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): February 20, 1998
X-ceed, Inc. (formerly Water-Jel Technologies, Inc.)
(Exact name of registrant as specified in its charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-13049 13-3006788
(Commission File Number) (I.R.S. Employer Identification No.)
488 Madison Avenue, New York, New York 10022
(Address and zip code of principal executive offices)
212-753-5511
(Registrant's telephone Number)
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ITEM 2. Acquisition or Disposition of Assets
On February 20, 1998, at the Annual Meeting of Shareholders for the
fiscal year ended August 31, 1997, the Shareholders of Water-Jel Technologies,
Inc. ("Water-Jel") approved by a two-thirds majority vote the merger of
Water-Jel into a wholly owned subsidiary, X-ceed, Inc. ("X-ceed"), a Delaware
corporation. The purpose of the merger was to change the state of incorporation
from New York to Delaware:
X-ceed, as the surviving corporation, has authorized capital of
30,000,000 shares of Common Stock, par value $.01 per share and 1,000,000 shares
of "blank check" Preferred Stock, $.05 par value per share.
Prior to the merger Water-Jel had an authorized capital consisting of
12,500,000 shares of Common Stock, $.05 par value per share and 125,000 shares
of Preferred Stock, $.08 par value per share with no designation as to voting
rights or preferences. As of the date of the merger, there were 7,043,180 Shares
of Common Stock outstanding and no Preferred Shares outstanding. Approximately
5,041,538 shares had been reserved by Water-Jel for issuance upon the exercise
of options granted under various Stock Option Plans for officers and employees
and granted under various option and warrant agreements and in connection with
Water-Jel's original public offering in 1988.
Under the terms of the merger each outstanding share of Water-Jel is
automatically changed into one share of X-ceed and all outstanding options and
warrants will be exercisable into shares of X-ceed on the same terms and
conditions as previously existed. X-ceed Common Stock and its Class A Warrants
will trade on the Nasdaq SmallCap Market under the same symbols as it previously
traded, "XCED" and "XCEDZ," respectively. The Class B Warrants, infrequently
traded on the Bulletin Board, also retain the same symbol, "XCEDW."
The merger is treated as a pooling of interests and as such X-ceed as
the surviving corporation has acquired all of Water-Jel's assets and assumes all
of Water-Jel's liabilities.
Stockholders also approved by the required majority the appointment of
Directors of Water-Jel who will now serve as Directors of X-ceed for a term of
one year. Mr. Werner Haase was appointed Chairman of the Board and Messrs.
Norman Doctoroff and John Bermingham were approved as Directors. Messrs.
Doctoroff and Birmingham are outside directors and were appointed to serve as
X-ceed's audit committee by the Directors at a Special Meeting of Directors held
after the annual meeting. The senior officers of Water-Jel will continue to
serve as senior officers of X-ceed.
ITEM 5. Other Matters
The Shareholders also approved by the requisite majority the adoption
by Water-Jel of the 1998 Stock Option Plan, which provides that the Company may
grant to its officers, key employees and others who render services for the
Company up to 2,000,000 share of Common Stock at a price which may not be less
than the fair market value per share in the case of incentive stock options or
85% of fair market value in the case of non-qualified options for such stock on
the day of the granting of the options. As a result of the merger, all options
granted under the 1998 Stock Option Plan will be exercisable into shares of
X-ceed.
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Share holders also ratified by the requisite majority the appointment
of Holtz Rubenstein & Co. LLP ("Holtz") to serve as the independent accountants
to audit the financial Statements of X-ceed for the fiscal year ended August 31,
1998. Holtz has served as the Company's auditors for fiscal years ending 1995
through 1997.
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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.
X-ceed, Inc.
(Registrant)
By: s/ Werner Haase
Werner Haase, President
DATED: February 27, 1998
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Financial Statements and Exhibits
2(b) Certificate of Merger *
2(c) Merger Agreement *
3(a) Articles of Incorporation (Water-Jel) Previous
Amendments (3) (6) (7) (1)
3(b) By-Laws of Water-Jel (1)
3(c) Certificate of Incorporation of X-ceed, Inc. *
4(a) 1998 Stock Option Plan (2)
- -----------------
* Filed herewith
(1) Incorporated by reference with Water-Jel's Registration Statement
on Form S-18, File No. 2-90512-NY, initially filed with the Commission on April
12, 1984.
(2) Incorporated by reference from Water-Jel's Notice of Annual Meeting
and Proxy Statement filed with the Commission on January 8, 1998.
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CERTIFICATE OF MERGER
of
WATER-JEL TECHNOLOGIES, INC.
Into
X-CEED, INC.
Pursuant to Section 252(c) of the
State of Delaware General Corporation Law
The undersigned, being the Surviving corporation, hereby sets
forth as follows:
FIRST: The name of the Surviving corporation is X-ceed, Inc.; its state of
incorporation is Delaware.
SECOND: The name of the Non-Surviving corporation is Water-Jel
Technologies, Inc.; its state of incorporation is New York.
THIRD: An Agreement of Merger has been approved, adopted, certified,
executed and acknowledged by each constituent corporation in accordance with
Section 252(c) of the State of Delaware General Corporation Law.
FOURTH: The Certificate of Incorporation of X-ceed, Inc. shall be the
Certificate of Incorporation of the Surviving corporation.
488 Madison Avenue
New York, New York 10022
SIXTH: A copy of the Agreement of Merger will be furnished by the Surviving
corporation, on request and without cost, to any stockholder of any constituent
corporation.
SEVENTH: The authorized capital stock of the Non-Surviving
corporation which is incorporated under the laws of the State of New York is
12,500,000 shares of Common Stock, $.08 par value per share, and 125,000 shares
of Preferred Stock, $.08 par value per share.
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IN WITNESS WHEREOF, this Certificate is hereby executed this
20th day of February, 1998.
X-CEED, INC.
Surviving Corporation
By: /s/ Werner Haase
Werner Haase, President
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AGREEMENT OF MERGER OF
WATER-JEL TECHNOLOGIES, INC.
INTO X-CEED, INC.
AGREEMENT OF MERGER made the 20th day of February, 1998, by
and between X-Ceed, Inc., a Delaware corporation hereinafter called X-Ceed, and
Water-Jel Technologies, Inc., a New York corporation hereinafter called
Water-Jel.
WHEREAS, X-Ceed has an authorized capital of 30,000,000 shares
of Common Stock, $.01 par value per share, and 1,000,000 shares of Preferred
Stock, $.05 par value per share. 100 shares of the Common Stock have been duly
issued and are now outstanding; and
WHEREAS, the principal offices of X-Ceed in the State of
Delaware are presently located at 15 East North Street, in the City of Dover,
County of Kent and United Corporate Service is the agent in charge thereof upon
whom process against X-Ceed may be served within the County of Kent, State of
Delaware; and
WHEREAS, Water-Jel has authorized capital stock of 12,500,000
shares of Common Stock, $.08 par value per share, of which as of the date hereof
7,043,180 were duly issued and outstanding and 789,125 shares were reserved for
issuance upon exercise of options granted under various Stock Option Plans for
Officers and Employees and at least 2,716,597 shares were reserved for issuance
upon exercise of various outstanding warrants or options granted to various
persons and/or entities pursuant to various agreements and stock offerings; and
WHEREAS, the principal offices of Water-Jel are located at 488
Madison Avenue, New York, New York 10022, and the Secretary of State of the
State of New York has been designated as the party upon whom process against
Water-Jel may be served within the State of New York; and
WHEREAS, the Board of Directors of X-Ceed and of Water-Jel,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their respective shareholders that Water-Jel merge
with X-Ceed under and pursuant to the provisions of Section 252(c) of the
Delaware General Corporation Law and of Section 907 of the New York Business
Corporation Law; and
WHEREAS, the shareholders of Water-Jel have approved the
merger by a two-thirds vote at a duly convened meeting of shareholders on
February 20, 1998;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained and of the mutual benefits hereby provided,
it is agreed by and between the parties as follows:
1. Merger. Water-Jel shall be and it hereby is merged
into X-Ceed.
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2. Effective Date. This Agreement of Merger shall become
effective immediately upon compliance with the laws of the State of Delaware and
New York, the term of such effectiveness being hereinafter called the Effective
Date.
3. Surviving Corporation. X-Ceed shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Delaware, but the separate corporate existence of Water-Jel shall cease
forthwith upon the Effective Date.
4. Authorized Capital. The authorized capital stock of X-Ceed
following the effective date shall be 30,000,000 shares of Common Stock, par
value $.01 per share, and 1,000,000 shares of Preferred Stock, par value $.05
per share, unless and until the same shall be changed in accordance with the
laws of the State of Delaware.
5. Certificate of Incorporation. The Certificate of
Incorporation set forth in Exhibit A attached hereto shall be the Certificate of
Incorporation of X-Ceed following the Effective Date, unless and until the same
shall be amended or repealed in accordance with the provisions thereof, which
power to amend or repeal is hereby expressly reserved, and all rights or powers
of whatsoever nature conferred in such Certificate of Incorporation or herein
upon any shareholder or director or officer of X-Ceed or upon any other person
whomsoever are subject to this reserve power. Such Certificate of Incorporation
shall constitute the Certificate of Incorporation of X-Ceed separate and apart
from this Agreement of Merger and may be separately certified as the Certificate
of Incorporation of X-Ceed.
6. Bylaws. The Bylaws set forth as Exhibit B hereto shall be
the Bylaws of X-Ceed following the Effective Date unless and until the same
shall be amended or repealed in accordance with the provisions thereof.
7. Further Assurance of Title. If at any time X-Ceed shall
consider or be advised that any acknowledgments or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm in
and to X-Ceed any right, title or interest of Water-Jel held immediately prior
to the Effective Date, Water-Jel and its proper officers and directors shall and
will execute and deliver all such acknowledgments or assurances in law and do
all things necessary or proper to acknowledge or confirm such right, title, or
interest in X-Ceed as shall be necessary to carry out the purposes of this
Agreement of Merger, and X-Ceed and the proper officers and directors thereof
are fully authorized to take any and all such action in the name of Water-Jel or
otherwise.
8. Retirement of Organization Stock. Forthwith upon the
Effective Date, each of the 100 shares of the Common Stock of X-Ceed presently
issued and outstanding shall be retired, and no shares of Common Stock or other
securities of X-Ceed shall be issued in respect thereof.
9. Conversion of Outstanding Stock. Forthwith upon the
Effective Date, each of the issued and outstanding shares of Common Stock of
Water-Jel and all rights in respect thereof shall be converted into one full
paid and nonassessable share of Common Stock of X-Ceed, and each certificate
nominally representing shares of Common Stock of Water-Jel shall for all
purposes be
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deemed to evidence the ownership of a like number of shares of the Common Stock
of X-Ceed. The holders of such certificates shall not be required immediately to
surrender the same in exchange for certificates of Common Stock of X-Ceed but,
as certificates nominally representing shares of Common Stock of Water-Jel are
surrendered for transfer, X-Ceed will cause to be issued certificates
representing shares of Common Stock of X-Ceed and, at any time upon surrender by
any holder of certificates nominally representing shares of Common Stock of
Water-Jel for transfer, X-Ceed will cause to be issued certificates representing
shares of Common Stock of X-Ceed and, at any time upon surrender by any holder
of certificates nominally representing shares of Common Stock of Water-Jel,
X-Ceed will cause to be issued through its transfer agent therefor certificates
for a like number of shares of Common Stock of X-Ceed.
10. Retirement of Treasury Stock. Forthwith upon the Effective
Date, any shares of Common Stock of Water-Jel held in the Treasury of Water-Jel
on the Effective Date shall be retired and no shares of Common Stock or any
other securities of X-Ceed shall be issued in respect thereof.
11. Stock Options. Forthwith upon the Effective Date, each
outstanding option to purchase shares of Common Stock granted under Water-Jel's
1990 Stock Option Plan, the 1994 Stock Option Plan, the 1995 Stock Option Plan,
the 1998 Stock Option Plan, the outstanding Class A and Class B Warrants,
Underwriter's Warrants and all other options and warrants issued by Water-Jel
prior to the Effective Date shall be converted into and become an option or
warrant to purchase the same number of shares of the Common Stock of X-Ceed,
upon the same terms and conditions as set forth in each Plan, and every other
agreement affecting the issuance of shares upon exercise of options or warrants
in effect immediately prior to the Effective Date. The same number of shares of
Common Stock of X-Ceed shall be reserved for issuance upon the exercise of all
outstanding options or warrants as were so reserved for issuance by Water-Jel
immediately prior to the Effective Date.
12. Book Entries. The merger contemplated hereby shall be
treated as a pooling of interests and as of the Effective Date entries shall be
made upon the books of X-Ceed in accordance with the following:
(a) The assets and liabilities of Water-Jel shall be recorded at the
amounts at which they are carried on the books of Water-Jel immediately prior to
the Effective Date with appropriate adjustment to reflect the retirement of the
100 shares of Common Stock of X-Ceed presently issued and outstanding.
(b) There shall be credited to the Capital Account the aggregate amount of
the par value per share of all of the Common Stock of X-Ceed resulting from the
conversion of the outstanding Common Shares of Water-Jel.
(c) There shall be credited to the Capital Surplus Account an amount equal
to that carried on the Capital Surplus Account of Water-Jel immediately prior to
the Effective Date.
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(d) There shall be credited to the Earned Surplus Account an amount equal
to that carried on the Earned Surplus Account of Water-Jel immediately prior to
the Effective Date.
13. Directors. The names and post office addresses of the
directors of X-Ceed following the Effective Date, who shall be three in number
and who shall hold office from the Effective Date until the next annual meeting
of shareholders of X-Ceed to be held in 1999 and until their successors shall be
elected and shall qualify, are as follows:
Name Post Office Address
Werner Haase c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
Norman Doctoroff c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
John Birmingham c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
14. Officers. The names and post office addresses of the first
officers of X-Ceed following the Effective Date, who shall be three in number
and who shall hold office from the Effective Date until their successors shall
be appointed and shall qualify or until they shall resign or be removed from
office, are as follows:
Name Offices Post Office Address
Werner Haase Chief Executive Officer c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
Nurit Kahane Haase Senior Vice President c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
James Edwards Chief Financial Officer c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
15. Vacancies. If, upon the Effective Date, a vacancy shall
exist in the Board of Directors or in any of the offices of X-Ceed as the same
are specified above, such vacancy shall thereafter be filled in the manner
provided by law and the Bylaws of X-Ceed.
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IN WITNESS WHEREOF, each of the corporate parties hereto,
pursuant to authority duly granted by the Board of Directors, has caused this
Agreement of Merger to be executed by a majority of its directors and its
corporate seal to be hereunto affixed.
X-CEED, INC.
Corporate Seal
By: s/ Werner Haase
Werner Haase, Chairman
By: s/ John A. Bermingham
John A. Bermingham, Director
By: s/ Norman Doctoroff
Norman Doctoroff
WATER-JEL TECHNOLOGIES, INC.
Corporate Seal
By: s/ Werner Haase
Werner Haase
By: s/ John A. Bermingham
John A. Bermingham
By: s/ Norman Doctoroff
Norman Doctoroff
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CERTIFICATE OF INCORPORATION
OF
X-ceed, Inc.
The undersigned, being of legal age, in order to form a
corporation under and pursuant to the laws of the State of Delaware, does hereby
set forth as follows:
FIRST: The name of the corporation is:
X-ceed, Inc.
SECOND: The address of the initial registered and principal
office of this corporation in this state is c/o United Corporate Services, Inc.,
15 East North Street, in the City of Dover, County of Kent, State of Delaware
19901, and the name of the registered agent at said address is United Corporate
Services, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized under the
corporation laws of the State of Delaware.
FOURTH: The corporation shall be authorized to issue the
following shares:
Class Number of Shares Par Value
COMMON 30,000,000 $.01
BLANK CHECK PREFERRED 1,000,000 $.05
FIFTH: The name and address of the incorporator are as
follows:
NAME ADDRESS
Michael A. Barr 10 Bank Street
White Plains, New York 10606
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SIXTH: The following provisions are inserted for the
management of the business and for the conduct of the affairs of the
corporation, and for further definition, limitation and regulation of the powers
of the corporation and of its directors and stockholders:
(1) The number of directors of the corporation shall be such
as from time to time shall be fixed by, or in the manner provided in, the
By-Laws. Election of directors need not be by ballot unless the By-Laws so
provide.
(2) The Board of Directors shall have power without the
assent or vote of the stockholders:
(a) To make, alter, amend, change, add to or repeal the By-Laws of the
corporation; to fix and vary the amount to be reserved for any proper purpose;
to authorize and cause to be executed mortgages and liens upon all or any part
of the property of the corporation; to determine the use and disposition of any
surplus or net profits; and to fix the times for the declaration and payment of
dividends.
(b) To determine from time to time whether, and to what times and places,
and under what conditions the accounts and books of the corporation (other than
the stock ledger) or any of them, shall be open to the inspection of the
stockholders.
(3) The directors in their discretion may submit any contract
or act for approval or ratification at any annual meeting of the stockholders,
at any meeting of the stockholders called for the purpose of considering any
such act or contract, or through a written consent in lieu of a meeting in
accordance with the requirements of the General Corporation Law of Delaware as
amended from time to time, and any contract or act that shall be so approved or
be so ratified by the vote of the holders of a majority of the stock of the
corporation with is represented in person or by proxy at such meeting (or by
written consent whether received directly or through a proxy) and entitled to
vote thereon (provided that a lawful quorum of stockholders be there represented
in person or by proxy) shall be as valid and as binding upon the corporation and
upon all the stockholders as though it had been approved, ratified, or consented
to by every stockholder of the
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corporation, whether or not the contract or act would otherwise be open to legal
attack because of directors' interest, or for any other reason.
(4) In addition to the powers and authorities hereinbefore or
by statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, of this certificate, and to any by-laws from time to time
made by the stockholders; provided, however, that no by-laws so made shall
invalidate any prior act of the directors which would have been valid if such
by-law had not been made.
SEVENTH: No director shall be liable to the corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except with respect to (1) a breach of the director's duty of loyalty
to the corporation or its stockholders, (2) acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (3)
liability under Section 174 of the Delaware General Corporation Law or (4) a
transaction from which the director derived an improper personal benefit, it
being the intention of the foregoing provision to eliminate the liability of the
corporation's directors to the corporation or its stockholders to the fullest
extent permitted by Section 102(b)(7) of the Delaware General Corporation Law,
as amended from time to time. The corporation shall indemnify to the fullest
extend permitted by Sections 102(b)(7) and 145 of the Delaware General
Corporation Law, as amended from time to time, each person that such Sections
grant the corporation the power to indemnify.
EIGHTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or between
this corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this corporation
under the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
to be
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summoned in such manner as the said court directs. If a majority in number
representing three-fourths (3/4) in value of the creditors or class of
creditors, and/or the stockholders or class of stockholders of this corporation,
as the case may be, agree to any compromise or arrangement and to any
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
NINTH: The corporation reserves the right to amend, alter,
change or repeal any provision contained in this certificate of incorporation in
the manner now or hereafter prescribed by law, and all rights and powers
conferred herein on stockholders, directors and officers are subject to this
reserved power.
IN WITNESS WHEREOF, the undersigned hereby executes this
document and affirms that the facts set forth herein are true under the
penalties of perjury this seventeenth day of December, 1997.
s/MICHAEL A. BARR
Michael A. Barr, Incorporator
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