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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K/A
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
March 6, 1996
Electronic Designs, Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 1-12200 04-3298416
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(State or other jurisdiction (Commission file number) (I.R.S. Employer
of Incorporation) Identification Number)
One Research Drive, Westborough, Massachusetts 01581
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(Address of Principal Executive Offices) (Zip Code)
(508) 366-5151
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(Registrant's Telephone Number, Including Area Code)
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(Former Name, Former Address and Formal Fiscal Year, if Changed Since Last
Report)
EXHIBIT INDEX IS LOCATED ON PAGE 4
PAGE 1 OF 12
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ITEM 7. FINANCIAL STATEMENTS,PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(c) Exhibits:
2.1 Agreement of Merger dated March 6, 1996, by and between Crystallume, a
California corporation, and Electronic Designs, Inc., a Delaware
corporation and wholly owned subsidiary of Crystallume.
4.1 Speciman of Common Stock Certificate of Electronic Designs, Inc., a
Delaware corporation.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Electronic Designs, Inc.
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(Registrant)
Dated: August , 1996
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Frank D. Edwards,
Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT TITLE PAGE
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2.1 Agreement of Merger dated March 6, 1996, by and 5
between Crystallume, a California corporation,
and Electronic Designs, Inc., a Delaware corporation
and wholly owned subsidiary of Crystallume.
4.1 Speciman of Common Stock Certificate of Electronic 11
Designs, Inc., a Delaware corporation.
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EXHIBIT 2.1
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER ("Merger Agreement") is made and entered into as
of March 6, 1996 by and between Crystallume, a California corporation (the
"Company"), having its principal place of business at One Research Drive,
Westborough, MA 01581, and Electronic Designs, Inc., a Delaware corporation and
wholly owned subsidiary of the Company (the "Delaware Company"), having its
principal place of business at One Research Drive, Westborough, MA 01581.
W I T N E S E T H:
WHEREAS, the Delaware Company, incorporated on January 17, 1996, is a
corporation duly organized and existing under the General Corporation Law of the
State of Delaware (the "DGCL");
WHEREAS, the Company, incorporated on September 24, 1984, is a corporation
duly organized and existing under the General Corporation Law of the State of
California;
WHEREAS, on the date hereof, the Company is authorized to issue 15,000,000
shares of common stock, no par value per share, (the "California Common Stock")
of which approximately 5,448,586 shares are issued and outstanding and 8,000,000
shares of preferred stock, no par value (the "California Preferred Stock") of
which 4,126 shares of the California Preferred Stock have been designated as 12%
Series A Convertible Preferred Stock, no par value (the "Series A Preferred
Stock," collectively, with the California Common Stock and the California
Preferred Stock, the "California Stock") and 3,985 shares of the Series A
Preferred Stock are issued and outstanding;
WHEREAS, on the date hereof, the Delaware Company is authorized to issue
20,000,000 shares of common stock, $.01 par value per share (the "Delaware
Common Stock"), of which 100 shares are issued and outstanding, and 8,000,000
shares of preferred stock, $.01 par value per share (the "Delaware Preferred
Stock,") of which 4,126 shares have been designated as 12% Series A Convertible
Preferred Stock, $.01 par value per share (the "Delaware Series A Preferred
Stock," collectively with the Delaware Common Stock, the "Delaware Stock"), but
no shares of the Delaware Preferred Stock are issued and outstanding;
WHEREAS, the respective Boards of Directors of the Company and the Delaware
Company have determined that, for the purpose of effecting the reincorporation
of the Company in the State of Delaware, it is advisable and to the advantage of
such corporations and their shareholders that the Company merge with and into
the Delaware Company upon the terms and conditions herein provided; and
WHEREAS, the respective Boards of Directors of the Company and the Delaware
Company and the shareholders of the Company and the Delaware Company have
approved this Merger Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, the Company and the Delaware Company hereby agree to merge as
follows:
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1. MERGER. The Company shall be merged with and into the Delaware Company,
and the Delaware Company shall survive the merger (the "Merger"). The address of
the registered office of the Delaware Company in Delaware is 1209 Orange Street,
Wilmington, County of New Castle. The Merger of the Company with and into the
Delaware Company, which has been approved and executed pursuant to (a) this
Merger Agreement by and between the Company and the Delaware Company and (b) the
Certificate of Ownership and Merger by and between the Company and the Delaware
Company (the "Certificate of Merger"), shall be effective upon filing of such
Certificate of Merger with the Secretary of State of Delaware in accordance with
the DGCL (the "Effective Date").
2. SUCCESSION. On the Effective Date, the Delaware Company shall succeed to
the status, rights, powers, privileges and liabilities of the Company in the
manner of and as more fully set forth in Section 259 of the DGCL. All corporate
acts, plans, policies, agreements, arrangements, approvals and authorizations of
the Company, its shareholders, Board of Directors and committees thereof,
officers and agents which were valid and effective immediately prior to the
Effective Date, shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Delaware Company
and shall be as effective and binding thereon as the same were effective and
binding with respect to the Company. The requirements of any plans or agreements
of the Company involving the issuance or purchase by the Company of certain
shares of California Common Stock shall be satisfied by the issuance or purchase
by the Delaware Company, as the case may be, of the same number of shares of
Delaware Common Stock.
3. DIRECTORS AND OFFICERS; GOVERNING DOCUMENTS. Upon the Effective Date,
the directors and officers of the Company shall resign and the directors and
officers of the Delaware Company immediately prior to the Effective Date shall
be the directors and officers of the Delaware Company in the same capacity and
offices until their successors are duly elected and qualified. The Certificate
of Incorporation and By-Laws of the Delaware Company, copies of which are
substantially in the form attached hereto as EXHIBIT A and EXHIBIT B,
respectively, as in effect at the Effective Date, shall continue to be the
Certificate of Incorporation and By-Laws of the Delaware Company as the
surviving corporation without change or amendment until further amended in
accordance with the provisions thereof and applicable law.
4. FURTHER ASSURANCES. From time to time, as and when required by the
Delaware Company or by its successors and assigns, there shall be executed and
delivered on behalf of the Company such deeds or other instruments, and there
shall be taken or caused to be taken by it such further and other action, as
shall be appropriate or necessary in order to vest, perfect or confirm, of
record or otherwise, in the Delaware Company the title to and possession of all
of the properties, interests, assets, rights, privileges, immunities, powers,
franchises and authority of the Company, and otherwise to carry out the purposes
of this Merger Agreement. The officers and directors of the Delaware Company are
fully authorized in the name and on behalf of the Company or otherwise to take
any and all such action and to execute and deliver any and all such deeds and
other instruments.
5. SECURITIES OF THE COMPANY. Upon the Effective Date automatically and
without further action of any persons, (a) each share of California Common Stock
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outstanding immediately prior thereto shall be converted into and shall
thereafter represent one fully-paid and non-assessable share of Delaware Common
Stock; (b) each share of the Company's Series A Preferred Stock immediately
prior to the Effective Date shall be converted into and shall thereafter
represent one fully-paid and non-assessable share of the Delaware Series A
Preferred Stock; (c) each issued and outstanding Common Stock Warrant (a
"Warrant") of the Company exercisable into 100 shares of the Company's Common
Stock at an exercise price of $3.25 per share shall be converted into one
Delaware Common Stock Warrant of the Delaware Company (a "Delaware Stock
Warrant") exercisable into the corresponding and equivalent number of shares of
Delaware Common Stock and subject to the same terms and conditions as the
Warrant of the Company provided; (d) each redeemable warrant (a "Redeemable
Warrant," together with a Warrant, the "California Warrants") to purchase one
share of the California Common Stock shall be converted into a redeemable
warrant of the Delaware Company (a "Delaware Redeemable Warrant," together with
a Delaware Stock Warrant, the "Delaware Warrants") to purchase the corresponding
and equivalent number of shares of the Delaware Common Stock and subject to the
same terms and conditions as the Redeemable Warrant provided; and (e) each share
of the capital stock of the Delaware Company that is issued and outstanding or
held in treasury immediately before such Effective Date, shall be canceled
without payment of any consideration therefor.
6. STOCK CERTIFICATES. After the Effective Date, the Delaware Company shall
provide notice to the holders of California Stock and holders of the California
Warrants of the Company of the effectiveness of the Merger. The notice to all
holders of the California Common Stock will explain in detail the process by
which all of the outstanding California Common Stock certificates which prior to
the Effective Date represented shares of California Common Stock, shall be
surrendered to the Delaware Company by the holders thereof for cancellation.
Upon cancellation of each such certificate, the Delaware Company shall issue to
the holder surrendering such certificate a new certificate representing the same
number of shares of Delaware Common Stock. The registered owner on the books and
records of the Company of any outstanding stock certificate representing shares
of California Common Stock which has been surrendered to the Delaware Company
for cancellation as provided herein shall, until a certificate representing a
similar number of shares of Delaware Common Stock shall have been issued to such
owner, have and be entitled to exercise any voting and other rights with respect
to such stock and to receive any dividend and other distributions upon the
shares of California Common Stock evidenced by such outstanding stock
certificate.
7. WARRANTS, CONVERTIBLE DEBT OPTIONS AND SERIES A PREFERRED STOCK.
Forthwith upon the Effective Date, each outstanding warrant to purchase
(including, but not limited to, the California Warrants), debt obligation
convertible into, option to purchase or share of the Series A Preferred Stock
convertible into, shares of California Common Stock, (including the options
granted under the Company's 1987 Amended and Restated Stock Option Plan, as
amended through November 29, 1995), shall, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into and become a
warrant to purchase, a debt obligation convertible into, an option to purchase
or a share of the Delaware Series A Preferred Stock convertible into, as the
case may be, the same number of shares of Delaware Common Stock at the same
price per share as in effect at the Effective Date and upon the same terms
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and subject to the same conditions as set forth in any plans or any agreements
entered into by the Company pursuant thereto. A number of shares of Delaware
Common Stock shall be reserved for purposes of said plans or agreements equal to
the number of shares of California Common Stock so reserved as of the Effective
Date. As of the Effective Date, the Delaware Company hereby assumes all
obligations of the Company under said plans or agreements and the outstanding
options or portions thereof granted pursuant to said plans or agreements.
8. EMPLOYEE BENEFIT PLANS. As of the Effective Date, the Delaware Company
hereby assumes all obligations of the Company under any and all employee benefit
plans in effect as of said date or with respect to which employee rights or
accrued benefits are outstanding as of said date.
9. COVENANTS OF THE DELAWARE COMPANY. The Delaware Company covenants and
agrees that at or before the Effective Date or as soon thereafter as practicable
it will qualify to do business as a foreign corporation in the State of
California and the Commonwealth of Massachusetts and in any other state in which
it is required by law to qualify to do business as a foreign corporation.
10. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. The Delaware Company
hereby agrees that it may be sued in the State of Delaware in any proceeding for
the enforcement of any obligation of the Company as well as for enforcement of
any obligations of the Delaware Company arising from the Merger, and for any
obligation which may be incurred by the Delaware Company as the surviving
corporation, and irrevocably appoints the Secretary of State of the State of
Delaware as its agent to accept service of process in any such proceeding. The
address to which a copy of such process shall be mailed by the Secretary of
State for the State of Delaware is One Research Drive, Westborough, MA 01581.
11. AMENDMENT. Subject to applicable law, at any time before or after
approval and adoption by the shareholders of the Company, this Merger Agreement
may be amended, supplemented or modified in any manner by written agreement
executed and delivered by duly authorized officers of the respective parties;
provided, however, that after this Agreement has been approved by the
shareholders of the Company and the Delaware Company, this Agreement shall not
be amended if such amendment would have a material adverse effect on the
shareholders of either the Company or the Delaware Company, unless such
amendment is approved by such shareholders.
12. ABANDONMENT. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either the Company or the Delaware Company, or both,
notwithstanding approval of this Merger Agreement by the shareholders of the
Company. In the event of termination of this Agreement or abandonment of the
Merger pursuant to this Section 12, no party thereto (or any of its directors or
officers) shall have any liability or further obligation to any other party to
this Agreement.
13. COUNTERPARTS. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which shall constitute the
same agreement.
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14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
15. NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by resolutions of the Boards of Directors of the Delaware Company and the
Company, is hereby executed as of the date first above written on behalf of each
of the Delaware Company and the Company by their respective duly authorized
officers.
ATTEST: ELECTRONIC DESIGNS, INC.
a Delaware corporation
By:
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Frank D. Edwards, Secretary Donald F. McGuinness, Chief Executive Officer
ATTEST: CRYSTALLUME
a California corporation
By:
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Frank D. Edwards, Secretary Donald F. McGuinness, Chief Executive Officer
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EXHIBIT 4.1
[LOGO] EDI
ELECTRONIC DESIGNS, INC.
NUMBER SHARES
ELECTRONIC DESIGNS, INC.
EDI-
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK
CUSIP 285666 10 3
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF THE PAR VALUE OF ONE
CENT ($.01) EACH OF
ELECTRONIC DESIGNS, INC.
(hereinafter called the "Corporation") transferable upon the books of the
Corporation by the holder hereof in person or by duly authorized attorney upon
surrender of this Certificate properly endorsed. This Certificate and the shares
represented hereby are issued and shall be subject to all the provisions of the
Certificate of Incorporation and By-Laws of the Corporation as from time to time
amended (copies of which are on file with the Corporation) to all of which the
holder, by acceptance hereof assents. This Certificate is not valid unless
countersigned and registered by the Transfer Agent and Registrar.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by the facsimile signatures of its duly authorized officers and its
facsimile corporate seal to be hereunto affixed.
Dated:
/s/ FRANK D. EDWARDS /s/DONALD F. MCGUINNESS
SENIOR VICE PRESIDENT AND TREASURER CHAIRMAN, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
ELECTRONIC DESIGNS, INC.
DELAWARE
1996
COUNTERERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(New York, NY) TRANSFER AGENT
AND REGISTRAR
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ELECTRONIC DESIGNS, INC.
The Corporation is authorized to issue more than one class of stock. A
statement of the powers, designations, preferences, and the relative
participating, optional or other rights of each class and series of stock and
the qualifications, limitations or restrictions thereon will be provided without
charge to each stockholder upon request to the Corporation.
<TABLE>
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT --______Custodian_______
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors
of survivorship and not as Act_____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
</TABLE>
For value received, _____________hereby sell, assign, and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
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__________________________________________________________________________Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
________________________________________________________________________Attorney
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated,
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NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the Certificate, in every particular,
without alteration or enlargement, or any
change whatever.
SIGNATURE(S) GUARANTEED:
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THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM)
PURSUANT TO S.E.C. RULE 17Ad-15.
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