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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: AUGUST 23, 1996
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SYNC RESEARCH, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 0-26952 33-0676350
(State or other (Commission (I.R.S. Employer
jurisdiction of
incorporation or File Number) Identification
organization) No.)
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7 STUDEBAKER
IRVINE, CALIFORNIA 92718
(Address of principal executive offices) (Zip code)
(714) 588-2070
(Registrant's telephone number, including area code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Pursuant to the Agreement and Plan of Reorganization (the "Reorganization
Agreement") by and among Sync Research, Inc., a Delaware corporation ("Sync" or
the "Registrant"), SR Acquisition Corp., a Delaware corporation ("Merger Sub")
and wholly owned subsidiary of Sync, and TyLink Corporation, a Delaware
corporation ("TyLink"), made as of June 27, 1996 and the Certificate of Merger
(the "Merger Certificate"), filed with the Delaware Secretary of State on August
23, 1996, Merger Sub was merged with and into TyLink (the "Merger"). As a result
of the Merger, TyLink has become a wholly owned subsidiary of Sync.
At the time the Merger became effective on August 23, 1996 (the "Effective
Time"), each share of Common and Series A Preferred Stock of TyLink outstanding
immediately prior to the Effective Time was converted into and exchanged for
0.1575735711 shares of Common Stock of Sync, respectively. Each outstanding
share of Series B Preferred Stock of TyLink outstanding immediately prior to the
Effective Time was converted into and exchanged for a combination of
$1.574294913 in cash and 0.0821296465 shares of Common Stock of Sync. The
aggregate number of shares of Common Stock of Sync issued in accordance with the
terms of the Reorganization Agreement upon such conversion and exchange was
2,780,000 shares (including shares of Common Stock of Sync issuable upon
exercise of TyLink stock options assumed by Sync in the Merger). No fractional
shares of Common Stock of Sync were issued in connection with such conversion
and exchange. In lieu thereof, Sync paid to the holders of fractional shares an
amount in cash (rounded to nearest whole cent) equal to such fractional share
interest multiplied by $9.806250 (the average last sale price of a share of
Common Stock of Sync for the ten trading days during the period beginning August
2, 1996 and ending on and including August 15, 1996).
Under the terms of the Reorganization Agreement, a total of 235,680 shares
of Common Stock of Sync issued as described in the preceding paragraph and a
total of $400,000 in cash will be held in escrow for the purpose of securing the
indemnification obligations of the stockholders of TyLink under the
Reorganization Agreement. The escrow period shall terminate upon the earlier of
April 30, 1997 or the date the audit of Sync's financial statements for the
fiscal year ended December 31, 1996 has been completed and Sync has received a
signed opinion from its independent auditors certifying such financial
statements.
The amount of consideration paid in connection with the Merger was
determined in arms-length negotiations between officers of Sync and TyLink. The
terms of the transaction were approved by the Boards of Directors of Sync,
Merger Sub and TyLink and by the stockholders of Merger Sub and TyLink. The
funds that Sync used to make the cash payment to the holders of Series B
Preferred Stock of TyLink were derived from the proceeds of Sync's initial
public offering, which was completed in November 1995.
In connection with the Merger, all five of TyLink's executive officers and
nine other TyLink employees entered into employment agreements with Sync whereby
each such person will be employed by Sync at no less than his or her existing
salary and benefit levels at TyLink for a period of no less than one to two
years (depending on the person).
The above-referenced officers and employees have also entered into
non-competition agreements, under which they agreed not to engage during their
respective employment periods in activities competitive with the business of
TyLink or, in the case of all but certain non-executive officers, the business
of Sync.
Prior to the consummation of the Merger, there was no material relationship
between TyLink and the Registrant or any of its affiliates, any director or
officer of the Registrant, or any associate of any such director or officer.
1
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED.
It is currently impracticable for the Registrant to provide the financial
statements required pursuant to Rule 3-05(b) of Regulation S-X. In accordance
with Item 7(a)(4) of the instructions to Form 8-K, the Registrant will file such
financial statements as soon as they are available, and in no event later than
November 8, 1996.
(b) PRO FORMA FINANCIAL INFORMATION.
It is currently impracticable for the Registrant to provide the financial
statements required pursuant to Article 11 of Regulation S-X. In accordance with
Items 7(a)(4) and 7(b)(2) of the Instructions to Form 8-K, the Registrant will
file such financial statements as soon as they are available, and in no event
later than November 8, 1996.
(c) EXHIBITS.
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2.1(1) Agreement and Plan of Reorganization dated as of June 27,
1996 among Registrant, SR Acquisition Corp. and TyLink
Corporation.
2.2 Certificate of Merger dated as of August 22, 1996 executed
by SR Acquisition Corp. and TyLink Corporation, as filed
with the Delaware Secretary of State on August 23, 1996.
3.2(2) Amended and Restated Certificates of Incorporation of
Registrant
3.3(2) Bylaws of Registrant
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(1) Incorporated by reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996 filed by the Company with the Commission
on August 12, 1996.
(2) Incorporated by reference from the Company's Registration Statement on Form
S-1, as amended (File No. 33-96910), filed with the Commission on September
14, 1995 and declared effective on November 9, 1995.
2
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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 thereunto duly authorized.
SYNC RESEARCH, INC.
(Registrant)
Dated: September 6, 1996 By: /s/ RONALD J. SCIOSCIA
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Ronald J. Scioscia
VICE PRESIDENT OF FINANCE AND
ADMINISTRATION AND CHIEF FINANCIAL OFFICER
(DULY AUTHORIZED AND PRINCIPAL FINANCIAL
AND PRINCIPAL ACCOUNTING OFFICER)
II-1
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INDEX TO EXHIBITS
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EXHIBIT
NO. EXHIBIT
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2.1(1) Agreement and Plan of Reorganization dated as of June 27,
1996 among Registrant, SR Acquisition Corp. and TyLink
Corporation
2.2 Certificate of Merger dated as of August 22, 1996 executed
by SR Acquisition Corp. and TyLink Corporation as filed
with the Delaware Secretary of State on August 23, 1996
3.2(2) Amended and Restated Certificate of Incorporation of
Registrant
3.3(2) Bylaws of Registrant
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(1) Incorporated by reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996 filed by the Company with the Commission
on August 12, 1996.
(2) Incorporated by reference from the Company's Registration Statement (File
No. 33-96910 on Form S-1 filed by the Company with the Commission on
September 14, 1995 and declared effective November 9, 1995.
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EXHIBIT 2.2
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CERTIFICATE OF MERGER
MERGING
SR ACQUISITION CORP.
WITH AND INTO
TYLINK CORPORATION
PURSUANT TO SECTION 251 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
TyLink Corporation, a Delaware corporation ("TyLink"), and SR Acquisition
Corp., a Delaware corporation ("Sub"), do hereby certify as follows:
FIRST: That the names and states of incorporation of the constituent
corporations are as follows:
SR Acquisition Corp., a Delaware corporation, and
TyLink Corporation, a Delaware corporation.
SECOND: That an Agreement and Plan of Reorganization (the "Reorganization
Agreement") dated June 27, 1996 by and among TyLink, Sub and Sync Research,
Inc., a Delaware corporation, setting forth the terms and conditions of the
merger of Sub with and into TyLink (the "Merger"), has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with the provisions of subsection (c) of Section 251 of the General
Corporation Law of the State of Delaware.
THREE: That the name of the Surviving Corporation (the "Surviving
Corporation") shall be TyLink Corporation.
FOURTH: That pursuant to the Reorganization Agreement, the Certificate of
Incorporation of the Surviving Corporation shall be the Certificate of
Incorporation of the Surviving Corporation, as amended in the form set forth on
Exhibit A attached hereto.
FIFTH: That the executed Reorganization Agreement is on file at the
principal place of business of the Surviving Corporation at 10 Commerce Way,
Norton, Massachusetts, 02766.
SIXTH: That a copy of the Reorganization Agreement will be furnished by the
Surviving Corporation on request and without cost to any stockholder of any
constituent corporation.
SEVENTH: That the Merger shall become effective upon the filing of this
Certificate of Merger with the Secretary of State of Delaware.
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IN WITNESS WHEREOF, each of Sub and TyLink has caused this Certificate of
Merger to be executed in its corporate name on the 22nd day of August, 1996.
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TYLINK CORPORATION,
a Delaware corporation
By: /s/ ROBERT DEGAN
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Name: Robert Degan
Title: President and Chief Executive
Officer
ATTEST:
By: /s/ CHRISTINE WILSON
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Name: Christine Wilson
Title: Assistant Secretary
SR ACQUISITION CORP.
By: /s/ ROGER A. DORF
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Name: Roger A. Dorf
Title: President and Chief Executive
Officer
ATTEST:
By: /s/ RONALD J. SCIOSCIA
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Name: Ronald J. Scioscia
Title: Secretary
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EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF TYLINK CORPORATION
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RESTATED CERTIFICATE OF INCORPORATION
OF
TYLINK CORPORATION
ARTICLE I
The name of the corporation is TyLink Corporation (the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is 15 East North Street, Dover, County of Kent. The name of its registered agent
at such address is Incorporating Services, Ltd.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
The aggregate number of shares which this Corporation shall have authority
to issue is One Thousand shares of capital stock, all of which shall be
designated "Common Stock" and which shall have a par value of $0.001 per share.
ARTICLE V
The Board of Directors of the Corporation is expressly authorized to make,
alter or repeal Bylaws of the Corporation, but the stockholders may make
additional Bylaws and may alter or repeal any Bylaw whether adopted by them or
otherwise.
ARTICLE VI
Elections of directors need not be by written ballot unless otherwise
provided in the Bylaws of the Corporation.
ARTICLE VII
(A) To the fullest extent permitted by the Delaware General Corporation Law,
as the same exists or as may hereafter be amended, a director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
(B) The Corporation shall indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, his testator or intestate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation, or serves or served at
any other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
(C) Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article VII, shall eliminate or reduce the effect of this Article VII
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article VII, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE VIII
The Corporation is to have perpetual existence.
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ARTICLE IX
The number of directors that will constitute the whole Board of Directors of
the Corporation shall be designated in the Bylaws of the Corporation.
ARTICLE X
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any statutory provision) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors in
the Bylaws of the Corporation.
