-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T+5dM36J/HFfKZqX15uIJOOXTSo26qZTDEqMNWJFicVia1Bkx1xFP+dJEDPajTsA yGDUNdpdSa8oXUCZl2W78g== 0000891092-03-003468.txt : 20031124 0000891092-03-003468.hdr.sgml : 20031124 20031124164439 ACCESSION NUMBER: 0000891092-03-003468 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20031124 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits ITEM INFORMATION: Regulation FD Disclosure FILED AS OF DATE: 20031124 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INNOTRAC CORP CENTRAL INDEX KEY: 0001051114 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 581592285 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-23741 FILM NUMBER: 031021094 BUSINESS ADDRESS: STREET 1: 6655 SUGARLOAF PARKWAY CITY: DULUTH STATE: GA ZIP: 30097 BUSINESS PHONE: 678-584-4000 MAIL ADDRESS: STREET 1: 1828 MECA WAY CITY: NORCROSS STATE: GA ZIP: 30093 8-K 1 e16311_8k.txt FORM 8-K 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): November 24, 2003 ---------- INNOTRAC CORPORATION ------------------------------------------------------ (Exact name of Registrant as Specified in its Charter) Georgia 000-23741 58-1592285 - ------------------------------- ---------------- ------------------- (State or other Jurisdiction of (Commission File (IRS Employer Incorporation or Organization) Number) Identification No.) 6655 Sugarloaf Parkway Duluth, Georgia 30097 - ---------------------------------------- ---------- (Address of principal executive offices) (Zip code) Registrant's telephone number, including area code: (678) 584-4000 Not Applicable ------------------------------------------------------------- (Former name or former address, if changed since last report) ITEM 5. OTHER EVENTS AND REQUIRED FD DISCLOSURE On November 21, 2003, the Board of Directors of Innotrac Corporation (the "Company") authorized Amendment No. 3 to the Rights Agreement dated as of December 31, 1997 between the Company and SunTrust Bank, as rights agent, as previously amended by Amendment No. 1, dated as of November 30, 2000, and Amendment No. 2, dated August 14, 2003 (the "Rights Agreement"). The Company and SunTrust Bank executed Amendment No. 3 on November 24, 2003. Pursuant to Amendment No. 3, David Dadante ("Dadante"), who is the general partner of IPOF Fund, an Ohio limited partnership ("IPOF," and together with Dadante, referred to herein as the "IPOF Group"), the IPOF Fund and the IPOF Group shall not be deemed to be an "Acquiring Person" under the Rights Agreement--that is, will not trigger the distribution and exercisability of the preferred stock purchase rights under the Rights Agreement--unless and until the earlier of such time as the IPOF Group, together with all its affiliates and associates, (i) directly or indirectly, becomes the beneficial owner of more than 40% of the Company's common stock then outstanding or (ii) ceases to hold any of the common stock which it beneficially owns without any intention of changing or influencing control of the Company. IPOF Fund has indicated to the Company that it currently owns 2,800,500 shares, or 24.2% of the total common stock outstanding. The Rights Agreement continues to provide that all other shareholders must secure Board approval before acquiring beneficial ownership of more than 15% of the common shares outstanding; otherwise the Rights Agreement would be triggered. Amendment No. 2 to the Rights Agreement had previously introduced the exception from the definition of "Acquiring Person" for the IPOF Group described in the preceding paragraph, except that the IPOF Group, together with all its affiliates and associates, could become the beneficial owner of up to 25% of the Company's common stock then outstanding without triggering the Rights Agreement under that previous amendment. Amendment No. 1 provided for the appointment of SunTrust Bank as a successor rights agent and amended the Rights Agreement in certain other particulars. This summary of the Rights Agreement, including the Amendments described herein, does not purport to be complete and is qualified in its entirety by the full text of the Rights Agreement and its Amendments filed with the Commission and incorporated herein by reference. In addition, on November 24, 2003, the Company amended its Agreement dated August 14, 2003 with the IPOF Group. A copy of that amendment is filed herewith as Exhibit 10.1. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA INFORMATION AND EXHIBITS (a) Financial Statements of Businesses Acquired: None. (b) Pro Forma Financial Information: None. (c) Exhibits: Exhibit No. Description - ----------- ----------- 10.1 Amendment No. 1, dated November 24, 2003 to the Agreement entered into as of August 14, 2003 between IPOF Fund, L.P., an Ohio limited partnership, David Dadante, and the Company (filed pursuant to Item 5 of this Form 8-K) 99.1 Press Release of the Company dated November 24, 2003 announcing amendment of Rights Agreement (filed pursuant to Item 9 of this Form 8-K) ITEM 9. REGULATION FD DISCLOSURE On November 24, 2003, the Company issued a press release to announce the amendment of its Rights Agreement. A copy of the press release is attached as Exhibit 99.1. The information furnished under this Item 9 of Form 8-K, including Exhibit 99.1 attached hereto, is not deemed "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934, or is otherwise subject to the liabilities of that section. It may only be incorporated by reference in another filing under the Exchange Act or Securities Act of 1933 if such subsequent filing specifically references the information or Exhibit furnished pursuant to this Item 9. 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. INNOTRAC CORPORATION By: /s/ David L. Gamsey --------------------------- David L. Gamsey Senior Vice President, Chief Financial Officer and Date: November 24, 2003 Secretary EX-10.1 3 e16311ex10_1.txt AMENDMENT NO. 1 TO AGREEMENT EXHIBIT 10.1 AMENDMENT NO. 1 TO AGREEMENT This Amendment No. 1, dated November 24, 2003 ("Amendment No. 1") to the Agreement entered into as of the 14th day of August 2003 (the "Agreement") between IPOF Fund, L.P., an Ohio limited partnership ("IPOF"), David Dadante, an individual resident of Ohio and the general partner of IPOF ("Dadante", and together with IPOF and any other persons or entities with which he may constitute a "group", as defined in and pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), shall be referred to herein as the "IPOF Group"), and Innotrac Corporation, a Georgia corporation ("Company"). All capitalized terms not otherwise defined herein shall have the meanings described thereto in the Agreement. WHEREAS, the IPOF Group is currently the beneficial owner of 2,800,500 shares of the Company's Common Stock, which represents approximately 24.2%% of the shares of such class outstanding. WHEREAS, the parties hereto previously entered into the Agreement to establish certain conditions regarding the IPOF Group's ownership of Common Stock and its relationship with the Company. NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth in this Agreement, the parties hereby agree as follows: 1. Dadante and IPOF hereby represent and warrant that the number of shares reflected in the first whereas clause above is the true and correct number of shares beneficially owned by the IPOF Group and agree that all those shares as well as any additional shares purchased by any person or entity constituting part of the IPOF Group in the future shall be held subject to the terms and conditions of the Agreement, as hereby amended. In addition, Dadante and IPOF acknowledge the applicability of various rules and regulations under the federal securities laws to their ownership of common stock of the Company, including the need to make various filings and the applicability of Section 16 under the Exchange Act of 1934, as amended. They further agreed to comply in all respects with all such applicable rules and regulations. 2. Dadante and IPOF acknowledge that the IPOF Group constitutes an "affiliate" of the Company as defined under applicable federal securities laws as a result of its ownership of approximately 25% of the shares of the Company's outstanding common stock. 3. Except as amended hereby, the Agreement as amended remains in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 by their duly authorized representatives effective as of he date set forth above. INNOTRAC CORPORATION By: /s/ David L. Gamsey ------------------------------- Title: Chief Financial Officer /s/ David Dadante DAVID DADANTE IPOF FUND, LP By: /s/ David Dadante ------------------------------- David Dadante, General Partner -2- EX-99.1 4 e16311ex99_1.txt PRESS RELEASE Exhibit 99.1 Innotrac Corporation Amends Shareholder Rights Agreement ATLANTA, Nov. 24 /PRNewswire-FirstCall/ -- Innotrac Corporation (Nasdaq: INOC), a full-service fulfillment and logistics provider, today announced that its Board of Directors has voted to amend the Company's Rights Agreement. The Agreement now allows for one specific shareholder to accumulate up to a 40% ownership position in the Company's common stock in compliance with the Agreement. Prior to this amendment, the limit was 25%. The Rights Agreement continues to provide that all other shareholders must secure Board approval before acquiring beneficial ownership of more than 15% of the common shares outstanding, otherwise the effectiveness of the Agreement would be triggered. About Innotrac Innotrac Corporation, founded in 1984 and based in Atlanta, Georgia, is a full-service fulfillment and logistics provider serving enterprise clients and world-class brands. The Company employs sophisticated order processing and warehouse management technology and operates seven fulfillment centers and two call centers in five cities spanning all time zones across the continental United States. For more information about Innotrac, visit the Innotrac Web site, www.innotrac.com . Information contained in this press release, other than historical information, may be considered forward-looking in nature and is subject to various risks, uncertainties and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those anticipated, estimated or expected. Among the key factors that may have a direct bearing on Innotrac's operating results, performance or financial condition are competition, the demand for Innotrac's services, Innotrac's ability to retain its clients, the state of the telecommunications industry in general, Innotrac's ability to maintain profit margins in the face of pricing pressures and numerous other factors discussed in Innotrac's 2002 Annual Report on Form 10-K and other filings on file with the Securities and Exchange Commission. SOURCE Innotrac Corporation -0- 11/24/2003 /CONTACT: David L. Gamsey, Chief Financial Officer of Innotrac Corporation, +1-678-584-4020, or email, dgamsey@innotrac.com / /Web site: http://www.innotrac.com/ (INOC) CO: Innotrac Corporation ST: Georgia IN: TRN SU: -----END PRIVACY-ENHANCED MESSAGE-----