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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB/A
(Mark One)
[x] Quarterly report under Section 13 or 15(d) of the Securities Exchange Act
of 1934
For the quarterly period ended June 30, 1998
[ ] Transition report under Section 13 or 15(d) of the Exchange Act
For the transition period from to
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Commission file number 000-22235
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Objective Communications, Inc.
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(Exact Name of Small Business Issuer as Specified in Its Charter)
Delaware 54-1707962
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
50 International Drive
Portsmouth, NH 03801
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(Address of Principal Executive Offices)
(603) 334-6700
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(Issuer's Telephone Number, Including Area Code)
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(Former Name, Former Address and Former Fiscal Year,
if Changed Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes X No
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APPLICATION ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of
common equity, as of August 12, 1998: 5,741,035
Transitional Small Business Disclosure Format (check one):
Yes No X
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Objective Communications, Inc. (the "Company") is filing this amendment
to the Company's report on Form 10-QSB for the period ended June 30,
1998 solely to amend and restate in its entirety Item 6 to file as an
exhibit the Second Amended and Restated Certificate of Incorporation of
the Company.
Part II
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
3.1 Second Amended and Restated Certificate of Incorporation of the Company.
3.2 Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.2
forming a part of Amendment No. 2 to the Company's Registration
Statement on Form SB-2 (File No. 333-20625) filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended).
4.1 Form of Warrant for the Purchase of Shares of Common Stock, issued in
connection with the private placement of 2,000,000 aggregate principal
amount of Bridge Notes (Incorporated by reference to Exhibit 3.4 forming
a part of the Company's Registration statement on Form SB-2 (File No.
333-20625) filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended).
4.2 Form of Warrant to Purchase Common Stock of the Company, issued in
connection with the private placement of units in June 1995 and August
1996 (Incorporated by reference to Exhibit 3.5 forming a part of the
Company's Registration Statement on Form SB-2 (File No. 333-20625) filed
with the Securities and Exchange Commission under the Securities Act of
1933, as amended).
4.3 Form of Warrants for the Purchase of 100,000 Shares of Common Stock,
$.01 par value per share, issued in connection with the private
placement of Series A Convertible Preferred Stock and warrants in
December 1996 and January 1997 (Incorporated by reference to Exhibit 3.7
forming a part of the Company's Registration Statement on Form SB-2
(File No. 333-20625) filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended).
4.4 Form of Option for the Purchase of 180,000 shares of Common Stock issued
to Barington Capital Group, L.P. (Incorporated by reference to Exhibit
3.8 forming a part of the Company's Registration Statement on Form SB-2
(File No. 333-20625) filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended).
4.5 Form of Stock Option Agreement, dated December 18, 1997, by and between
the Company and Barington Capital Group, L.P. (Incorporated by reference
to Exhibit 10.8 forming a part of the Company's Annual Report on Form
10-KSB for the year ended December 31, 1997).
4.6 Specimen certificate evidencing shares of Common Stock of the Company
(Incorporated by reference to Exhibit 4.2 forming a part of Amendment
No. 2 to the Company's Registration Statement on Form SB-2 (File No.
333-20625) filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended).
4.7 Form of 5% Convertible Debenture due 2003, dated as of July 8, 1998,
issued by the Company to Leonardo, L.P., AG Super Fund International
Partners, L.P., Raphael, L.P., AGR Halifax Fund, Ltd., Ramius Fund,
Ltd., and GAM Arbitrage Investments, Inc. (the "Institutional
Investors") (Incorporated by reference to Exhibit 4.3 forming a part
of the Company's Current Report on Form 8-K dated July 1, 1998 and
filed July 16, 1998 with the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended).
4.8 Form of 5% Convertible Debenture due 2003, dated as of July 8, 1998,
issued by the Company to Messrs. Clifford M. Kendall, Eugene R.
Cacciamani, Marc S. Cooper, Richard T. Liebhaber, James F. Bunker, Roger
A. Booker, and Robert H. Emery, Ms. Mary C. Murphy, and certain other
investors including outside consultants to the Company (collectively,
the "Additional Investors") (Incorporated by reference to Exhibit 4.4
forming a part of the Company's Current Report on Form 8-K dated July 1,
1998 and filed July 16, 1998 with the Securities and Exchange Commission
under the Securities Exchange Act
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of 1934, as amended).
4.9 Form of Warrant to Purchase Shares of Common Stock, $.01 par value per
share, for issuance by the Company to the Investors upon early
redemption of the 5% Convertible Debentures due 2003 (Incorporated by
reference to Exhibit 4.5 forming a part of the Company's Current Report
on Form 8-K dated July 1, 1998 and filed July 16, 1998 with the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended).
10.1 1994 Stock Option Plan (Incorporated by reference to Exhibit 10.1
forming a part of the Company's Registration Statement on Form SB-2
(File No. 333-20625) filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended).
10.2 1996 Stock Incentive Plan (Incorporated by reference to Exhibit No. 10.2
forming a part of the Company's Registration Statement on Form SB-2
(File No. 333-20625) filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended).
10.3 Employment Agreement between the Company and Steven A. Rogers
(Incorporated by reference to Exhibit No. 10.3 forming part of Amendment
No. 2 to the Company's Registration Statement on Form SB-2 (File No.
333-20625) filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended).
10.4 Form of Consulting Agreement by and between the Company and Barington
Capital Group, L.P. (Incorporated by reference to Exhibit No. 10.4
forming a part of the Company's Registration Statement on Form SB-2
(File No. 333-20625) filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended).
10.5 Letter Agreement, dated October 7, 1996, between Barington Capital Group
and the Company (Incorporated by reference to Exhibit No. 10.5 forming a
part of Amendment No. 2 to the Company's Registration Statement on Form
SB-2 (File No. 33-20625) filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended).
10.6 Letter Agreement, dated December 5, 1995, by and among PVR Securities,
Inc., the Company, Steven A. Rogers and John B. Torkelsen (Incorporated
by reference to Exhibit No. 10.6 forming a part of Amendment No. 2 to
the Company's Registration Statement on Form SB-2 (File No. 333-20625)
filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended).
10.7 Voting Agreement, dated December 19, 1996, by and among the Company,
Steven A. Rogers, Applewood Associates, L.P. and Acorn Technology
Partners, L.P. (Incorporated by reference to Exhibit No. 10.7 forming a
part of Amendment No. 2 to the Company's Registration Statement on Form
SB-2 (File No. 333-20625) filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended).
10.8 Subscription Agreement, dated as of July 1, 1998, by and among the
Company and the Institutional Investors (Incorporated by reference to
Exhibit 4.1 forming a part of the Company's Current Report on Form 8-K
dated July 1, 1998 and filed July 16, 1998 with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as
amended).
10.9 Form of Subscription Agreement, dated as of July 8, 1998, by and among
the Company and the Additional Investors (Incorporated by reference to
Exhibit 4.2 forming a part of the Company's Current Report on Form 8-K
dated July 1, 1998 and filed July 16, 1998 with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as
amended).
11* Statement re: computation of per share earnings.
27.1* Financial Data Schedule.
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* Previously filed.
(b) Reports on Form 8-K during the quarter ended March 31, 1998.
(1) The Company's Current Report on Form 8-K dated April 10, 1998 and
filed April 15, 1998 for the purpose of filing as an exhibit a press
release relating to shipments made by the Company during the first
quarter of 1998 and revenue recognition for the period.
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(2) The Company's Current Report on form 8-K filed July 16, 1998
reporting certain events including the $3,125,000 financing.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Objective Communications, Inc.
By: /s/ JAMES F. BUNKER
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James F. Bunker
President and Chief Executive Officer
(duly authorized executive officer)
By: /s/ ROBERT H. EMERY
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Robert H. Emery
Vice President, Administration and Finance
(principal financial officer)
October 30, 1998
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`
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
OBJECTIVE COMMUNICATIONS, INC.
The undersigned, a natural person, for the purpose of restating,
integrating and amending the provisions of the Certificate of Incorporation of
Objective Communications, Inc., originally filed with the Secretary of State of
the State of Delaware on October 5, 1993, and conducting the business and
promoting the purposes hereinafter stated, under the provisions and subject to
the requirements of the laws of the State of Delaware (particularly Chapter 1,
Title 8 of the Delaware Code, as amended, and referred to as the "General
Corporation Law of the State of Delaware") and duly adopted in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware,
hereby certifies that:
ARTICLE FIRST
NAME
The name of the corporation is: Objective Communications, Inc. (the
"Corporation").
ARTICLE SECOND
REGISTERED OFFICE AND REGISTERED AGENT
The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, Wilmington, Delaware, 19801, County of New
Castle, Delaware, and the name of the Corporation's registered agent in the
State of Delaware at such address is The Corporation Trust Company.
ARTICLE THIRD
PURPOSE
The purpose or purposes for which the Corporation is organized is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE FOURTH
CAPITAL STOCK
The total number of shares which the Corporation shall have authority
to issue is thirty two million five hundred thousand (32,500,000) shares of
capital stock, of which thirty million (30,000,000) shares shall be Common
Stock, par value of $.01 per share, and two million five hundred thousand
(2,500,000) shall be Preferred Stock, par value $.01 per share.
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ARTICLE FIFTH
COMMON STOCK
Except as required by law, all shares of Common Stock shall be
identical in all respects and shall entitle the holders thereof to the same
rights and privileges, subject to the same qualifications, limitations and
restrictions. Except as required by law, the holders of shares of Common Stock
shall be entitled to one vote per share of Common Stock on all matters on which
stockholders of the Corporation have the right to vote.
ARTICLE SIXTH
PREFERRED STOCK
Section A. Preferred Stock. Shares of Preferred Stock may be issued
from time to time in one or more classes or series as the Board of Directors of
the Corporation (the "Board"), by resolution or resolutions, may from time to
time determine, each of such classes or series to be distinctly designated.
The voting powers, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations or restrictions thereof, if
any, of each such class or series may differ from those of any and all other
class or series of Preferred Stock at any time outstanding, and the Board is
hereby expressly granted authority to fix or alter, by resolution or
resolutions, the designation, number, voting powers, preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations and restrictions, of each such series, including, but without
limiting the generality of the foregoing, the following:
1. The distinctive designation of, and the number of shares of
Preferred Stock that shall constitute, such class or series,
which number (except where otherwise provided by the Board in
the resolution establishing such class or series) may be
increased (but not above the total number of shares of
Preferred Stock) or decreased (but not below the number of
shares of such class or series then outstanding) from time to
time by like action of the Board;
2. The rights in respect of dividends, if any, of such class or
series of Preferred Stock, the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes or any other series of the same
or other class or classes of capital stock of the Corporation,
and whether such dividends shall be cumulative or
noncumulative;
3. The right, if any, of the holders of such class or series of
Preferred Stock to convert the same into, or exchange the same
for, shares of any other class or classes or of any other
series of the same or any other class or classes of capital
stock of the Corporation, and the terms and conditions of such
conversion or exchange;
4. Whether or not shares of such class or series of Preferred
Stock shall be subject to redemption, and the redemption price
or prices and the times at which, and the terms and conditions
on which, shares of such class or series of Preferred Stock
may be redeemed;
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5. The rights, if any, of the holders of such class or series of
Preferred Stock upon the voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation or in the event
of any merger or consolidation of or sale of assets by the
Corporation;
6. The terms of any sinking fund or redemption or purchase
account, if any, to be provided for shares of such class or
series of the Preferred Stock;
7. The voting powers, if any, of the holders of any class or
series of Preferred Stock generally or with respect to any
particular matter, which may be less than, equal to or greater
than one vote per share, and which may, without limiting the
generality of the foregoing, include the right, voting as a
class or series by itself or together with the holders of any
other class or classes or series of Preferred Stock or of all
series of Preferred Stock as a class, to elect one or more
directors of the Corporation (which, without limiting the
generality of the foregoing, may include a specified number or
portion of the then-existing number of authorized
directorships of the Corporation) generally or under such
specific circumstances and on such conditions as shall be
provided in the resolution or resolutions of the Board adopted
pursuant thereto; and
8. Such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications,
limitations and restrictions thereof, as the Board shall
determine.
Section B. Rights of Preferred Stock.
1. After the provisions with respect to preferential dividends on
any series of Preferred Stock (fixed in accordance with the
provisions of this Article Sixth), if any, shall have been
satisfied and after the Corporation shall have complied with
all the requirements, if any, with respect to redemption of,
or the setting aside of sums as sinking funds or redemption or
purchase accounts with respect to, any series of Preferred
Stock (fixed in accordance with the provisions of this Article
Sixth), and subject further to any other conditions that may
be fixed in accordance with the provisions of this Article
Sixth, then and not otherwise, the holders of Common Stock
shall be entitled to receive such dividends as may be declared
from time to time by the Board.
2. In the event of the voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, after
distribution in full of the preferential amounts, if any, to
be distributed to the holders of Preferred Stock by reason
thereof, the holders of Common Stock shall, subject to the
additional rights, if any (fixed in accordance with the
provisions of this Article Sixth), of the holders of any
outstanding shares of Preferred Stock, be entitled to receive
all of the remaining assets of the Corporation, tangible or
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
3. Except as may otherwise be required by law, and subject to the
provisions of such resolution or resolutions as may be adopted
by the Board pursuant to this Article
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Sixth granting the holders of one or more series of Preferred
Stock exclusive voting powers with respect to any matter, each
holder of Common Stock may have one vote in respect to each
share of Common Stock held on all matters voted upon by the
stockholders.
The number of authorized shares of Preferred Stock and each class of
Common Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of shares having a
majority of the total number of votes which may be cast in the election of
directors of the Corporation by all stockholders entitled to vote in such an
election, voting together as a single class.
ARTICLE SEVENTH
DURATION
The Corporation is to have perpetual existence.
ARTICLE EIGHTH
BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized to
make, alter, or repeal the Bylaws of the corporation.
ARTICLE NINTH
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify and hold harmless any and all persons who
it shall have power to indemnify under said section from and against any and
all of the expenses, liabilities, or other matters referred to in or covered by
said section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those stockholders, or disinterested
directors or otherwise, both as to action in his or her official capacity and
as to action in any other capacity while holding such office, and shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
ARTICLE TENTH
BOARD OF DIRECTORS
Section A. Classified Board. The Board of Directors shall be divided
into three classes, as nearly equal in number as the then-authorized number of
directors constituting the Board permits, with the term of office of one class
expiring each year and with each director serving for a term ending at the
third annual meeting of the stockholders following the annual meeting at which
such director was elected. One class of directors shall be initially elected
for a term expiring at the annual meeting of shareholders to be held in 1999,
the second class shall be initially
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elected for a term expiring at the annual meeting of stockholders to be held in
2000 and the third class shall be initially elected for a term expiring at the
annual meeting of stockholders to be held in 2001. Members of each class shall
hold office until their successors are elected and qualified. At each
succeeding annual meeting of the stockholders of the Corporation, the
successors of the class of directors whose term expires at the meeting shall be
elected by a plurality vote of all votes cast at such meeting to hold office
for a term expiring at the annual meeting of stockholders held in the third
year following the year of their election. Any vacancy on the Board resulting
from the resignation or removal of a director may be filled by the remaining
members of the Board of Directors, and the director so chosen shall hold office
for the remainder of the full term of the resigning or removed director's seat.
Section B. Vote Required for Modification of Classified Board. Any
action to amend or repeal this Article Tenth will require the affirmative vote
of the holders of 66-2/3% of the outstanding shares of Common Stock, voting
together as a single class, unless such action has been previously approved by
a majority vote of the full Board, in which case the affirmative vote of the
holders of a majority of the outstanding shares of Common Stock entitled to
vote thereon will be sufficient to amend or repeal any provision of this
Article Tenth.
ARTICLE ELEVENTH
LIMITATION ON DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived any improper personal benefit. If the General Corporation Law
of the State of Delaware is amended after the filing of this Second Amended and
Restated Certificate of Incorporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware. No
modifications or repeal of the provisions of this Article Eleventh shall
adversely affect any right or protection of any director of the Corporation
existing at the date of such modification or repeal or create any liability or
adversely affect any such right or protection for any acts or omissions of such
director occurring prior to such modification or repeal.
ARTICLE TWELFTH
RIGHTS OF STOCKHOLDERS
From time to time any of the provisions of this Second Amended and
Restated Certificate of Incorporation may be amended, altered, or replaced, and
other provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the stockholders of the
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Corporation by this Certificate of Incorporation are granted subject to the
provisions of this Article Twelfth.
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IN WITNESS WHEREOF, this Second Amended and Restated Certificate of
Incorporation which restates and integrates and also amends the provisions of
the Certificate of Incorporation of the Corporation and which has been duly
adopted in accordance with Sections 242 and 245 of the General Corporation Law
of the State of Delaware, as the Corporation has received payment for its
capital stock, has been executed by its President and Chief Executive Officer
and the Secretary this 28th day of May, 1998.
Objective Communications, Inc.
By: /s/ Steven A. Rogers
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Name: Steven A. Rogers
Title: President and Chief Executive Officer
Attest:
By: /s/ Robert H. Emery
---------------------------------
Name: Robert H. Emery
Title: Secretary
