-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CTVOPaDuO5xv2EgcEChl4Yauf+gWcr5AsGIuDKlmRkmMfJtAjiMchhWRNw2uJsWO xPwiiaIttjl8zjI+mx6PWA== 0001012118-98-000032.txt : 19980302 0001012118-98-000032.hdr.sgml : 19980302 ACCESSION NUMBER: 0001012118-98-000032 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19980220 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980227 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: WATER JEL TECHNOLOGIES INC CENTRAL INDEX KEY: 0000721176 STANDARD INDUSTRIAL CLASSIFICATION: ORTHOPEDIC, PROSTHETIC & SURGICAL APPLIANCES & SUPPLIES [3842] IRS NUMBER: 133006788 STATE OF INCORPORATION: NY FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-13049 FILM NUMBER: 98551733 BUSINESS ADDRESS: STREET 1: 243 VETERANS BLVD CITY: CARLSTADT STATE: NJ ZIP: 07072 BUSINESS PHONE: 2015078300 MAIL ADDRESS: STREET 1: 243 VETERANS BLVD CITY: CARLSTADT STATE: NJ ZIP: 07072 FORMER COMPANY: FORMER CONFORMED NAME: TRILLING MEDICAL TECHNOLOGIES INC DATE OF NAME CHANGE: 19910715 FORMER COMPANY: FORMER CONFORMED NAME: TRILLING RESOURCES LTD DATE OF NAME CHANGE: 19871025 8-K 1 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 (Date of earliest event reported): February 20, 1998 X-ceed, Inc. (formerly Water-Jel Technologies, Inc.) (Exact name of registrant as specified in its charter) Delaware (State or Other Jurisdiction of Incorporation) 0-13049 13-3006788 (Commission File Number) (I.R.S. Employer Identification No.) 488 Madison Avenue, New York, New York 10022 (Address and zip code of principal executive offices) 212-753-5511 (Registrant's telephone Number) ITEM 2. Acquisition or Disposition of Assets On February 20, 1998, at the Annual Meeting of Shareholders for the fiscal year ended August 31, 1997, the Shareholders of Water-Jel Technologies, Inc. ("Water-Jel") approved by a two-thirds majority vote the merger of Water-Jel into a wholly owned subsidiary, X-ceed, Inc. ("X-ceed"), a Delaware corporation. The purpose of the merger was to change the state of incorporation from New York to Delaware: X-ceed, as the surviving corporation, has authorized capital of 30,000,000 shares of Common Stock, par value $.01 per share and 1,000,000 shares of "blank check" Preferred Stock, $.05 par value per share. Prior to the merger Water-Jel had an authorized capital consisting of 12,500,000 shares of Common Stock, $.05 par value per share and 125,000 shares of Preferred Stock, $.08 par value per share with no designation as to voting rights or preferences. As of the date of the merger, there were 7,043,180 Shares of Common Stock outstanding and no Preferred Shares outstanding. Approximately 5,041,538 shares had been reserved by Water-Jel for issuance upon the exercise of options granted under various Stock Option Plans for officers and employees and granted under various option and warrant agreements and in connection with Water-Jel's original public offering in 1988. Under the terms of the merger each outstanding share of Water-Jel is automatically changed into one share of X-ceed and all outstanding options and warrants will be exercisable into shares of X-ceed on the same terms and conditions as previously existed. X-ceed Common Stock and its Class A Warrants will trade on the Nasdaq SmallCap Market under the same symbols as it previously traded, "XCED" and "XCEDZ," respectively. The Class B Warrants, infrequently traded on the Bulletin Board, also retain the same symbol, "XCEDW." The merger is treated as a pooling of interests and as such X-ceed as the surviving corporation has acquired all of Water-Jel's assets and assumes all of Water-Jel's liabilities. Stockholders also approved by the required majority the appointment of Directors of Water-Jel who will now serve as Directors of X-ceed for a term of one year. Mr. Werner Haase was appointed Chairman of the Board and Messrs. Norman Doctoroff and John Bermingham were approved as Directors. Messrs. Doctoroff and Birmingham are outside directors and were appointed to serve as X-ceed's audit committee by the Directors at a Special Meeting of Directors held after the annual meeting. The senior officers of Water-Jel will continue to serve as senior officers of X-ceed. ITEM 5. Other Matters The Shareholders also approved by the requisite majority the adoption by Water-Jel of the 1998 Stock Option Plan, which provides that the Company may grant to its officers, key employees and others who render services for the Company up to 2,000,000 share of Common Stock at a price which may not be less than the fair market value per share in the case of incentive stock options or 85% of fair market value in the case of non-qualified options for such stock on the day of the granting of the options. As a result of the merger, all options granted under the 1998 Stock Option Plan will be exercisable into shares of X-ceed. 2 Share holders also ratified by the requisite majority the appointment of Holtz Rubenstein & Co. LLP ("Holtz") to serve as the independent accountants to audit the financial Statements of X-ceed for the fiscal year ended August 31, 1998. Holtz has served as the Company's auditors for fiscal years ending 1995 through 1997. 3 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. X-ceed, Inc. (Registrant) By: s/ Werner Haase Werner Haase, President DATED: February 27, 1998 4 Financial Statements and Exhibits 2(b) Certificate of Merger * 2(c) Merger Agreement * 3(a) Articles of Incorporation (Water-Jel) Previous Amendments (3) (6) (7) (1) 3(b) By-Laws of Water-Jel (1) 3(c) Certificate of Incorporation of X-ceed, Inc. * 4(a) 1998 Stock Option Plan (2) - ----------------- * Filed herewith (1) Incorporated by reference with Water-Jel's Registration Statement on Form S-18, File No. 2-90512-NY, initially filed with the Commission on April 12, 1984. (2) Incorporated by reference from Water-Jel's Notice of Annual Meeting and Proxy Statement filed with the Commission on January 8, 1998. 5 EX-2 2 (B) CERTIFICATE OF MERGER CERTIFICATE OF MERGER of WATER-JEL TECHNOLOGIES, INC. Into X-CEED, INC. Pursuant to Section 252(c) of the State of Delaware General Corporation Law The undersigned, being the Surviving corporation, hereby sets forth as follows: FIRST: The name of the Surviving corporation is X-ceed, Inc.; its state of incorporation is Delaware. SECOND: The name of the Non-Surviving corporation is Water-Jel Technologies, Inc.; its state of incorporation is New York. THIRD: An Agreement of Merger has been approved, adopted, certified, executed and acknowledged by each constituent corporation in accordance with Section 252(c) of the State of Delaware General Corporation Law. FOURTH: The Certificate of Incorporation of X-ceed, Inc. shall be the Certificate of Incorporation of the Surviving corporation. 488 Madison Avenue New York, New York 10022 SIXTH: A copy of the Agreement of Merger will be furnished by the Surviving corporation, on request and without cost, to any stockholder of any constituent corporation. SEVENTH: The authorized capital stock of the Non-Surviving corporation which is incorporated under the laws of the State of New York is 12,500,000 shares of Common Stock, $.08 par value per share, and 125,000 shares of Preferred Stock, $.08 par value per share. IN WITNESS WHEREOF, this Certificate is hereby executed this 20th day of February, 1998. X-CEED, INC. Surviving Corporation By: /s/ Werner Haase Werner Haase, President 2 EX-2 3 (C) MERGER AGREEMENT AGREEMENT OF MERGER OF WATER-JEL TECHNOLOGIES, INC. INTO X-CEED, INC. AGREEMENT OF MERGER made the 20th day of February, 1998, by and between X-Ceed, Inc., a Delaware corporation hereinafter called X-Ceed, and Water-Jel Technologies, Inc., a New York corporation hereinafter called Water-Jel. WHEREAS, X-Ceed has an authorized capital of 30,000,000 shares of Common Stock, $.01 par value per share, and 1,000,000 shares of Preferred Stock, $.05 par value per share. 100 shares of the Common Stock have been duly issued and are now outstanding; and WHEREAS, the principal offices of X-Ceed in the State of Delaware are presently located at 15 East North Street, in the City of Dover, County of Kent and United Corporate Service is the agent in charge thereof upon whom process against X-Ceed may be served within the County of Kent, State of Delaware; and WHEREAS, Water-Jel has authorized capital stock of 12,500,000 shares of Common Stock, $.08 par value per share, of which as of the date hereof 7,043,180 were duly issued and outstanding and 789,125 shares were reserved for issuance upon exercise of options granted under various Stock Option Plans for Officers and Employees and at least 2,716,597 shares were reserved for issuance upon exercise of various outstanding warrants or options granted to various persons and/or entities pursuant to various agreements and stock offerings; and WHEREAS, the principal offices of Water-Jel are located at 488 Madison Avenue, New York, New York 10022, and the Secretary of State of the State of New York has been designated as the party upon whom process against Water-Jel may be served within the State of New York; and WHEREAS, the Board of Directors of X-Ceed and of Water-Jel, respectively, deem it advisable and generally to the advantage and welfare of the two corporate parties and their respective shareholders that Water-Jel merge with X-Ceed under and pursuant to the provisions of Section 252(c) of the Delaware General Corporation Law and of Section 907 of the New York Business Corporation Law; and WHEREAS, the shareholders of Water-Jel have approved the merger by a two-thirds vote at a duly convened meeting of shareholders on February 20, 1998; NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained and of the mutual benefits hereby provided, it is agreed by and between the parties as follows: 1. Merger. Water-Jel shall be and it hereby is merged into X-Ceed. 2. Effective Date. This Agreement of Merger shall become effective immediately upon compliance with the laws of the State of Delaware and New York, the term of such effectiveness being hereinafter called the Effective Date. 3. Surviving Corporation. X-Ceed shall survive the merger herein contemplated and shall continue to be governed by the laws of the State of Delaware, but the separate corporate existence of Water-Jel shall cease forthwith upon the Effective Date. 4. Authorized Capital. The authorized capital stock of X-Ceed following the effective date shall be 30,000,000 shares of Common Stock, par value $.01 per share, and 1,000,000 shares of Preferred Stock, par value $.05 per share, unless and until the same shall be changed in accordance with the laws of the State of Delaware. 5. Certificate of Incorporation. The Certificate of Incorporation set forth in Exhibit A attached hereto shall be the Certificate of Incorporation of X-Ceed following the Effective Date, unless and until the same shall be amended or repealed in accordance with the provisions thereof, which power to amend or repeal is hereby expressly reserved, and all rights or powers of whatsoever nature conferred in such Certificate of Incorporation or herein upon any shareholder or director or officer of X-Ceed or upon any other person whomsoever are subject to this reserve power. Such Certificate of Incorporation shall constitute the Certificate of Incorporation of X-Ceed separate and apart from this Agreement of Merger and may be separately certified as the Certificate of Incorporation of X-Ceed. 6. Bylaws. The Bylaws set forth as Exhibit B hereto shall be the Bylaws of X-Ceed following the Effective Date unless and until the same shall be amended or repealed in accordance with the provisions thereof. 7. Further Assurance of Title. If at any time X-Ceed shall consider or be advised that any acknowledgments or assurances in law or other similar actions are necessary or desirable in order to acknowledge or confirm in and to X-Ceed any right, title or interest of Water-Jel held immediately prior to the Effective Date, Water-Jel and its proper officers and directors shall and will execute and deliver all such acknowledgments or assurances in law and do all things necessary or proper to acknowledge or confirm such right, title, or interest in X-Ceed as shall be necessary to carry out the purposes of this Agreement of Merger, and X-Ceed and the proper officers and directors thereof are fully authorized to take any and all such action in the name of Water-Jel or otherwise. 8. Retirement of Organization Stock. Forthwith upon the Effective Date, each of the 100 shares of the Common Stock of X-Ceed presently issued and outstanding shall be retired, and no shares of Common Stock or other securities of X-Ceed shall be issued in respect thereof. 9. Conversion of Outstanding Stock. Forthwith upon the Effective Date, each of the issued and outstanding shares of Common Stock of Water-Jel and all rights in respect thereof shall be converted into one full paid and nonassessable share of Common Stock of X-Ceed, and each certificate nominally representing shares of Common Stock of Water-Jel shall for all purposes be 2 deemed to evidence the ownership of a like number of shares of the Common Stock of X-Ceed. The holders of such certificates shall not be required immediately to surrender the same in exchange for certificates of Common Stock of X-Ceed but, as certificates nominally representing shares of Common Stock of Water-Jel are surrendered for transfer, X-Ceed will cause to be issued certificates representing shares of Common Stock of X-Ceed and, at any time upon surrender by any holder of certificates nominally representing shares of Common Stock of Water-Jel for transfer, X-Ceed will cause to be issued certificates representing shares of Common Stock of X-Ceed and, at any time upon surrender by any holder of certificates nominally representing shares of Common Stock of Water-Jel, X-Ceed will cause to be issued through its transfer agent therefor certificates for a like number of shares of Common Stock of X-Ceed. 10. Retirement of Treasury Stock. Forthwith upon the Effective Date, any shares of Common Stock of Water-Jel held in the Treasury of Water-Jel on the Effective Date shall be retired and no shares of Common Stock or any other securities of X-Ceed shall be issued in respect thereof. 11. Stock Options. Forthwith upon the Effective Date, each outstanding option to purchase shares of Common Stock granted under Water-Jel's 1990 Stock Option Plan, the 1994 Stock Option Plan, the 1995 Stock Option Plan, the 1998 Stock Option Plan, the outstanding Class A and Class B Warrants, Underwriter's Warrants and all other options and warrants issued by Water-Jel prior to the Effective Date shall be converted into and become an option or warrant to purchase the same number of shares of the Common Stock of X-Ceed, upon the same terms and conditions as set forth in each Plan, and every other agreement affecting the issuance of shares upon exercise of options or warrants in effect immediately prior to the Effective Date. The same number of shares of Common Stock of X-Ceed shall be reserved for issuance upon the exercise of all outstanding options or warrants as were so reserved for issuance by Water-Jel immediately prior to the Effective Date. 12. Book Entries. The merger contemplated hereby shall be treated as a pooling of interests and as of the Effective Date entries shall be made upon the books of X-Ceed in accordance with the following: (a) The assets and liabilities of Water-Jel shall be recorded at the amounts at which they are carried on the books of Water-Jel immediately prior to the Effective Date with appropriate adjustment to reflect the retirement of the 100 shares of Common Stock of X-Ceed presently issued and outstanding. (b) There shall be credited to the Capital Account the aggregate amount of the par value per share of all of the Common Stock of X-Ceed resulting from the conversion of the outstanding Common Shares of Water-Jel. (c) There shall be credited to the Capital Surplus Account an amount equal to that carried on the Capital Surplus Account of Water-Jel immediately prior to the Effective Date. 3 (d) There shall be credited to the Earned Surplus Account an amount equal to that carried on the Earned Surplus Account of Water-Jel immediately prior to the Effective Date. 13. Directors. The names and post office addresses of the directors of X-Ceed following the Effective Date, who shall be three in number and who shall hold office from the Effective Date until the next annual meeting of shareholders of X-Ceed to be held in 1999 and until their successors shall be elected and shall qualify, are as follows: Name Post Office Address Werner Haase c/o Water-Jel Technologies, Inc. 488 Madison Avenue New York, NY 10022 Norman Doctoroff c/o Water-Jel Technologies, Inc. 488 Madison Avenue New York, NY 10022 John Birmingham c/o Water-Jel Technologies, Inc. 488 Madison Avenue New York, NY 10022 14. Officers. The names and post office addresses of the first officers of X-Ceed following the Effective Date, who shall be three in number and who shall hold office from the Effective Date until their successors shall be appointed and shall qualify or until they shall resign or be removed from office, are as follows: Name Offices Post Office Address Werner Haase Chief Executive Officer c/o Water-Jel Technologies, Inc. 488 Madison Avenue New York, NY 10022 Nurit Kahane Haase Senior Vice President c/o Water-Jel Technologies, Inc. 488 Madison Avenue New York, NY 10022 James Edwards Chief Financial Officer c/o Water-Jel Technologies, Inc. 488 Madison Avenue New York, NY 10022 15. Vacancies. If, upon the Effective Date, a vacancy shall exist in the Board of Directors or in any of the offices of X-Ceed as the same are specified above, such vacancy shall thereafter be filled in the manner provided by law and the Bylaws of X-Ceed. 4 IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to authority duly granted by the Board of Directors, has caused this Agreement of Merger to be executed by a majority of its directors and its corporate seal to be hereunto affixed. X-CEED, INC. Corporate Seal By: s/ Werner Haase Werner Haase, Chairman By: s/ John A. Bermingham John A. Bermingham, Director By: s/ Norman Doctoroff Norman Doctoroff WATER-JEL TECHNOLOGIES, INC. Corporate Seal By: s/ Werner Haase Werner Haase By: s/ John A. Bermingham John A. Bermingham By: s/ Norman Doctoroff Norman Doctoroff 5 EX-3.(I) 4 (C) CERTIFICATE OF INCORPORATION OF X-CEED, INC. CERTIFICATE OF INCORPORATION OF X-ceed, Inc. The undersigned, being of legal age, in order to form a corporation under and pursuant to the laws of the State of Delaware, does hereby set forth as follows: FIRST: The name of the corporation is: X-ceed, Inc. SECOND: The address of the initial registered and principal office of this corporation in this state is c/o United Corporate Services, Inc., 15 East North Street, in the City of Dover, County of Kent, State of Delaware 19901, and the name of the registered agent at said address is United Corporate Services, Inc. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the corporation laws of the State of Delaware. FOURTH: The corporation shall be authorized to issue the following shares: Class Number of Shares Par Value COMMON 30,000,000 $.01 BLANK CHECK PREFERRED 1,000,000 $.05 FIFTH: The name and address of the incorporator are as follows: NAME ADDRESS Michael A. Barr 10 Bank Street White Plains, New York 10606 SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for further definition, limitation and regulation of the powers of the corporation and of its directors and stockholders: (1) The number of directors of the corporation shall be such as from time to time shall be fixed by, or in the manner provided in, the By-Laws. Election of directors need not be by ballot unless the By-Laws so provide. (2) The Board of Directors shall have power without the assent or vote of the stockholders: (a) To make, alter, amend, change, add to or repeal the By-Laws of the corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends. (b) To determine from time to time whether, and to what times and places, and under what conditions the accounts and books of the corporation (other than the stock ledger) or any of them, shall be open to the inspection of the stockholders. (3) The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders, at any meeting of the stockholders called for the purpose of considering any such act or contract, or through a written consent in lieu of a meeting in accordance with the requirements of the General Corporation Law of Delaware as amended from time to time, and any contract or act that shall be so approved or be so ratified by the vote of the holders of a majority of the stock of the corporation with is represented in person or by proxy at such meeting (or by written consent whether received directly or through a proxy) and entitled to vote thereon (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and as binding upon the corporation and upon all the stockholders as though it had been approved, ratified, or consented to by every stockholder of the 2 corporation, whether or not the contract or act would otherwise be open to legal attack because of directors' interest, or for any other reason. (4) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this certificate, and to any by-laws from time to time made by the stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made. SEVENTH: No director shall be liable to the corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except with respect to (1) a breach of the director's duty of loyalty to the corporation or its stockholders, (2) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) liability under Section 174 of the Delaware General Corporation Law or (4) a transaction from which the director derived an improper personal benefit, it being the intention of the foregoing provision to eliminate the liability of the corporation's directors to the corporation or its stockholders to the fullest extent permitted by Section 102(b)(7) of the Delaware General Corporation Law, as amended from time to time. The corporation shall indemnify to the fullest extend permitted by Sections 102(b)(7) and 145 of the Delaware General Corporation Law, as amended from time to time, each person that such Sections grant the corporation the power to indemnify. EIGHTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be 3 summoned in such manner as the said court directs. If a majority in number representing three-fourths (3/4) in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. NINTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power. IN WITNESS WHEREOF, the undersigned hereby executes this document and affirms that the facts set forth herein are true under the penalties of perjury this seventeenth day of December, 1997. s/MICHAEL A. BARR Michael A. Barr, Incorporator 4 -----END PRIVACY-ENHANCED MESSAGE-----