UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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): April 28, 2005
PACIFICHEALTH LABORATORIES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 000-23495 22-3367588
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(State of Other (Commission (IRS Employer
Jurisdiction of File Number) Identification
Incorporation) Number)
100 Matawan Road, Suite 420, Matawan, NJ 07747-3913
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (732) 739-2900
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N/A
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(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):
|_| 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))
Item 3.03 Material Modification to Rights of Security Holders.
Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
On April 28, 2005, PacificHealth Laboratories, Inc. ("PHLI") filed a
Certificate of Designations (the "Certificate") creating the Series B Preferred
Stock with the Secretary of the State of the State of Delaware. The Certificate
was effective as of the date filed. The Certificate was authorized by vote of
the Board of Directors, pursuant to the power contained in PHLI's Certificate of
Incorporation permitting the Board of Directors to authorize one or more series
of preferred stock and fix the powers, designations, preferences and relative,
participating, optional and other rights of such series. Under the Certificate,
45,455 shares of authorized but unissued preferred stock were designated as
Series B Preferred Stock.
Cumulative annual dividends will accrue at the rate of $.022 on each
share of Series B Preferred Stock outstanding. PHLI is not required to pay
accrued dividends except in connection with liquidation, dissolution, merger,
consolidation or sale all or substantially all of the assets of PHLI and certain
other events. However, no cash dividends may be paid on common stock unless all
accrued but unpaid dividends, if any, on Series B Preferred Stock have been
paid. The holders of Series B Preferred Stock are also entitled to participate
in any dividends paid to the holders of common stock on an as-converted basis.
In the event of a liquidation of PHLI, sale of all or substantially all
of its assets, and certain mergers and consolidations involving PHLI, the
holders of the Series B Preferred Stock are entitled to be paid an amount equal
to the greater of:
o The original purchase price for the Series B Preferred Stock plus
accrued but unpaid dividends, if any, or
o The amount they would have received as holders of the number of
shares of common stock into which their shares of Series B Preferred
shares Stock then convertible.
Subject to certain adjustments, each share of Series B Preferred Stock
is convertible at the option of the holder into 10 shares of common stock. The
number of shares of common stock issuable upon conversion of the Series B
Preferred Stock will increase, pursuant to a weighted average formula set forth
in the Certificate, in the event PHLI issues common stock at a price below $1.10
per share, with certain exceptions.
The holders of the Series B Preferred Stock are entitled to vote on an
as-converted basis with the holders of the common stock and the Series A
Preferred Stock together as a single class on all matters submitted for a vote
of the holders of common stock. The Certificate also provides that in certain
instances, the consent of the holders of at least 66% of the outstanding shares
of Series B Preferred Stock is required for PHLI to take certain actions
including:
o liquidate, dissolve, merge or consolidate PHLI or sell all or
substantially all of its assets, unless the transaction would result
in a certain rate of return for the holders of Series B Preferred
Stock;
o amend PHLI's Certificate of Incorporation or Bylaws in a manner
adverse to the Series B Preferred Stock;
o create an additional class or series of stock senior to or on par
with the Series B Preferred Stock;
o purchase, redeem or pay cash dividends on common stock; or
o incur certain types of debt in excess of $750,000.
The Company filed the Certificate in contemplation of proposed
financing transactions, but does not have a binding agreement as to an any
financing. The Company has not issued any shares of Series B Preferred Stock to
date.
Upon issuance and as described above, the Series B Preferred Stock
would rank senior to the common stock and on par with the Series A Preferred
Stock with respect to the distribution of assets on the liquidation, dissolution
or winding up of PHLI and with respect to the payment of dividends and
redemption rights. The issuance of the Series B Preferred Stock would have a
potentially dilutive effect upon the holders of common stock if the holders of
the Series B Preferred Stock exercised their conversion rights. The adjustment
of the number of shares of common stock issuable upon conversion of the Series B
Preferred Stock in the event that PHLI issues common stock at a price below
$1.10 per share also would have a potentially dilutive effect on the holders of
common stock.
THE ABOVE DESCRIPTION OF THE TERMS OF THE SERIES B PREFERRED STOCK IS QUALIFIED
IN ITS ENTIRETY BY THE CERTIFICATE, WHICH IS INCORPORATED BY REFERENCE HEREIN.
THE COMPANY IS FILING THE CERTIFICATE AS EXHIBIT 3(i) TO THIS REPORT ON
FORM 8-K.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits.
3(i) Certificate of Designations for Series B Preferred Stock, filed
with the Secretary of State of the State of Delaware on April 28,
2005
SIGNATURE
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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 hereunto duly authorized.
PACIFICHEALTH LABORATORIES, INC.
Dated: May 4, 2005 By: /s/ Stephen P. Kuchen
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Stephen P. Kuchen
Chief Operating Officer
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
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3(i) Certificate of Designations for Series B
Preferred Stock, filed with the Secretary of
State of the State of Delaware on April 28, 2005