8-K 1 a05-2564_28k.htm 8-K

 

SECURITIES AND EXCHANGE COMMISSION

 

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report January 28, 2005

(Date of Earliest Event Reported)

 

 

WJ COMMUNICATIONS, INC.

(Exact name of registrant as specified in its charter)

 

DELAWARE

000-31337

94-1402710

(State or other jurisdiction of
incorporation or organization)

Commission file number

(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)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 


 

Item 2.01  Acquisition or Disposition of Assets

 

On January 28, 2005 (the “Closing Date”), WJ Communications, Inc (the “Company”) completed its acquisition of Telenexus, Inc. (“Telenexus”).  Pursuant to an Agreement and Plan of Merger, dated January 19, 2005 (the “Merger Agreement”), by and between the Company, WJ Newco, LLC (the “WJ Sub”), Telenexus and Richard J. Swanson, Wilfred K. Lau, David Fried, Kurt Christensen and Mark Sutton (together, the “Shareholders”), Telenexus merged with and into the WJ Sub (the “Merger”) effective on January 29, 2005.  The WJ Sub was the survivor in the Merger and is a wholly-owned subsidiary of the Company.  A copy of the press release issued by the Company on January 31, 2005 announcing the closing of the foregoing transaction is attached to this report as Exhibit 99.1.

 

Telenexus designs, develops, manufactures and markets radio frequency identification (“RFID”) reader products for a broad range of industries and markets.  By virtue of the Merger, the Company purchased through the WJ Sub all of the assets necessary for the conduct of the RFID business of Telenexus, consisting primarily of, and including, but not limited to RFID modules, baseband processing algorithms, applications software and realizations of several reader product designs.

 

The consideration paid by the Company on the Closing Date to the Shareholders (the “Closing Consideration”) in connection with the Merger consisted of cash in the amount of $3.0 million, which was paid out of the Company’s cash reserves on the Closing Date, and 2,333,333 shares of the Company’s Common Stock (the “Shares”).  Of the Closing Consideration, cash in the amount of $0.5 million and 333,333 shares of the Company’s Common Stock are being held in escrow with respect to any indemnification matter under the Merger Agreement.  The escrow described above is qualified by reference to the Escrow Agreement, a copy of which is attached as an exhibit to the Merger Agreement attached hereto as Exhibit 2.1 and incorporated by reference herein.

 

In addition to the Closing Consideration, the Shareholders may be entitled to further compensation of up to $5.0 million in cash and shares of the Company’s Common Stock if certain revenue targets are achieved by the Company by July 28, 2006 (together with the Closing Consideration, hereinafter referred to as the “Consideration”).  Two of the Shareholders, Richard J. Swanson and Wilred K. Lau also entered into three-year employment agreements with the Company.  A copy of their employment agreements is attached hereto as Exhibit 10.1 and 10.2, respectively.

 

The Consideration the Company paid to the Shareholders pursuant to the Merger Agreement was determined pursuant to arms’ length negotiations and the Company’s management relied on representations made by certain of the Shareholders and other documents and information provided to the Company.  The Company’s management considered various factors to determine the amount of consideration appropriate for consummation of the Merger, including, the relative value of the RFID business of Telenexus, the present and past use of the RFID assets by Telenexus in the conduct of its business, the future potential value of the RFID assets of Telenexus to the Company and the potential benefit of the transaction to the Company’s stockholders.  The Company intends to use the RFID assets of Telenexus to produce RFID products currently produced or under development by Telenexus and to develop additional commercially salable RFID 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 Shareholders to the Company and the information made available to the Shareholders.  All but one of the Shareholders is restricted from selling the Shares in accordance with the Lock-up Agreement, a copy of which is attached hereto as Exhibit 4.1 and incorporated by reference herein.

 

The summary of the transaction described above is qualified by reference to the Merger 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), (b) Financial Statements of Businesses Acquired.

 

The Company is not filing the financial statements or pro forma financial information required by this Item 9.01 in this Current Report on Form 8-K, but will file such financial statements and pro forma financial information by an amendment to this Current Report on Form 8-K, within the time period prescribed under the applicable SEC rules and regulations.

 

(c) Exhibits

 

2.1                                 Agreement and Plan of Merger by and among WJ Communications, Inc., WJ Newco, LLC, Telenexus, Inc. and Richard J. Swanson, Wilfred K. Lau, David Fried, Kurt Christensen and Mark Sutton dated January 19, 2005.

 

4.1                                 Lock-up Agreement by Richard J. Swanson, Wilfred K. Lau, David Fried and Kurt Christensen dated January 28, 2005.

 

10.1                           Employment Agreement by and between WJ Communications, Inc. and Richard J. Swanson dated January 28, 2005.

 

10.2                           Employment Agreement by and between WJ Communications, Inc. and Wilfred K. Lau dated January 28, 2005.

 

99.1                           Press Release dated January 31, 2005 announcing that the Company had completed its acquisition of Telenexus, Inc.

 

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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/  Michael R. Farese

 

 

 

Michael R. Farese

 

 

 

President and Chief Executive Officer

 

 

 

 

 

 

 

 

Dated:  February 3, 2005

 

 

 

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EXHIBIT INDEX

 

2.1*                          Agreement and Plan of Merger by and among WJ Communications, Inc., WJ Newco, LLC, Telenexus, Inc. and Richard J. Swanson, Wilfred K. Lau, David Fried, Kurt Christensen and Mark Sutton dated January 19, 2005.

 

4.1                                 Lock-up Agreement by Richard J. Swanson, Wilfred K. Lau, David Fried and Kurt Christensen dated January 28, 2005.

 

10.1*                    Employment Agreement by and between WJ Communications, Inc. and Richard J. Swanson dated January 28, 2005.

 

10.2*                    Employment Agreement by and between WJ Communications, Inc. and Wilfred K. Lau dated January 28, 2005.

 

99.1                           Press Release dated January 31, 2005 announcing that the Company had completed its acquisition of Telenexus, Inc.

 

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

 

Schedule 4.4

 

Capitalization of the Company

Schedule 4.5

 

No Conflict

Schedule 4.6

 

Consents

Schedule 4.7

 

Property

Schedule 4.8

 

Necessary Property and Condition of Property

Schedule 4.9

 

Litigation

Schedule 4.10

 

Compliance with Laws

Schedule 4.11

 

Conduct of Business

Schedule 4.12

 

Labor Matters

Schedule 4.13

 

Employee Benefit Plans

Schedule 4.15

 

Contracts

Schedule 4.16

 

Licenses and Permits

Schedule 4.17

 

Intellectual Property

Schedule 4.18

 

Insurance

Schedule 4.19

 

Financial Statements

Schedule 4.20

 

Undisclosed Liabilities

Schedule 4.21

 

Accounts Receivable

Schedule 4.22

 

Inventories

Schedule 4.23

 

Bank Accounts

Schedule 4.24

 

Product Liability and Warranty

Schedule 4.25

 

Indebtedness

Schedule 4.26

 

Taxes

Schedule 4.26(p)

 

List of Tax Returns Filed with respect to the Company

Schedule 4.27

 

Customers and Suppliers

Schedule 4.28

 

Related Party Transactions

Schedule 4.29

 

Brokers/Advisors

Schedule 4.30

 

Disclosure

 

 

Supplement of the shareholders of Telenexus to Disclosure Schedules

Schedule 5.6

 

Consents

Exhibit I

 

Form of WJ Communications, Inc. Employee Confidential and Proprietary Information Agreement

Exhibit J

 

Form of Opinion of Counsel to Telenexus, Inc. and the shareholders of Telenexus, Inc.

Exhibit K

 

Form of Opinion of Counsel to WJ Communications, Inc. and WJ Newco, LLC

 

*              Confidential treatment has been requested for portions of this exhibit. Confidential portions of this exhibit have been redacted and have been separately filed with the Securities and Exchange Commission.

 

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