UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 1)
Fingermatrix, Inc.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
317929107
(CUSIP Number)
---------------
With a copy to:
Jerold K. Levien, Esq.
425 Madison Avenue
Suite 700
New York, NY 10017
(212) 308-2555
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
April 28, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box[ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 25 Pages)
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CUSIP No. 317929107 13D Page 2 of 25 Pages
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This filing amends the Issuer's Schedule 13D, initially filed on September 8,
1999 to provide the Exhibits required under Item 7.
Item 7. Material to be filed as Exhibits
(a) Agreement and Plan of Reorganization dated April 28, 1999, between
Fingermatrix, Inc. and The Trinity Group, Inc.
(b) Certificate of Amendment of the Certificate of Incorporation of
Fingermatrix, Inc. filed May 13, 1999.
(c) Certificate of Correction of Certificate of Amendment to the
Certificate of Incorporation of Fingermatrix, Inc. filed August 20, 1999.
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
THE TRINITY GROUP, INC.
By:_________________________________
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Name/Title
------------------------------------
Date
THE TRINITY GROUP-I, INC.
By:_________________________________
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Name/Title
------------------------------------
Date
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CUSIP No. 317929107 13D Page 3 of 25 Pages
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------------------------------------
Grazyna B. Wnuk
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Date
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Carol Schiller
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Date
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Lewis S. Schiller
------------------------------------
Date
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CUSIP No. 317929107 13D Page 4 of 25 Pages
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Exhibit A
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
FINGERMATRIX, INC.
Pursuant to Section 805 of the New York Business Corporation Law
THE UNDERSIGNED, being all of the directors of FINGERMATRIX, INC., do
hereby certify as follows:
1. The name of the Corporation is Fingermatrix, Inc.
2. The Certificate of Incorporation of the Corporation was filed with
the Department of State of the State of New York on May 12, 1976.
3. The Restated Certificate of Incorporation of the Corporation is
hereby amended to add the Certificate of the Powers, Designations, Preferences
and Rights of the Series A 2% Voting Convertible Preferred Stock of the Company,
as follows:
STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES,
PRIVILEGES, RIGHTS AND RESTRICTIONS OF THE SERIES A 2% VOTING
CONVERTIBLE REDEEMABLE PREFERRED STOCK.
The designation of, the number of shares constituting, and the rights,
preferences, privileges and restrictions relating to, the Series A 2% Voting
Convertible Preferred Stock are as follows:
1. Designation and Number of Shares. The designation of this series of
One Hundred Thousand (100,000) shares of preferred stock, par value $.01 per
share ("Preferred Stock"), created by the Board of Directors of the Corporation
pursuant to the authority granted to it by the Certificate of Incorporation of
the Corporation is "Series A 2% Voting Convertible Redeemable Preferred Stock"
(the "Series A Preferred Stock.") In the event that the Corporation does not
issue the maximum number of shares of Series A Preferred Stock the Corporation
may, from time to time, by resolution of the Board of Directors, reduce the
number of shares of Series A Preferred Stock authorized, provided that no such
reduction shall reduce the number of authorized shares to a number which is less
than the number of shares of Series A Preferred Stock then issued or reserved
for issuance. The number of shares by which the Series A Preferred Stock is
reduced shall have the status of authorized but unissued shares of Preferred
Stock, without designation as to series until such stock is once more designated
as part of a particular series by the Corporation's Board of Directors.
2. Dividend Rights.
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CUSIP No. 317929107 13D Page 5 of 25 Pages
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(a) Holders of shares of Series A Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors, out of
funds of this Corporation legally available therefor, cash dividends at an
annual rate of Thirteen Cents ($.13) per share, subject to the provisions of
Paragraphs 2(c) and (d) of this Statement. Dividends shall be payable in
quarterly installments. Such installments shall be paid on the dividend payment
dates, as hereinafter defined. Dividend payment dates shall be January 1, April
1, July 1 and October 1 of each year, with the first dividend payment date being
April 1, 1999. Dividends shall be payable on the dividend payment dates to
holders of Series A Preferred Stock of record on the 15th day of the preceding
December, March, June and September, respectively. Each quarterly period ending
on a dividend payment date is referred to as a "dividend period." Dividends on
the Series A Preferred Stock shall be fully cumulative and accrue, which respect
to each share of Series A Preferred Stock, from the date such share of Series A
Preferred Stock is originally issued.
(b) The amount of any dividends "accrued" on any share of
Series A Preferred Stock at any dividend payment date shall be deemed to be the
amount of any unpaid dividends accumulated thereon to and including such
dividend payment date, whether or not earned or declared, and the amount of
dividends accrued on any share of Series A Preferred Stock at any date other
than a dividend payment date shall be calculated as the amount of any unpaid
dividends accumulated thereon to and including the last preceding dividend
payment date, whether or not earned or declared, plus an amount calculated on
the basis of the annual dividend rate of Thirteen Cents ($.13) per share for the
period after such last preceding dividend payment date to and including the date
as of which the calculation is made.
(c) Except as provided in this Statement, no dividends shall
be declared or paid or set aside for payment on any class or series of capital
stock ranking on a parity with or junior to the Series A Preferred Stock as to
dividends for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for
payment thereof is set aside for such payment on the Series A Preferred for all
dividends periods terminating on or prior to the dividend payment date of such
dividends on any such series or class. When dividends are not paid in full upon
the shares of Series A Preferred Stock and any other series of Preferred Stock
of the Corporation ("Preferred Stock") ranking on a parity as to dividends with
the Series A Preferred Stock, all dividends declared upon shares of Series A
Preferred Stock and such other series of Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share on the Series A
Preferred Stock shall in all cases bear to each other the same ratio that the
accrued dividends per share on the shares of Series A Preferred Stock and such
other series of Preferred Stock bear to each other. Holders of shares of Series
A Preferred Stock shall not be entitled to dividends thereon, whether payable in
cash, property or stock, in excess of the full cumulative dividends thereon, as
provided in this Statement. No dividend on Series A Preferred Stock shall be
declared or paid or set apart for payment with respect to any dividend payment
date unless full dividends, including accumulated dividends, if any, on any
series or class of capital stock ranking, as to dividends, prior to Series A
Preferred Stock which are to have been paid on or prior to such dividend payment
date have been or contemporaneously are declared and paid or declared and a sum
sufficient for payment thereof has been set aside for all dividend periods for
such series or class terminating on or prior to such dividend payment date.
(d) As long as any shares of Series A Preferred Stock are
outstanding, no dividends (other than a dividend in any series or class of
capital stock ranking junior to Series A
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CUSIP No. 317929107 13D Page 6 of 25 Pages
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Preferred Stock as to both dividends and payments in the event of voluntary or
involuntary dissolution, liquidation or winding up), shall be declared or paid
or set aside for payment and no other distribution shall be declared or made
upon any such junior series or class of capital stock, and no such junior series
or class of capital stock or any series of Preferred Stock on a parity with
Series A Preferred Stock as to both dividends and payments in the event of
voluntary and involuntary dissolution, liquidation or winding up shall be
redeemed, purchased or otherwise acquired for any consideration by the
Corporation or by any subsidiary (which shall mean any corporation or entity,
the majority of voting power to elect directors of which is held directly or
indirectly by the Corporation ), except by conversion into or exchange for any
such junior series or class of capital stock; unless, in each case, the full
cumulative dividends on all outstanding shares of Series A Preferred Stock shall
have been paid in full for all past dividend periods or unless the holders of a
majority of the Series A Preferred Stock then outstanding shall consent thereto.
3. Voting Rights.
(a) Except as otherwise required by law, and subject to the
earlier redemption of the Series A Preferred Stock, the holders of shares of
Series A Preferred Stock shall vote together with the Common Stock, as if the
Common Stock and the Series A Preferred Stock were a single class; provided
that, in all matters, the holders of the Series A Preferred Stock shall have the
right to cast such number of votes per share of Series A Preferred Stock as are
equal to the number of shares of Common Stock issuable upon conversion of the
Series A Preferred Stock based on the conversion rate per share of Common Stock
on the record date for determining holders entitled to vote, but without regard
to whether the shares of Series A Preferred Stock are then convertible into
Common Stock.
(b) In the event that, pursuant to applicable law, the holders
of the Series A Preferred Stock are required to vote as a single class separate
and apart from the Common Stock, each holder of Series A Preferred Stock shall
be entitled to one vote per share of Series A Preferred Stock.
4. Conversion into Common Stock.
(a) (i) All of the issued and outstanding shares of the Series
A Preferred Stock will be converted automatically, without any required act or
deed on the part of the holders thereof, in accordance with the provisions of
that certain Agreement and Plan of Reorganization by and among the Corporation,
SES Acquisition Corp. and The Trinity Group, Inc. dated as of January 1, 1999.
In the event of such conversion, the provisions of Paragraph 4(a)(iii) and
4(c)through (k), inclusive, shall apply.
(ii) In the event the Series A Preferred Stock is not
converted pursuant to Paragraph 4(a)(i) hereof, on the first anniversary of the
Closing Date of that certain Debt Exchange Agreement dated as of January 1, 1999
among the Corporation and certain Creditors (as defined therein), then, as of
such date, each holder of the Series A Preferred Stock will have the right to
convert any or all of its shares of Series A Preferred Stock into shares of the
Common Stock, $.01 par value, of the Corporation (the "Common Stock"), at the
conversion rate (as hereinafter defined) (the "Conversion Rate") or, as to any
shares of the Series A Preferred Stock called for redemption prior to the first
anniversary of such Closing Date, at any time prior to the time and date of such
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CUSIP No. 317929107 13D Page 7 of 25 Pages
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redemption (unless the Corporation defaults in the payment of the Redemption
Price, in which case such right shall not terminate at such time and date), to
convert such shares into fully paid and non-assessable shares of Common Stock at
the Common Stock Conversion Rate as of the Date of conversion.
(iii) No fractional shares of Series A Preferred Stock may
be converted. If the number of shares of Series A Preferred Stock which may be
converted pursuant to this Paragraph 4 includes a fractional share of Series A
Preferred Stock, the number of shares of Series A Preferred Stock that may be
converted shall be rounded up so that the amount of shares of Series A Preferred
Stock subject to conversion is a whole number. If the shares of Series A
Preferred Stock are held by more than one holder, the number of shares of Series
A Preferred Stock which may be converted by each such holder shall be such
holder's pro rata share of the then outstanding Series A Preferred Stock or such
other percentage as may be jointly determined by all such shareholders. In
determining the number of shares of Series A Preferred stock which may be
converted by a holder of Series A Preferred Stock pursuant to Paragraph
4(a)(ii), if any fractional share of Series A Preferred Stock which is held by
such holder is more than one-half share, such fractional share of Series A
Preferred Stock shall be rounded up to a full share of Series A Preferred Stock
and shall confer upon the holder thereof the right to immediately convert such
share and if any fractional share of Series A Preferred Stock is less than or
equal to one-half share of Series A Preferred Stock, such fractional share shall
be rounded down to zero shares and shall confer no immediate conversion
privilege on the holder with respect to such fractional share.
(b) The Conversion Rate shall mean the number of shares of
Common Stock issuable upon conversion of one (1) share of Series A Preferred
Stock. The Conversion Rate shall be one (1) share of Common Stock, subject to
proper adjustment as provided in Paragraph 4(e) of this Statement.
(c) Conversion of the Series A Preferred Stock shall be
effected by surrender of the certificate representing the shares of Series A
Preferred Stock being converted to the transfer agent for the Series A Preferred
Stock, or, if none shall have been appointed, to the Corporation, together with
the form of notice of election to convert as may be provided from time to time
by the Corporation.
(d) Shares of Series A Preferred Stock shall be deemed to have
been converted immediately prior to the close of business on the day of the
surrender for conversion of the certificate therefor, together with the form of
notice of election provided by the Corporation duly signed by the holder
thereof, and the person or persons entitled to receive shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder of such shares of Common Stock as of such time. As promptly as
practicable on or after the conversion date, the Corporation or its transfer
agent shall issue and shall deliver a certificate or certificates for the number
of full shares of Common Stock issuable upon such conversion, together with a
cash payment in lieu of any fraction of any share, as hereinafter provided, to
the person or persons entitled to receive the same.
(e) The Conversion Rate shall be subject to adjustment as
follows:
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CUSIP No. 317929107 13D Page 8 of 25 Pages
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(i) In case the Corporation shall, after the date on which
this Amendment of the Restated Certificate of Incorporation of the Corporation
is filed (the "Filing Date"), (A) pay a dividend or make a distribution on its
shares of Common Stock in shares of Common Stock, (B) subdivide, split or
reclassify its outstanding Common Stock into a greater number of shares, (C)
effect a reverse split or otherwise combine or reclassify its outstanding Common
Stock into a smaller number of shares, or (D) issue any shares by
reclassification of its shares of Common Stock, the Conversion Rate in effect at
the time of the record date for such dividend or distribution or of the
effective date of such subdivision, combination or reclassification shall be
proportionately adjusted so that the holder of the shares of Series A Preferred
Stock converted after such date shall be entitled to receive the aggregate
number and kind of shares which, if such shares had been converted immediately
prior to such time, it would have owned upon such conversion and been entitled
to receive upon such dividend. subdivision, combination or reclassification.
Such adjustment shall be made successively whenever any event listed in this
Paragraph 4(e)(i) shall occur.
(ii) No increase or decrease in the Conversion Rate
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1%); provided, however, that any adjustments which by
reason of this Paragraph 4(e)(ii) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Paragraph 4(e) shall be made to the nearest one-hundredth (1/100) of
a share.
(iii) The Corporation may retain a firm of independent
public accountants of recognized standing selected by the Board of Directors
(who may be the regular accountants employed by the Corporation) to make any
computation required by this Paragraph 4(e), and a certificate signed by such
firm shall be conclusive evidence of the correctness of such adjustment.
(iv) In the event that at any time, as a result of an
adjustment made pursuant to this paragraph 4(e), the holder of shares of Series
A Preferred Stock thereafter shall become entitled to receive any shares of the
Corporation, other than Common Stock, thereafter the number of such other shares
so receivable upon conversion of shares of Series A Preferred Stock shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common Stock
contained in this Paragraph 4.
(v) In addition to the adjustments provided for in
this Paragraph 4(e), the Corporation may modify the Conversion Rate in a manner
which will increase the number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock if the Corporation believes that such
adjustment is necessary or desirable in order to avoid adverse Federal income
tax consequences to the holders of the Common Stock.
(f) Whenever the Conversion Rate shall be adjusted as required
by the provisions of Paragraph 4(e) of this Statement, the Corporation shall
forthwith file in the custody of its Secretary or an Assistant Secretary at its
principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Conversion Rate, setting forth in reasonable
detail the facts requiring such adjustment. Each such officers certificate shall
be made available at all reasonable times for inspection by any holder of shares
of Series A Preferred Stock, and the Corporation shall. forthwith after each
such adjustment, mail a copy of such certificate by first class
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CUSIP No. 317929107 13D Page 9 of 25 Pages
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mail to the holders of Series A Preferred Stock at such holders' addresses set
forth in the Corporations books and records.
(g) In case:
(i) the Corporation shall pay any dividend or make
any distribution upon Common Stock (other than a regular cash dividend payable
out of retained earnings or cash); or
(ii) the Corporation shall offer to the holders of
Common Stock for subscription or purchase by them any share of any class or any
other rights; or
(iii) any reclassification of the capital stock of
the Corporation consolidation or merger of the Corporation with or into another
corporation, sale, lease or transfer of all or substantially all of the property
and assets of the Corporation to another corporation, or voluntary or
involuntary dissolution, liquidation or winding up of the Corporation shall be
effected; then in any such case, the Corporation shall cause to be mailed by
fast class mail to the record holders of Series A Preferred Stock at least ten
(10) days prior to the date specified in (A) or (B) below, as the case may be, a
notice containing a brief description of the proposed action and stating the
date on which (A) a record is to be taken for the purpose of such dividend,
distribution or rights, or (B) such reclassification, consolidation, merger,
conveyance, lease. dissolution, liquidation or winding up is to take place and
the date, if any is to be fixed, as of which the holders of Common Stock or
other securities shall receive cash or other property deliverable upon such
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up and the provisions of Paragraph 4(h)
below shall be applicable..
(h) In case of any reclassification, capital reorganization or
other change of outstanding shares of Common Stock of the Corporation, or in
case of any consolidation or merger of the Corporation into another corporation
(other than a merger with a subsidiary in which merger the Corporation is the
continuing corporation and which does not result in any reclassification,
capital reorganization or other change of outstanding shares of Common Stock or
the class issuable upon conversion of Series A Preferred Stock) or in case of
any sale, lease or conveyance to another corporation of the property of the
Corporation as an entirety, the Corporation shall, as a condition precedent to
such transaction, cause effective provisions to be made so that the holder of
the Series A Preferred Stock shall have the right thereafter by converting the
Series A Preferred Stock, to receive the land and amount of shares of stock and
other securities and property receivable upon such reclassification, capital
reorganization and other change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock which might have been received
upon conversion of the Series A Preferred Stock immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Any such
provision shall include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Statement. The foregoing provisions of this Paragraph 4(h) shall similarly apply
to successive reclassifications, capital reorganizations and changes of shares
of Common Stock and to successive consolidations, mergers, sales or conveyances.
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CUSIP No. 317929107 13D Page 10 of 25 Pages
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(i) No fractional shares or script representing fractional
shares shall be issued upon the conversion of shares of Series A Preferred
Stock. If, upon conversion of any share of Series A Preferred Stock as an
entirety, the holder would, except for the provisions of this Paragraph 4(i) be
entitled to receive a fractional share of Common Stock, then an amount equal to
such fractional share multiplied by the fair market value per share of the
Common Stock on the last business day prior to the date of conversion shall be
distributed to the holder. The fair market value per share shall mean the
closing price (or average of the closing high bid and low asked prices if there
is no sale on such date) on the Nasdaq Stock Market or the New York or American
Stock Exchange, if the Common Stock is admitted to trading or listed on such
market or stock exchange, or if not so listed or admitted to trading, the
average of the reported highest bid and lowest asked prices as reported by
Nasdaq or the National Quotation Bureau. Inc. or similar reporting service
selected by the Board of Directors, or if no such prices are available, the
current market value shall be determined in good faith by the Board of
Directors.
(j) The Corporation shall at all times reserve and keep
available, free from preemptive right out of its authorized but unissued Common
Stock the full number of shares of Common Stock then issuable upon the
conversion of all shares of Series A Preferred Stock then outstanding.
(k) The Common Stock issuable upon conversion of the Series A
Preferred Stock shall, when so issued, be duly and validly authorized and
issued, fully paid and non-assessable.
5. Liquidation Rights
(a) (i) In the event of the liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, holders of the Series A
Preferred Stock shall be entitled to receive One Dollar ($1.00) per share, plus
declared and unpaid dividends before any payment or distribution upon
dissolution, liquidation or winding up shall be made on any series or class of
capital stock ranking junior to Series A Preferred Stock as to such payment or
distribution, and after all such payments or distributions have been made on any
series or class of capital stock ranking senior to the Series A Preferred Stock
as to such payment or distribution.
(ii) After payment of the preference set forth in Paragraph
6(a)(i) of this Statement of Designation the holders of the Series A Preferred
Stock shall have no further rights on liquidation, dissolution or winding up.
(b) The sale, conveyance, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property and assets of the Corporation shall be deemed a voluntary dissolution,
liquidation or winding up of the Corporation for purposes of this Paragraph 5.
The merger or consolidation of the Corporation into or with any other
corporation or the merger or consolidation of any other corporation into or with
the Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Paragraph 6; provided,
however, that the merger or consolidation of the Corporation into another
corporation shall be deemed to be a voluntary dissolution, liquidation or
winding up of the Corporation for the purposes of this Paragraph 5, unless
either (i) the holders of all shares of Series A Preferred Stock outstanding
upon the effectiveness of such merger or consolidation shall have
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CUSIP No. 317929107 13D Page 11 of 25 Pages
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the right, upon such effectiveness, to receive for each share of Series A
Preferred Stock held by them upon such effectiveness, one share of preferred
stock of the resulting or surviving corporation, which share shall have, to the
extent practicable, dividend and voting rights and rights upon dissolution,
liquidation or winding up reasonably equivalent to those of such share of Series
A Preferred Stock, and shall have the right to convert such share of preferred
stock into the number of shares of stock or other securities or property
receivable upon such merger or consolidation, as the case may be, by a holder of
the number of shares of Common Stock into which such share of Series A Preferred
Stock was convertible immediately prior to such merger or consolidation, subject
to adjustment as provided in Paragraph 4 of this Statement, (ii) each holder of
the shares of Series A Preferred Stock shall be entitled to receive upon the
effectiveness of such merger or consolidation in exchange for such holders
shares of Series A Preferred Stock the number of shares of stock or other
securities or property receivable upon such merger or consolidation, as the case
may be, as such holder would have received had it converted its Series A
Preferred stock into Common Stock immediately prior to such merger or
consolidation, or (iii) the merger or consolidation was approved by the holders
of a minority of the shares of Series A Preferred Stock then outstanding either
at a meeting of such stockholders or by a written consent in lieu of a meeting.
The provisions of this Paragraph 5(b) shall not be construed to limit the
obligations of the Corporation pursuant to Paragraph 4(h) of this statement of
Designation.
(c) In the event the assets of the Corporation available for
distribution to the holders of shares of Series A Preferred Stock upon
dissolution, liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to Paragraph 5(a)(i) of this Statement, no such
distribution shall be made on account of any shares of any other class or series
of capital stock of the Corporation ranking on a parity with the shares of
Series A Preferred Stock upon such dissolution, liquidation or winding up unless
proportionate distributive amounts shall be paid on account of the shares of
Series A Preferred Stock, ratably, in proportion to the full distributable
amounts for which holders of all such parity shares are respectively entitled
upon such dissolution, liquidation or winding up.
(d) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of shares of Series A Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders all amounts to which such holders are entitled
pursuant to Paragraph 5(a)(i) of this Statement before any payment shall be made
to the holders of any class of capital stock of the Corporation ranking junior
upon liquidation to the Series A Preferred Stock.
6. Rank of Series. For purposes of this Statement, any stock of any
series or class of the Corporation shall be deemed to rank:
(a) prior to the shares of Series A Preferred Stock, as to
dividends or upon liquidation, dissolution or winding up, as the case may be, if
the holders of such class or classes shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in preference or priority to the
holders of shares of Series A Preferred Stock;
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CUSIP No. 317929107 13D Page 12 of 25 Pages
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(b) on a parity with shares of Series A Preferred Stock, as to
dividends or upon liquidation, dissolution or winding up, as the case may be,
whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share or sinking fired provisions, if any, be different
from those of Series A Preferred Stock, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of such stock
and the holders of shares of Series A Preferred Stock; and
(c) junior to shares of Series A Preferred Stock as to dividends
or upon liquidation, dissolution or winding up, as the case may be, if such
class shall be Series B Preferred Stock or Common Stock or if the holders of
shares of Series A Preferred Stock shall be entitled to receipt of dividends or
of amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the holders of
shares of such class or classes.
7. No Preemptive Rights. No holder of shares of the Series A Preferred
Stock shall, as such holder, be entitled as of right to purchase or subscribe
for any shares of stock of the Corporation of any class or any series now or
hereafter authorized or any securities convertible into or exchangeable for any
shares, or any warrants, options, rights or other instruments evidencing rights
to subscribe for or purchase any such shares, whether such shares, securities,
warrants, options, rights or other instruments be unissued or issued and
thereafter acquired by the Corporation.
8. Transfer Agent and Registrar. The Corporation may appoint a transfer
agent and registrar for the issuance, transfer and conversion of the Series A
Preferred Stock and for the payment of dividends to the holders of the Series A
Preferred Stock.
9. Creation of Other Preferred Stock. The Corporation is not restricted
from creating other series of Preferred Stock which may be senior or junior to
or on a parity with the Series A Preferred Stock as to dividends and/or on the
voluntary or involuntary dissolution, liquidation or winding up of the
Corporation without the consent of the holders of the Series A Preferred Stock.
IN WITNESS WHEREAS, the undersigned, being all of the directors of the
Corporation, have executed this Certificate for and on behalf of the Corporation
this 28th day of April 1999.
-----------------------------------
GORDON R. MOLESWORTH,
Director
FRED SONNENFELD,
Director
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CUSIP No. 317929107 13D Page 13 of 25 Pages
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THOMAS T. HARDING,
Director
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CUSIP No. 317929107 13D Page 14 of 25 Pages
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Exhibit B
AGREEMENT AND PLAN OF REORGANIZATION
between
FINGERMATRIX, INC.
and
THE TRINITY GROUP, INC.
AGREEMENT AND PLAN OF REORGANIZATION dated this 28th day of April, 1999
between FINGERMATRIX, INC., a New York corporation formerly located at 145
Palisade Street, Dobbs Ferry, New York 10522 ("Fingermatrix" or the "Company")
and THE TRINITY GROUP, INC., a Delaware corporation having an office at 21346
St. Andrews Boulevard, Suite 137, Boca Raton, FL 33433 ("Trinity").
W I T N E S S E T H
WHEREAS, the Company desires to acquire from Trinity and Trinity
desires to exchange with the Company all of the issued and outstanding shares
of the capital stock SES ACQUISITION CORP., a Delaware corporation ("SESA") in
exchange for 85% of the equity and voting power of the Company, all upon the
terms and conditions hereinafter set forth and for the purposes of carrying out
a share exchange pursuant to Section 913 of the New York BCL and a tax-free
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986; and
WHEREAS, in order to carry out the foregoing objectives, the parties
hereto desire to enter into and adopt this Agreement and Plan of
Reorganization;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. For the purposes of this Agreement, the following terms shall
have the meanings ascribed to them below:
a. "Closing" shall mean the consummation of the transaction to occur on the
Closing Date (as hereinafter defined) pursuant to this Agreement.
b. "Closing Date" shall mean April 15, 1999 or such later date
upon which the parties hereto may agree.
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c. "Common Stock" shall mean shares of the common stock, $.01 par
value, of the Company.
d. "Creditors" shall mean the persons defined as Creditors in the
Debt Exchange Agreement (as hereinafter defined).
e. "Debt Exchange Agreement" shall mean that certain agreement
dated as of January 1, 1999, by and between the Company and
the persons whose names appear on Exhibit A to such agreement.
f. "Intellectual Property" shall mean the rights and property
referred to in Paragraph 2(a)(vi) of this Agreement.
g. "Noteholders" shall mean the persons defined as Noteholders in
the Debt Exchange Agreement.
h. "Notes" shall mean the four promissory notes of Fingermatrix
referred to and defined as the Notes in the Debt Exchange Agreement.
i. "Notices" shall mean all notices, consents, requests, demands
and other communications required or permitted under this Agreement.
j. "Series A Preferred Stock" shall mean Series A 2% Voting
Convertible Preferred Stock of the Company.
2. Warranties and Representations.
a. The Company hereby warrants and represents as follows:
(i) The Company is and on the Closing Date will be a
corporation duly organized, validly existing and in
good standing under the laws of the State of New
York.
(ii) The Company has not conducted any business
operations, other than a search for investment
capital, a source of debt financing, an entity to buy
the Company or its business, a merger or joint
venture partner since October 15, 1997.
(iii) The Company's authorized capital stock consists of
20,000,000 shares of Common Stock, $.01 par value per
share, and 1,000,000 shares of Preferred Stock, $.01
par value per share of which 9,428,393 shares of the
Common Stock and no shares of the Preferred Stock are
issued and outstanding on the date hereof and
1,186,500 shares of the Common
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Stock are reserved for issuance upon the exercise of
outstanding options and warrants.
(iv) The Company has and prior to the Closing Date will
have no affiliates or subsidiaries. The Company does
not own or control and on the Closing Date will not
own or control any of the capital stock of any
corporation.
(v) (A) The books of account of the Company fairly and correctly
reflect the Company's income, expenses, assets and liabilities
in accordance with generally accepted accounting principles
consistently applied;
(B) the financial statements of the Company as at and for the years
ended September 30, 1996, 1995 and 1994, prepared and
certified by Farber, Blicht & Eyerman, LLP, including the
related notes, fairly present the financial position of the
Company as of said dates and the results of its operations for
such years;
(C) the unaudited financial statements of the
Company as at and for the nine-month period ended June 30,
1997, including the related notes, if any, fairly present the
financial position of the Company as of said date and the
results of its operations for said period; and
(D) to the best of the Company's knowledge and belief, said
financial statements show all material liabilities and
commitments of the Company, direct or contingent, as of said
dates and, to the best of the Company's knowledge and belief,
the Company has no material liabilities or commitments, direct
or contingent, that are not reflected in said financial
statements except such current liabilities as have been
incurred since the dates thereof in the ordinary course of
business and unpaid New York State Liability in the aggregate
amount of $4,500.
(vi) As of the Closing date, any and all intellectual
property of the Company including, but not limited to, copyrights,
trademarks, trade names and registrations therefor, licenses,
inventions, letters patent, applications for letters patent and
patent license rights, in any form or medium, in the possession of
a director of the Company, has been physically returned to the
Company.
(vii) The Company has not filed any federal tax returns for fiscal years
subsequent to 1996.
(viii) The consummation of the transactions contemplated by
this Agreement will not result in the breach of any
term or provision of the Certificate of Incorporation
or By-laws of the Company or result in the breach of
any term or provision of, or constitute a default or
result in the acceleration of any obligation under,
any loan agreement, indenture, financing agreement
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or any other agreement or instrument of any kind to which the
Company is a party.
(ix) When approved, executed and delivered by the Board of Directors of
the Company, this Agreement will have been duly and validly
authorized, executed and delivered and all requisite corporate
action will have been taken so that this Agreement will be valid
and binding upon and enforceable against the Company in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting generally the enforcement of creditors' rights and by
general principles of equity.
(b) Trinity hereby warrants and represents as follows:
(i) Trinity is and on the Closing Date will be a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and entitled to own its properties and to conduct its
business in the places where such properties are now owned and such business is
now conducted.
(ii) The execution, delivery and performance of this Agreement
by Trinity has been duly and validly authorized and all requisite corporation
action and upon execution and delivery it will be valid and binding upon
Trinity in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
generally the enforcement of creditors' rights and by general principles of
equity.
(iii) It is the record and beneficial owner, free and clear of
all liens and encumbrances, of all of the issued and outstanding shares of the
capital stock of SESA.
(iv) The consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of the
Certificate of Incorporation or Bylaws of Trinity or result in the breach of
any term or provision of, or constitute a default or result in the acceleration
of any obligation under, any agreement or other instrument to which SESA is a
party.
(vii) SESA is and on the Closing Date will be a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and entitled to own its properties and to conduct its
business in the places where such properties are now owned and such business is
now conducted.
(viii) The execution, delivery and performance of this
Agreement by SESA has been duly and validly authorized and all requisite
corporation action and upon execution and delivery it will be valid and binding
upon SESA in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
generally the enforcement of creditors' rights and by general principles of
equity.
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(ix) The consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of the
Certificate of Incorporation or Bylaws of SESA or result in the breach of any
term or provision of, or constitute a default or result in the acceleration of
any obligation under, any agreement or other instrument to which SESA is a
party.
(x) The unaudited combined financial statements of Sequential
Electronic Systems, Inc., a Delaware corporation ("SES") and FMX Inc., a
Delaware corporation ("FMX") and unaudited financial statement of S-Tech, Inc.,
a Delaware corporation ("S-Tech") as at and for the year ended December 31,
1998, true, correct and complete copies of which have been delivered to
Fingermatrix, fairly present, in all material respects, the financial position
of SES, FMX and S-Tech as of said dates and the results of their operations for
such years. The unaudited Balance Sheet as at December 31, 1998 constituting a
part of such financial statements shows that SES, FMX, Inc., and S-Tech, Inc.
have a combined net worth in excess of $1,500,000. Copies of such financial
statements are annexed hereto Exhibit A and incorporated herein by this
reference.
(xi) On the Closing Date, SESA will be the owner, free and
clear of all liens and encumbrances (except the lien created by that certain
Pledge Agreement dated as of January 1, 1998, among Lewis S. Schiller, SES and
Carol Schiller, of 50.1% of the issued and outstanding shares of FMX. and 100%
of the issued and outstanding shares of SES and S-Tech.
Inc. and SES.
(c) Notwithstanding any investigation conducted before or after the Closing,
and notwithstanding any actual or implied knowledge or notice of any facts or
circumstances which any party may have as a result of such investigation or
otherwise, the parties shall be entitled to rely upon the warranties and
representations set forth herein, and the obligations of the parties with
respect thereto shall survive the closing and continue in full force and effect
until the third anniversary of the Closing Date, at which time all warranties
and representations set forth in this Agreement and all liability of the parties
with respect thereto shall terminate.
1. The Closing.
(a) On the Closing Date, the Company will:
(i) Cause to be filed with the Secretary of State of New York
the Certificate of Amendment to the Restated Certificate of Incorporation of
the Company, in the form annexed hereto as Exhibit 1 and incorporated herein by
this reference.
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(ii) Certify that it has in its possession all of the
Intellectual Property of the Company in whatever form or medium and with all
manuals, instructions and the like, and all sales and marketing information,
contracts and agreements which was, prior to the Closing Date, in the
possession of any of the Company's Directors;
(iii) Deliver to Trinity a mutual termination without cost to
Trinity of the Employment Agreement between the Company and Thomas T. Harding;
(iv) Deliver to Trinity a mutual termination without cost to
Trinity of the Consulting Agreement between the Company and Newell & Storr &
Co., Inc.
(v) Deliver to Trinity fully executed Debt Exchange Agreements
between the Company and all of the Creditors and Noteholders;
(vi) Issue and deliver to the Creditors and Noteholders
certificates for an aggregate of 6,346 shares of the Series A Preferred Stock,
as provided for in the Debt Exchange Agreement;
(vii) Issue and deliver to Trinity a certificate for 93,654
shares of the Series A Preferred Stock ;
(viii) Issue and deliver to Trinity certificates registered in
the name of The Trinity Group, Inc. for 10,571,607 shares of the Common Stock;
and
(ix) reserve 271,650 shares of the Common Stock for issuance
upon the exercise of outstanding warrants and options of the Company; and
(b) On the Closing Date the directors of the Company will submit
seriatim resignations and elect or appoint three nominees of
Trinity to fill the vacancies created by such resignations.
Such nominees, when duly elected or appointed, will take over
the management of the Company.
(c) On the Closing Date, Trinity will convey or cause to be
conveyed to the Company all of the issued and outstanding
shares of each class of the capital stock of SESA.
4. Conditions Precedent. All of the representations and warranties of the
parties hereto shall be true as of the Closing Date.
5. Conditions Subsequent:
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(a) As soon as practicable following the Closing hereunder, the
newly formed board of directors of the Company will undertake
to call and hold a special meeting of the Fingermatrix
shareholders for the purpose of obtaining shareholder approval
to increase the authorized capital of the Company so as to
permit the conversion of the Series A Stock and, upon
completion of such conversion, to reverse split the Common
Stock so that there will remain 5,000,000 shares of Common
Stock, $.01 par value, issued and outstanding. In connection
with such meeting, the Company will cause to be prepared and
circulated among the security holders of the Company an
Information Statement (the "Information Statement") with
respect to the Company which shall be prepared, filed and
distributed in accordance with the provisions of Section 14(c)
of the Securities Exchange Act of 1934, as amended, and Rule
14C promulgated thereunder. The documented cost of the
preparation of such Information Statement, including legal and
accounting fees, printing costs and distribution costs, will
be borne by Trinity.
(b) Upon the authorization and filing of the documentation
necessary to increase the authorized capital of the Company as
aforesaid, and without further act or deed, the shares of the
Series A Preferred Stock held by the Creditors, Noteholders
and Trinity will be converted into 74,283,930 shares of the
Common Stock of which the Creditors and Noteholder will be
entitled to 4,714,197 shares, pursuant to the terms of the
Certificate of Designation, Rights and Preferences of the
Series A Preferred Stock and the Debt Exchange Agreement and
Trinity will be entitled to 69,569,733 shares;
(c) Upon the authorization by the Fingermatrix shareholders, as
provided in Paragraph 5(a) above, and without further act or
deed, the issued and outstanding shares of the Common Stock of
the Company will be reverse split on a 18.85679 shares for 1
share basis so that there will be 5,000,000 shares of the
Common Stock issued and outstanding;
6. Covenants of SESA.
(a) Within ten (10) days of becoming a holder of ten percent (10%)
or more of the Common Stock of Fingermatrix, Trinity will file
with the SEC a Form 3 reflecting its acquisition of shares of
the Common Stock hereunder.
(b) On the Closing Date, the Company will file a Form 8-K with the
SEC, reporting the transactions that took place at the
Closing.
7. Miscellaneous.
(a) This Agreement, including the Disclosure Schedule Exhibits
hereto and documents to be delivered at Closing, constitute
the sole and entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements, representations, warranties, statements,
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promises, arrangements and understandings, whether oral or
written, express or implied, among the parties hereto with
respect to the subject matter hereof and may not be changed or
modified except by an instrument in writing signed by the
party or parties to be bound thereby. This Agreement has been
subject to the mutual consultation, negotiation and agreement
of the parties hereto and shall not be construed for or
against any party hereto on the basis of such party having
drafted this Agreement.
(b) All Notices shall be in writing and delivered personally or by
a nationally recognized overnight courier service, receipt
acknowledged, or mailed by registered or certified mail,
postage prepaid, return receipt requested, addressed to the
parties hereto as follows (or to such other address as any of
the parties hereto shall specify by Notice given in accordance
with this provision):
(i) If to Fingermatrix, to:
Fingermatrix, Inc.
c/o Gordon Molesworth
1091 W. Calle Excelso
Green Valley, AZ 85614
(ii) If to Trinity, to:
The Trinity Group, Inc.
21346 St. Andrews Boulevard
Suite 137
Boca Raton, FL 33433
with a copy to:
Jerold K. Levien, Esq.
30 Jean Drive
Englewood Cliffs, NJ 07632.
All such Notices shall be deemed given when personally delivered as aforesaid,
or, if mailed as aforesaid, on the third business day after the mailing thereof
or on the day actually received, if earlier, except for a notice of a change of
address which shall be effective and deemed to have been given only upon
receipt.
(c) No party hereto may assign this Agreement or its or their
respective rights, benefits or obligations hereunder without
the written consent of the other parties hereto.
(d) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors, heirs, personal
representatives, administrators, executors and permitted
assigns. Nothing contained in this Agreement is
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intended to confer upon any person or entity, other than the
parties hereto, or their respective successors, heirs,
personal representatives, administrators, executors or
permitted assigns, any rights, benefits, obligations, remedies
or liabilities under or by reason of this Agreement.
(e) No waiver of any provision of this Agreement or of any breach
thereof shall be effective unless in writing and signed by the
party to be bound thereby. The waiver by any party hereto of a
breach of any provision of this Agreement, or of any
representation, warranty, obligation or covenant in this
Agreement by any other party hereto, shall not be construed as
a waiver of any subsequent breach of the same or of any other
provision, representation, warranty, obligation or covenant of
such other party, unless the instrument of waiver expressly so
provides.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, with
respect to contracts made and to be fully performed therein,
without regard to the conflicts of laws principles thereof.
The parties hereto hereby agree that any suit or proceeding
arising under or as a result of this Agreement or the
consummation of the transactions contemplated hereby, shall be
brought solely in a federal or state court located in the
City, County, and State of New York. By their execution
hereof, the parties hereto consent and irrevocably submit to
the in personam jurisdiction of the federal and state courts
----------- located in the City, County and State of New York
and agree that any process in any suit or proceeding commenced
in such courts under this Agreement may be served upon them
personally or by certified or registered mail, return receipt
requested, or by a nationally recognized overnight courier
service, with the same force and effect as if personally
served upon them in such County and State. The parties hereto
each waive any claim that any such jurisdiction is not a
convenient forum for any such suit or proceeding and any
defense of lack of in -- personam jurisdiction with respect
thereto. --------
(g) The parties hereto hereby agree that, at any time and from
time to time after the date hereof and through and after the
date of execution hereof, upon the reasonable request of any
party hereto, they shall do, execute, acknowledge and deliver,
or cause to be done, executed, acknowledged and delivered,
such further acts, deeds, assignments, transfers, conveyances,
and assurances as may be reasonably required to more
effectively consummate this Agreement and the transactions
contemplated thereby or to confirm or otherwise effectuate the
provisions of this Agreement.
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(h) Each party hereto represents and warrants to the other that it
has been represented by independent counsel of its own
choosing in connection with the negotiation, preparation, and
consummation of this Agreement. In the event of any action or
proceeding instituted by any party hereto to enforce the
provisions of this Agreement, the party prevailing therein
shall be entitled to reimbursement by the other party of the
reasonable legal costs and expenses incurred by the prevailing
party in connection therewith.
(i) This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which
when taken together, shall constitute one and the same
instrument.
(j) The Paragraph headings used in this Agreement have been used
for convenience of reference only and are not to be considered
in construing or interpreting this Agreement.
(k) If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of this Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have signed this Agreement this
28th day of April, 1999.
ATTEST: FINGERMATRIX, INC.
By:
Gordon R. Molesworth, Thomas T. Harding,
Secretary President
ATTEST: THE TRINITY GROUP, INC.
By:
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Exhibit C
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION
OF
FINGERMATRIX, INC.
Under Section 105 of the
Business Corporation Law
The undersigned, being, respectively, the President and Secretary of
FINGERMATRIX, INC. (the "Corporation"), hereby certify and set forth as
follows:
FIRST: The name of the Corporation is FINGERMATRIX, INC.
SECOND: The date the certificate to be corrected was filed with the
department of State is the 20th day of August, 1999.
THIRD: The provisions in the Certificate as corrected are as follows:
(a) The paragraph immediately following the five numbered paragraphs on
page one of the Certificate is corrected to add "(b)" after the numeral "4;" it
should read as follows:
Paragraphs 1 and 4(b) of the Statement of the Powers,
Designations, Preferences, Privileges, Rights and Restrictions of the
Series A 2% Voting Convertible Redeemable Preferred Stock of the
Corporation are hereby amended, in their entirety, to read as follows:
(b) The words "seven hundred forty-two and nine-tenths" appearing in
paragraph
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numbered 4(b) on page 2 of the Certificate is corrected to read "seven hundred
forty-two and eight-tenths (742.8)" and should read as follows:
"4.(b) The Conversion Rate shall mean the number of shares of
Common Stock issuable upon conversion of one (1) share of Series A Preferred
Stock. The Conversion Rate shall be seven hundred forty-two and eight-tenths
(742.8) shares of Common Stock, subject to proper adjustment as provided in
Paragraph 4(e) of this Statement."
IN WITNESS WHEREOF, we hereunto sign our name this 20th day of
August, 1999, and affirm that the statements contained herein are true under
the penalties of perjury.
FINGERMATRIX, INC.
-----------------------------------
Lewis S. Schiller - President
-----------------------------------
Grazyna B. Wnuk - Secretary
