Filed with the Securities and Exchange Commission on October 30, 1998.
Registration No. 333-57173
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3/A
AMENDMENT NO. 3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
X-CEED, INC.
(Exact name of registrant as specified in its charter)
488 Madison Avenue, New York, New York 10022
(212) 753-5511
(Address and telephone number of registrant's principal executive offices)
Delaware 3398 13-3006788
(State or other jurisdiction (Standard Industrial (IRS Employer
of incorporation) Classification Code) I.D. Number)
Werner Haase, Chief Executive Officer
X-ceed, Inc.
488 Madison Avenue, New York, New York 10022
(212) 753-5511
(Name, address and telephone number of agent for service)
Copies of all Richard J. Blumberg, Esq.
communications to: McLaughlin & Stern, LLP
260 Madison Avenue
New York, New York 10016
(212) 448-1100
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to section 8(a), may
determine.
Approximate date of commencement of proposed sale to the public: from
time to time after the effective date of this Registration Statement depending
on market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [__]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [__] ___
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [__] ___
<TABLE>
Calculation of Registration Fee
<CAPTION>
Title of each class Proposed Proposed maximum
of securities to be Amount to be maximum offering aggregate offering Amount of
registered registered price per unit price registration fee
<S> <C> <C> <C> <C>
Common Stock par 100,000 shares $4.156 $415,600.00 $122.60 (1)
value
$.01 per share
<FN>
(1) Estimated for purposes of this filing pursuant to Rule 457(c) at
$4.156 per share based upon the average of the bid and asked prices of $4.125
and $4.187, respectively, on June 16, 1998.
</FN>
</TABLE>
<PAGE>
PROSPECTUS
X-CEED, INC.
100,000 Shares of Common Stock, Par Value $.01 per Share.
This Prospectus relates to 100,000 shares of Common Stock of
X-ceed, Inc. (the "Company"), par value $.01 per share (the "Shares"), which may
be offered from time to time by the Selling Shareholders. See "Selling
Shareholders." This Prospectus does not relate to the sale or issuance by the
Company of any securities. Any Securities which are offered will be offered for
the account of the Selling Shareholders, who will acquire the securities upon
the exercise of options which are owned by the Selling Shareholders. The Company
will receive the proceeds from the exercise of options payable by the Selling
Shareholders upon the exercise of options. However, the Company will not receive
any proceeds from the sale of the Securities by the Selling Shareholders. The
Company has been advised by the Selling Shareholders that there are no
underwriting arrangements with respect to the sale of the Shares, that the
Shares will be sold by the Selling Shareholders from time to time on the NASDAQ
SmallCap Market at the then prevailing price and in private transactions at
negotiated prices and that usual and customary brokerage fees, if any, will be
paid by the Selling Shareholders in connection therewith.
The Company's Common Stock is traded on the NASDAQ SmallCap
Market under the symbol "XCED." The closing bid quotation for the Common Stock
was $4.125 on June 16, 1998.
----------------------
AN INVESTMENT IN THESE SECURITIES INVOLVES A
HIGH DEGREE OF RISK. (See "Risk Factors " commencing on page 9.)
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _________, 1998.
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the
Securities Exchange Act of 1934 and in accordance therewith files reports and
information with the securities and exchange Commission (the "Commission"). Such
reports may be inspected at the public reference facilities at the Commission at
Judicial Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
following regional offices of the Commission: Suite 1400, 500 West Madison
Street, Chicago, Illinois 60661-2511; Seven World Trade Center, 13th Floor, New
York, NY 10048; Suite 500, 5757 Wilshire Boulevard, Los Angeles, California
90036-3648. Copies of such material may be obtained from the Public Reference
Section of the Commission, Washington, D.C. 20549, at prescribed dates.
-----------------
The Company has continued and will continue to furnish its
security holders with annual reports containing audited financial statements at
the end of each fiscal year. In addition, the Company may, from time to time,
issue unaudited interim reports and financial statements.
THE FOLLOWING LEGEND WILL APPEAR IN RED INK ON THE FRONT PAGE OF THIS
PROSPECTUS IN THE EVENT THAT THE PROSPECTUS IS CIRCULATED PRIOR TO
BEING DECLARED EFFECTIVE BY THE COMMISSION:
"The information contained herein is subject to completion or
amendment. A registration statement relating to these securities has
been filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted prior to
the time the registration statement becomes effective. This prospectus
shall not constitute an offer to sell nor the solicitation of any offer
to buy, nor shall there be any sale of these securities in any state in
which such offers, solicitation or sale would be unlawful prior to
registration or qualification under the laws of any such state."
The Company has filed with the Commission a Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933 relating to the securities offered hereby. This Prospectus is filed as part
of the Registration Statement and does not contain all of the information set
forth in the Registration Statement, certain parts of which have been omitted in
accordance with the rules and regulations of the Commission. Any statements
contained herein concerning the provisions of any document are not necessarily
complete, and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
For further information with respect to the Company and the securities offered
hereby, reference is made to the Registration Statement, including the exhibits
filed as a part thereof and other documents incorporated therein by reference.
Copies of the Registration Statement and the exhibits thereto may be inspected
and copied, at prescribed rates, at the public reference facilities maintained
by the Commission at the addresses set forth above.
3
<PAGE>
FORWARD-LOOKING STATEMENTS
All statements other than statements of historical fact
included in this Prospectus regarding the Company's financial position, business
strategy and plans and objectives of management of the Company for future
operations, are forward-looking statements. When used in this Prospectus, words
such as "anticipate," "believe," "estimate," "expect," "intend" and similar
expressions, as they relate to the Company or its management, identify
forward-looking statements. Such forward-looking statements are based on the
beliefs of the Company's management, as well as assumptions made by and
information currently available to the Company's management. Actual results
could differ materially from those contemplated by the forward-looking
statements as a result of certain factors such as those disclosed under "Risk
Factors," including but not limited to, competitive factors and pricing
pressures, loss of major customers, technological change or difficulties,
product development risks, commercialization and trade difficulties and general
economic conditions. Such statements reflect the current views of the Company
with respect to future events and are subject to these and other risks,
uncertainties and assumptions relating to the operations, results of operations,
growth strategy and liquidity of the Company. All subsequent written and oral
forward-looking statements attributable to the Company or persons acting on
behalf are expressly qualified in their entirety by this paragraph.
PROSPECTUS SUMMARY
The following summary information does not purport to be
complete and is qualified in its entirety by reference to the more detailed
information and financial statements appearing elsewhere in this Prospectus or
in documents incorporated by reference. Each prospective investor is urged to
read this Prospectus in its entirety.
THE COMPANY
The Company was originally incorporated under the name
Trilling Resources, Ltd. It changed its name to Trilling Medical Technologies,
Inc. in September 1987 and subsequently to Water-Jel Technologies, Inc. in July
1991. On February 20, 1998, shareholders approved a name change to X-ceed, Inc.
and also approved a change in the Company's state of incorporation from New York
to Delaware. The Company's executive offices are located at 488 Madison Avenue,
New York, NY 10022 and its telephone number is (212) 753-5511.
Since the inception of the Company until 1996, the Company was
primarily engaged in the development, manufacture and marketing of emergency
first aid products for industry and on a limited basis for the consumer
marketplace.
In July 1996, the Company acquired all of the outstanding
stock of Journeycraft, Inc., a company engaged through its X-ceed Performance
Group division in providing services to corporations in the field of performance
improvement and corporate communications and through its Journeycraft Travel
Management division in providing travel management to corporate clients. The
Company also acquired all of the outstanding stock of TheraCom Integrated
Medical Communications, Inc. ("TheraCom"), which is engaged in training and
communications in the health
4
<PAGE>
care industry as well as the marketing of innovative products for patient
education, especially in the women's health care field.
As the Company is presently constituted, the Water-Jel First
Aid division manufactures and markets a proprietary line of first aid products
for burns and a line of generic creams and ointments. The proprietary line of
first aid products for burns consists of fire blankets, burn dressings and
topical creams which are marketed to the industrial as well as, on a limited
basis, the consumer marketplaces. The division's generic creams and ointment
product line consists of hydrocortisone cream, triple antibiotic ointment, first
aid cream, antiseptic gel and a hand and body lotion which are marketed under
the WJ brand. The division also provides private label packing of its creams and
ointment products to some of its customers. For the fiscal year ended August 31,
1997, the Water-Jel division's revenues accounted for approximately 8% of the
Company's total revenues.
The X-ceed Performance Group ("X-ceed Performance Group")
assists corporate clients in establishing performance improvement programs such
as sales programs and other marketing and promotional performance programs. This
division derives its revenues from service fees charged the client for
establishing a performance improvement program and fees for monitoring the
programs, as well as mark-ups on the services and merchandise provided as
awards. For the fiscal year ended August 31, 1997, X-ceed Performance Group
accounted for approximately 59% of the Company's total revenues. Approximately
66% of the revenues were derived from two clients, Pfizer, Inc. and MCI
Communications, Inc. A loss of either of these clients' business or a reduction
in fees could have a material effect on the Company's revenues in the future.
See "Risk Factors."
The Journeycorp division provides comprehensive travel
services primarily for business travel, which includes trip planning,
reservations, ticketing and other incidental services. This division also acts
as a consultant regarding corporate travel policies and travel budgeting. The
division derives its revenues from fees and commissions generated from travel
bookings and from hotels, car rental companies and other travel suppliers.
Revenues are also derived from travel consulting fees charged to selected
accounts. At the present time, the airlines are shifting away from paying travel
agents fees, and as a result, this division is reorienting its customer
relationships towards fee-based travel management. However, there can be no
assurance that the division will be successful. (See "Risk Factors.") For the
fiscal year ended August 31, 1997, Journeycorp accounted for approximately 17%
of the Company's total revenues.
The TheraCom Communications subsidiary provides integrated
training, communication and data to the healthcare industry. In this regard,
TheraCom provides all services necessary to organize meetings to assist major
pharmaceutical companies in providing healthcare professionals with current
medical information. TheraCom locates speakers and provides publicity and travel
arrangements. In addition, TheraCom has expanded its operations to include
direct patient education by pharmaceutical companies. For the year ended August
31, 1997, TheraCom's revenues accounted for approximately 14.5% of the Company's
total revenues. These revenues were primarily derived from one customer, Pfizer,
Inc. ("Pfizer"). A loss of Pfizer or a reduction in services required by Pfizer
could have a material effect on the Company. (See "Risk Factors.")
5
<PAGE>
RECENT DEVELOPMENTS
During the third quarter of the Company's fiscal year, the
Company's management made a decision to make strategic acquisitions designed to
enable the Company to operate as an integrated marketing and communications
company with interactive and Internet services at its core.
The first of the acquisitions occurred on August 29, 1998,
when the Company, through a newly established subsidiary, X-ceed Acquisitions,
Inc. ("Acquisitions"), acquired all of the issued and outstanding stock of
Reset, Inc., a privately held company established in 1997 and engaged in the
business of offering interactive marketing strategies to its clients and
creating website design, website database software, Internet commerce
development, DHTML streaming video and CD-ROM design. The consideration for the
transaction was the issuance of "restricted" X-ceed Common Stock having a market
value of $6,250,000 in exchange for all of the issued and outstanding shares of
Reset. Upon the completion of the transaction, Acquisitions changed its name to
Reset and Reset now operates as a wholly-owned subsidiary of the company.
Reset's clients include, among others, Consolidated Edison, Inc., The Wall
Street Journal, Home Box Office, MCA, Inc., New Line Cinema, and Warner Bros.
Online.
On September 9, 1998, the Company completed the acquisition of
Mercury Seven, Inc. ("Mercury Seven") by way of merger of Mercury Seven into a
newly created subsidiary of the Company, X-ceed Merger, Inc. After the
completion of the Merger, X-ceed Merger, Inc. changed its name to Mercury Seven,
Inc. The Company paid a total consideration consisting of 1,073,333 shares of
"restricted" X-ceed Common Stock and a cash consideration of $1,500,000 in
exchange for all of the issued and outstanding stock of Mercury Seven.
Mercury Seven, a privately held company, was established in
late 1996. The company is a consultancy and development company that specializes
in advising and assisting clients in building and developing Internet-based
businesses. Mercury Seven is also the creator and publisher of ChannelSeven.com
("ChannelSeven") an online network for Internet professionals worldwide. The
network incorporates cross-marketing navigational techniques and centralized
rich-media advertising management to connect Internet professionals with
valuable resources and services. In addition to the online network, ChannelSeven
provides its core audience with printed publications, special industry events, a
speaker's bureau and a subscription based E-mail newsletter. ChannelSeven
derives its revenues from advertising and sponsorship.
Mercury Seven's clients include Arthur Anderson, Cosmopolitan
Magazine, Double Click, Hearst Entertainment, Madison Square Garden and Men's
Health Magazine. Advertisers and sponsorships of ChannelSeven include Home
Network, Double Click, Intel Corporation, Microsoft and Link Exchange.
On September 14, 1998 the Company completed a Plan of Merger
with Zabit and Associates, Inc. ("Zabit"), a privately owned corporation engaged
in corporate communications. In exchange for all of the issued and outstanding
Zabit common stock, the Company paid a total consideration which consisted of
the issuance of 2,258,724 shares of "restricted" X-ceed Common Stock and the
issuance of four notes totaling $6,670,208. Two of the notes for $4.8 million
are
6
<PAGE>
payable on or before March 15, 1999 and two of the notes for $1,930,208 are due
on or before September 14, 2002. All of the notes bear interest. In separate
transactions, the Company purchased all of the issued and outstanding Common
Stock of Water Street Design Group, Inc., a company engaged in design and
production and owned by the principals of Zabit for $2 million and the trade
name and trademark of Zabit for $3.2 million in cash.
Zabit was formed in 1993 and since that time has been engaged
in advising organizations, primarily publicly held companies, in solutions for
their communication problems in connection with the dissemination of information
to employees, shareholders, customers and the public. The Company's current
clients include Dell Computers, Sears, Starbucks, Oracle, Kaiser Permanente,
Xerox New Enterprises, Aetna Insurance Company and Fireman's Fund.
Additionally and as part of the Zabit transaction, the Company
entered into an employment agreement with William Zabit, the principal owner of
Zabit, making him President of X-ceed. His employment agreement is for a period
of four years and provides for an annual salary of $400,000, with the potential
for bonuses based upon performance and profit ability of the Company.
As part of the Company's new objectives to operate as an
integrated marketing and communications company, the Company has entered into an
employment agreement with Scott Mednick, who has assumed the position of
Co-Chairman of the Board of Directors along with Werner Haase as the other
Co-Chairman. Mr. Mednick has also assumed the responsibilities of Chief
Strategic Officer of the Company.
Mr. Mednick was the founder and past chairman and chief
executive officer of THINK New Ideas, Inc. ("THINK"). Under Mr. Mednick's
direction, THINK was named as one of the top interactive agencies of the year
(1995) by both Adweek and the Advertising Club of New York. Mr. Mednick enjoys a
reputation as a highly respected marketing strategist and graphic designer.
Mr. Mednick's employment agreement is for a period of four
years at an annual salary of $350,000 per year, together with bonuses based on
the Company's performance and profitability. In addition, Mr. Mednick received a
signing bonus of $960,000 payable in twelve monthly installments and options to
purchase 1,000,000 shares of the Company's Common Stock at an exercise price of
$6.00 per share. However, 500,000 of the options may only be exercised if the
market price of the Company's Common Stock achieves certain levels, ranging from
$12.00 to $24.00 a share.
SELECTED FINANCIAL DATA
The selected financial data presented below for the Company's
statements of operations for the years ended August 31, 1995, 1996 and 1997 and
the balance sheet data at August 31, 1996 and 1997 are derived from the
Company's financial statements which have been audited by Holtz Rubenstein &
Co., LLP, independent public accountants, and which are incorporated by
reference. The statement of operations data for the year ended August 31, 1994
and
7
<PAGE>
the balance sheet data at August 31, 1994 and 1995 are derived from audited
financial statements of the Company which are not included in this Registration
Statement. The statement of operations data for the nine months ended May 31,
1997 and 1998 and the balance sheet data at May 31, 1998 are derived from
unaudited financial statements which are incorporated by reference. Management
believes that all adjustments necessary for a fair presentation have been made
in such interim periods. However, the results of operations for the most recent
interim period are not necessarily indicative of the Company's financial results
for the entire current fiscal year.
Statement of Operations Data
<TABLE>
<CAPTION>
Year Ended August 31, Nine Months Ended May 31,
------------------------------------------------------------ -------------------------------
1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Net sales $41,332,876 $43,515,440 $54,863,574 $62,885,464 $45,406,465 $44,347,737
Operating income (loss) (301,947) 2,770,259 1,219,044 3,924,206 3,071,031 2,016,728
Net income 1,353,264 2,131,242 632,315 1,876,620 1,624,851 1,288,998
Net income per
common share (1)
-Basic $.20 $.30 $.09 $.27 $.23 $.18
-Diluted $.20 $.30 $.09 $.26 $.22 $.16
Weighted average
number of shares
outstanding (1)
-Basic 6,738,327 6,999,180 7,001,295 7,023,770 7,021,145 7,279,691
-Diluted 6,790,310 7,079,388 7,394,012 7,339,625 7,256,262 7,865,096
Balance Sheet Data
Working capital $ 3,854,425 $ 5,119,676 $ 7,964,147 $10,042,076 $ 8,750,912 $16,141,855
Total assets 13,142,536 17,474,716 17,383,178 18,800,080 22,498,212 33,124,330
Long-term debt 17,744 129,900 90,700 51,500 61,300 22,100
Cash dividends - - - - - -
<FN>
- ---------------------------
(1) Net income per common share and weighted average number of shares
outstanding data for periods prior to December 31, 1997 have been retroactively
restated to reflect computation under Financial Accounting Standards Board
Statement No. 128 "Earnings Per Share".
</FN>
</TABLE>
THE OFFERING
Common Stock - 100,000 shares of Common Stock
underlying 100,000 options previously
granted to the Selling Shareholders. The
options permit the holder thereof to
purchase one share of Common Stock for
each option at an exercise price of $1.52
per share.
8
<PAGE>
All expenses relating to the registration
of these securities, estimated at
$18,000, will be borne by the Company.
Use of Proceeds - The Company will not
receive any proceeds from the sale of the
securities. The Company will receive
$152,000, assuming the Selling
Shareholders elect to exercise all of
their options.
RISK FACTORS
Purchase of the securities offered hereby involves a high
degree of risk and prospective purchasers should consider the following Risk
Factors as well as the other information contained in this Prospectus and the
exhibits attached to the Registration Statement as well as Exhibits incorporated
by reference herein.
Competition
In July 1996, the Company acquired all of the outstanding
stock of Journeycraft and TheraCom. These businesses have significantly expanded
the Company's operations. However, the various products and services offered by
these subsidiaries and divisions face intense competition. The following is a
discussion of the competitive factors that each division or subsidiary presently
faces.
The Water-Jel division manufactures and markets a line of
first aid products for burns and a line of generic creams and ointments. There
are other companies, such as Spenco Medical Corporation, C.R. Bard, Inc. and
Johnson & Johnson, which manufacture similar first aid products for burns. These
companies have been established for a longer period of time, are better
established and have financial resources and facilities which are greater than
the division's. While some segments of the burn first aid market are dominated
by large manufacturers, other segments of the market are characterized by
intense competition among smaller manufacturers such as Water-Jel.
The X-ceed Performance Group division, which offers
performance improvement and motivational programs to corporate clients, is faced
with intense competition from several well-established companies, such as Maritz
Inc., Carlson Marketing Group, Inc. and B.I. Performance Group, Inc. These
companies are well established and have greater name recognition than X-ceed
Performance Group. Likewise, they generate revenues far in excess of X-ceed
Performance Group's. They also have a much broader customer base. In addition,
X-ceed Performance Group competes with numerous smaller consultants and likewise
has to compete with corporations' in-house staff who devise performance
improvement and motivational programs. Only recently, X-ceed Performance Group
introduced "Maestro," a proprietary Inter- and Intranet software program to be
used in conjunction with X-ceed Performance Group's performance programs. While
the Company believes this software is unique, competitors could introduce their
own software programs to monitor performance improvement programs and compete
for business.
The Journeycorp division, which provides comprehensive travel
services for business travel, faces intense competition, since there are more
than 30,000 travel agents in the United States
9
<PAGE>
which are capable of providing business travel services. Journeycorp must also
compete with in-house travel departments and those airlines which require direct
booking with the airline.
The TheraCom subsidiary, which provides integrated training,
communications and data to the healthcare industry, competes with many
consultants who provide similar services to the healthcare industry. TheraCom
competes on the basis of price and quality of its services. To date, TheraCom
has only one significant customer, Pfizer, Inc. TheraCom is attempting to
broaden its client base, and no assurances can be made that it will be able to
effectively compete.
The Mercury Seven subsidiary and Reset subsidiary provide
services in a highly competitive market. These two subsidiaries face competition
from a number of sources, including national and regional media marketing
companies, as well as local advertising agencies which have begun to develop
interactive media capabilities. Many of Mercury Seven's and Reset's competitors
have longer operating histories, longer client relationships and greater
financial and technological resources than either Mercury Seven or Reset. There
can be no assurance that existing or future competitors will not develop or
offer marketing communication services and products that provide significant
performance, creative or other advantages, including pricing, over those offered
by either Reset or Mercury Seven, which could have a material adverse effect on
the financial condition and operating results of the Company.
The Zabit division competes with several companies, including
Arthur Anderson Consulting, Towers and Perrin, William M. Mercer & Company and
Watson Wyatt Worldwide. Zabit's competitors for the most part have longer
operating histories, longer client relationships, greater financial resources
and greater technological resources than Zabit. While Zabit believes it can
effectively compete and has within the last five years developed a significant
client base, there can be no assurances that Zabit will be able to keep the
present client base or attract new clients. In the event Zabit cannot
effectively compete, this could have a material effect on the financial
condition and operating results of the Company.
Market and Technological Change Affecting Journeycorp and X-ceed Performance
Group
Several of the markets in which the Company's products and
services are offered are undergoing technological advances and other changes. In
particular, and with respect to Journeycorp, the airlines have lowered the
commissions they are willing to pay travel agents. As a result, the corporate
travel business is changing from commission to fee-based services in which
corporate travel service providers such as Journeycorp are paid fixed fees by
their clients in lieu of commissions based upon the volume of travel services
purchased. These developments have tended to reduce the revenues available to
travel service providers such as Journeycorp. Also, the corporate travel
business is experiencing technological changes such as "ticketless" air travel
and Internet-based reservation systems which tends to reduce the need for
outside travel agents. These changes are further accelerating the trend for
travel service businesses to act as consultants working for fixed fees rather
than commission-based booking agencies. With respect to the X-ceed Performance
Group division, a significant amount of X-ceed Performance Group's business is
based upon the development of innovative technologies for delivering incentive
programs using the Internet. The Internet is characterized by rapid
technological advances which may render X-ceed
10
<PAGE>
Performance Group's technologies out-of-date or obsolete. There is no assurance
that X-ceed Performance Group will be in a position to adapt to such
technological advances and market changes.
Risks of Integration
In light of the recent acquisitions of Reset, Mercury and
Zabit, the Company's success will depend in part on its ability to manage the
combined operations of those companies and to integrate the operations of these
companies along with its other subsidiaries and divisions into a single
organizational structure. There can be no assurance that the Company will be
able to effectively integrate the operations of its subsidiaries and divisions
into a single organizational structure. Integration of these operations could
also place additional pressures on management as well as on the key technical
resources of the Company. The failure to successfully manage this integration
could have a material effect on the Company. Finally, while it is management's
belief that the newly acquired entities can market these services to the
Company's existing clients as well as to existing clients of the newly acquired
companies, there can be no assurance that the cross-marketing will be achieved
or sustained.
Future Capital Requirements
The acquisitions of Mercury and Zabit required the Company at
closing to pay cash as part of the consideration: $1.5 million in the case of
Mercury and $5.2 million in the case of Zabit. The Zabit transaction also
requires the Company to pay an additional $4.8 million in March 1999 and $1.9
million on or before September 14, 2002, together with interest. While the
Company believes that its present cash position and cash flow from operations
will be sufficient to fund its operations, the Company may require additional
financing to sustain further growth and expand its business. There can be no
assurance that the Company will be able to successfully negotiate or obtain
additional financing or that such financing will be on terms favorable or
acceptable to the Company. The failure to secure necessary financing could have
a material adverse impact on the Company.
Dependence on the Internet's Developing Market
The Company's ability primarily through Reset and Mercury to
derive revenues by providing marketing solutions through the use of the Internet
will depend in part upon a robust industry and the infrastructure for providing
Internet access and the management of Internet traffic. While the Internet has
made significant improvements in both accessing and managing traffic, there can
be no assurance that as more demand is made upon the Internet technological
improvements will keep pace. Additionally, critical issues concerning the use of
the Internet, including security, reliability, cost, ease of use and access and
quality of service still remain to be resolved, and as such the Internet could
prove not to be a commercially viable marketplace. This could result in
impacting the Company's future operating results.
11
<PAGE>
Rapid Technological Changes in Interactive Marketing Services
The market for such interactive marketing services as the
Company provides though its Reset and Mercury Seven subsidiaries is
characterized by rapid changes in technology. As such it will require the
Company to maintain its technical competence to effectively compete with other
integrated marketing service providers as well as traditional advertising
agencies. There can be no assurance that the Company will be successful in
providing competitive solutions to its clients. Failure to do so could result in
the loss of existing customers or the inability to attract and retain new
customers, and as a result, this could have a material adverse effect on the
business, financial condition and operating results of the Company.
Project Profit Exposures; Need to Develop Recurring Revenue
Zabit, Mercury Seven and Reset normally generate a substantial
majority of their revenue through project fees on fixed fee-for-service basis.
Zabit, Mercury Seven and Reset assume greater financial risk on fixed-price type
contracts than on either time- and material- or cost-reimbursable contract.
Failure to anticipate technical problems, estimate costs accurately or control
costs during performance of a fixed-price contract may reduce Zabit, Mercury
Seven and Reset's profit or cause a loss. Although the majority of Zabit,
Mercury Seven and Reset's projects typically last six to twelve weeks and
therefore each individual short-term project creates less exposure than a
long-term fixed-price contract, in the event Zabit, Mercury Seven and Reset do
not accurately anticipate the progress of a number of significant
revenue-generating projects, it could have a material adverse effect on Zabit,
Mercury Seven and Reset's operating results. Zabit, Mercury Seven and Reset's
future success will depend in part on their ability to convert their
project-by-project relationships to continuing relationships characterized by
recurring revenue. There can be no assurance that Zabit, Mercury Seven and
Reset's efforts will be successful.
Dependence on Few Customers
At the present time, approximately 80% of TheraCom's services
are supplied to one customer, Pfizer, Inc. ("Pfizer"). Of the revenues from
X-ceed Performance Group's business, for the fiscal year ended August 31, 1997,
66% was derived from two clients, Pfizer and MCI Communications, Inc., which
represent 35% of revenues and 31% of X-ceed Performance Group's revenues,
respectively. The loss of either of these clients or a reduction in the amount
of business generated from these two clients could materially adversely affect
the Company's future business and prospects.
No Contracts with Customers
With few exceptions, the Company does not have any written
agreements with its customers or clients, or such agreements are terminable at
will upon relatively short notice. Unexpected or other termination of relations
with significant customers could adversely affect the Company's business and
prospects. See "Competition" and "Dependence on Few Customers."
12
<PAGE>
Fluctuations in Revenues
For the six months ended February 28, 1998 ("Fiscal 1998"),
the Company's revenues declined by approximately $5,600,000 as compared with the
revenues for the six-month period ended February 28, 1997 ("Fiscal 1997"). A
major portions of this decline was due to a refinement of revenue recognition by
the TheraCom subsidiary. In 1997, the Company's TheraCom division, which
provides integrated training, communication and data to the health care
industry, refined its method of revenue recognition. Previously, the division
recognized the revenues generated from its calendar year programs at the end of
the program. In 1997, based upon its improved accounting information systems and
controls, it was determined that the division recognize revenue and costs on
certain calendar year programs ratably as certain performance criteria occurred.
Revenues recorded by TheraCom approximated $4,187,000 and $5,717,000 for the six
months ended February 28, 1998 and 1997, respectively. The decline in the
Company's revenues for the six months ended February 28, 1997 was also due in
part to the types of award programs required by the clients of the X-ceed
Performance Group division. Because that division is primarily dependent on
business from two major clients, any curtailment or change in the award programs
can result in material fluctuations during quarterly periods. Investors should
therefore be cautioned that because of the dependence on a limited number of
clients, the Company may experience fluctuating revenues and earnings in varying
periods.
Market Acceptance for Company's Products and Services
The Company believes that its ability to market its products
and services requires educating potential users as to their benefits and
applications. This is particularly true for the Internet technologies developed
by X-ceed Performance Group and the first aid product line for burns
manufactured by the Water-Jel division. No assurance can be given that the
Company will be able to successfully increase the market for its products and
services.
13
<PAGE>
Limited Patents and Proprietary Information
The X-ceed Performance Group division has developed a
proprietary software, "Maestro," which is designed to enable clients to trace
the progress of sales promotion programs and other types of award programs over
the Internet. The clients who elect to utilize Maestro do not receive the
software, but rather are only granted a license to utilize the software, which
is at all times maintained at the Company's offices. The clients feed
information to the "Maestro" program over the Internet by using a sign-on
identification and password. The clients can thereafter gain access with the
proper password to Maestro to enable them to evaluate the progress of their
awards program. The Company does not presently hold a copyright to the Maestro
software but intends to apply with the US Patent and Trademark office for
protection as well as a trademark on the name "Maestro." The actual software is
retained under stringent controls at the Company's offices and only four people
within the Company and under confidentiality agreements have access to the
software and code. Should the Company's Maestro software and other proprietary
technology be disclosed publicly, the business and prospects of the X-ceed
Performance Group could be adversely affected. Likewise, and if there was public
disclosure of the software and codes, the Company at the present time may have
no or very limited legal recourse, unless the Company could demonstrate that the
codes and software were illegally converted or taken or that the clients
violated their licence agreements with the Company.
The design of Water-Jel's Fire Blanket products was protected
by United States and foreign patents which were assigned to the Company in 1979
and 1985. The United States patent which protected a substantial portion of the
Company's technology expired in 1992. New competitors may now enter the
Company's markets. The Company may be materially and adversely affected if the
Company should fail to establish a secure market base before the entrance of
significant new competitors now that the original United States patent has
expired. See "Competition." Further, in January 1995, Water-Jel was granted a
patent for a synthetic fabric containing a therapeutic, non-toxic, water-soluble
and bio-degradable gel used in the Company's Burn Dressing product line. This
patent expires in April 2014. However, no assurance can be given that this
patent will prove enforceable or prevent others from marketing products similar
to, or which perform comparable functions as, the Company's products at the
current time, the Water-Jel burn dressing products covered by this patent
account for approximately thirty percent (30%) of Water-Jel's revenues.
Year 2000 Compliance
The Company has taken remedial steps to ensure that its
computer systems are compliant with the Year 2000 ("Y2K"). In this regard, the
X-ceed Performance Group has purchased for internal operations new personal
computers (PCs) which have been tested by the National Software Testing
Laboratories (NSTL) and have been certified as Y2K compliant. With respect to
client support, the division has upgraded its software at no extra cost and is
compliant with Y2K. With respect to the Company's internal software affecting
accounting systems and telecommunications, the Company estimates that it will be
required to purchase additional equipment for $15,000 in order to achieve Y2K
compliance in this area. With respect to the Journeycorp division reservation
systems, the division utilizes PC hardware provided by the Sabre
14
<PAGE>
Group, the American Airlines reservations system. American Airlines has given
the Company assurances that their reservations system will be Y2K compliant.
Since airline reservations can be made within a year before the actual flight,
American Airlines has until December 31, 1999 to achieve Y2K compliance. In the
event American Airlines fails to achieve compliance in a timely manner, this
could result in material adverse consequences to Journeycorp's operations and
would affect its ability to provide reservations and ticketing for its clients.
Government Regulation
Water-Jel's emergency first aid products and manufacturing
practices are subject to regulation by the Food and Drug Administration ("FDA")
as well as by similar foreign authorities. The Water-Jel Fire Blanket and Burn
Dressing are medical devices subject to regulation by the FDA. The Company's
generic creams and ointment, Burn Jel and UnBurn line are classified as
over-the-counter drugs. FDA requirements include adherence to good manufacturing
practices, proper labeling, and either premarket notification under section
510(k) of the Medical Device Amendments to the Federal Food, Drug and Cosmetics
Act or premarket approval (depending on the category of product) prior to
commercial marketing in the United States. The Company is also subject to
periodic inspections by the FDA relating to good manufacturing practices. The
FDA has the authority to require a suspension of manufacturing operations if it
finds serious deficiencies. Additional regulation may, in the future, be imposed
by Federal, state or local authorities, particularly the FDA. Any new products
will also be subject to review of various regulatory authorities in virtually
every foreign country in which such products are offered for sale. To the extent
that any new products which Water-Jel may develop are deemed to be new
pharmaceutical or new medical devices, such products will require FDA and other
regulatory clearance and/or approvals prior to marketing. Such governmental
regulation may prevent or substantially delay the marketing of any products
developed by Water-Jel, cause Water-Jel to undertake costly procedures, and
furnish a competitive advantage to the more substantially capitalized companies
which compete with Water-Jel. There can assurance that the Company will have the
requisite financial resources to complete the regulatory approval process with
respect to any new products which may be developed.
Product Liability
To date, there have been no material claims on threatened
claims against the Company by users of its products, particularly the Water-Jel
products, based on a failure to perform as specified. In the event that any
claims for substantial amounts were to be asserted against the Company, they
could have a materially adverse effect on the Company's financial condition and
its ability to distribute its products. The Company maintains $11,000,000 of
general product liability insurance. There is no assurance that this amount will
be sufficient to cover potential claims or that the present amount of insurance
can be maintained at the present level of cost.
Dependence on Management
The Company is significantly dependent upon the continued
availability of Werner Haase, its Co-Chairman and CEO, William Zabit, who became
President
15
<PAGE>
upon the acquisition of Zabit, and Scott Mednick, Co-Chairman and Chief
Strategic Officer. Mr. Haase is under an employment agreement with the Company
which terminates in May 2001, and both Mr. Zabit and Mr. Mednick are under
employment agreements with the Company until December 2002. The loss or
unavailability of Mr. Haase or Mr. Zabit or Mr. Mednick to the Company for an
extended period of time would have a material adverse effect on the Company's
business operations and prospects. To the extent that Mr. Haase's, Mr. Zabit's
or Mr. Mednick's services would be unavailable to the Company for any reason,
the Company would be required to procure other personnel to manage and operate
the Company. There can be no assurance that the Company would be able to locate
or employ such qualified personnel on acceptable terms. At the present time, the
Company does not have "key man" life insurance covering any of the principal
officers of the Company.
Control
Werner Haase, the Chairman and CEO of the Company, and his
wife Nurit Kahane, who is a Senior Vice President of the Company, own together a
total of 2,281,875 shares of the Company's Common Stock, and Mr. Zabit owns
1,082,591 shares, which represent approximately 25% of the total shares
outstanding. Under Delaware law, a simple majority of stockholders may
constitute a quorum for a meeting of stockholders and may effect any action
requiring a vote of stockholders. There are no requirements for supermajority
votes on any matter, nor is there any cumulative voting for directors.
Therefore, Mr. Haase, his wife and Mr. Zabit jointly will be in a position to
substantially influence the election of directors and the conduct of the
Company's affairs.
Maintenance Criteria for NASDAQ Securities; Penny Stock Rules
The Company's Common Stock is currently quoted on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") for the
SmallCap Market. To maintain its listing on the NASDAQ SmallCap Market, the
Company must continue to be registered under Section 12(g) of the Securities
Exchange Act of 1934 (the "Exchange Act") and have total assets of at least
$2,000,000, total stockholders' equity of at least $1,000,000, a public float of
at least 100,000 shares with a market value of at least $1,000,000, at least 300
holders, a minimum bid price of $1.00 per share and at least two market makers.
In addition, NASDAQ has proposed increasing the requirements for maintaining a
NASDAQ SmallCap listing to require either: (1) net tangible assets of at least
$2,000,000 or $1,000,000, (2) a market capitalization of $35,000,000 or (3) net
income in at least two of the last three years of $500,000 and a public float of
at least 500,000 shares with a market value of at least $1,000,000. The Company
currently meets all the proposed requirements for maintenance of its listing on
the NASDAQ SmallCap Market. There can be no assurance that the Company in the
future will be able to meet the requirements for continued listing on the NASDAQ
SmallCap Market with respect to the Common Stock. If the Company's securities
fail to maintain NASDAQ SmallCap Market listing, the market value of the Common
Stock likely would decline and purchasers likely would find it more difficult to
dispose of, or to obtain accurate quotations as to the market value of, the
Common Stock.
16
<PAGE>
In addition, if the Company fails the maintain NASDAQ SmallCap
Market listing for its securities, and no other exclusion from the definition of
a "penny stock" under the Exchange Act is available, then any broker engaging in
a transaction in the Company's securities would be required to provide any
customer with a risk disclosure document, disclosure of market quotations, if
any, disclosure of the compensation of the broker-dealer and its salesperson in
the transaction and monthly account statements showing the market values of the
Company's securities held in the customer's account. The bid and offer quotation
and compensation information must be provided prior to effecting the transaction
and must be contained on the customer's confirmation. If brokers become subject
to the "penny stock" rules when engaging in transactions in the Company's
securities, they would become less willing to engage in transactions, thereby
making it more difficult for purchasers in this Offering to dispose of their
shares.
Future Sales of Common Stock
As of the current time, there are now 13,608,521 shares of the
Common Stock outstanding. Approximately 7,142,232 of the outstanding shares are
deemed to be "restricted securities" ("Restricted Securities") within the
meaning of Rule 144 promulgated under the Securities Act of 1933 (the "Act") by
virtue of the fact that they are held by "affiliates" of the Company. Of the
Restricted Securities, approximately 2,560,625 are currently eligible for public
sale in accordance with Rule 144. Sales made pursuant to Rule 144 could have an
adverse effect on the price of the Common Stock.
No Dividends
The Company has not paid any cash dividends upon its Common
Stock since its inception and, by reason if its present financial status and its
contemplated financial requirements, does not anticipate paying any cash
dividends in the foreseeable future. It is anticipated that earnings, if any,
which may be generated from operations will be used to finance the operations of
the Company.
USE OF PROCEEDS
Assuming the Selling Shareholders exercise all of their
options, the total proceeds to the Company would amount to $152,000. Expenses of
the registration, including legal fees, accounting fees, Blue Sky fees and
miscellaneous expenses are estimated at $18,000, which would leave net proceeds
to the Company from the exercise of the options of $134,000. Any net proceeds
will be added to the working capital of the Company.
17
<PAGE>
SELLING SHAREHOLDERS
The 100,000 shares of Common Stock being offered hereby are
held by three selling shareholders. A Selling Shareholder listed below may
choose not to sell all of the shares of Common Stock owned by such Selling
Shareholder in this offering. The chart below sets forth the number of shares to
be offered for sale by each such Selling Shareholder, which information was
furnished to the Company by each such Selling Shareholder. The chart also sets
forth the amount and percentage of Common Stock to be owned by each after
completion of the offering, assuming the sale of all such shares owned by such
Selling Shareholder. Unless otherwise indicated, none of the Selling
Shareholders listed has held any position with the Company in the last three
years. The Selling Shareholders have not entered into any arrangements regarding
the sale of their shares and have informed the Company that any shares sold
would be sold in normal brokerage transactions.
Securities Owned Securities Securities to Be
Name before Offering To Be Sold Owned after Offering
- ---- --------------- ---------- --------------------
Robert Daniels (1) 70,000 (2) 70,000 -0-
Gerald J. Resnick (3) 10,000 (2) 10,000 -0-
Neil H. Deutsch (3) 20,000 (2) 20,000 -0-
- --------------
(1) Mr. Daniels was employed by the Company as an Executive Vice
President in charge of Sales and Marketing. He left the Company on June 2, 1995.
In connection with the settlement of litigation involving a claim by the Company
that Mr. Daniels violated an anti-competition agreement and a counter-claim by
Mr. Daniels against the Company, the Company agreed to settle all claims for the
sum of $75,000 and the reinstatement and registration of 100,000 options
previously granted to Mr. Daniels. Mr. Daniels, with the consent of the Company,
assigned 30,000 options to the attorneys who represented him, the other Selling
Shareholders, as payment of legal fees. All of the options are exercisable at
$1.52 per share. A settlement agreement was entered into on June 11, 1998, at
which time the closing price of the Company's Common stock as reported on the
NASDAQ SmallCap Market was $4.25.
(2) The above figures represent options granted to the Selling
Shareholders.
(3) These Selling Shareholders are the attorneys who represented Mr.
Daniels in connection with the litigation referred to in footnote 1 above and
accepted an assignment of options from Mr. Daniels in payment of their legal
fees.
PLAN OF DISTRIBUTION
The shares are being offered for the respective accounts of
the Selling Shareholders. The Company will not receive any of the proceeds from
the sale of securities. The Company will, however, receive the exercise price of
$1.52 per share as set forth in the options for those options exercised by the
Selling Shareholders.
The sale for the shares by the Selling Shareholders may be
effected from time to time in transactions on the NASDAQ SmallCap Market, at
fixed prices or negotiated prices relating to the then prevailing market price.
The Selling Shareholders may effect such transaction by selling
18
<PAGE>
the Securities to or through registered broker-dealers, and such broker-dealers
may receive compensation in the form of discounts or commissions from the
Selling Shareholders and for the purchases of the Securities for which such
broker-dealers may act as agent or to whom they may sell as principal or both.
The Selling Shareholders and any broker-dealers who act in
connection with the Sale of the securities hereunder may be deemed to be
"underwriters" within the meaning of Section 2 (11) or the Securities Act and
any commissions received by them and any profit received by them on any sale of
the Securities as principal might be deemed to represent underwriting discounts
or commissions under the Securities Act.
LEGAL MATTERS
Certain legal matters in connection with this offering are
being passed upon for the Company by McLaughlin & Stern, LLP, 260 Madison
Avenue, New York, New York 10016.
EXPERTS
The financial statements of X-ceed, Inc. for the fiscal years
ended August 31, 1997, 1996 and 1995, incorporated by reference from the
Company's annual reports on Form 10- KSB, have been examined by Holtz Rubenstein
& Co. LLP, independent certified public accountants, as stated in their report,
and are included in reliance upon the report of such firm and upon their
authority as experts on accounting and auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed with the
Commission by the , are incorporated herein by reference and made a part hereof.
The Commission file number for documents which are incorporated by reference is
0-13049.
1. The Company's latest Annual Reports on Form 10-KSB
for the fiscal years ended August 31, 1996 and August
31, 1997 filed pursuant to Section 13(a) of the
Exchange Act which contain financial statements for
the Company's latest fiscal year (August 31, 1997)
for which a Form 10-KSB was required to have been
filed and for the Company's fiscal year ended August
31, 1996.
2. The Company's quarterly reports on Form 10-Q for the
three months ended November 30, 1997, for the three
and six months ended February 28, 1998 and for the
three and nine months ended May 31, 1998.
3. The Company's Current Report on Form 8-K dated May 7,
1998 and amendments thereto.
4. The Company's Current Report on Form 8-K, together
with exhibits, dated August 13, 1998 and filed with
the Commission on August 14, 1998.
19
<PAGE>
5. The Company's Current Report on Form 8-K, together
with exhibits, dated September 17, 1998 and filed
with the Commission on September 17, 1998.
6. The section entitled "Description of Securities" in
the Company's Registration Statement on Form S-1
(Registration No. 33-23910) declared effective on
October 31, 1988.
In addition, all documents filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the termination
of the offering of the Shares shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement modified in a document incorporated by reference herein
shall be deemed to be contained herein or superseded for purposes hereof to the
extent that a statement contained herein (or in any subsequently filed document
which is also incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
A copy of the documents incorporated by reference in this
Prospectus (not including exhibits to the incorporated documents unless the
documents specifically incorporate the exhibits by reference) will be furnished
without charge to each person, including any beneficial owner to whom this
prospectus is delivered, on the written or oral request of such person. All such
requests should be addressed to: Alex Alaminos, Investor Relations, Water-Jel
Technologies, 243 Veterans Blvd., Carlstadt, NJ 07072.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The Company's Certificate of Incorporation permits the Company
to indemnify directors, officers, employees and agents to the fullest extent
permissible under the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to any charter provision, by-law contract
arrangements statute, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore,
unenforceable.
20
<PAGE>
- ------------------------------------------ -----------------------------------
No dealer, salesman or any other person
has been authorized to give any
information or to make any representations
other than those contained in this
Prospectus in connection with this
offering and, if given or made, such
information or representations must not be
relied upon as having been authorized by
the Company or the Underwriters. This
Prospectus does not constitute an offer to
sell, or the solicitation of an offer to
buy, any of the securities offered hereby
in any jurisdiction to any person to whom 100,000 Shares
it is unlawful to make such offer or of Common Stock
solicitation in such jurisdiction. Neither ($.01 Par Value)
the delivery of this Prospectus nor any
sale made hereunder shall, under any
circumstances, create any implication that
the information contained herein is
correct as of any time subsequent to the X-ceed, Inc.
date hereof or that there has been no
change in the affairs of the Company since
such date.
--------------------------
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION....................3 __________________________
FORWARD-LOOKING STATEMENTS...............4
PROSPECTUS SUMMARY.......................4 PROSPECTUS
SELECTED FINANCIAL DATA..................7 __________________________
THE OFFERING.............................8
RISK FACTORS.............................9
USE OF PROCEEDS.........................17
SELLING SHAREHOLDERS....................17
PLAN OF DISTRIBUTION....................18
LEGAL MATTERS...........................19
EXPERTS.................................19
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE.......................19
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES........................20
--------------------------
Until ________________, 1998, all dealers
effecting transactions in these registered
securities, whether or not participating
in this distribution, may be required to
deliver a Prospectus. This is in addition November ____, 1998
to the obligation of dealers to deliver a
Prospectus when acting as Underwriters.
- ------------------------------------------ -----------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance and distribution
of the securities being registered hereunder are estimate as follows:
Blue Sky qualification fees and expenses..............$ 2,000
Legal fees and expenses..................................8,500
Accountant's fees and expenses...........................6,000
Miscellaneous........................................ 1,500
Total $18,000
ITEM 15. Indemnification of Directors and Officers
Pursuant to Section 145 of the General Corporation Law of
Delaware (the "Delaware Corporation Law"), Article 7 of the Company's
Certificate of Incorporation, a copy of which is filed as Exhibit 3(c) to this
Registration Statement, provides that the Company shall indemnify, to the
fullest extent permitted by Section 145 of the Delaware Corporation Law, as
amended from time to time, each person that such section grants the Corporation
the power to indemnify. Section 145 of the Delaware Corporation Law permits the
Company to indemnify any person in connection with the defense or settlement of
any threatened, pending or completed legal proceeding (other than a legal
proceeding by or in the right of the Company) by reason of the fact that he is
or was a director or officer of the Company or is or was a director or officer
of the Company serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with the defense or
settlement of such legal proceeding if he acted in good faith and in a manner
that he reasonably believes to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action of proceeding, if he had no
reasonable cause to believe that his conduct was unlawful. It the legal
proceeding, however, is by or in the right of the Company, the director or
officer may be indemnified by the Company against expense (including attorneys'
fees) actually and reasonably incurred in connection with the defense or
settlement of such legal proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company
and except that he may not be indemnified in respect of any claim, issue or
matter as to which he shall have been adjudged to be liable to the Company
unless a court determines otherwise.
Pursuant to Section 102(b)(7) of the Delaware Corporation Law,
Article 7 of the Certificate of Incorporation of the Company, a copy of which is
filed as Exhibit 3(c) to this Registration Statement, provides that no director
of the Company shall be personally liable to the Company or its stockholders for
monetary damages for any breach of his fiduciary duty as a director; provided,
however, that such clause shall not apply to any liability of a director (i) for
breach of his duty of loyalty to the Company or its stockholders, (ii) for acts
or omissions that are not in good faith
22
<PAGE>
or involve intentional misconduct or a knowing violation of the law, (iii) under
Section 174 of the Delaware Corporation Law, or (iv) for any transaction from
which the director derived an improper personal benefit. The aforesaid provision
also eliminates the liability of any stockholder for managerial acts or
omissions, pursuant to Section 350 of the Delaware Corporation Law or any other
provision of Delaware law, to the same extent that such liability is limited for
a director.
The Company maintains directors and officers liability
insurance.
ITEM 16. Exhibits
2(d) Agreement and Plan of Merger and Reorganization between X-ceed, Inc. and
X-ceed Acquisitions, Inc. and Reset, Inc. and the Shareholders of
Reset (1)
2(e) Agreement and Plan of Merger by and among X-ceed, Inc., X-ceed Merger
Inc., Mercury Seven, Inc. and the Shareholders of Mercury Seven, Inc. (2)
2(g) Agreement and Plan of Merger by and among X-ceed, Inc., Zabit and
Associates, Inc. and the Shareholders named therein (2)
2(h) Certificate of Merger of Zabit and Associates, Inc. into X-ceed, Inc. (2)
3(c) Certificate of Incorporation of X-ceed, Inc. (3)
4(a) Form of Common Stock (4)
5 Opinion of McLaughlin & Stern, LLP*
10(j) Stock Purchase Agreement among X-ceed, Inc., William Zabit and Joyce
Wesolowski (2)
10(k) Purchase Agreement by and among X-ceed, Inc., William Zabit and Joyce M.
Wesolowski (2)
10(l) Employment Agreement of Scott Mednick*
10(m) Employment Agreement of William Zabit*
23(a) Consent of Holtz Rubenstein & Co. LLP*
23(b) Consent of McLaughlin & Stern, LLP (included in Exhibit 5)
- --------------
* Filed herewith.
(1) Incorporated by reference from the Company's Current Report on Form
8-K filed with the Commission on August 14, 1998.
(2) Incorporated by reference from the Company's Current Report on Form
8-K filed with the Commission on September 17, 1998.
(3) Incorporated by reference from the Company's Current Report on Form
8-K filed with the Commission on February 27, 1998.
(4) Incorporated by reference from the Company's Registration Statement
on Form S-18 filed with the Commission on April 12, 1984, Commission File No.
2-90512-NY.
ITEM 17. Undertakings
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement (i) to
include any prospectus required by Section 10(a)
23
<PAGE>
of the Act and (ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which individually or in the aggregate
represents a fundamental change in the information in the Registration Statement
and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; provided,
however, that if the information required to be included in a post-effective
amendment is included in periodic reports filed or furnished to the Commission
by the Company pursuant to section 13 or Section 15(d) of the Exchange Act, then
the Company shall not be required to file a post-effective amendment.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That for purposes of determining any liability under the
Securities Act of 1933, each filing of Company's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) In the event acceleration is requested by the Company and
insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
24
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant, X-ceed, Inc., has duly caused this Registration Statement on
Form S-3/A to be signed on its behalf by the undersigned, thereunto duly
authorized, in New York, New York on October 30, 1998.
X-CEED, INC.
By: /s/ Werner G. Haase
Werner G. Haase
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
hereby constitutes and appoints Werner G. Haase his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all pre-effective and post-effective amendments to the Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ Werner G. Haase Chief Executive 10/30/98
Werner G. Haase Officer, Principal
/s/ Norman Doctoroff, Director 10/30/98
by Werner G. Haase, attorney-in-fact
Norman Doctoroff
/s/ John Bermingham Director 10/30/98
by Werner G. Haase, attorney-in-fact
John Bermingham
25
Exhibit 5
MCLAUGHLIN & STERN, LLP
260 MADISON AVENUE
18TH FLOOR
NEW YORK, NEW YORK 10016
(212) 448-1100
FAX (212) 448-0066
Richard J. Blumberg
Direct Phone: (212) 448-6205
New Jersey Office Millbrook Office
411 Hackensack Avenue Franklin Avenue
Hackensack, New Jersey 07601 P.O. Box 1369
(201) 488-1105 Millbrook, New York 12545
Fax (201) 488-3679 (914) 677-5700
Fax (914) 677-0097
June 16, 1998
United States Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: X-ceed, Inc.
Gentlepersons:
Reference is made to the Registration Statement on Form S-3
(the "Registration Statement") filed with the Securities and Exchange Commission
by X-ceed, Inc. (the "Company").
We hereby advise you that we have examined originals or copies
certified to our satisfaction of the Company's Certificate of Incorporation,
minutes of the meetings of the Board of Directors and Shareholders and such
other documents and instruments, and we have made such examination of law as we
have deemed appropriate as a basis for the opinions hereinafter expressed.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware.
2. The 100,000 Shares of Common Stock (the subject of the
Registration Statement on Form S-3) subject to the exercise of options pursuant
to the terms of the options granted to the Selling Shareholders will, upon
issuance and the payment of the consideration provided to exercise such options,
be validly issued, fully paid and non-assessable.
In addition, we hereby consent to the reference to this Firm
in this Registration Statement and to the filing of this opinion as an Exhibit
to the Registration Statement.
Very truly yours,
/s/ McLaughlin & Stern, LLP
McLAUGHLIN & STERN, LLP
Exhibit 10(l)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") made effective as
of the 17th day of July, 1998, among X-ceed, Inc. (the "Company"), a Delaware
corporation having an executive offices at 488 Madison Avenue, New York, New
York 10022, and Scott Mednick ("Executive"), residing at 7927 Mulholland Drive,
Los Angeles, California 90046.
W I T N E S S E T H
WHEREAS, the Company desires to employ Executive on the terms
and conditions hereinafter set forth;
WHEREAS, Executive desires to accept such employment on the
terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Company and Executive agree as follows:
1. Employment.
1.1 Effectiveness of Agreement. This Agreement shall become
effective on the date hereof (the "Effective Date").
1.2 Employment Period. The Company hereby employs Executive,
and Executive hereby accepts employment with the Company with the duties
hereinafter set forth, for a period (the "Employment Period") commencing on the
Effective Date and ending on the fourth anniversary thereof (subject to
extension pursuant to Section 5.1 of this Agreement, the "Expiration Date"),
except that Executive may at his option terminate the employment on the second
anniversary thereof by written notice to the Company not less than sixty (60)
days prior to the second anniversary date.
2. Executive Duties.
2.1 Duties. Throughout the Employment Period, Executive shall
serve as the Chairman of the Board of Directors ("Chairman") and Chief Strategic
Officer of the Company and in those capacities shall perform such strategic
services as identifying companies for possible business combinations or other
strategic alliances with the Company, advising the President and Chief Executive
Officer of the Company and the Board of Directors on the methods and means by
which the Company can achieve growth in the interactive sector, identifying
customers for the Company and furthering the Company's position within the
investment community. Executive
<PAGE>
understands that his position as Chairman is subject to approval by the
shareholders of the Company at each and every annual meeting of shareholders
during the Employment Period.
2.2 Performance. Executive agrees that, during the Employment
Period, Executive shall devote substantially all of his time, skills and efforts
to the business and affairs of the Company and its wholly owned subsidiaries and
its affiliated companies, if any, and to the promotion of their interests.
Notwithstanding the preceding sentence, nothing in this Agreement shall preclude
Executive from devoting reasonable amounts of time (i) for serving as a
director, officer or member of committee of any organization or entity involving
no conflict of interest with the Company subject to approval of the Company's
Board of Directors, which approval shall not be unreasonably withheld; or (ii)
engaging in charitable and community activities; provided, however, that such
activities do not interfere with the performance by Executive of his duties
hereunder. Executive shall faithfully and diligently discharge his duties
hereunder and use his best efforts to implement the policies established by the
Board of Directors of the Company (the "Board"). Executive shall during the
Employment Period, work exclusively for the Company and shall not work as an
employee, agent, sales representative or independent contractor for any other
person, firm or entity. The Company hereby acknowledges and agrees that any and
all services provided by Executive to the Company will be performed principally
in the Los Angeles area during the Employment Period.
2.3 Executive hereby acknowledges, covenants and agrees that
all intellectual property which Executive may develop, create, write or
otherwise produce during the Employment Period specifically for the Company
and/or its clients, and which pertain or relate directly to the business of the
Company, shall be the property of the Company free and clear of all claims,
liens or encumbrances by Executive. The Company acknowledges, covenants and
agrees that all intellectual property which Executive may develop, create, write
or otherwise produce during the Employment Period in connection with Executive's
other activities which do not interfere with the performance by Executive of his
duties hereunder and which do not pertain or relate directly to the business of
the Company nor compete with the Company, shall be the property of the Executive
free and clear of all claims, liens or encumbrances of the Company or any of its
affiliates. The covenants set forth herein shall survive the termination of this
Agreement.
2.4 Reporting. Executive shall report directly to the
President and Chief Executive Officer of the Company and the Board.
3. Compensation and Related Matters.
3.1 Signing Bonus. As an inducement to Executive to associate
himself with the Company and in recognition of Executive's prior background,
experience and talent, Executive shall receive a signing bonus (the "Signing
Bonus") in the total amount of $960,000 payable in twelve (12) monthly
installments on or before the first day of each month of Executive's employment
with the first installment commencing on or before August 1, 1998. Executive's
entitlement to the Signing Bonus shall vest and mature upon the execution of
this Agreement by Executive and the Company, and such Signing Bonus or any
portion thereof shall not be subject to
2
<PAGE>
forfeiture of any kind, regardless of any change in Executive's employment
status with the Company or Executive's performance or breach of this Agreement
by either party to this Agreement.
3.2 Base Salary. As base compensation for Executive's services
hereunder, the Company shall pay Executive a salary at the rate of $350,000 per
year (the "Base Salary") during the Employment Period in substantially equal
periodic payments in accordance with the Company's compensation practices less
appropriate payroll deductions as required by state and federal law. Executive
shall be entitled to a minimum ten (10%) percent increase in Base Salary,
including prior period increases, at the commencement of the second and third
and fourth anniversary during the Employment Period.
3.3 Bonus. Executive shall be eligible, subject to the
Company's performance, growth and/or profitability and Executive's performance,
to a bonus ("Bonus") of $100,000 at the end of the first and second anniversary.
3.4 Stock Options.
3.4.1 Upon execution of this Agreement by Executive, Executive
shall receive stock options in the form agreement annexed hereto as Exhibit A
entitling Executive to purchase 1,000,000 shares of the Common Stock of the
Company on exercise price equal to $6.00 per share. The options shall expire on
the tenth anniversary date from the date of grant.
3.4.2 In the event of exercise of more than 500,000 options by
Executive, Executive shall not sell, assign or transfer such excess within a
48-month period commencing with the date of execution of this Agreement, unless
the price of the Common Stock achieves the following trading prices on a
cumulative basis:
NUMBER OF ADDITIONAL SHARES
STOCK PRICE RELEASED FROM TRANSFER RESTRICTIONS
----------- -----------------------------------
12 100,000
15 100,000
18 100,000
21 100,000
24 100,000
Notwithstanding the foregoing restrictions, Executive shall be permitted to
transfer all or any portion of the Common Stock received pursuant to the
exercise of the options granted pursuant to this Section 3.4 to (a) Executive's
spouse or issue, a trust for their benefit or pursuant to any will or
testamentary trust, or (b) upon Executive's death, to any person in accordance
with the laws of descent and/or testamentary distribution.
3
<PAGE>
3.4.3 The Company agrees to register with the Securities and
Exchange Commission the shares of Common Stock underlying the options within
twelve (12) months from the date hereof.
3.4.4 All of the options granted pursuant to this Section 3.4
may be exercised by way of "cashless exercise" in which event Executive shall
tender to the Company a written notice of exercise together with the delivery of
an order to a broker to sell such shares of Common Stock having an aggregate
fair market value at least equal to the total exercise price of the underlying
options, and the Company shall forthwith sell for its account such shares so
exercised through a broker selected by the Company and shall thereafter remit to
Executive the net proceeds less the exercise price.
4. Benefits.
4.1 Benefit Plans. Upon the expiration of Executive's right to
participate in the health insurance program of THINK New Ideas, Inc. ("THINK")
on July 24, 1999 and during the period Executive elects to continue his health
insurance coverage under the health insurance program of THINK under COBRA, the
Company shall pay all of Executive's out-of-pocket costs to participate in the
health insurance program of THINK under COBRA. Except as set forth previously in
this Section 4.1, Executive and his eligible dependents shall participate in all
employee benefit plans generally available to the Company's senior management
personnel. Nothing contained in this Agreement shall obligate the Company to
adopt or implement an employee benefit plan or shall prevent or limit the
Company from making any amendments, changes, or modifications of the eligibility
requirements or any other provisions of, or terminating, any employee benefit
plan at any time (whether during or after the Employment period), and
Executive's participation in or entitlement under any such employee benefit plan
shall at all times be subject in all respects to any such amendment,
termination, change or modification.
4.2 Vacations. Subject to the requirements of Executive's
position and corporate office, Executive shall be entitled to annual vacations
in accordance with the Company's policy in effect from time to time, but in no
event less than four (4) weeks per year.
4.3 Reimbursement of Expenses. The Company shall reimburse
Executive for all proper and reasonable out-of-pocket expenses incurred by him
in performing his duties hereunder, subject to Executive's submission of an
accounting and receipts as required by the Company and provided their extent and
nature are approved in accordance with the policy and procedures of the Company.
4.4 Automobile Allowance. Executive shall receive an
automobile allowance of $1,300 per month during the term of this Agreement.
4.5 Office Space. Employer shall bear the reasonable expense
of office space and communication costs for Executive in the Los Angeles
metropolitan area and shall provide Executive with an assistant approved by
Executive and located in such Los Angeles office.
4
<PAGE>
Executive shall not bind the Company to any lease obligation or hire any person
without Employer's prior written approval.
5. Expiration of Employment Period and Termination.
5.1 Expiration. Executive's employment by the Company shall
automatically expire and terminate on the Expiration Date unless sooner
terminated by Executive pursuant to Section 1.2 or unless sooner terminated
pursuant to the provisions of this Section 5. Notwithstanding the foregoing, no
later than six months before the Expiration Date, the Company and Executive
shall commence good-faith negotiations for an extension of the Employment Period
for an additional period of no less than one year on terms acceptable to both
the Company and the Executive. If the Company and Executive agree on the terms
and conditions of such an extension, then this Agreement shall be amended to
reflect such terms and conditions, and the Expiration Date shall be deemed to be
the last day of such extended Employment Period.
5.2 Death. Except with respect to the Company's payment
obligation for any unpaid portion of the Signing Bonus under Section 3.1 hereof,
Executive's employment by the Company and this Agreement shall automatically
terminate upon Executive's death.
5.3 Disability. Except with respect to the Company's payment
obligation for any unpaid portion of the Signing Bonus under Section 3.1 hereof,
the Company shall have the right and option, exercisable by giving written
notice to Executive, to terminate Executive's employment by the Company and this
Agreement at any time after Executive has been unable to perform the services or
duties required of Executive in connection with Executive's employment by the
Company as a result of physical or mental disability (or disabilities) which has
(or have) continued for a period of (180) consecutive days in any 365 day
period.
5.4 For Cause. Except with respect to the Company's payment
obligation for any unpaid portion of the Signing Bonus under Section 3.1 hereof,
the Company shall have the right and option, exercisable by giving written
notice to Executive, to terminate Executive's employment by the Company and this
Agreement at any time after the occurrence of any of the following events or
contingencies (any such termination being deemed to be a termination "For
Cause"):
5.4.1 Executive materially breaches, repudiates or otherwise
fails to comply with or perform any of the terms of this Agreement or any of the
Company's reasonable policies or procedures; provided, however, that Executive
has not corrected such breach, repudiation or failure thirty (30) days following
written notice specifying such breach, repudiation or failure;
5.4.2 Executive materially interferes with the compliance by
any other employee of the Company with any of the Company's reasonable policies
or procedures, but only if Executive has not corrected such interference thirty
(30) days following written notice thereof;
5
<PAGE>
5.4.3 The conviction by Executive of a felony or the pleading
by Executive of no contest (or similar plea) to a felony other than a crime for
which vicarious liability is imposed upon Executive solely by reason of
Executive's position with the Company, and not by reason of Executive's conduct
which involves moral turpitude or which could potentially result in a material
adverse effect on the Company;
5.4.4 Any act or omission by Executive constituting fraud,
willful misconduct or dishonesty with Executive's employment by the Company, of
the theft or misappropriation of assets of the Company; or
5.4.5 Executive uses alcohol or drugs to an extent that
materially interferes with the performance of his duties hereunder.
5.5 No Obligation to Renew. Subject to the obligation to
negotiate set forth in Section 5.1, the Company shall have no obligation to
renew or extend the Employment Period.
5.6 Termination Without Cause. Except with respect to the
Company's payment obligation for any unpaid portion of the Signing Bonus under
Section 3.1 hereof, the Company shall have the right and option, exercisable by
giving written notice to Executive, to terminate Executive's employment by the
Company and this Agreement at any time, in its sole discretion, provided that in
such event the Company shall continue to pay the Base Compensation without
interruption and in accordance with Section 3.2 of this Agreement through the
termination of the Employment Period (without regard to Executive's option to
terminate his employment after two (2) years pursuant to Section 1.2 of this
Agreement).
6. Noncompetition.
6.1 Executive covenants and agrees that during the Employment
Period or so long as he is receiving Base Compensation pursuant to Section 5.6
of this Agreement and continuing for a twelve (12) month period thereafter if
and only if Executive terminates his employment either (i) after two (2) years
pursuant to Section 1.2 of this Agreement or (ii) Executive elects not to extend
this Agreement after the completion of the initial four (4) year period (without
regard to any extensions) as set forth under Section 1.2 of this Agreement, or
(iii) Executive voluntarily resigns other than pursuant to Section 1.2 of this
Agreement, he will not directly (as agent, employee, advisor, director, officer,
stockholder, partner or individual proprietor, or as an investor who has made an
advance, loan or contributions to capital), compete with the Company or with any
wholly owned subsidiaries or affiliated companies, if any, in the Company's
business. Notwithstanding the foregoing, the parties hereto acknowledge and
agree that the prohibition on competing with the Company contemplated pursuant
to this Section 6 shall not include the ownership of any investment security
listed on a national securities exchange or traded in the over-the-counter
market provided Executive does not participate in the management of such entity.
6.2 Executive covenants and agrees that during the Employment
Period or so long as he is receiving Base Compensation pursuant to Section 5.6
of this Agreement and
6
<PAGE>
continuing for a twelve (12) month period thereafter if and only if Executive
terminates his employment either (i) after two (2) years pursuant to Section 1.2
of this Agreement or (ii) Executive elects not to extend this Agreement after
the completion of the initial four (4) year period (without regard to any
extensions) as set forth under Section 1.2 of this Agreement, he will not
contact or solicit business that competes directly with the Company's business
from persons who, at any time during the Employment Period, were customers of
the Company or its wholly owned subsidiaries or affiliated companies, if any, or
induce such persons to do business with any person other than the Company or its
affiliated companies, if any.
7. Confidentiality.
7.1 All information about the business and affairs of the
Company which is not generally available to the public including, without
limitation, its secrets and information about the business, financial
conditions, business practices, prospects, products, technology, know-how and
the names of its suppliers, customers and lenders and the nature of its dealings
with them constitute "Company Confidential Information."
7.2 Executive acknowledges that he will have access to, and
knowledge of Company Confidential Information, and that improper use or
revelation of same by Executive, whether during or after the termination of his
Employment Period by the Company, could cause serious injury to the business of
the Company. Accordingly, Executive covenants and agrees that, except as
required to perform his duties under this Agreement, or as required by law, he
will not, at any time during or after the Employment Period, directly or
indirectly, disclose Company Confidential Information to any other person or
organization for so long as such Company Confidential Information is not
generally known by, or accessible to, the public. Executive further covenants
and agrees that he will not use any Company Confidential information for his own
benefit or for the benefit of any person or organization other than the Company
and its wholly owned subsidiaries and affiliates, if any.
8. Injunctive Relief. Executive agrees that the remedies at
law for any breach by him of Section 7 of this Agreement will be inadequate and
that the Company shall be entitled to temporary and permanent injunctive relief
without the necessity of proving actual damages.
9. Key Person Life Insurance. Executive acknowledges that the
Company may be obligated pursuant to contracts with third parties to obtain and
maintain term life insurance on Executive's life for the Company's benefit.
Executive shall submit to such examinations, provide such information and fill
out and sign such forms as may reasonably be required by the insurer selected by
the Company.
10. General Provisions.
10.1 Governing Law. Any dispute or controversy between the
parties relating to or arising out of this Agreement or any amendment or
modification hereof, shall be governed by the laws of the State of New York
governing contracts made and to be performed wholly within the State of New
York.
7
<PAGE>
10.2 Severability. In the event any provision (or any portion
of any provision) of this Agreement shall be held to be void or unenforceable,
the remaining provisions of this Agreement (and the remaining portion of any
provision held void or unenforceable in part only) shall continue in full force
and effect.
10.3 Entire Agreement. This Agreement contains the full and
complete understanding of the parties and supersedes all prior agreements and
understandings among the parties with respect to the entire subject matter
hereof.
10.4 Waiver of Breach. A waiver of a breach or violation of
any term, provision, covenant or condition herein contained must be executed in
writing to be effective and shall not be deemed to be a continuing waiver or a
waiver of any future or past breach or violation.
10.5 Parties in Interest. This Agreement and the benefits
hereunder shall be nondelegable or assignable by Executive, shall be binding
upon, and inure to the benefit of, Executive (or upon Executive's death,
Executive's rights to payments hereunder shall enure to the benefit of
Executive's personal or legal representatives, executors, administrators, heirs,
distributees, devisees and legatees). This Agreement may not be assigned by the
Company without the prior consent of Executive, and it shall be binding upon and
inure to the benefit of the Company and any entity succeeding to all or
substantially all of the business assets of the company by merger,
consolidation, purchase of assets or otherwise.
10.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall be deemed one and the same instrument.
10.7 No Violations. Each party to this Agreement represents
that the provisions of this Agreement do not breach or violate any other
Agreement, contract or understanding by which such party is legally bound.
10.8 Notices. All notices and other communications given or
made pursuant to or relating to this Agreement shall be made in writing and
shall be either personally delivered, sent by telecopier or mailed by registered
or certified mail (postage prepaid, return receipt requested) to be delivered at
such address as is indicated below, or at such other address or to the attention
of such other person as the recipient has specified by prior written notice to
the sending party. Notice shall be effective when so personally delivered, or
when so sent by telecopier, or if so mailed, then three (3) days after being so
mailed to the parties at the following addresses (or at such other address for
the party as shall be specified by like notice, except that notice of changes of
address shall be effective upon receipt):
To the Company: X-ceed, Inc.
488 Madison Avenue
New York, New York 10022
8
<PAGE>
To Executive: Scott Mednick
7927 Mulholland Drive
Los Angeles, California 90046
With a copy to:
Riordan & McKinzie
300 South Grand Ave., 29th Floor
Los Angeles, California 90071-3155
Attn: Jeffrey L. Glassman
10.9 Attorneys' Fees. In any litigation relating to this
Agreement between the parties hereto, the prevailing party shall be entitled to
recover reasonable attorneys' fees, court costs and other reasonable expenses
incurred in connection with such litigation.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
X-CEED, INC. /s/ Scott Mednick
SCOTT MEDNICK
By: /s/ Werner G. Haase
Werner G. Haase, CEO
9
Exhibit 10(m)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of September 14, 1998 by
and between X-CEED, INC., a Delaware corporation with an office at 488 Madison
Avenue, New York, New York 10022 (the "Company"), and William N. Zabit, residing
at 21 Newhall, San Rafael, California 94901 (the "Executive").
1. Employment. The Company hereby employs the Executive as President
for and during the term hereof, subject to the supervision and control of the
Company's Board of Directors, and the terms and conditions hereof. The Executive
hereby accepts employment under the terms and conditions set forth in this
Agreement.
2. Duties of Executive. The Executive shall have such duties as may be
reasonably assigned to him from time to time by the Board of Directors
consistent with his position as President of the Company.
3. Business Time. The Executive agrees to devote his full time to the
performance of the duties, responsibilities, and authorities which may be
reasonably assigned to him and which are consistent with his office of
President.
4. Term. The term of this Agreement shall commence effective September
14, 1998 and shall terminate on December 31, 2002.
5. Compensation and Other Employee Benefits. Subject to the right of
the Company to amend or terminate any employee and/or group or senior executive
benefit, bonus and/or stock option plan or program, and to the terms and
conditions of such plans and programs, the Company shall pay the Executive, as
compensation for services rendered by the Executive as an officer under this
Agreement, as follows:
5.1 Base Salary. The Company shall pay the Executive a base salary at
the rate of four hundred thousand dollars ($400,000) per annum subject to
withholding taxes, payable as per the Company's normal payroll practices as in
effect from time to time ("Base Salary"). The Executive shall be eligible for
such increases in Base Salary as the Company's Board of Directors may deem
appropriate based upon annual performance reviews and competitive practice, and
commensurate with salary increases given to other senior officers of the
Company.
5.2 Additional Compensation. The Executive shall have the opportunity
to earn stock options, bonuses and other additional compensation in the amount
and at such time or times as may be specified from time to time by the Company's
Board of Directors in its sole discretion.
<PAGE>
5.3 Medical and Dental Plans. The Executive shall have the right to
participate in such medical and dental plans as are maintained by the Company
and are available to its exempt salaried employees generally (including, without
limitation, disability, accident, medical, life insurance and hospitalization
plans, to the extent such plans are provided).
5.4 Disability Insurance. Without limiting the foregoing, the Company
will use reasonable efforts to procure supplemental disability insurance with
the Executive as beneficiary which shall be in an amount not to exceed three
thousand dollars ($3,000) per month for any remainder of the term of this
Agreement that he is disabled as defined in Section 6.2.
5.5 Vacation. The Executive shall be entitled to vacation days and
holiday pay in accordance with the policies applicable to the Company's key
employees generally.
5.6 Life Insurance. The Company will make all premium, interest, and
other payments necessary to maintain in effect a life insurance policy, which
policy will insure the life of Executive with a face value of at least two
million dollars ($2,000,000) with such beneficiar(y)(ies) as Executive may
designate. In the event of termination of this Agreement, Executive shall have
the option of continuing the aforementioned insurance policies at his own
expense. In addition, during the term of Executive's employment hereunder
Executive shall be eligible to participate in any life insurance, medical,
retirement and other benefit plans or arrangements generally made available by
the Company to comparable employees of the Company to the extent Executive
qualifies under the provisions of any such plans.
5.7 Reimbursement of Expenses. The Company shall reimburse Executive
for reasonable out-of-pocket expenses properly incurred by Executive on behalf
of and directly for the benefit of the Company in the performance of his duties
hereunder and in accordance with policies set by the Board of Directors of the
Company; provided that proper written vouchers are submitted to the Company by
Executive evidencing such expenses and the purposes for which the same were
incurred.
5.8 Automobile. The Company shall make available to Executive an
automobile and shall pay all business expenses (including, but not limited to,
automobile insurance coverage) associated with said automobile. Said automobile
may be leased or purchased at the Company's expense and shall be a new full size
model car. Executive shall be entitled to a new car if said automobile becomes
more than three (3) years old. Executive shall have the right of first refusal
to purchase said automobile assigned to him at the "Book Value" as carried on
the Company's books. The said right shall be afforded to Executive each time the
Company sells or trades in the automobile which is assigned to Executive.
5.9 Personal Assistant. The Company shall employ and make available to
the Executive a personal assistant to assist the Executive with his personal
affairs. The Executive's personal assistant shall receive an annual salary of no
more than twenty-five thousand dollars ($25,000) plus employee benefits
customary for such position.
2
<PAGE>
5.10 Indemnification/Liability Insurance. The Company shall indemnify
the Executive as required by the Company's Bylaws, and may maintain customary
insurance policies providing for indemnification of the Executive.
6. Termination. Notwithstanding any other provision in this Agreement:
6.1 Death. If the Executive dies during the term of this Agreement and
while in the employ of the Company, this Agreement shall automatically terminate
as of the date of the Executive's death; and, subject to Section 6.4 hereof, the
Company shall have no further obligation to the Executive or his estate.
6.2 Disability. If, during the term of this Agreement, the Executive
is unable to perform his duties hereunder as a result of any physical or mental
disability which continues for one hundred eighty (180) days in any three
hundred sixty five (365) day period, then the Company, may terminate this
Agreement upon written notice to Executive.
6.3 Termination by the Company for Cause. At any time during the term
of this Agreement, the Company may discharge the Executive for cause and
terminate this Agreement without any further liability hereunder to the
Executive or his estate. For purposes of this Agreement, a "discharge for cause"
shall mean termination of the Executive upon written notification to the
Executive limited, however, to one or more of the following reasons:
6.3.1 Fraud, misappropriation or embezzlement by the Executive
in connection with the Company; or
6.3.2 Conviction by a court of competent jurisdiction in the United
States of a felony or a crime involving moral turpitude; or
6.3.3 Willful and unauthorized disclosure of confidential, or
proprietary trade secret information of the Company; or
6.3.4 The Executive's breach of any material term or provision of this
Agreement, after notice to the Executive of the particular details thereof and a
period of not less than thirty (30) days thereafter within which to cure such
breach, if any.
6.4 Effects of Termination. If this Agreement is terminated for any
reason other than as set forth in Section 6.3 above, including without
limitation death or disability, all debts owed by the Executive to the Company
shall be canceled in full.
7. Protective Covenants.
7.1 Because:
(a) Executive will become fully familiar with all aspects of the
Company's business during the period of his employment with the Company;
3
<PAGE>
(b) certain information of which the Executive will gain knowledge
during his employment is proprietary and confidential information which is of
special and peculiar value to the Company;
(c) if any such proprietary and confidential information were imparted
to or became known by any persons, including Executive, engaging in a business
in competition with that of the Company, hardship, loss and irreparable injury
and damage could result to the Company, the measurement of which would be
difficult if not impossible to ascertain; and
(d) it is necessary for the Company to protect its business from such
damage, the following covenants constitute a reasonable and appropriate means,
consistent with the best interests of both the Executive and the Company, to
protect the Company against such damage and shall apply to and be binding upon
Executive as provided herein.
7.2 Non-Competition by Executive. Executive covenants that, while he
is an employee of the Company and for eighteen (18) months after the Executive
ceases to be employed by the Company (other than termination without cause or
pursuant to Section 6.2), neither he nor any of his affiliates will, directly or
indirectly (whether as an investor, shareholder, employee or otherwise), engage
in or participate in any business which is in competition with the business of
the Company.
7.3 Trade Secrets, Proprietary and Confidential Information.
7.3.1 Executive recognizes that his position with the Company is one
of the highest trust and confidence by reason of Executive's access to and
contact with trade secrets and confidential and proprietary information of the
Company.
7.3.2 Executive shall use his best efforts and exercise utmost
diligence to protect and safeguard and keep confidential the trade secrets and
confidential and proprietary information of the Company.
7.3.3 Executive covenants that while he is an employee of the Company
and thereafter, he will not disclose, disseminate or distribute to another, nor
induce any other person to disclose, disseminate, or distribute, any trade
secret or proprietary or confidential information of the Company, directly or
indirectly, either for Executive's own benefit or for the benefit of another,
whether or not acquired, learned, obtained or developed by Executive, or use or
cause to be used, any trade secret, proprietary or confidential information in
any way except as is required in the course of his employment with the Company.
7.3.4 All trade secrets and confidential and proprietary information
relating to the business of the Company whether prepared by Executive or
otherwise coming into his possession, shall remain the exclusive property of the
Company and shall not, except in the furtherance of the business of the Company,
be removed from the premises of the Company under any circumstances whatsoever
without the prior written consent of the Company.
4
<PAGE>
7.3.5 Executive hereby assigns to the Company all his right, title and
interest in any and all inventions, discoveries, improvements, ideas, computer
or other apparatus programs and related documentation, and other works of
authorship (hereinafter each designated "Intellectual Property") which he
develops, makes, creates or conceives of in connection with his employment by
the Company.
7.3.6 Executive will, without charge to Company, but at its expense,
execute a specific assignment of title to the Company to secure a patent,
copyright or other form of protection for said Intellectual Property anywhere in
the world.
7.4 Remedies. In the event of breach or threatened breach by Executive
of any provision of this Section, the Company shall be entitled to apply for
relief by temporary restraining order, temporary injunction, or permanent
injunction and to all other relief to which it may be entitled, including any
and all monetary damages which the Company may incur as a result of said breach,
violation or threatened breach or violation. The Company may pursue any remedy
available to it concurrently or consecutively in any order as to any breach,
violation, and the pursuit of one of such remedies at any time will not be
deemed an election of remedies or waiver of the right to pursue any other of
such remedies as to such breach, violation, or as to any other breach,
violation, or threatened breach or violation.
8. Change of Control.
(a) After a Change of Control of the Company as defined under clause
(b) hereafter, Executive shall be entitled to a one-time additional compensation
in an amount equal to three (3) times the Executive's then current annual
compensation (including bonuses). Such additional compensation will be paid to
Executive in a lump sum on or before the date such Change of Control takes
effect. Said amount shall be determined by counsel to the Company in
consultation with the Company's auditors.
(b) A "Change of Control" shall be deemed to have occurred in the event
(i) any person (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or group of
such "persons", without the consent of the Board of Directors, is or becomes a
"beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company representing thirty percent (30%) or
more of the combined voting power of the Company's then outstanding securities,
or (ii) of a merger, consolidation or other combination the result of which is
the ownership by shareholders of the Company of less than seventy-five percent
(75%) of those voting securities of the resulting or acquiring entity having the
power to elect a majority of the Board of Directors of such entity; or (iii) of
the sale of transfer of in excess of fifty percent (50%) of the gross assets of
the Company as shown on the Company's then most recent audited financial
statements.
(c) Notwithstanding anything in the foregoing to the contrary, no
Change of Control shall be deemed to have occurred for purposes of this
Agreement by virtue of any transaction which results in Werner Haase or a group
of persons which includes Werner Haase, acquiring, directly or indirectly,
thirty percent (30%) or more of any class of voting securities of the Company.
5
<PAGE>
9. No Violation. Executive represents and warrants to the Company that
he is free to enter into this Agreement in accordance with the terms hereof and
is under no restriction, contractual or otherwise, which would interfere with
his execution hereof or performance hereunder.
10. Immigration Documentation. Executive's employment is contingent
upon Executive's ability to prove his or her identity and authorization to work
in the United States for the Company.
11. General Provisions.
11.1 Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed to have been
delivered (a) on the date personally delivered or (b) two days after the date
deposited in a receptacle maintained by the United States Postal Service for
such purpose, postage prepaid, by certified mail, return receipt requested,
addressed as set forth below or (c) one day after properly sent by Federal
Express, addressed to the respective parties at their address set forth above.
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto as provided above.
11.2 Severability. If any provision contained in this Agreement is
determined to be void, illegal or unenforceable, in whole or in part, then the
other provisions contained herein shall remain in full force and effect as if
the provision which was determined to be void, illegal, or unenforceable had not
been contained herein.
11.3 Waiver, Modification and Integration. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach of any party. This instrument and
the documents referred to herein contain the entire agreement of the parties
concerning employment and supersede any and all other agreements, either oral or
in writing, between the parties hereto with respect to the employment of the
Executive by the Company and contain all of the covenants and agreements between
the parties with respect to such employment in any manner whatsoever. This
Agreement may not be modified, altered or amended except by written agreement of
all the parties hereto.
11.4 Binding Effect. This Agreement shall be binding and effective upon
the Company and its successors and permitted assigns, and upon the Executive,
his heirs and representatives.
11.5 Governing Law. This Agreement shall be governed by the internal
laws of the State of New York without regard to principles of conflicts of laws.
11.6 Execution. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but are the same instrument.
6
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
EXECUTIVE:
/s/ William N. Zabit
William N. Zabit
X-CEED, INC.:
By /s/ Werner Haase
7
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference into the Amendment No. 3
to the Registration Statement on Form S-3 of our report dated November 14, 1997
with respect to the consolidated financial statements of X-ceed, Inc. (formerly
Water-Jel Technologies, Inc. and Subsidiaries) included in the Annual Report on
Form 10-KSB for the year ended August 31, 1997 and to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Holtz Rubenstein & Co., LLP
Holtz Rubenstein & Co., LLP
Melville, New York
October 29, 1998
Exhibit 23(b)
(included in Exhibit 5)
