SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
FIRST AMENDMENT
Current Report
Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 18, 1998
___________________________________________________________________
VERTEX COMPUTER CABLE & PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
___________________________________________________________________
Delaware 11-2816128
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1-9263
(Commission File Number)
920 Conklin Street, Farmingdale, New York 11735
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (516) 293-1610
Item 1. CHANGES IN CONTROL OF REGISTRANT
The Registrant ("Vertex Computer Cable & Products, Inc.) entered into an
agreement dated December 18, 1998, whereas the Registrant was a party to a
combined agreement with Daniel Mcphee, Christopher Francis, TW Cable LLC.,
Edward Goodstein and Dataworld Solutions, Inc. The following actions took
place as of the signing of the agreement:
(a) Vertex Computer Cable & Products, will acquire all the voting
stock of Dataworld solely in exchange for 1,500,000 shares of the voting
common stock of Vertex, and
(b) Daniel McPhee and Christopher Francis will, each acquire from TW
Cable LLC. a total of 17,000,000 shares of the voting common stock of
Vertex for payment of $200,000 and other consideration stated in the
Agreement; and
(c) TW Cable LLC. has agreed with Vertex to acquire 6,000 shares of
the $6 Vertex Senior Cumulative Convertible Preferred Stock having a stated
value of $100 per share, $.01 par value with such rights, preferences and
designations as set forth in the Certificate of Designation; and
(d) Edward Goodstein and/or TW Cable LLC. has agreed with Vertex to
forgive certain debt of Vertex presently owed to Goodstein and/or TW Cable
LLC.; and
(e) Effective with the signing of the agreement, Daniel Mcphee will
become Chairman of the Board of Directors and Chief Executive Officer.
Christopher Francis will become Chief Operating Officer and Director.
Edward Goodstein and Albert Roth will remain on the Board of Directors.
Item 7. EXHIBITS
* 1.1 Agreement by and Among Vertex Computer Cable & Products, Inc.
and Daniel McPhee and Christopher Francis and TW Cable LLC
and Edward Goodstein and Dataworld Solutions, Inc. dated
December 18, 1998
1.2 Certificate of Designation, Preferences and rights of senior
------------------------------------------------------------
cumulative convertible preferred stock
--------------------------------------
* Filed previously
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Vertex Computer Cable & Products, Inc.
By: /s/ Daniel McPhee
Chief Executive Officer
By: /s/ Nicholas T. Hutzel
V.P. & Controller
Dated: January 7, 1999
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SENIOR CUMULATIVE
CONVERTIBLE PREFERRED STOCK
OF
Vertex Computer Cable & Products, Inc.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
Vertex Computer Cable & Products, Inc. a Delaware corporation
(the "Corporation"), certifies that pursuant to the authority contained
in Article FOURTH of its Certificate of Incorporation and in accordance
with the provisions of Section 151 of the General Corporation Law of the
State of Delaware, its Board of Directors has adopted the following
resolution creating a series of its Preferred Stock, par value $.01 per
share, designated as Senior Cumulative Convertible Preferred Stock:
RESOLVED, that a series of the class of authorized Preferred
Stock of the Corporation be hereby created and that the designation and
amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are
as follows:
SECTION 1. Designation and Amount. The shares of such series
shall be designated as $6 Senior Cumulative Convertible Preferred Stock
(the "$6 Senior Preferred Stock") and the number of shares constituting
such series shall be 20,000 and the stated value of the Senior Preferred
Stock shall be $100 per share.
SECTION 2. VOTING The $6 Senior Preferred Stock shall have
the following voting rights:
(A) The Corporation shall not, without the affirmative consent
of the holders of seventy-five percent of the $6 Senior Preferred Stock,
in any manner alter or change the designations, or the powers,
preferences, rights, qualifications, limitations, or restrictions or
increase the number of authorized shares of the Senior Preferred Stock in
any manner.
(B) The Corporation shall not, without the affirmative consent
of the holders of seventy-five percent of the $6 Senior Preferred Stock,
issue any preferred stock or other equity securities senior to, or pari
passu with, the $6 Senior Preferred Stock whether as to dividends,
distribution or liquidation, or otherwise.
SECTION 3. Dividends. In each year the holders of the $6
Senior Preferred Stock shall be entitled to receive, when and as declared
by the Board of Directors of the Corporation, out of funds legally
available for that purpose, quarterly dividends payable in cash on
December 1, March 1, June 1 and September 1 in each year (each such date
being referred to herein as "Quarterly Dividend Payment Date"),
commencing March 1, 1999, in an amount equal to $1.50 per share (that is,
$6 per share on an annual basis).
In the case of the original issuance of shares of $6 Senior
Preferred Stock, dividends shall begin to accrue and be cumulative from
the date of issue. In the case of shares of $6 Senior Preferred Stock
after December 1, 1999, but prior to any Quarterly Dividend Payment Date,
dividends shall begin to accrue and be cumulative from the date of issue
to the next Quarterly Dividend Payment Date; provided, however, that if
dividends shall not be paid on such Quarterly Dividend Payment Date, then
dividends shall accrue and be cumulative from the Quarterly Dividend
Payment Date to which such dividends have been paid. Dividends paid on
shares of $6 Senior Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares
shall be allocated pro-rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record
date for the determination of holders of $6 Senior Preferred Stock
entitled to receive payment of a dividend declared thereon, which record
date shall be no more than sixty days prior to the date fixed for the
payment thereof.
Whenever quarterly dividends payable on the $6 Senior Preferred
Stock as provided in this Section 3 are in arrears, thereafter and until
dividends, including all accrued dividends, on shares of the $6 Senior
Preferred Stock outstanding shall have been paid in full or declared and
set apart for payment, the Corporation shall not (A) pay dividends on,
make any other distributions on, or redeem or purchase or otherwise
acquire for consideration any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the $6
Senior Preferred Stock, (B) pay dividends on or make any other
distributions on any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution, or winding up) with the $6 Senior
Preferred Stock, except dividends paid ratably on the $6 Senior Preferred
Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all
such shares are then entitled, (C) redeem or purchase or otherwise
acquire for consideration any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the $6
Senior Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking on a parity
or junior to the $6 Senior Preferred Stock, (D) purchase or otherwise
acquire for consideration any shares of the $6 Senior Preferred Stock,
unless required or as provided in Section 5, or any shares of stock
ranking on a parity with the $6 Senior Preferred Stock, except with
respect to the exchange of any Stock ranking below the $6 Senior
Preferred Stock as to liquidation or dividends for debt of the
Corporation. The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could purchase such
shares at such time and in such manner.
SECTION 4. [Intentionally Omitted]
SECTION 5. Redemption by Corporation. The Corporation shall
redeem shares of $6 Senior Preferred Stock pursuant to the following
provisions:
(A) The Corporation shall, on December 1, 2003 redeem all the
then outstanding shares of $6 Senior Preferred Stock at the stated value
thereof (namely $100 per share) plus accrued and unpaid dividends thereon
(the "Redemption Amount") by either (i) a check equal to the Redemption
Amount or (ii) such number of shares of Common Stock of the Corporation
as determined by dividing the "market value" of such Common Stock as of
December 1, 2003, calculated as set forth in Section 8, into the
Redemption Amount.
(B) Notice of any redemption of the $6 Senior Preferred Stock
shall be mailed at least thirty, but no more than sixty, days prior to
the date fixed for redemption to each holder of $6 Senior Preferred Stock
to be redeemed, at such holder's address as it appears on the books of
the Corporation. In order to facilitate the redemption of the $6 Senior
Preferred Stock, the Board of Directors may fix a record date for the
determination of holders of $6 Senior Preferred Stock to be redeemed, or
may cause the transfer book of the Corporation to be closed for the
transfer of the $6 Senior Preferred Stock, not more than sixty days prior
to the date fixed for such redemption;
(C) Upon any notice of redemption being sent to the holders of
$6 Senior Preferred Stock, notwithstanding that any certificates for such
shares shall not have been surrendered for cancellation, the shares
represented thereby shall no longer be deemed outstanding, the rights to
receive dividends thereon shall cease to accrue from and after the date
of redemption designated in the notice of redemption and all rights of
the holders of the shares of the $6 Senior Preferred Stock called for
redemption shall cease and terminate, excepting only the right to receive
the redemption price therefor.
SECTION 6. Reacquired Shares. Any shares of the $6 Senior
Preferred Stock redeemed or purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock
and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject
to the conditions or restrictions on issuance set forth in the
Corporation's Certificate of Incorporation.
SECTION 7. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (A) to the holders of Common Stock of the
Corporation and other stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the $6 Senior Preferred
Stock unless, prior thereto, the holders of $6 Senior Preferred Stock
shall have received $100 per share, plus an amount equal to cumulative
unpaid dividends thereon, including accrued dividends, whether or not
declared, to the date of such payment or (B) to the holders of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the $6 Senior Preferred Stock, except
distributions made ratably on the $6 Senior Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or
winding up.
SECTION 8. Conversion.
(A) Conversions. Subsequent to December 31, 1999 and subject
to and upon compliance with the provisions of this Section, at the option
of any holder of $6 Senior Preferred Stock such holder may convert his or
her $6 Senior Preferred Stock and cumulative but unpaid dividends, at any
time into that number of duly paid and nonassessable whole shares of
common stock obtained by dividing the stated value of the $6 Senior
Preferred Stock so converted, plus the cumulative but unpaid dividends on
such shares, by the Conversion Price, determined as hereinafter provided,
in effect at the time of conversion provided, however, no such conversion
may be made unless the market price (as hereinafter defined) shall be
$1.50 or greater. Upon conversion of any shares of $6 Senior Preferred
Stock that portion so converted shall result in satisfaction and
redemption of such Senior Preferred Stock so converted.
The price at which shares of Common Stock shall be delivered
upon conversion (herein called the "Conversion Price") shall be 75% of
the market price (as hereinafter defined) per share of Common Stock.
(B) Manner of Exercising Conversion Privilege.
(i) In order to exercise the conversion privilege, the
holder of any shares of $6 Senior Preferred Stock to be converted shall
surrender the certificates representing such $6 Senior Preferred Stock at
the principal office of the Corporation, accompanied by written notice to
the Corporation, at said office that the holder elects to convert such $6
Senior Preferred Stock or, if less than the entire amount of shares
represented by such certificate, the portion thereof to be converted.
Such notice shall also state the name or names in which the certificate
or certificates for shares of Common Stock issuable on such conversion
are to be issued, otherwise they shall be issuable in the same name as
the registration of such $6 Senior Preferred Stock, be accompanied by
instruments of transfer, in form satisfactory to the Corporation and to
any person authorized by the Corporation to deliver Common Stock on
conversion of $6 Senior Preferred Stock (herein referred to as the
"conversion agent"), duly executed by the holder or his duly authorized
attorney. Except as otherwise provided in this Section 9(b), no payment
or adjustment shall be made on account of any dividends on the Common
Stock issued upon conversion.
(ii) $6 Senior Preferred Stock shall be deemed to have
been converted immediately prior to the close of business on the day of
acceptance of such $6 Senior Preferred Stock for conversion in accordance
with the foregoing provisions, and at such time the rights of the holders
of the converted portion shall cease and the persons entitled to receive
the Common Stock issuable upon conversion shall be treated for all
purposes as the record holders of such Common Stock at such times;
provided, however, that any such surrender on any date when the stock
transfer books of the Corporation shall be closed shall constitute the
person or persons in whose name or names the certificate or certificates
for such shares are to be issued as the record holder or holders thereof
for all purposes at the opening of business on the next succeeding day on
which such stock transfer books are open and the $6 Senior Preferred
Stock surrendered shall not be deemed to have been converted, in whole or
in part as the case may be, until such date for the purpose of
determining whether any dividends is payable thereon, and such conversion
date, the Corporation shall issue and shall deliver at said office or
agency a certificate or certificates for the number of full shares of
Common Stock issuable upon conversion, together with payment in lieu of
any fraction of a share, as provided in Section 9(C).
(iii) In the case of any certificates of $6 Senior
Preferred Stock which is converted in part only, upon such conversion the
Corporation shall execute and deliver to or upon the written order of the
holder thereof, at the expense of the Corporation, a new certificate of
certificates of Senior Preferred Stock in an amount equal to the
unconverted portion of such certificates of $6 Senior Preferred Stock.
(C) Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of any Senior Preferred Stock. Instead
of any fractional share of Common Stock which would otherwise be issuable
upon conversion of any $6 Senior Preferred Stock (or specified portions
thereof), the Corporation shall pay a cash adjustment in respect of such
fraction.
Section 9. Market Price; Merger or Consolidation.
(A) For the purpose of any computation under Section 5 or
Section 8, the "market price" per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices for 30
consecutive business days before the day in question. The closing price
for each day shall be the average of the closing bid and asked prices as
reported by the National Association of Securities Dealers Automated
Quotation System, or if not so reported, the average of the closing bid
and asked prices as furnished by any firm acting at that time as a market
maker in the Common Stock selected from time to time by the Corporation
for this purpose.
(B) In case of any consolidation of the Corporation with, or
merger of the Corporation into, any other corporation (other than a
consolidation or merger in which the Corporation is the continuing
corporation), or in the case of any sale or transfer of all or
substantially all of the assets of the Corporation, the corporation
formed by such consolidation or the corporation into which the
Corporation shall have been merged or the corporation which shall have
acquired such assets, as the case may be, shall execute and deliver to
holders of all outstanding shares of $6 Senior Preferred Stock written
evidence providing that the holder of all outstanding shares of $6 Senior
Preferred Stock shall have the right thereafter to convert such shares of
$6 Senior Preferred Stock into the kind and amount of share of stock and
other securities and property which are receivable or which, but for the
failure to distribute to the holders of Common Stock all or substantially
all of the consideration receivable upon such sale or transfer of assets,
would be receivable upon such consolidation, merger, sale or transfer by
a holder of the number of shares of Common Stock into which such shares
of $6 Senior Preferred Stock might have been converted immediately prior
to such sale or transfer. Such written evidence shall provide for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 9. The provisions of this
Section 9(B) shall similarly apply to successive consolidations, mergers,
sales or transfers.
Section 10. Notice of Certain Corporate Action.
(A) In the event that any of the following shall occur, the
holders of all $6 Senior Preferred stock shall have the right to receive
notice as provided in this Section 10.
(i) the Corporation shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than in cash;
(ii) the Corporation shall authorize the granting to the
holders of its Common Stock of its rights to subscribe for or purchase
any shares of capital stock of any class or of any rights;
(iii) of any capital reorganization or of any
reclassification of the Common Stock of the Corporation (other than a
subdivision or combination of its outstanding shares of Common Stock), or
any consolidation or merger to which the Corporation is a party and for
which approval of any stockholders of the Corporation is required, or
sale or transfer of all or substantially all of the assets of the
Corporation; or
(iv) the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation.
(B) In the event notice must be given, the Corporation shall
cause the same to be delivered to the Holders of all $6 Senior Preferred
Stock at least 20 days (or 10 days in any case specified in clause (i) or
(ii) above) prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights, or, if a record is not to be
taken, the date as of which the holder of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined,
or (y) the date on which such reorganization, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or
winding up as expected to become effective, and the date as of which it
is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.
Section 11. Corporation to Provide Stock. The Corporation
shall at all times reserve and keep available, free from pre-emptive
rights, (out of its authorized but unissued Common Stock or out of Common
Stock held in its treasury) for the purpose of effecting the conversion
of $6 Senior Preferred Stock, the full number of shares of Common Stock
then issuable upon the conversion of all outstanding $6 Senior Preferred
Stock. Before taking any action that would cause an adjustment
reducing the Conversion Price below the then par value (if any) of the
shares of Common Stock issuable upon conversion of the $6 Senior
Preferred Stock the Corporation shall take any corporate action which
may, in the opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and nonassessable
shares of such Common Stock at such Conversion Price. If any shares of
Common Stock reserved for conversions of $6 Senior Preferred Stock
requires listing upon any national securities exchange before such shares
may be delivered upon conversion, the Corporation shall in good faith,
and as expeditiously as possible, endeavor to cause such shares to be
duly listed.
Section 12. Taxes on Conversion. The Corporation shall pay any
and all transfer tax stamp taxes that may be payable in respect of the
issue or delivery of shares of Common Stock on conversion of $6 Senior
Preferred Stock. The Corporation shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in a name other than that of
the holders of $6 Senior Preferred Stock to be converted, and no such
issuance or delivery shall be made unless and until the person requesting
such issuance has paid to the Corporation the amount of any such tax, or
has established, to the satisfaction of the Corporation, that such tax
has been paid.
IN WITNESS WHEREOF, said Vertex Computer Cable & Products, Inc.
has caused this Certificate of Designation, Preferences and Rights of
Senior Preferred Stock to be duly executed by its President and attested
to by its Secretary and caused its corporate seal to be affixed thereto
on December 17, 1998.
Attest: Vertex Computer Cable &
Products, Inc.
/s Albert Roth By: /s Edward Goodstein
Chairman of the Board
