Exhibit 3.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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of Report (Date of earliest event reported)
(Exact name of Registrant as Specified in its Charter)
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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:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-2 under the Exchange Act (17 CFR 240.14a-2) | |
| 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:
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| None |
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 3.03 Material Modification to Rights of Security Holders.
To the extent required by Item 3.03 of Form 8-K, the information contained in Item 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
1. Certificate of Amendment to Certificate of Incorporation.
On September 6, 2023, Acorn Energy, Inc. (the “Company”) filed a Certificate of Amendment to the Restated Certificate of Incorporation of the Company with the Secretary of State of the State of Delaware (the “Certificate of Amendment”) to effect a 1-for-16 reverse stock split (the “reverse stock split”) of the shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”) on September 7, 2023 at 5:00 pm EDT. No fractional shares will be issued in connection with the reverse stock split and stockholders will receive cash in lieu of fractional shares.
The foregoing description of the Certificate of Amendment does not purport to be complete and is qualified in its entirety by reference to the Certificate of Amendment, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The Company expects that the Common Stock will begin trading on a reverse-split-adjusted basis under the temporary symbol “ACFND,” effective with the opening of the OTCQB market on Friday, September 8, 2023. The fifth character “D” will remain appended to the Company’s symbol for 20 trading days, at which point it will revert back to “ACFN.” The new CUSIP number for the Common Stock following the reverse stock split will be 004848206.
2. Amendment to Bylaws.
On September 5, 2023, the Company’s Board of Directors approved amendment of Sections 1, 2 and 3 of Article X of the Company’s By-laws, to be effective upon consummation of the reverse split, in order to more clearly provide for shares of the Company’s capital stock to be issued in either uncertificated or certificated form.
The foregoing description of the amendment to the Company’s Bylaws does not purport to be complete and is qualified in its entirety by reference to the text of the amendment, a copy of which is filed as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On September 7, 2023, the Company issued a press release announcing the anticipated completion of the reverse stock split. A copy of the Company’s press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The information contained in this Item 7.01 and the accompanying exhibit is being furnished and shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of Section 18. Furthermore, the information contained in this Item 7.01 and the accompanying exhibit shall not be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended, unless specifically identified therein as being incorporated therein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| 3.1 | Certificate of Amendment to Restated Certificate of Incorporation |
| 3.2 | Amendment to the Company’s By-laws |
| 99.1 | Press Release of Acorn Energy, Inc., dated September 7, 2023 |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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 on this 8th day of September 2023.
| ACORN ENERGY, INC. | ||
| By: | /s/ Tracy S. Clifford | |
| Name: | Tracy S. Clifford | |
| Title: | Chief Financial Officer | |
Exhibit 3.1
Exhibits 3.2
AMENDMENT TO BY-LAWS
Sections 1, 2 and 3 of Article X of the Corporation’s By-laws shall be amended and restated in full to read as follows:
“SECTION 1. Form of Stock. The stock of the Corporation may be certificated or uncertificated, as provided under Delaware law, and shall be entered in the books of the Corporation and recorded as they are issued. Any duly appointed officer of the Corporation is authorized to sign stock certificates. Any or all of the signatures on any stock certificate may be a facsimile or electronic signature. In case any officer, transfer agent or registrar who has signed or whose facsimile or electronic signature has been placed upon a stock certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.
SECTION 2. Notice Upon Issuance or Transfer. Within a reasonable time after the issuance or transfer of uncertificated stock and upon the request of a stockholder, the Corporation shall send to the record owner thereof a written notice that shall set forth the name of the Corporation, that the Corporation is organized under the laws of Delaware, the name of the stockholder, the number of shares and class (and the designation of the series, if any) of the stock, and any restrictions on the transfer or registration of such shares of stock imposed by the Corporation’s Restated Certificate of Incorporation, these By-laws, any agreement among stockholders or any agreement between stockholders and the Corporation.
SECTION 3. Transfer and Registration of Stock. The transfer of stock and certificates of stock that represent shares of stock of the Corporation shall be governed by Article 8 of Title 6 of the Delaware Code (the Uniform Commercial Code — Investment Securities, as amended from time to time). Registration of transfers of shares of the stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary or Assistant Secretary of the Corporation, and, with respect to transfers of certificated stock, on the surrender of the certificate(s) for such shares properly endorsed or accompanied by a stock power properly executed.”
Exhibits 99.1
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Remote Monitoring and Control Solutions Provider Acorn Announces 1-for-16 Reverse Stock Split Intended to Make its Shares Accessible to a Broader Range of Investors
Wilmington, DE – September 7, 2023 – Acorn Energy, Inc. (OTCQB: ACFN), a provider of remote monitoring and control solutions for stand-by power generators, gas pipelines, air compressors and other critical industrial equipment, announced that its Board of Directors has approved a reverse split of its Common Stock at a ratio of 1-for-16. The reverse split is intended to increase the market price of the Company’s Common Stock and make Acorn’s shares accessible to a broader range of investors, including institutions and those unable to purchase or recommend low-priced stocks.
Jan Loeb, Acorn’s President and CEO, commented, “Based on Acorn’s strong financial position and solid growth prospects, our Board of Directors has approved a reverse split in an effort to make our common stock accessible to a larger base of investors. Acorn shareholders have authorized the Board to pursue a reverse split each year, for the last several years. We believe this action should also support our longer-term objective to up-list our shares to a major national exchange.
“Acorn’s total revenue grew 22% in Q2’23 and 10% in the first half of 2023, net income was also positive in both periods, and we target long-term net profit growth of approximately 20%. We are seeing encouraging trends for commercial and industrial demand for our remote monitoring and control services in both new and existing markets. We also see additional revenue opportunities from demand response (DR) programs that support electric grid operators with power provided by backup power generators during peak demand periods. We expect DR programs to benefit grid operators, our company, our dealers, and their backup generator customers, based on Acorn’s unique monitoring and control capabilities.
“Acorn had $1.6M of consolidated cash at June 30, 2023 and no debt. Acorn was operating cash-flow-positive on a consolidated basis through the first six months of 2023, and we expect to remain so moving forward, on a full-year basis, based on the achievement of our growth goals. In light of the momentum in our business, we felt this was the right time to expand the potential investor base for our stock. A higher stock price may also help facilitate accomplishing accretive acquisitions.”
Reverse Stock Split Details
Acorn expects its common stock to begin trading on a reverse-split-adjusted basis, under the temporary symbol “ACFND,” effective with the opening of the OTCQB market on [Friday, September 8, 2023]. The fifth character “D” will remain appended to the Company’s symbol for 20 trading days, at which point it will revert back to “ACFN.” The new CUSIP number for the Common Stock following the reverse stock split will be 004848206.
No fractional shares will be issued in connection with the reverse stock split. Each stockholder that would have been entitled to receive a fractional share of Common Stock as a result of the reverse stock split will instead receive a cash payment in lieu of such fractional share.
The reverse stock split will reduce Acorn’s issued and outstanding Common Stock from 39.76 million shares to approximately 2.48 million shares. The reverse split will affect neither the par value of the Common Stock nor the number of authorized shares.
The Company’s transfer agent, Equiniti Trust Company, LLC will act as exchange agent and paying agent for the reverse stock split. Equiniti will provide stockholders of record holding certificates representing pre-split shares of the Company’s Common Stock as of the effective date a letter of transmittal providing instructions for the exchange of shares. Stockholders owning shares via a broker, bank, trust or other nominee, as well as registered stockholders holding shares electronically in book-entry form, are not required to take any action to receive post-split shares.
About Acorn (www.acornenergy.com) and OmniMetrixTM (www.omnimetrix.net)
Acorn Energy, Inc. owns a 99% equity stake in OmniMetrix, a pioneer and leader in Internet of Things (IoT) wireless remote monitoring and control solutions for stand-by power generators, gas pipelines, air compressors and other industrial equipment, serving tens of thousands of customers including more than 25 Fortune/Global 500 companies. OmniMetrix’s proven, cost-effective solutions make critical systems more reliable and also enable automated “demand response” electric grid support by enrolled back-up generators. OmniMetrix solutions monitor critical equipment used by cell towers, manufacturing plants, medical facilities, data centers, retail stores, public transportation systems, energy distribution and federal, state and municipal government facilities, in addition to residential back-up generators.
Safe Harbor Statement
This press release includes forward-looking statements, which are subject to risks and uncertainties. There is no assurance that Acorn will be successful in growing its business and revenues, remaining cash flow positive or maintaining profitability. A complete discussion of the risks and uncertainties that may affect Acorn Energy’s business, including the business of its subsidiary, is included in “Risk Factors” in the Company’s most recent Annual Report on Form 10-K as filed by the Company with the Securities and Exchange Commission.
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Investor Relations Contacts
Catalyst IR
William Jones, 267-987-2082
David Collins, 212-924-9800 acfn@catalyst-ir.com