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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 25049
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: September 1, 1994
MOMENTUM CORPORATION
A Delaware Corporation
Commission File Number: 0-18112
IRS Number: 91-1464018
ADDRESS: 500 108th Avenue NE
Suite 1900
Bellevue, WA 98004
Telephone: Area Code (206) 450-6550
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Item 1. Change in Control of Registrant
On September 1, 1994, at a Special Meeting of Stockholders of Momentum
Corporation, a Delaware corporation ("Momentum"), holders of a majority of the
outstanding shares of common stock, par value $1.00, (the "Shares") of Momentum
approved and adopted the Agreement and Plan of Reorganization (the
"Agreement"), dated as of May 27, 1994 between Momentum and Phillips & Jacobs,
Incorporated, a Pennsylvania corporation ("Phillips") which is incorporated by
reference as Exhibit 2.1.
On September 1, 1994, Phillips filed Articles of Merger with the
Secretary of State of the Commonwealth of Pennsylvania and a Certificate of
Merger with the Secretary of State of the State of Delaware to consummate the
merger (the "Merger") of Momentum with and into Phillips, which was renamed
PrimeSource Corporation ("PrimeSource"). Phillips shareholders retained their
ownership of Phillips Shares under the name of PrimeSource. Each outstanding
share of Momentum common stock, par value $1.00 per share, has been converted
into .71 shares of PrimeSource common stock, par value $.01 per share and the
right to receive a cash payment in lieu of the issuance of fractional shares,
and as a result thereof the identity and separate existence of Momentum has
ceased. In connection with the Merger, the Articles of Incorporation of
Phillips have been amended to increase the number of shares of authorized
capital, to change its corporate name and to make certain other changes.
Certain arrangements and understandings with respect to the change in
control of Momentum are set forth on pages 42 through 49 of Momentum's Proxy
Statement (the "Proxy Statement") filed with the Securities and Exchange
Commission August 4, 1994 under the captions MANAGEMENT OF PRIMESOURCE and THE
REORGANIZATION AGREEMENT AND PLAN OF MERGER, which pages are hereby
incorporated by reference.
As a result of the Merger, the Articles of Incorporation and Bylaws of
Phillips have been amended and restated as the Amended and Restated Articles of
Incorporated and Bylaws of PrimeSource. These Amended and Restated Articles of
Incorporation and Bylaws are set forth in the Proxy Statement as Annexes C and
D respectively, and are hereby incorporated by reference. The Agreement of
Merger, dated as of September 1, 1994, is filed herewith as Exhibit 2.2.
The Board of Directors of PrimeSource consists of the following
representatives of Momentum: Gary MacLeod, Jerrold B. Harris, Richard E.
Engebrecht, Andrew V. Smith, John H. Goddard and James H. Wiborg, and the
following representatives of Phillips: James F. Mullan, Nelson G. Harris,
Phillip J. Baur, Jr. Edward N. Patrone, Fred C. Aldridge, Jr. and John M.
Pettine.
On September 15, 1994, Momentum filed a Certification and Notice of
Termination of Registration on Form 15 with the Securities and Exchange
Commission formally requesting that the common stock of Momentum be
deregistered under Section 12g of the Securities Exchange Act of 1934, as
amended, effective as the close of business on September 1, 1994.
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On August 26, 1994, Momentum filed a letter with the National
Association of Securities Dealers, Inc. ("NASD") formally requesting that
Momentum's common stock be delisted from the NASD at the close of business on
September 1, 1994.
Item 7. Financial Statements and Exhibits
(a) Not Applicable
(b) Not Applicable
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
-------------- ----------------------
<S> <C>
2.1 Agreement and Plan of Reorganization dated as of
May 27, 1994 between Momentum Corporation and
Phillips & Jacobs, Incorporated, (Annex A to proxy
Statement/Prospectus and as exhibit 2.4 to the
registration statement on Form S-4 filed by Phillips
& Jacobs, Incorporated on August 4, 1994,
registration no. 33-54913 and incorporated
herein by this reference.)
2.2 Agreement of Merger by and between Momentum
Corporation and Phillips & Jacobs, Incorporated,
dated as of September 1, 1994.
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MOMENTUM CORPORATION
(Registrant)
Dated: September 15, 1994 By: /s/ John H. Goddard
-----------------------------
John H. Goddard
President and Chief Executive
Officer
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Exhibit 2.2
AGREEMENT OF MERGER
AGREEMENT OF MERGER, dated September 1, 1994, between Phillips &
Jacobs, Incorporated, a Pennsylvania corporation ("Phillips"), and Momentum
Corporation, a Delaware corporation ("Momentum").
WHEREAS, Phillips and Momentum have entered into an Agreement and Plan
of Reorganization (the "Plan of Reorganization") which provides for this
Agreement of Merger; and
WHEREAS, the Boards of Directors and the shareholders of Phillips and
Momentum have approved the merger of Momentum with and into Phillips and the
consummation of the transactions contemplated hereby and by the Plan of
Reorganization, upon the terms and subject to the conditions set forth herein
and in the Plan of Reorganization.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein and in the Plan of Reorganization,
the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER. Upon the terms and subject to the
conditions of this Agreement and the Plan of Reorganization, at the Effective
Time (as hereinafter defined), in accordance with the Pennsylvania Business
Corporation Law of 1988, as amended (the "PBCL"), and the Delaware General
Corporation Law, as amended (the "DGCL"), Momentum shall be merged with and
into Phillips and the separate existence of Momentum shall thereupon cease (the
"Merger"). Phillips, which shall be renamed PrimeSource Corporation, shall be
the surviving corporation in the Merger (hereinafter sometimes referred to as
the "Surviving Corporation" or "PrimeSource").
SECTION 1.2 EFFECTIVE TIME OF THE MERGER. The Merger shall
become effective pursuant to Section 1928 of the PBCL as of 5:00 p.m.,
Pennsylvania time on the date (the "Effective Time") a copy of this Agreement
and the requisite Articles of Merger pursuant to Section 1926 of the PBCL and
the requisite Certificate of Merger pursuant to Section 252 of the DGCL and any
other documents necessary to effect the Merger in accordance with the PBCL and
DGCL are filed with the Department of State of the Commonwealth of Pennsylvania
and the office of the Delaware Secretary of State. Such filings shall be made,
and shall provide that the instruments filed therewith shall become effective,
in accordance with this Agreement and the Plan of Reorganization.
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SECTION 1.3 EFFECTS OF MERGER. The Merger shall have the effects
set forth in Section 1929 of the PBCL and Section 259 of the DGCL.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 ARTICLES OF INCORPORATION. At the Effective Time,
the articles of incorporation of Phillips, as in effect immediately prior to
the Effective Time, shall be amended and restated as set forth in Exhibit A.
SECTION 2.2 BYLAWS. At the Effective Time, the bylaws of
Phillips, as in effect immediately prior to the Effective Time, shall be
amended and restated as set forth in Exhibit B.
SECTION 2.3 DIRECTORS AND OFFICERS. At and after the Effective
Time, the board of directors of PrimeSource shall be comprised of the persons
so designated in Exhibit C hereto and the officers of PrimeSource shall be the
persons so designated in Exhibit C hereto, in each case until their respective
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving
Corporation's Articles of Incorporation and bylaws.
ARTICLE III
CONVERSION AND EXCHANGE OF MOMENTUM SHARES
SECTION 3.1 CONVERSION OF SHARES. At the Effective Time, by
virtue of the Merger and without any action on the part of any holder of any
capital stock of Phillips or Momentum:
(a) Each share of Momentum common stock, par value $1.00 per
share, including shares subject to restricted stock awards and shares held by
the Momentum Stock Ownership Plan (but excluding shares held in the Momentum
treasury ("Momentum Treasury Shares")) (the "Momentum Shares"), issued and
outstanding immediately prior to the Effective Time shall be converted into,
and become exchangeable for, 0.71 (the "Exchange Ratio") shares of common
stock, par value $.01 per share, of PrimeSource ("PrimeSource Shares").
(b) Each Momentum Treasury Share shall be canceled and cease to
exist at and after the Effective Time and no consideration shall be delivered
with respect thereto.
SECTION 3.2 EXCHANGE OF MOMENTUM CERTIFICATES.
(a) From and after the Effective Time, each holder of a
certificate which immediately prior to the Effective Time represented a
Momentum Share (other than Momentum Treasury Shares), shall be entitled to
receive in exchange therefor (or upon the provision of an appropriate affidavit
of lost certificate and an indemnity bond), upon surrender thereof to an
exchange agent selected by Momentum and Phillips (the "Exchange Agent"), (i) a
certificate or certificates
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representing the number of whole PrimeSource Shares into which such
holder's Momentum Shares were converted pursuant to Section 3.1 hereof,
and (ii) the cash payment in lieu of the issuance of fractional shares
as provided in Section 3.3 hereof. From and after the Effective Time,
PrimeSource shall be entitled to treat each certificate formerly representing
Momentum Shares (each a "Momentum Certificate"), which has not yet been
surrendered for exchange, as evidencing the ownership of the number of full
PrimeSource Shares into which the Momentum Shares represented by such Momentum
Certificate shall have been converted pursuant to Section 3.1 hereof,
notwithstanding the failure to surrender such Momentum Certificate. However,
notwithstanding any other provision of this Agreement, until holders or
transferees of Momentum Certificates formerly representing Momentum Shares have
surrendered them for exchange as provided herein (i) no dividends or other
distributions shall be paid with respect to any PrimeSource Shares represented
by such Momentum Certificates and no payment for fractional shares shall be
made, and (ii) without regard to when such Momentum Certificates are
surrendered for exchange as provided herein, no interest shall be paid or
payable on any dividends, if any, or any amount payable in respect of
fractional PrimeSource Shares pursuant to Section 3.3. Upon surrender of a
Momentum Certificate, which immediately prior to the Effective Time represented
Momentum Shares, there shall be paid to the holder of such Momentum Certificate
the amount of any dividends, if any, which theretofore became payable, but
which were not paid by reason of the holder's failure to surrender such
Momentum Certificate, with respect to the number of whole PrimeSource Shares
represented by such Momentum Certificate (or certificates) issued upon such
surrender. If any PrimeSource Certificate is to be issued in a name other than
that in which the Momentum Certificate surrendered in exchange therefor is
registered, it shall be a condition of such exchange that the person requesting
such exchange shall pay any transfer or other taxes required by reason of the
issuance of such PrimeSource Certificates in a name other than that of the
registered holder of the Momentum Certificate surrendered, or shall establish
to the satisfaction of PrimeSource that such tax has been paid or is not
applicable.
(b) As soon as practicable after the Effective Time, PrimeSource
shall make available to the Exchange Agent the PrimeSource Certificates
required to effect the exchange referred to in Section 3.2(a) hereof. The
PrimeSource Shares into which Momentum Shares shall be converted in the Merger
shall be deemed to have been issued at the Effective Time.
(c) As soon as practicable after the Effective Time, the Exchange
Agent shall mail to each person who was a holder of record of Momentum Shares
immediately prior to the Effective Time whose shares were converted into the
right to receive PrimeSource Shares pursuant to Section 3.1 hereof (i) a form
letter of transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to any Momentum Certificate shall pass, only upon actual
delivery of the Momentum Certificates to the Exchange Agent and shall be in
such form and have such other provisions as Momentum and Phillips may
reasonably specify) and (ii) instructions for use in effecting the surrender of
Momentum Certificates in exchange for PrimeSource Certificates. Upon surrender
of a Momentum Certificate for cancellation to the Exchange Agent, together with
a duly executed letter of transmittal and such other documents as the Exchange
Agent shall require, the holder of such Momentum Certificate shall be entitled
to receive in exchange therefor a PrimeSource Certificate representing that
number of whole PrimeSource Shares into which the
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Momentum Shares represented by the Momentum Certificates surrendered shall have
been converted pursuant to the provisions of Section 3.1 hereof, and any
applicable cash payment required pursuant to Section 3.3 hereof, at which time
the Momentum Certificates so surrendered shall forthwith be canceled.
Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto
shall be liable to a holder of Momentum Shares for any PrimeSource Shares or
dividends or distributions thereon, if any, delivered to a public official
pursuant to applicable abandoned property, escheat or similar law.
SECTION 3.3 NO PRIMESOURCE FRACTIONAL SHARES. Notwithstanding
any other provision of this Agreement or the Plan of Reorganization, no
certificates or scrip for fractional PrimeSource Shares shall be issued upon
the surrender for exchange of Momentum Certificates pursuant to this Article
III and no dividend or other distribution, stock split or interest with respect
to PrimeSource Shares shall relate to any fractional security, and such
fractional interests shall not entitle the owner thereof to vote or to any
other rights of a shareholder of PrimeSource. In lieu of any such fractional
shares, each holder of Momentum Shares who would otherwise have been entitled
to a fraction of a PrimeSource Share upon surrender of Momentum Certificates
for exchange pursuant to this Article III shall be entitled to receive from the
Exchange Agent a cash payment (without interest) in lieu of such fractional
share equal to such fraction multiplied by the average closing price per
PrimeSource Share on the Nasdaq National Market of the National Association of
Securities Dealers, Inc. during the five trading days immediately following the
Effective Time.
SECTION 3.4 NO MOMENTUM APPRAISAL RIGHTS. Pursuant to Section
262(b)(1) of the DGCL no appraisal or dissenting rights are available to
holders of Momentum Shares.
SECTION 3.5 CLOSING OF TRANSFER BOOKS. From and after the
Effective Time, the stock transfer books of Momentum (but not of PrimeSource)
shall be closed and no transfer of Momentum Shares shall thereafter be made
except in accordance with this Article III.
ARTICLE IV
PHILLIPS SHARES
SECTION 4.1 CONTINUANCE OF SHARES. Each share of Phillips common
stock, par value $0.01 per share (the "Phillips Shares") issued and outstanding
immediately prior to the Effective Time shall continue to be issued and
outstanding PrimeSource Shares and any shares held in the Phillips treasury
shall continue to be held in the treasury of PrimeSource after the Effective
Time. No exchange of certificates representing Phillips Shares shall be
required, provided that holders of Phillips Shares may, at their option, at any
time, elect to exchange their Phillips certificates for new certificates
bearing the name of "PrimeSource" in accordance with normal stock transfer
procedures.
SECTION 4.2 NO PHILLIPS APPRAISAL RIGHTS. Pursuant to Section
1571(b) of the PBCL, no appraisal or dissenting rights are available to holders
of Phillips Shares.
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ARTICLE V
MOMENTUM STOCK OPTIONS
SECTION 5.1 CONVERSION OF STOCK OPTIONS. At the Effective Time,
all rights with respect to Momentum Shares pursuant to stock options granted or
assumed by Momentum ("Momentum Stock Options") under Momentum's 1989 Long-Term
Incentive Stock Plan (the "Momentum Stock Plan"), which are outstanding at the
Effective Time, whether or not then exercisable, shall be converted into and
become options with respect to PrimeSource Shares and PrimeSource shall assume
each of the Momentum Stock Options, on the terms and subject to the conditions
set forth in the Momentum Stock Plan and the stock option agreement by which it
is evidenced. From and after the Effective Time, (i) each Momentum Stock
Option will be exercisable for a number of whole PrimeSource Shares (the
"Aggregate Number") equal to: (x) the number of Momentum Shares remaining
subject to the Momentum Stock Option immediately prior to the Effective Time,
and (y) multiplied by the Exchange Ratio; (ii) the exercise price per share for
the number of PrimeSource Shares determined in clause (i) shall be a price per
share equal to (x) the aggregate exercise price for the Momentum Shares
otherwise purchasable pursuant to such Momentum Stock Option divided by (y) the
Aggregate number; and (iii) PrimeSource and its Compensation Committee shall be
substituted for Momentum and the Momentum Compensation Committee in
administering the Momentum Stock Plan. No additional Momentum Stock Options
shall be hereafter granted by Momentum under the Momentum Stock Plan. It is
intended that the foregoing assumption shall be undertaken in a manner that
will not constitute a "Modification" as defined in Section 424(h) of the
Internal Revenue Code as to any stock option which is an "incentive stock
option." The PrimeSource Board of Directors shall take such action as may be
required under the Momentum Stock Plan to effectuate the foregoing.
SECTION 5.2 ASSUMPTION OF STOCK PLAN. At the Effective Time, the
Momentum Stock Option Plan shall be automatically and without further action
assumed by PrimeSource (and thereupon become a stock option plan of
PrimeSource) as follows: (i) each option or right granted under the Momentum
Stock Plan from and after the Effective Time shall be solely for or in respect
of PrimeSource Shares, notwithstanding any contrary provisions of the Momentum
Stock Plan, (ii) PrimeSource and its Compensation Committee shall be
substituted for Momentum and the Momentum Compensation Committee, and (iii)
references to Momentum shall be deemed to be references to PrimeSource,
references to Momentum's Bylaws shall be deemed to be references to the
PrimeSource Bylaws, and any similar references shall be appropriately
conformed.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 TERMINATION. Prior to the Effective Time, this
Agreement shall terminate in the event of and upon the termination of the Plan
of Reorganization.
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SECTION 6.2 AMENDMENT. This Agreement may be amended by the
parties hereto, at any time before or after approval hereof by the shareholders
of Momentum or Phillips, provided that after any such approval, no amendment
shall be made which (a) changes the Exchange Ratio, (b) in any way materially
adversely affects the rights of holders of Phillips Shares or (c) changes any
of the principal terms of this Agreement or the Plan of Reorganization, in each
case, without the further approval of such shareholders and provided further
that all of the requirements of Section 252(d) of the DGCL and Section 1922(b)
of the PBCL are met. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
SECTION 6.3 NOTICES. Any notices or other communications
required or permitted hereunder shall be in writing and shall be deemed duly
given upon (a) transmitter's confirmation of a receipt of a facsimile
transmission, (b) confirmed delivery by a standard overnight carrier or by hand
delivery or (c) the expiration of five business days after the day when mailed
by certified or registered mail, postage prepaid, addressed at the following
addresses (or at such other address as the parties hereto shall specify by like
notice):
If to Momentum, to:
Momentum Corporation
Koll Center Bellevue - Suite 1900
500 - 108th Ave. N.E.
Bellevue, WA 98004
Telecopy No.: (206) 646-6574
Attention: John H. Goddard
with a copy to:
Preston Gates & Ellis
5000 Columbia Center
701 Fifth Avenue
Seattle, WA 98104-7078
Telecopy No.: (206) 623-7022
Attention: Richard B. Dodd, Esq.
If to Phillips, to:
Phillips & Jacobs, Incorporated
Suite 222 Fairway Corporate Center
4350 Haddonfield Road
Pennsauken, New Jersey 08109
Telecopy No. (609) 486-2998
Attention: James F. Mullan
Chief Executive Officer and President
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with a copy to:
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103-7098
Telecopy No.: (215) 564-8120
Attention: David E. Beavers, Esq.
SECTION 6.4 INTERPRETATION. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation."
SECTION 6.5 MISCELLANEOUS. This Agreement (including the
documents and instruments referred to herein), (a) together with the Plan of
Reorganization, constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof; (b) shall not be assigned
by operation of law or otherwise without the prior written consent of the other
parties hereto; and (c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the Commonwealth of Pennsylvania
(without giving effect to the provisions thereof relating to conflicts of law).
SECTION 6.6 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
SECTION 6.7 PARTIES IN INTEREST. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective permitted successors and assigns, and nothing in this
Agreement, express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
SECTION 6.8 SEVERABILITY. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
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IN WITNESS WHEREOF, Phillips and Momentum have each caused this
Agreement of Merger to be signed by their respective officers thereunto duly
authorized as of the date first written above.
PHILLIPS & JACOBS, INCORPORATED
By /s/ James F. Mullan
----------------------------
Name: James F. Mullan
-------------------------
Title: President and
------------------------
Chief Executive Officer
------------------------
By /s/ William A. DeMarco
----------------------------
Name: William A. DeMarco
-------------------------
Title: Secretary
MOMENTUM CORPORATION
By /s/ John H. Goddard
----------------------------
Name: John H. Goddard
Title: President and Chief
Executive Officer
By /s/ Barry C. Maulding
----------------------------
Name: Barry C. Maulding
Title: Secretary
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