Executive Officer and Director
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3
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