-----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, AlZfUxw6a4SrH7M9z8JARkTQUKE5GP8cFHXpnheiiTXVvWioHiLAVF5JzCasUvDa ZfICA6XZNg1XjW3WLyK3Dg== 0000905718-08-000584.txt : 20081118 0000905718-08-000584.hdr.sgml : 20081118 20081118163839 ACCESSION NUMBER: 0000905718-08-000584 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 1 CONFORMED PERIOD OF REPORT: 20081114 ITEM INFORMATION: Triggering Events That Accelerate or Increase a Direct Financial Obligation under an Off-Balance Sheet Arrangement ITEM INFORMATION: Other Events FILED AS OF DATE: 20081118 DATE AS OF CHANGE: 20081118 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Performing Brands, Inc. CENTRAL INDEX KEY: 0001201259 STANDARD INDUSTRIAL CLASSIFICATION: BOTTLED & CANNED SOFT DRINKS CARBONATED WATERS [2086] IRS NUMBER: 651082135 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-50057 FILM NUMBER: 081198719 BUSINESS ADDRESS: STREET 1: 4951 AIRPORT PARKWAY, #660 CITY: ADDISON, STATE: TX ZIP: 75001 BUSINESS PHONE: 972-818-3862 MAIL ADDRESS: STREET 1: 4951 AIRPORT PARKWAY, #660 CITY: ADDISON, STATE: TX ZIP: 75001 FORMER COMPANY: FORMER CONFORMED NAME: Boo Koo Holdings, Inc DATE OF NAME CHANGE: 20070911 FORMER COMPANY: FORMER CONFORMED NAME: CAPTECH FINANCIAL GROUP, INC DATE OF NAME CHANGE: 20040813 FORMER COMPANY: FORMER CONFORMED NAME: HILLSBORO GROUP INC DATE OF NAME CHANGE: 20030815 8-K 1 fm8knov08.txt FM8K 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 14, 2008 PERFORMING BRANDS, INC. (Exact Name of Registrant as Specified in Charter) Delaware 000-50057 65-1082135 - ------------------- ----------------- --------------------- (State or Other (Commission (IRS Employer Jurisdiction of File Number) Identification No.) Incorporation) 4951 Airport Parkway, #660, Addison, Texas 75001 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (972) 818-3862 - -------------------------------------------------------------------------------- Registrant's Telephone Number - -------------------------------------------------------------------------------- (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 2.04 Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. Performing Brands, Inc. (the "Company") has not filed its Quarterly Report on Form 10-Q for the period ended September 30, 2008, which filing was required to be filed with the Securities and Exchange Commission ("SEC") on November 14, 2008. Pursuant to the covenants under the Company's Senior Secured Convertible Promissory Note (the "Note"), failure to timely file its Form 10-Q is an event of default, although the Holder has not notified the Company that it is declaring an event of default. On April 3, 2008, in connection with a legal settlement, Performing Brands, Inc. (then known as Boo Koo Holdings, Inc.) and its subsidiary Boo Koo Beverages, Inc. entered into an agreement with Holigan Racing, L.P. ("Holigan") to settle the outstanding litigation between the parties, specifically Holigan Racing, LP v. Boo Koo Beverages, Inc., BK Subsidiary, Inc. and BK Beverages, LLC (the "Action"), in which Holigan had alleged breach of a sponsorship agreement and sued the Defendants. The Company executed the Note on April 3, 2008 in favor of Holigan in the amount of $1,400,000. The Note provides for payment to be made in eight quarterly payments of $175,000, which payments shall be made, at Holigan's election, in cash or a number of shares of the Company's common stock, par value $0.0001 per share ("Common Stock"), equal to the quotient of $175,000 divided by $0.75, subject to certain anti-dilution adjustments. The Note was subsequently amended on August 1, 2008 to provide that the entire remaining principal payments of $1,225,000 are due and payable on December 15, 2008. Pursuant to the terms of the Note, the Company is also required to make certain prepayments equal to 25% of the gross cash proceeds received from any Capital Transaction (as defined in the Note). In addition, repayment of the principal amount may be accelerated upon an Event of Default (as defined in the Note). The Note also contains certain restrictions on the Company's ability to incur indebtedness or liens against its assets. Upon receipt of a notice of default, the Company shall have 10 (ten) business days to cure. If the Company is unable to cure, the entire principal amount of $1,225,000 will become due and payable. Item 8.01 Other Events. As a result of the failure to file its Quarterly Report on Form 10-Q for the period ended September 30, 2008, the Company will file a request with the SEC to withdraw its Registration Statement on Form SB-2 (File No. 333-146419) (the "Registration Statement"). As a result of the failure to file its Form 10-Q and the expected request to withdraw the Registration Statement, shareholders cannot sell shares of Common Stock held by them pursuant to the Registration Statement or Rule 144 of the Securities Act of 1933, as amended. - -------------------------------------------------------------------------------- SIGNATURE 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. PERFORMING BRANDS, INC. By: /s/ Stephen C. Ruffini ------------------------------------------ Name: Stephen C. Ruffini Title: Chief Financial and Operating Officer Date: November 18, 2008 - -------------------------------------------------------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----