8-K/A 1 a04-8172_18ka.htm 8-K/A

 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K/A

AMENDMENT NO. 1

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of Earliest

Event Reported): June 18, 2004

 

WJ COMMUNICATIONS, INC.

(Exact name of registrant as specified in its charter)

 

Commission file number 000-31337

 

DELAWARE

 

94-1402710

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. Employer
Identification No.)

 

 

 

 

401 River Oaks Parkway, San Jose, California

 

95134

(Address of principal executive offices)

 

(Zip Code)

 

(408) 577-6200

(Registrant’s telephone number, including area code)

 

 

 

On July 2, 2004 the Company filed a Current Report on Form 8-K reporting under Item 2 the acquisition by the Company of assets from EiC Corporation.  The description of the acquisition in Item 2.01 below is reprinted verbatim from Item 2 of the original Form 8-K for the convenience of the reader and such description has not been amended.  The purpose of this Form 8-K/A is solely to amend the Form 8-K filed on July 2, 2004 to include the financial information required by Item 9.01(a) Financial Statements and 9.02(b) Pro Forma Financial Information of Form 8-K which was omitted from the original filing and is being filed herewith within 60 days after the date of the original Form 8-K filing as permitted by Form 8-K.

 

Item 2.01                                             Completion of Acquisition or Disposition of Assets.

 

On June 18, 2004 (the “Closing Date”), WJ Communications, Inc., a Delaware corporation (the “Company”) completed its acquisition of assets from EiC Corporation, a California corporation (“EiC”) and EiC Enterprises Limited (“EiC Enterprises” and together with EiC, the “Seller”).  Pursuant to an Asset Purchase Agreement, dated June 3, 2004, as amended June 18, 2004, by and between the Company and the Seller (the “Purchase Agreement”), the Company purchased, subject to the terms and conditions of the Purchase Agreement, the infrastructure business and associated assets of the Seller (the “Assets”).

 

EiC designs, develops, manufactures and markets proprietary radio frequency integrated circuits primarily for wireless communications products (the “Line”).  The Company purchased from the Seller all of the assets necessary for the conduct of the business of the Line as of the Closing Date, consisting primarily of, and including, but not limited to, a patent, patent applications and the 5V, 12V and 28V processes used in the Seller’s infrastructure business.  The 12V process and 28V process are solely developed for use in the Line.  The 5V process is also used to build other products that are not part of the Line.  The Company hired 35 former employees of EiC to assist the Company with the conduct of the business of the Line after the Closing Date.

 

The Company acquired the Assets for consideration (the “Closing Consideration”) consisting of cash in the amount of $10.0 million, which was paid out of the Company’s cash reserves on the Closing Date, and 737,000 shares of the Company’s Common Stock (the “Shares”).  Under the Purchase Agreement, the Company did not assume any material debts or liabilities of the Seller.  Of the Closing Consideration, cash in the amount of $1.5 million and 294,118 shares are being held in escrow with respect to any indemnification matter under the Purchase Agreement.  The escrow described above is qualified by reference to the Escrow Agreement, a copy of which is attached as an exhibit to the Purchase Agreement attached hereto as Exhibit 2.1 and incorporated by reference herein.

 

In addition to the Closing Consideration, EiC may be entitled to further compensation of up to $14.0 million in cash and shares of the Company’s Common Stock if certain revenue and gross margin targets are achieved by the Company by March 31, 2005 and March 31, 2006 (together with the Closing Consideration, hereinafter referred to as the “Consideration”).

 

The Consideration the Company paid to the Seller pursuant to the Purchase Agreement was determined pursuant to arms’ length negotiations and the Company’s management relied on representations made by management of the Seller and other documents and information provided to the Company.  The Company’s management considered various factors to determine the amount of consideration appropriate for the acquisition of the Assets and the Line, including, the relative value of the Assets and the Line, the present and past use of the Assets by the Seller in the conduct of the business of the Line, the future potential value of the Assets and the Line to the Company and the potential benefit of the transaction to the Company’s stockholders.  The Company intends to use the Assets to produce products associated with the Line and to develop additional commercially salable products.

 

The Shares were issued to the Seller without registration under the Securities Act of 1933, as amended (the “Securities Act”) in reliance on Section 4(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder as transactions by an issuer not involving a public offering based on, among other factors, representations made by the recipients of such shares to the Company and the information made available to the recipients of the Shares.  Under the Purchase Agreement, however, the Company has agreed to prepare and file with the Securities and Exchange Commission a registration statement under the Securities Act, and the securities laws of any applicable states, no later than six months after the Closing Date, covering the resale by Seller of up to 442,882 shares of the Company’s Common Stock.  A copy of the Registration Rights Agreement describing all obligations of the Company associated therewith is attached hereto as Exhibit 4.1 and incorporated by reference herein (the

 

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“Registration Rights Agreement”).  The foregoing description of registration rights is qualified in its entirety by reference to the Registration Rights Agreement. The Seller is restricted from selling the Shares in accordance with the Lock-up Agreement, a copy of which is attached hereto as Exhibit 4.2 and incorporated by reference herein.

 

The summary of the transaction described above is qualified by reference to the Purchase Agreement, a copy of which is attached hereto as Exhibit 2.1 and incorporated by reference herein.

 

Item 9.01               Financial Statements and Exhibits.

 

(a)           Financial Statements

 

The audited consolidated financial statements of the Seller for the year ended December 31, 2003, which are required by paragraph (a) of Item 9.01 of Form 8-K with respect to the acquisition of assets of the Seller by the Company, are filed as part of this Current Report on Form 8-K/A as Exhibit 99.2.

 

(b)           Pro Forma Financial Information

 

The pro forma financial information required by paragraph (b) of Item 9.01 of Form 8-K with respect to the acquisition is furnished as part of this Current Report on Form 8-K/A as Exhibit 99.3.

 

(c)           Exhibits

 

2.1*

 

Asset Purchase Agreement by and among WJ Communications, Inc., EiC Corporation and EiC Enterprises Limited dated June 3, 2004. (Previously filed with the Securities and Exchange Commission on July 2, 2004 as Exhibit 2.1 to the Company’s Current Report on Form 8-K and incorporated by reference herein.).

 

 

 

2.2

 

Amendment to Asset Purchase Agreement by and among WJ Communications, Inc., EiC Corporation and EiC Enterprises Limited dated June 18, 2004. (Previously filed with the Securities and Exchange Commission on July 2, 2004 as Exhibit 2.2 to the Company’s Current Report on Form 8-K and incorporated by reference herein.).

 

 

 

4.1

 

Registration Rights Agreement by and among WJ Communications, Inc., EiC Corporation and EiC Enterprises Limited dated June 18, 2004. (Previously filed with the Securities and Exchange Commission on July 2, 2004 as Exhibit 4.1 to the Company’s Current Report on Form 8-K and incorporated by reference herein.).

 

 

 

4.2

 

Seller Lock-up Agreement by EiC Corporation and EiC Enterprises Limited dated June 18, 2004. (Previously filed with the Securities and Exchange Commission on July 2, 2004 as Exhibit 4.2 to the Company’s Current Report on Form 8-K and incorporated by reference herein.).

 

 

 

10.1*

 

Supply Agreement by and between WJ Communications, Inc. and EiC Corporation dated June 18, 2004. (Previously filed with the Securities and Exchange Commission on July 2, 2004 as Exhibit 10.1 to the Company’s Current Report on Form 8-K and incorporated by reference herein.).

 

 

 

23.1+

 

Consent of PricewaterhouseCoopers LLP, independent accountants of EiC Enterprises Limited.

 

 

 

99.1

 

Press Release of the Company dated June 21, 2004. (Previously filed with the Securities and Exchange Commission on June 22, 2004 as Exhibit 99.1 to the Company’s Current Report on Form 8-K and incorporated by reference herein.).

 

 

 

99.2+

 

Audited consolidated financial statements of EiC Enterprises Limited for the year ended December 31, 2003.

 

 

 

99.3+

 

Unaudited pro forma combined condensed financial statements giving effect to the combination of the Company and EiC Enterprises Limited.

 

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The following schedules, exhibits and annexes to the Asset Purchase Agreement have been omitted. The Company will furnish supplementally copies of the omitted schedules, exhibits and annexes to the Commission upon request.

 

Schedule A

 

Seller’s Infrastructure and Wafer Fab Product Line

Schedule 1.01

 

Exclusions from Transferred Assets

Schedule 1.01(b)

 

Furniture, Fixtures and Equipment

Schedule 1.01(c)

 

Customer Accounts

Schedule 1.01(d)

 

Vendor and Supplier Lists

Schedule 1.01(f)

 

Assumed Contracts

Schedule 1.01(h)

 

Software

Schedule 1.01(i)

 

Intellectual Property Purchased by Buyer

Schedule 1.01(i)(a)

 

Intellectual Property Retained by Seller

Schedule 1.02

 

Unpaid Invoices

Schedule 1.03(d)

 

Earnout Products

Schedule 1.04

 

Purchase Price Allocation

Schedule 2.01(c)

 

Title to Personal Property

Schedule 2.01(d)

 

Lease

Schedule 2.01(e)

 

EiC Contracts

Schedule 2.01(h)

 

Customer Base

Schedule 2.01(i)

 

EiC Compliance with Laws

Schedule 2.01(j)

 

EiC Consents

Schedule 2.01(l)

 

Labor Matters

Schedule 2.01(m)

 

Financial Statements

Schedule 2.01(o)

 

Taxes

Schedule 2.01(p)

 

Seller’s Intellectual Property

Schedule 2.01(q)

 

Permits and Licenses

Schedule 2.01(r)

 

Tangible Assets

Schedule 2.01(u)

 

Environmental Representations

Schedule 2.02(d)

 

EiC Enterprises Contracts

Schedule 2.02(g)

 

EiC Enterprises Compliance with Laws

Schedule 2.03(c)

 

Buyer Consents

Schedule 3.01

 

Patent Licensed by Buyer to EiC Enterprises

Schedule 3.02

 

Patents and Processes Licensed by EiC Enterprises to Buyer

Schedule 3.11

 

Employees to Interview

Schedule 3.12

 

Employees to receive Change of Control Payments

Exhibit 3.01

 

Seller License Agreement

Exhibit 3.02(a)

 

Buyer/EiC Enterprises Licenses Agreement

Exhibit 3.02(b)

 

Trademark License Agreement

Exhibit 3.04

 

Eutrend Services Agreement

Exhibit 3.06

 

Sublease Agreement

Exhibit 3.11

 

Confidentiality Proprietary and Information Agreement

Exhibit 3.12(a)

 

Change of Control Agreement

Exhibit 3.12(b)

 

Investment Representation Agreement

Exhibit 5.02(i)

 

Stockholder Acknowledgement and Release

Exhibit 5.02(q)(i)(a)

 

Bill of Sale

Exhibit 5.02(q)(i)(b)

 

Patent Assignment

Exhibit 5.02(s)(a)

 

Opinion of Counsel to EiC

Exhibit 5.02(s)(b)

 

Opinion of Counsel to EiC Enterprises

Exhibit 5.02(v)

 

PAM Wafer Specifications

Exhibit 5.03(d)

 

Opinion of Counsel to Buyer

 

*              Confidential treatment has been requested for portions of this exhibit.

+              Filed herewith.

 

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SIGNATURE

 

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.

 

 

WJ COMMUNICATIONS, INC.

 

 

 

 

 

By:

/s/  DAVID R. PULVINO

 

 

 

David R. Pulvino

 

 

 

Principal Accounting Officer

 

 

 

Dated:  September 1, 2004

 

 

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