As Filed with the Securities and Exchange Commission on November 25, 1996
Registration No. 333-12691
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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EA INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
------------
New Jersey 21-0606484
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
185 Monmouth Parkway
West Long Branch, New Jersey 07764-9989
(908) 229-1100
(Address, including zip code, and
telephone number, including area
code, of registrant's principal
executive offices)
Richard P. Jaffe, Esquire
Mesirov Gelman Jaffe
Cramer & Jamieson
1735 Market Street, 38th Floor
Philadelphia, PA 19103-7598
(215) 994-1046
(Name, address, including
zip code, and telephone number,
including area code, of agent
for service)
---------------------------------------------
Approximate date of commencement of proposed sale to public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [_]
- ----------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to Section 8(a), may determine.
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(ii)
CROSS REFERENCE SHEET SHOWING LOCATION IN PROSPECTUS
OF INFORMATION REQUIRED BY FORM S-3
FILED AS PART OF REGISTRATION STATEMENT
Item
Number
in Form
S-3 Item Caption in Form S-3 Caption in Prospectus
- ------- ------------------------ ---------------------
1 Forepart of Registration Statement and Outside Cover Page
Front Cover Page of Prospectus
2 Inside Front and Outside Back Cover Pages of Inside Front Cover Page; Table of
Prospectus Contents
3 Summary of Information, Risk Factors and Ratio The Company; Risk Factors; and
of Earnings to Fixed Charges Selected Consolidated Financial
Data
4 Use of Proceeds Use of Proceeds
5 Determination of Offering Price Cover Page
6 Dilution Inapplicable
7 Selling Security Holders Plan of Distribution and Selling
Securityholders
8 Plan of Distribution Plan of Distribution and Selling
Securityholders
9 Description of Securities to be Registered Inapplicable
10 Interests of Named Experts and Counsel Legal Matters
11 Material Changes The Company
12 Incorporation of Certain Documents by Reference Incorporation of Certain
Information by Reference
13 Disclosure of Commission Position on Indemnification of Directors and
Indemnification for Securities Act Liabilities Officers
(iii)
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission but has not yet become effective. These
securities may not be sold nor may offers to buy be accepted prior to the time
the registration statement becomes effective. This Prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED NOVEMBER 25, 1996
Prospectus
3,527,742 Shares
[LOGO OMITTED]
EA INDUSTRIES, INC.
Common Stock
This Prospectus relates to the offer for sale of 3,527,742 shares of
common stock (the "Shares") of EA Industries, Inc. (the "Company" or "EAI") from
time to time after the date hereof by a certain stockholder, warrant holder
("Warrant Holder"), and certain convertible subordinated debenture holders
("Debenture Holders") and convertible subordinated note holders ("Note Holders")
(the stockholder, Warrant Holder, Debenture Holders and Note Holders are
collectively referred to as the "Selling Securityholders" and individually as a
"Selling Securityholder"), together with the 3,527,742 Preferred Stock Purchase
Rights ("Rights") associated with such Shares. The Rights associated with the
Shares are not exercisable or transferrable apart from the Shares as of the date
of this Prospectus and no additional consideration has been, or will be,
received by the Company in connection with the granting of such Rights upon the
issuance of the Shares. Except as described elsewhere in this Prospectus, the
Company will not receive any portion of the proceeds from the sale of the Shares
offered hereby. See "Plan of Distribution and Selling Securityholders."
THE SECURITIES BEING SOLD HEREBY ARE SPECULATIVE AND INVOLVE A HIGH DEGREE
OF RISK. THE COMPANY HAS EXPERIENCED LOSSES FOR THE PAST FIVE YEARS. SEE "RISK
FACTORS" COMMENCING ON PAGE 9 OF THIS PROSPECTUS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION (THE "COMMISSION") NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The Shares will be offered by the Selling Securityholders or their
donees, pledgees, transferees or other successors in interest for resale by this
Prospectus from time to time after the date hereof in one or more transactions
on the New York Stock Exchange ("NYSE"), in negotiated transactions, or private
transactions, or otherwise, or a combination of such methods of sale, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The Selling Securityholders may effect
such transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions (which compensation may be in excess of customary
commissions). Any broker-dealers that participate in the distribution of the
Shares may be deemed to be underwriters and any commissions received by them and
any profit on the resale of Shares sold by them might be deemed to be
underwriting discounts and commissions under the Securities Act of 1933, as
amended (the "Securities Act"). Each of the Selling Securityholders may also be
deemed to be an underwriter as defined in the Securities Act.
The Company's common stock (the "Common Stock") is traded on the NYSE
under the symbol EA. However, as a result of, among other things, continuing
losses, the Company has been informed by the NYSE that it does not meet certain
of the NYSE's requirements for continued listing of its shares of Common Stock.
Although the NYSE has not taken any affirmative action to delist the Common
Stock, it has reserved the right to do so. See "Risk Factors." On November 19,
1996, the last reported sale price of the Common Stock as reported by the NYSE
was $1.00.
The expenses relating to the offering are estimated to be $39,728 all
of which will be paid by the Company.
The Date of this Prospectus is November __, 1996.
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
the offer made hereby and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company or the Selling
Securityholders. This Prospectus does not constitute an offer to sell or
solicitation of an offer to buy, nor shall there be any sale of these securities
by anyone in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities law of any
such State, or in which the person making such offer or solicitation is not
qualified to do so, or to any person to whom it is unlawful to make such offer
or solicitation.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's Regional
Offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
Seven World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission,
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
The Company's Common Stock is listed on the NYSE, 11 Wall Street, New
York, New York 10005. Information regarding the Company is also available at the
NYSE.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1995, Proxy Statement dated April 29, 1996 filed in connection with the
Company's Annual Meeting of Stockholders held on May 30, 1996, Quarterly Report
on Form 10-Q for the quarterly period ended March 30, 1996, Quarterly Report on
Form 10-Q for the quarterly period ended June 29, 1996, and Quarterly Report on
Form 10-Q for the quarterly period ended September 28, 1996, as amended on the
Quarterly Report on Form 10-Q/A dated November 25, 1996, are incorporated
herein by reference and made a part hereof.
All documents filed subsequent to the date of this Prospectus by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior
to the termination of the offering described in this Prospectus shall be deemed
to be incorporated in this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The description of the Company's Common Stock is incorporated herein by
reference from the registration statement therefor under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
(2)
The description of the Company's Preferred Stock Purchase Rights is
incorporated herein by reference from the registration statement therefor under
Section 12 of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
The Company will provide, without charge, to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the oral or written
request of such person, a copy (without exhibits, unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates) of any and all information that has been incorporated by reference
in this Prospectus. Written or telephone requests for such information should be
directed to Shareholder Relations, EA Industries, Inc., 185 Monmouth Parkway,
West Long Branch, New Jersey 07764-9989, telephone: (908) 229-1100.
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION.......................................................(2)
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................(2)
THE COMPANY.................................................................(4)
RISK FACTORS ...............................................................(9)
USE OF PROCEEDS............................................................(18)
SELECTED CONSOLIDATED FINANCIAL DATA.......................................(19)
PLAN OF DISTRIBUTION AND SELLING SHAREHOLDERS..............................(20)
LEGAL MATTERS..............................................................(23)
EXPERTS....................................................................(23)
INDEMNIFICATION OF DIRECTORS AND OFFICERS..................................(23)
(3)
THE COMPANY
General
The Company, through its wholly-owned subsidiary, Tanon Manufacturing,
Inc. ("Tanon"), is engaged principally in the business of providing contract
electronic manufacturing services ranging from the assembly of printed circuit
boards to the complete procurement, production, assembly, test and delivery of
entire electronic products and systems. Tanon was acquired by the Company on
January 4, 1995. References to the Company with respect to any time period after
January 3, 1995 shall be deemed to include Tanon unless the context otherwise
requires.
The Company manufactures over 1,500 different assemblies which are
incorporated into product lines of over 30 different companies. The Company
provides its services primarily to manufacturers of: micro, mini and mainframe
computers; computer peripheral equipment; high quality graphic equipment; office
equipment; telecommunications equipment; consumer appliances, industrial tools
and measuring devices.
The Company has invested in new manufacturing equipment to accommodate
the increased business for surface mount technology ("SMT") equipment. The SMT
process is increasingly replacing the older, through-hole technology previously
utilized in the assembly of printed circuit boards. SMT allows for production of
a smaller circuit board, with greater component and circuit density, resulting
in increased performance. Management believes that SMT will continue to
constitute an increasing percentage of printed circuit board production and
assembly.
In addition, the Company, through its one-third investment in BarOn
Technologies, Ltd. ("BarOn"), a privately owned Israeli corporation based in
Haifa, Israel, and its indirect interest in a joint venture with Israel Aircraft
Industries, Ltd., an Israeli government corporation ("IAI"), seeks to develop
and market new, high technology products. The investment in BarOn was acquired
in 1995. BarOn has developed and is in the process of commercializing an
electronic computer input pen that captures handwriting independent of surface
or language. The Company, through a 52.3% owned subsidiary, Electronic
Associates Technologies Israel, Ltd. ("EATI"), formed the joint venture (the
"Joint Venture" or "ITI") with IAI in August 1995 to review, evaluate and
exploit the commercial potential of products based on non-military technologies
developed by IAI. See "The Company - Recent Developments."
Results of Operations
During 1995, the Company's sales increased to approximately $77.1
million from $30.5 million in 1994 and cost of sales increased to approximately
$76.4 million from approximately $27.8 million, primarily as a result of the
additional sales generated by Tanon. Selling, general and administrative
expenses also increased primarily as a result of the addition of the Tanon
operations. The Company had a net loss of approximately $30.9 million for 1995,
which included charges of approximately $7.9 million and $11.7 million,
representing the charge to expense of purchased in-process research and
development resulting from its investments in BarOn and the Joint Venture with
IAI, respectively. This net loss compared with a net loss of approximately $4.8
million in 1994 which included a provision for restructuring of approximately
$2.4 million. During the first nine months of 1996, the Company's sales
increased to approximately $64.0 million from approximately $56.1 million, and
cost of sales increased to approximately $61.2 million from approximately $55.7
million but decreased as a percentage of revenue to 95.6% from 99.3%, as
compared to the same period in 1995. Selling, general and administrative
expenses increased to approximately $8.8 million in the first nine months from
approximately $6.3 million in the same period in 1995, and increased as a
percentage of revenue to 13.7% in the first nine months of 1996 from 11.2% in
the same period in 1995. The Company had a net loss of approximately $9.6
million for the first nine months of 1996, which included a charge of $959,000
representing the charge to
(4)
expense for purchased in-process research and development resulting from the
Company's investments in BarOn and the Joint Venture. This compared with a net
loss of approximately $26.9 million in the first nine months of 1995 which
included a charge of approximately $19.6 million representing the charge to
expense for purchased in-process research and development resulting from the
Company's investments in BarOn and the Joint Venture.
Historically, the Company has had substantial recurring sales from
existing customers. Current marketing efforts are aimed at obtaining long-term
relationships with new customers, as well as maintaining its current customer
base. The Company employs a variety of marketing techniques for the sale of its
services, including direct sales efforts by an in-house sales force, and the
utilization of independent sales representatives. The Company's backlog consists
of firm purchase orders which are typically shipped within twelve months from
receipt of order. As of year-end 1995, the Company's backlog from continuing
operations totalled approximately $47.3 million, of which approximately $27.0
million was attributable to Tanon's backlog. The Company's and Tanon's backlogs
at the end of 1994 were approximately $19.2 million and $15.7 million,
respectively. The Company's backlog at September 28, 1996 was approximately
$38.7 million. As a result of obtaining the Schroder Loan Facility discussed
below, the Company consolidated all of its contract electronic manufacturing
business into Tanon, and, accordingly, such backlog at September 28, 1996
represents the backlog for the consolidated contract electronic manufacturing
business of Tanon.
The shares of the Company's Common Stock have been continuously listed
for trading on the NYSE since 1962; however, the Common Stock presently does not
meet the NYSE's requirements for continued listing. See "Risk Factors."
The Company's principal executive offices are located at 185 Monmouth
Parkway, West Long Branch, New Jersey 07764-9989, and its telephone number is
(908) 229-1100.
Recent Developments
Schroder Loan Facility. On May 3, 1996, Tanon replaced the Company's
existing asset based credit facility and the Tanon separate revolving line of
credit with a new asset based credit facility provided by IBJ Schroder Bank &
Trust Company ("Schroder") to Tanon. Under the terms of this new facility,
Schroder will advance up to $13,000,000 in the form of a revolving loan with
availability subject to the amount of a borrowing base comprised generally of
the sum of (1) up to between 80% and 85% of eligible accounts receivable, (2) up
to 18% of eligible inventory subject to an availability sublimit of $3,000,000
and (3) up to 75% (reduced by one percentage point on the first day of each
month following May 3, 1996) of the liquidation value of certain of the
Company's machinery and equipment, subject to an availability sublimit of
$1,250,000 (the "Schroder Loan Facility"). The Schroder Loan Facility has a
three-year term and bears interest at an annual rate equal to the sum of the
base commercial rate determined by Schroder and publicly announced to be in
effect from time to time plus 1-1/2%. Each fiscal quarter, Tanon will also be
obligated to pay a fee at a rate equal to one-half of one percent (1/2%) per
annum of the average unused portion of the Schroder Loan Facility. The Company
paid a commitment issuance fee of $75,000 to Schroder on March 25, 1996 and an
additional $50,000 fee at the closing of the Schroder Loan Facility. Advances
under the Schroder Loan Facility can only be used to fund the Company's
electronic contract manufacturing operations which are now being conducted
solely by Tanon. The agreement with Schroder requires Tanon to maintain certain
financial ratios, including current assets to current liabilities and earnings
to certain fixed charges, and to maintain a minimum net worth. At September 28,
1996, Tanon was in compliance with all of these requirements, except the
required ratio of earnings to certain fixed charges. Schroder has, however,
agreed to waive this requirement for the period ended September 28, 1996. Based
on current forecasts, the Company believes that it will not be in compliance
with the required ratio of earnings to certain fixed charges at December 31,
1996. The Company believes, however, that Schroder will waive such requirement
at that time although there can be no assurance that Schroder will do so.
Failure to obtain such
(5)
waiver would result in a default under the Schroder Line which would have a
material adverse effect on the Company. As a result of the new facility, Tanon's
available borrowing capacity increased by approximately $3,000,000 as compared
to the sum of the two prior facilities.
Concurrent with, and as a condition to, the closing of the Schroder
Loan Facility, the Company consolidated all of its contract electronic
manufacturing business into its wholly-owned subsidiary, Tanon, by assigning to
Tanon all of the assets and liabilities related to the contract electronic
manufacturing business conducted directly by the Company. As a result, EAI is
now principally a holding company with all operations being conducted by various
subsidiaries with EAI providing strategic, financial and other support to such
subsidiaries.
Acquisition of Common Stock of Aydin Corporation and Issuance of
Convertible Debentures. On May 6, 1996, the Company purchased 596,927 shares of
the common stock of Aydin Corporation ("Aydin"), a NYSE listed company, in a
private transaction from the then Chairman and Chief Executive officer of Aydin.
The purchase price for such shares was $18 per share or an aggregate of
$10,752,186 and the shares acquired represented approximately 11.64% of the
outstanding shares of common stock of Aydin. On May 6, 1996, the closing price
of the common stock of Aydin as reported by the NYSE was $15.50. Aydin designs,
manufactures and sells wireless, digital LOS radios and various other
telecommunications equipment systems, computer monitors and workstations, mostly
for utilities, network access equipment, airborne and ground data acquisition,
radar simulation, modernization and air-defense C3 equipment and systems.
To fund a portion of the purchase price of the Aydin common stock, on
May 3, 1996, the Company sold certain 9% Convertible Subordinated Debentures in
the aggregate principal amount of $7,000,000. The balance of the purchase price
was funded with existing cash of the Company. The Company sold additional 9%
Convertible Subordinated Debentures in the aggregate principal amount of
$1,100,000 during the remainder of May and June 1996 (such Convertible
Subordinated Debentures in the aggregate principal amount of $8,100,000 are
collectively referred to herein as the "Convertible Debentures"). The Company
paid a placement fee equal to 5% of the proceeds raised in the sale of the
Convertible Debentures in installments during August and September 1996. These
Convertible Debentures will mature on May 3, 1998 and are convertible into
shares of the Company's Common Stock at a conversion price per share equal to
the lesser of (i) four dollars ($4) per share or (ii) 80% of the average closing
price of the Company's Common Stock as traded on the NYSE for the five (5) days
preceding the date of the notice to the Company that the holder wishes to
exercise its conversion right; provided that in no event shall the holder
convert less than $100,000 of the unpaid principal balance of the Convertible
Debentures at one time. The registration statement of which this Prospectus is a
part covers the shares of the Company's Common Stock underlying the Convertible
Debentures. In the event the registration statement is not declared effective by
November 30, 1996, the Company will be obligated to pay certain penalties and
the holders of the Convertible Debentures may then declare the entire unpaid
principal and interest due and payable.
During May 1996, the Company initiated discussions with the Board of
Directors of Aydin concerning a possible merger or other combination with Aydin.
Both companies conducted due diligence on the business and prospects of each
other, including discussions about the structure and terms of possible
combinations. As a result of these discussions, the Company made an offer to
merge with Aydin, however, Aydin's Board of Directors rejected the Company's
final offer. The Company withdrew its offer on October 8, 1996 and has
terminated discussions with Aydin. At the present time, the Company will
continue to hold its Aydin shares as an investment but the Company may at some
time borrow against such shares, sell all or a portion of such shares or
otherwise dispose of such shares in another fashion.
As a result of the merger discussions being terminated, the Company
reflected a direct charge to Shareholders' Equity of approximately $4,782,000 in
the third quarter of 1996, reflecting a net unrealized loss
(6)
on marketable securities of investee. In addition, approximately $800,000 of
capitalized costs incurred in connection with the terminated merger discussions
with Aydin has been charged to expense in the third quarter of 1996. The closing
price of the Aydin common stock as reported by the NYSE at November 19, 1996 was
$8.875 per share.
Joint Venture with IAI - Vista Funding. The Company's indirect joint
venture with IAI, ITI, has selected one application for development and
exploitation, the Vista Application ("Vista") and a licensee, Vista Computer
Vision, Ltd. ("VCV") has been formed. Vista is a system for the automatic
inspection of manufactured parts, capable of detecting defects as small as 20
microns. VCV is owned 50% by IAI and 50% by the Company's subsidiary, EATI,
which is the entity through which the Company formed the joint venture with IAI.
The $1,000,000 funding for the initial operations of VCV was made by EATI in
June 1996 through a capital contribution of $250,000 to ITI and a loan of
$750,000 to ITI as evidenced by a $750,000 Subordinated Capital Note. The note
matures five years after its issuance and bears interest at 8% per annum.
Payments on the note may be made only out of remaining profits of VCV after
distribution of at least 50% of all accumulated profits. Upon liquidation of
VCV, the note would be subordinate to all other debts of VCV but would have a
preference over payments to equity holders of VCV.
On June 28, 1996, the Company loaned $1 million to EATI (the "EATI
Loan") to enable EATI to make the above capital contribution and loan to ITI,
which, in turn, funded VCV. The EATI Loan bears interest at 10% per annum,
payable annually. The principal is repayable in five equal annual installments
beginning on June 1, 2002 and continuing on June 1 of each year thereafter. The
Company may at its option, accelerate the EATI Loan and demand repayment 18
months after the date of issuance of the loan. The EATI Loan is subordinated to
all other debts of EATI but would have a preference over payments to equity
holders of EATI.
At September 28, 1996, the Joint Venture formed with IAI had remaining
funds of $8,049,000. Such funds can only be used to fund expenses of the Joint
Venture, and accordingly, has been classified as Restricted Cash by the Company.
With the exception of the initial investment of $6.3 million in EATI, and the
EATI Loan, the Company is unable to determine at this time the effect, if any,
of the Company's investment in the Joint Venture on the results of operation of
the Company or on its liquidity and capital resources. The Joint Venture is also
currently exploring other opportunities in addition to Vista. See "Risk Factors
- - Working Capital Needs and Liquidity Problems."
BarOn Loan Agreement. On July 1, 1996, the Company entered into a Loan
Agreement (the "BarOn Loan Agreement") with BarOn. Pursuant to the BarOn Loan
Agreement, the Company has agreed to provide to BarOn a revolving line of credit
of $2 million until July 1, 1998 ("Revolving Line Period"). During the Revolving
Line Period, any unused availability under the line will be reduced in the
(7)
event, and to the extent, that BarOn is able to obtain other funds through
equity or debt financing. Advances under the line will be made in the Company's
sole discretion. Such advances bear interest at an annual rate equal to the sum
of the base commercial rate (the "Base Rate") as determined by Schroder from
time to time plus one and one half percent (1-1/2%). Interest is due each
calendar quarter and, at the option of BarOn, any payment for such interest may
be deferred until the succeeding July 1. Deferred interest bears additional
interest at the rate of two and one-half percent (2-1/2%) plus the Base Rate.
The Company, at its option, may require that interest be paid in cash or by
issuance of ordinary shares of BarOn at an agreed value of $4.00 per share (the
"Agreed Value"). BarOn, at its option, may make any interest payments due on or
before July 1, 1997 in ordinary shares of BarOn at the Agreed Value. As of
October 31, 1996, BarOn had borrowed $1,201,000, which was outstanding under the
BarOn Loan Agreement. In addition, the entire amount outstanding under the line
of credit during and upon expiration of the Revolving Line Period is due on the
earliest to occur of (i) an initial public offering by BarOn, (ii) the sale of
equity or borrowings by BarOn exceeding the amount outstanding by at least
$500,000 (unless prohibited by such lender or investor), (iii) availability of
excess cash flow from operations in an amount equal to or in excess of the
amount outstanding, or (iv) June 1, 2000.
In consideration of the Company's agreement to open the line of credit,
BarOn has granted the Company antidilution protection for all shares currently
owned by the Company. This protection provides that the Company will be issued
additional shares if BarOn issues shares of its capital stock, instruments
convertible into such stock, or options or warrants to purchase such shares, at
any price below the Agreed Value. In addition, BarOn issued the Company a
warrant (the "BarOn Warrant") to purchase 1 million shares of BarOn's ordinary
shares at any time before July 1, 2001 at an exercise price equal to the Agreed
Value. The BarOn Warrant contains antidilution provisions substantially similar
to those described above and the Company has piggyback and demand registration
rights for shares purchased pursuant to the BarOn Warrant.
The Company and BarOn have also revised their agreement, effective on
July 1, 1996, regarding the manufacture of the products of BarOn. The revised
agreement has a five year term and provides that the Company or a subsidiary of
the Company will manufacture all of BarOn's products on an exclusive basis at a
price established based on actual component costs plus labor charges, overhead
and an agreed upon profit margin. This price is consistent with prices charged
to unrelated customers of the Company for comparable manufacturing services. As
of the date of this Prospectus, the Company is not yet manufacturing products
for BarOn. See "Risk Factors - Working Capital Needs and Liquidity Problems."
Tri-Star Letter of Intent. On October 9, 1996, the Company's contract
manufacturing subsidiary, Tanon, signed a letter of intent to acquire Tri-Star
Technologies, Inc. ("Tri-Star"). Tri-Star is a full-service contract
manufacturer that fabricates PC Boards, designs and builds electronic
prototypes, and assembles and tests a wide range of products, including printed
circuit boards. Completion of the acquisition is subject to due diligence
reviews by Tri-Star, Tanon and the Company, as well as execution of a definitive
purchase agreement.
Spalliero Resignation. Effective November 15, 1996, Joseph R. Spalliero
resigned as President and Director of the Company. Mr. Spalliero will remain as
an employee of Tanon in accordance with his employment agreement through the
expiration of such employment agreement on January 3, 1997, at which time he
will become an independent sales representative for Tanon. Irwin L. Gross,
Chairman of the Board of the Company, has succeeded Mr. Spalliero as the acting
President of the Company.
(8)
RISK FACTORS
In addition to the information set forth elsewhere in, and incorporated
by reference into, this Prospectus, the following factors should be considered
carefully in evaluating the Company and its business before purchasing the
Shares offered hereby.
Except for historical matters contained in this Prospectus, statements
made in this Prospectus, including, without limitation, statements relating to
financial projections, operating losses, cash flow requirements, additional
capital needs, and current litigation contained in the following risk factors,
are forward-looking statements and are made pursuant to the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995. Investors
are cautioned that these forward-looking statements reflect numerous assumptions
and involve risks and uncertainties which may cause actual results to differ
materially from these forward-looking statements, including loss of current
customers, reduction in orders from current customers, or delays in ordering by
current customers, failure to obtain anticipated contracts or orders from new
customers, or expected order volume from such customers, failure to obtain
financing, higher material or labor costs than anticipated, unfavorable results
in litigation against the Company, failure to consummate the acquisition of
Tri-Star, economic, competitive, technological, governmental, and the other
factors discussed in the following risk factors and in the Company's filings
with the Commission, including but not limited to, its Annual Report on Form
10-K for the year ended December 31, 1995, Proxy Statement dated April 29, 1996,
and Quarterly Reports on Form 10-Q for the quarterly periods ended March 30,
1996, June 29, 1996, and September 28, 1996, as amended, respectively.
Absence of Profitable Operations
The Company has not had a profitable year since 1990. Although the
Company has eliminated certain operations and reduced certain expenses in an
attempt to improve its operating results, there can be no assurance that the
Company's results of operations will improve or that the Company will be
profitable in the future.
History of Losses
The Company has incurred significant losses in each of the last five
years and for the nine-month period ended September 28, 1996, aggregating to
approximately $54.8 million. The Company's accumulated deficit was approximately
$58.4 million as of September 28, 1996. In addition, the Company had negative
cash flows from continuing operations in each of the last five years and for the
nine-month period ended September 28, 1996.
Delisting of the Company's Common Stock from Trading on
the New York Stock Exchange
Although the Company's Common Stock is currently listed and trading on
the NYSE, currently and since September 11, 1991, the Company has not been in
compliance with one or more of the criteria necessary for continued listing on
the NYSE. The Company and the NYSE have had discussions with respect to this
issue. As of the date of this Prospectus, the Company believes that it is in
compliance with all of the NYSE's continued listing criteria, with the exception
of the minimum net tangible assets available to Common Stock of $8,000,000 and
minimum average earnings of $600,000 for each of the last three fiscal years. To
the Company's knowledge, as of the date hereof, the NYSE has not taken any
affirmative action to delist the Common Stock, but, as it has each time it has
authorized the listing of additional shares on the NYSE, it stated in letters
dated March 29, 1995, March 14, 1996 and August 29, 1996 approving the listing
of additional shares of Common Stock, that consideration is being given to the
appropriateness of continued listing of the Company's Common Stock. Management
of the Company met with representatives of the NYSE on March 6, 1996 to
(9)
discuss this matter and the Company's financial plan for 1996, after which the
NYSE indicated in its letter dated March 14, 1996 that the Company's financial
results for the first quarter of 1996 will be reviewed and measured against such
plan. Management of the Company met again with representatives of the NYSE on
July 31, 1996 to discuss the Company's results of operations for the first
quarter ended March 30, 1996 and the Company's future plans, with no further
changes or developments resulting from such meeting. If the Company's Common
Stock is delisted from the NYSE, it could have a material adverse effect on the
price and liquidity of the Company's Common Stock and the Company's ability to
raise capital from the sale of equity.
In the event that the Company's Common Stock is delisted from the NYSE,
it could seek to list its Common Stock on the National Association of Securities
Dealers Inc.'s Automated Quotation System ("NASDAQ") or on another exchange.
Although the Company believes that it is currently eligible for listing on the
NASDAQ Small-Cap Market System (but not on the NASDAQ National Market System),
there can be no assurance that the Company would be eligible for listing its
Common Stock on NASDAQ or any exchange at such time. If the Company would be
ineligible to list its Common Stock on NASDAQ or any other exchange at such
time, there would be no established trading market for the Company's Common
Stock except as may be established in the National Association of Securities
Dealers Inc.'s OTC Bulletin Board Service or in the "pink sheets," which could
have a material adverse effect on the price and liquidity of the Company's
Common Stock. In addition, the Company's Common Stock could then become subject
to the Commission's "penny stock" rules which regulate broker-dealer sales
practices. Such rules could restrict the ability of broker-dealers to sell the
Company's Common Stock, which could also have a material adverse effect on the
price and liquidity of the Company's Common Stock.
Working Capital Needs and Liquidity Problems
As described above, the Company has incurred significant losses and had
negative cash flows from operations in each of the last five years and in the
nine months ended September 28, 1996. In order to continue operations, the
Company has had to raise additional capital to offset cash utilized in operating
and investing activities. The Company raised approximately $33,200,000 and
$9,400,000 during 1995 and the first nine months of 1996, respectively, from the
issuance of Common Stock, the exercise of stock options and warrants and the
sale of convertible notes and debentures. Among such capital raising activities,
in December 1995, the Company completed the sale of 7% convertible subordinated
notes of the Company in the aggregate principal amount of $10,000,000 to GFL
Performance Fund Limited ("GFL Performance Fund") and GFL Advantage Fund Limited
("GFL Advantage Fund"). As of November 12, 1996, $7,930,000 principal amount of
such notes had been converted into 2,595,881 shares of the Company's Common
Stock in accordance with their terms. On August 19, 1996, GFL Performance Fund
Limited transferred and assigned its $1,025,000 outstanding principal amount
note of the Company to an unrelated third party. Also, on August 19, 1996, GFL
Advantage Fund transferred and assigned its $2,070,000 outstanding principal
amount note of the Company to the Note Holders, including Irwin L. Gross,
Chairman of the Company and certain trusts for his daughters' benefit. In
connection with such assignment, the Company cancelled the prior note held by
GFL Advantage Fund and reissued certain 7% Convertible Subordinated Notes of the
Company in the aggregate principal amount of $2,070,000 due December 29, 1997
(the "Convertible Notes") to the Note Holders. These Convertible Notes will
mature on December 29, 1997 and are convertible into shares of the Company's
Common Stock at the conversion price per share of $2.67. The underlying Shares
of Common Stock of the Company into which such Convertible Notes are convertible
are included in the registration statement of which this Prospectus is a part.
(10)
The Company has agreed to issue an aggregate of 245,318 additional Shares of
Common Stock of the Company to the Note Holders in exchange for the Note
Holders' conversion of the Convertible Notes prior to December 31, 1996. In such
event, no interest payments will be made on the Convertible Notes. Such Shares
are also included in the registration statement of which the Prospectus is a
part. As a result of the assignments of the subordinated convertible notes
referred to above, neither GFL Performance Fund nor GFL Advantage Fund owns any
securities of the Company as of the date hereof.
In May and June 1996, the Company raised the $8,100,000 referred to
above from the sale of the Convertible Debentures which was used in part, in
purchasing 596,927 outstanding shares of common stock of Aydin. The underlying
Shares of Common Stock of the Company into which such Convertible Debentures are
convertible are included in the registration statement of which this Prospectus
is a part. See "The Company - Recent Developments."
On May 3, 1996, Tanon replaced the Company's existing asset based
credit facility and the Tanon separate revolving line of credit with a new asset
based facility provided by Schroder to Tanon. See "The Company - Recent
Developments."
The Company's financial projections indicate that operating losses and
negative cash flows will continue during the remainder of 1996 and the first
quarter of 1997. The purchase of the Aydin common stock, the BarOn Loan
Agreement and the EATI Loan discussed under the heading "The Company - Recent
Developments" of this Prospectus have resulted in the need to raise additional
capital. In addition, the Company's contract manufacturing operations conducted
through Tanon require additional working capital as a result of delaying the
shipments of orders at the requests of customers, operating losses by Tanon and
capital expenditures by Tanon. On October 28, 1996, the Company borrowed
$1,000,000 from Irwin L. Gross, Chairman of the Company. The terms of such
borrowing will be the same terms as the Additional Borrowings (as hereinafter
defined). The Company is presently seeking to borrow an additional $3,000,000
(the "Additional Borrowings") for up to twelve months to fund a portion of the
aggregate amount required to fund its holding company expenses, make advances to
BarOn under the BarOn Loan Agreement, pay costs incurred in connection with the
terminated merger discussions with Aydin, and provide additional working capital
to Tanon. Although the Company has no current plans to sell the Aydin common
stock owned by the Company, such loan may be secured by the Aydin common stock.
Further, the Company will need to raise additional capital during 1997 through
the sale of Common Stock or the issuance of debt securities to repay the
$4,000,000 short term loans (including Additional Borrowings), to fund the
future holding company expenses, provide additional working capital to Tanon,
fund anticipated expansion of contract manufacturing operations conducted
through Tanon, and complete the purchase of Tri-Star. At the date hereof, the
Company does not have any commitments, understandings or agreements for the
$3,000,000 Additional Borrowings or additional capital needs, and accordingly,
there can be no assurance that the Company will be successful in obtaining the
$3,000,000 Additional Borrowings or the additional capital. Failure to obtain
such Additional Borrowings or the additional capital could have a material
adverse effect on the financial condition and operations of the Company.
The Company's projections with respect to cash needs are based on its
forecasts of the results of operations at Tanon and expenses of EAI. If the
Company's financing efforts are unsuccessful or results of operations at Tanon
are significantly below forecasts, this would raise doubts about the Company's
ability to continue its operations without a significant financial
restructuring, which would include a major reduction in general and
administrative expenses and liquidation of assets other than those in the core
business of contract electronic manufacturing. There can be no assurance that
such restructuring would enable the Company to continue its operations.
The remaining unexercised Class A and Class B warrants issued in
February 1994, if exercised, could provide the Company with additional capital
of approximately $1,700,000. To date, Class A and Class B warrants to purchase
2,202,977 shares have been exercised and the Company has received $1,584,121 in
proceeds. In addition, in February 1996, the Company received unsecured
promissory notes in the aggregate principal amount of $1,096,000 as payment for
the exercise of Class A and Class B warrants to purchase 796,084 shares of
Common Stock. These promissory notes bear interest at the rate of 7% per annum
and are due on or before February 14, 1997. No assurance can be given that the
remaining unexercised warrants will be exercised or that such promissory notes
will be paid in full.
(11)
Limitations on Dividend Payments
The Company has not had a profitable year since 1990 and there have
been no cash dividends declared since 1956 and no stock dividends declared since
1966. If the Company were to become profitable, it would expect that all of such
earnings would be retained to support the business of the Company. Accordingly,
the Company does not anticipate paying cash dividends on its Common Stock in the
foreseeable future. Moreover, certain financial covenants set forth in the
Company's current loan agreement prohibit the Company from paying cash
dividends.
Dependence on a Limited Number of Customers and the Electronics Industry
Substantially all of the Company's net sales during the year ended
December 31, 1995 were derived from customers which were also customers of the
Company or Tanon during 1994. In 1995, the customers which accounted for more
than 10% of the Company's sales from continuing operations were Advanced Fibre
Communications, Inc., Ungerman Bass, Inc. and Dialogic Corporation, which
accounted for 23%, 14%, and 13% of sales, respectively. In 1995, the Company
initiated a disengagement from providing further services to a significant
customer, which disengagement process has been completed as of the date of this
Prospectus. As a result, management believes that sales to the customer will be
less than 10% of Company sales in 1996. The loss of revenue from the customer
has been offset by the Company's ability to expand services to other customers
and by attracting new customers. Currently, the Company remains dependent upon
its large customers. The loss of one or more of these customers could have a
material adverse effect on operations. Since customer contracts can be cancelled
and purchase levels can be changed or purchases delayed at any time, the timely
replacement of cancelled, delayed or reduced contracts with new orders cannot be
assured. In addition, substantially all of the Company's customers are in the
computer, telecommunications and electronics industries which are each subject
to rapid technological changes. Such technological changes could have a material
adverse effect on the Company's major customers which, in turn, could have a
material adverse effect on the Company's results of operations.
Availability of Raw Materials
The Company relies on third-party suppliers for components which it
uses in its assembly processes. At various times in the electronics industry
there have been shortages of these kinds of components. While management
believes that these shortages have not impacted significantly its performance in
the past, if shortages should occur in the future, the Company may be forced to
delay manufacturing and shipments, which could have a material adverse effect on
the Company's results of operations.
Competition
The Company competes with numerous domestic and offshore contract
manufacturers as well as the in-house manufacturing capabilities of certain of
its existing and potential customers. Some of the Company's competitors have
substantially greater manufacturing, financial and marketing resources than the
Company. The Company believes that the significant competitive factors in
contract manufacturing are technology, quality, service, price and ability to
deliver finished products on a timely and reliable basis. The Company's
inability to compete effectively in any of these areas could have a material
adverse effect on the Company's business.
(12)
Environmental Compliance and Current Litigation
The Company is subject to a variety of environmental regulations
relating to the use, storage, discharge and disposal of hazardous chemicals used
during its manufacturing process. Any failure by the Company to comply with
present and future regulations could restrict the Company's ability to expand
its facilities or require the Company to acquire costly equipment or to incur
other expenses to comply with environmental regulations, or incur fines and
penalties.
In addition, there are two lawsuits presently pending which involve
environmental claims against EAI, namely, the Lemco Associates lawsuit and the
Bridgeport Rental and Oil Services Superfund Site lawsuit. In October, 1992,
Lemco Associates L.P., a limited partnership ("Lemco"), the owner of property
previously owned by EAI, initiated an action against EAI and others alleging,
among other things, that the defendants created environmental contamination at
the property and is seeking damages in unspecified amounts. EAI has denied
Lemco's allegations, asserted numerous defenses to the claims asserted and
asserted a counterclaim against Lemco and cross claims against co-defendants and
others for indemnification and contribution. In addition, the Company has made a
demand upon its insurance carriers for coverage for the claims made by Lemco and
cross claims and third party claims may be filed against these insurance
companies seeking indemnification against these claims. To date, the Company's
insurance carriers have agreed to pay 71% of its defense costs under a
reservation of rights. Discovery in this matter is ongoing. By letter dated
March 30, 1995, Lemco provided the Company with a statement of its remediation
costs to date, as well as an estimate of future remediation costs associated
with the contamination for which it seeks recovery in this action. Specifically,
Lemco claims that it has expended approximately $424,000 in remediation costs,
including fees for legal oversight and consultation. It further estimates that
its future remediation costs will amount to approximately $4,900,000. Such
amount is included in a report made by Lemco's environmental consultants based
on their current assessment of the extent of contamination and the method and
period required to complete the remediation. Further, by letter dated June 7,
1995, Lemco provided the Company with an appraisal report made by a real estate
appraisal company engaged by Lemco in support of Lemco's claim for diminution in
the value of the property. Such report states that it is the appraisal company's
opinion that the market value of the property as of May 23, 1988 was $3.6
million and as of April 14, 1995 was $750,000. Lemco's appraisal expert
subsequently determined in October 1995 that the value of the property as of
April 14, 1995 was $960,000. Lemco purchased the property in question in 1979
for approximately $400,000. The Company's experts have estimated that, based
upon hydrogeologic data gathered to date by Lemco's experts, the major source of
continuing contamination of ground- water was released into the water table
about late 1984 or, using more conservative extrapolations, about mid- 1979.
Lemco's environmental consultants have recently issued a new report indicating
that, based upon further hydrogeologic data, the contamination occurred before
1979. The Company's experts believe that the data upon which Lemco's experts
base their opinion is unreliable and seek further data from additional
hydrogeologic tests which have not yet been performed. Based on the foregoing,
management believes that the range of possible loss in this matter ranges from
zero to approximately $7.8 million, not including costs and expenses, such as
legal and expert fees, which will be incurred in connection with this matter,
and not taking into account the amount of any loss which may be offset by
insurance coverage as discussed above. The Company and its consultants recently
completed the investigation and evaluation of additional information received
from Lemco and have determined that Lemco's remediation cost estimates are
premature and conceptual in nature. In addition, an independent analysis of the
site to determine the appropriateness of Lemco's claims and of the estimated
cost of remediation has not been completed; therefore, it is not possible to
predict its outcome at this time. Moreover, there is no assurance that the
outcome of this matter will come within the above-mentioned range of possible
loss.
The Company is vigorously defending this matter. On May 3, 1996, the
Superior Court of New Jersey referred this case to mediation in an effort to
explore opportunities for settlement. Mediation proceedings have commenced and
are expected to continue through December, 1996. In the event the matter cannot
be resolved through mediation, the case will be referred back to the Court for
trial.
(13)
The second matter involves environmental claims against EAI and others
regarding the Bridgeport Rental and Oil Services Superfund Site in Logan
Township, New Jersey (the "B.R.O.S. Site"). By letter dated August 31, 1988, the
United States Environmental Protection Agency ("EPA") notified EAI that the EPA
had identified EAI as one of the parties potentially responsible for clean up
costs at, and for any other possible damages in connection with, the B.R.O.S.
Site. EAI's alleged connection to the B.R.O.S. Site is through Rollins
Environmental Services, Inc. ("Rollins") which is a waste transporter that was
allegedly hired by EAI to transport certain waste material alleged to be
hazardous from EAI's operations for appropriate disposal. Information in the
EPA's files suggests that the EPA is likely to assert that one shipment of waste
allegedly generated by EAI and presumed to constitute less than one quarter of
one percent of the total liquid waste allegedly released at the B.R.O.S. Site,
was delivered to the B.R.O.S. Site in 1973 by Rollins. On March 29, 1989, the
New Jersey Department of Environmental Protection and Energy ("DEPE") issued an
administrative directive under New Jersey's Spill Compensation and Control Act
to over one hundred companies, including EAI, demanding payment by May 15, 1989
of $9,224,189 as DEPE's share of remedial costs at the B.R.O.S. Site. By letter
dated August 29, 1989, and by similar letters to fifty-seven other alleged waste
generators, or transporters of waste allegedly released at the B.R.O.S. Site,
the EPA demanded that the targeted companies, individually or jointly, pay to
the "EPA Hazardous Substances Trust Fund" the sum of $17.8 million by September
29, 1989 in full reimbursement of past costs incurred by the EPA in connection
with the B.R.O.S. Site. The EPA estimated at that time that the costs of the
remaining remedial work will be in the range of $70 - $100 million. On May 15,
1989, a group of companies among those which had received demands from DEPE,
including EAI, without admitting liability, made a "good faith" payment of
$1,344,500 in response to DEPE's directive demanding payment of $9,224,189.
EAI's share of this payment was $5,000. On September 29, 1989, a group of
companies, including EAI, targeted by the EPA responded to the EPA's demand
letter for past costs of $17.8 million by declining to make any payments at that
time and by offering to negotiate a settlement of the EPA's claims. Litigation
has been initiated in the federal courts with respect to the remediation alleged
to be required at the B.R.O.S. Site. EAI is not a party to this litigation but
is participating in informal discovery and settlement negotiations with respect
to the federal court actions without admitting liability. As of the date of this
Prospectus, Rollins and the other defendants have negotiated a settlement in
principle with the governmental plaintiffs and a consent decree is expected to
be filed with the court in or before December of 1996. Rollins has agreed in
principle to make payments pursuant to the expected consent decree on behalf of
EAI, and to include the claims against EAI in the release from the government
entities. EAI has also pursued insurance coverage for the B.R.O.S. claims. To
date, one carrier has responded, has agreed to pay one-third of EAI's defense
costs and has otherwise reserved rights. The other carrier to which EAI has
submitted the B.R.O.S. claims has denied coverage on grounds that EAI believes
are without merit under New Jersey law. This insurance company advised EAI that
it has no information at this time that would support EAI's claim of coverage
under any of the policies issued by it to EAI. EAI has asked for reconsideration
of its position and is awaiting a response. Based upon the foregoing, management
believes that the only remaining liability of EAI with respect to the B.R.O.S.
claims after the above-referenced settlements are effectuated will be for costs
and expenses incurred in connection with this matter not paid by Rollins as
discussed above, which are not expected to be material and do not take into
account the amount of any such costs and expenses which may be offset by
insurance coverage as discussed above, however, no assurance can be given as to
the outcome of this matter until such settlements are effectuated.
Dependence on Key Executives
The Company is continually assessing and evaluating its management
team. The Company is and will continue to be dependent upon the ability and
experience of its executive officers. There can be no assurance that the Company
will be able to retain experienced management. If, for any reason, the Company
is unable to retain such management, the Company's operations could be adversely
affected.
(14)
Possible Volatility of Stock Price
The trading price of the Company's Common Stock could be subject to
significant fluctuations in response to variations in quarterly operating
results, general conditions in the electronics industry, general conditions in
the economy and other factors, including the relatively small number of shares
held publicly.
Limitation of Net Operating Loss Carryforward
An annual limitation of approximately $4.9 million on the ability to
utilize a portion of the Company's net operating loss carryforwards, which
amounted to approximately $33.6 million as of December 31, 1995, has resulted
from stock ownership changes exceeding certain thresholds as defined in Section
382 of the Internal Revenue Code of 1986 (the "Code"). Further limitations may
occur if additional stock ownership changes occur which exceed certain
thresholds as defined by Section 382 of the Code.
Future Sales of Common Stock
At September 28, 1996, the Company had approximately 20,739,020 shares
of Common Stock outstanding. Of these shares, approximately 1,300,816 shares are
"restricted" or "affiliate" securities, as such terms are defined in the
Securities Act, which are not covered by currently effective registration
statements and may not be sold in the absence of registration under the
Securities Act or an exemption therefrom, including the exemption contained in
Rule 144 of the Securities Act. To the Company's knowledge, none of the
Company's "restricted" or "affiliate" securities outstanding as of September 28,
1996 are currently for sale in the public in reliance upon Rule 144. The Company
has granted certain holders of "restricted" or "affiliate" shares of Common
Stock rights which enable such holders to require the Company to register shares
of Common Stock held by them. Currently, the Company has effective registration
statements on file with the Commission relating to the offer for sale of an
aggregate of 13,414,575 shares of Common Stock of the Company by certain
stockholders, option holders, warrant holders, and convertible debenture or note
holders, which shares are held or may be acquired by such securityholders upon
exercise of certain options, warrants and convertible debentures or notes held
by such securityholders. As of the date of this Prospectus, a substantial number
of the shares included in such effective registration statements have been sold
by the named securityholders, however, a number of such shares remain to be
sold.
As of September 28, 1996, the Company has granted to employees and
others options to purchase up to approximately 7,072,371 shares of Common Stock
in addition to the options mentioned in the immediately preceding paragraph, all
of which are also covered by currently effective registration statements. The
Company has also issued warrants which are exercisable for an aggregate of
approximately 3,932,250 shares of the Company's Common Stock and which contain
certain registration rights for the underlying shares. Of such warrants,
1,993,107 shares are included in the currently effective registration statements
of the Company referred to in the immediately preceding paragraph. Also, in
addition to the "restricted" or "affiliate" shares and registered shares
referred to above, in offerings exempt from the registration provisions under
the Securities Act, (i) on April 14, 1995, the Company completed the sale of
540,712 shares of Common Stock, after adjustment; (ii) on July 21, 1995, the
Company completed the sale of 416,667 shares of Common Stock; (iii) on September
19, 1995, the Company completed the sale of convertible debentures in the
principal amount of $3,150,000, which debentures were subsequently converted
into 700,000 shares of Common Stock; (iv) on October 2, 1995, the Company
completed the sale of convertible debentures in the principal amount of
$450,000, which debentures were subsequently converted into 100,000 shares of
Common Stock; and (v) on August 3, 1995, the Company sold 1,517,614 shares of
its Common Stock, after adjustment.
Possible or actual sales made under Rule 144, or pursuant to exemptions
under the Securities Act, or pursuant to registration rights, of the
aforementioned shares of Common Stock or shares of Common Stock issued upon the
exercise of the aforementioned stock options or warrants, or upon conversion of
the convertible notes and debentures, may have a material adverse effect upon
the market price of the Company's Common Stock.
(15)
Control by Board of Directors
As of September 28, 1996, all officers and directors of the Company as
a group beneficially owned approximately 3,586,527 shares or 17.3% of the
outstanding Common Stock or options or warrants exercisable for Common Stock, or
convertible debentures or notes which are convertible into Common Stock,
assuming the exercise of presently exercisable options and warrants, and
conversion of presently convertible debentures and notes held by such persons.
Consequently, the Board of Directors can and will be able to continue to
exercise significant influence over the Company and its affairs.
Possible Issuances of Preferred Stock
Shares of Preferred Stock of the Company may be issued by the Board of
Directors of the Company, without shareholder approval, on such terms as the
Board of Directors may determine. The rights of the holders of Common Stock will
be subject to, and may be adversely affected by, the rights of the holders of
any Preferred Stock that may be issued in the future. Moreover, although the
ability to issue Preferred Stock may provide flexibility in connection with
possible acquisitions and other corporate purposes, such issuance may make it
more difficult for a third party to acquire, or may discourage a third party
from acquiring, control of the Company. The Company has no outstanding Preferred
Stock.
Provisions with Possible Anti-Takeover Effect
The New Jersey Business Corporation Act ("NJBCA") provides that in
determining whether a proposal or offer to acquire a corporation is in the best
interests of the corporation, the corporation's board of directors may, in
addition to considering the effects of any action on shareholders, consider any
of the following: (a) the effects of the proposed action on the corporation's
employees, suppliers, creditors and customers, (b) the effects on the community
in which the corporation operates and (c) the long-term as well as short term
interests of the corporation and its shareholders, including the possibility
that these interests may best be served by the continued independence of the
corporation and if, based on these factors, the board of directors determines
that any such offer is not in the best interest of the corporation, it may
reject the offer. The New Jersey Shareholders Protection Act (the "Protection
Act"), prohibits a publicly held New Jersey corporation with its principal
executive office and significant business operations in New Jersey from engaging
in any business combination with an "Interested Shareholder" (defined generally
as a beneficial owner of 10% or more of the outstanding voting stock) for a
period of five years from the date the Interested Shareholder became an
Interested Shareholder, unless such transaction is approved by the board of
directors prior to the date the shareholder became an Interested Shareholder. In
addition, the Protection Act prohibits any business combination at any time with
an Interested Shareholder other than a transaction that (i) is approved by the
board of directors for the applicable company prior to the date the Interested
Shareholder became an Interested Shareholder; or (ii) is approved by the
affirmative vote of the holders of two-thirds of the voting stock not
beneficially owned by the Interested Shareholder at a meeting called for that
purpose; or (iii) satisfies certain stringent price and terms criteria.
The Company's Certificate of Incorporation and By-Laws provide that the
Board of Directors of the Company shall be divided into three classes, each of
which serves for a three year term, with one class standing for election every
year. As a result, it ordinarily requires two annual meeting cycles and more
than one year for stockholders holding a majority of the shares to elect a
majority of the Board.
(16)
The Company has also adopted a Shareowners Rights Plan, pursuant to
which it has granted to shareholders one Preferred Stock Purchase Right for each
outstanding share of Common Stock. Under certain conditions, each Right entitles
shareholders to purchase one 1/100th of a share of Series A Junior Participating
Preferred Stock of the Company at an exercise price of $11.00, which Rights
expire in 1998. The Rights are exercisable only if a person or group acquires
15% or more of EAI's outstanding Common Stock (except in a transaction directly
with the Company which the Board determines is in the best interests of
shareowners) or commences a tender offer the consummation of which would result
in ownership by a person or group of 15% or more of the Common Stock. In the
event a person or group acquires 15% or more of EAI's outstanding Common Stock
(except in a transaction directly with the Company which the Board determines is
in the best interest of shareowners) each Right will entitle all other holders
to receive, upon exercise, EAI Common Stock with a value of twice the exercise
price. In addition, at any time after a 15% position is acquired, the Board of
Directors may, at its option, require each outstanding Right to be exchanged for
one share of Common Stock. Further, if EAI is acquired in a merger or other
business combination transaction after the Rights become exercisable, each Right
will entitle its holder to purchase, at the Right's then-current exercise price,
a number of the acquiring company's common shares having a value at that time of
twice the Right's exercise price.
These provisions of New Jersey Law, the Company's Certificate of
Incorporation and By-Laws, and Preferred Stock Purchase Rights Plan could delay
or impede the removal of incumbent directors and could make a merger, tender
offer or proxy contest involving the Company more difficult, even if such event
could be beneficial to the interests of the stockholders. Such provisions could
limit the price that certain investors might be willing to pay in the future for
the Company's Common Stock.
(17)
USE OF PROCEEDS
The Company will not receive any portion of the proceeds of the resale
of the Shares by the Selling Securityholders. However, approximately $10,170,000
of liabilities of the Company as of the date of this Prospectus would be
converted to equity upon the conversion of the Convertible Debentures and
Convertible Notes into Shares of Common Stock of the Company as provided in
accordance with the terms thereof, assuming the conversion in full thereof.
Further, the Company would receive approximately $1,071,429 upon exercise of the
Warrants to purchase 357,143 shares of Common Stock, assuming the exercise in
full thereof. As of the date of this Prospectus, none of the Debenture Holders
or Note Holders has converted his or her Convertible Debentures or Convertible
Notes, nor has the Warrant Holder exercised any portion of the Warrant, however,
the Note Holders have agreed with the Company to convert their Convertible Notes
in the aggregate principal amount of $2,070,000 before December 31, 1996. In
exchange therefor, the Company has agreed to issue an aggregate of 245,318
additional shares of Common Stock of the Company to the Note Holders, which
Shares are also included in the registration statement of which this Prospectus
is a part. There can be no assurance that any or all of the Convertible
Debentures and Convertible Notes will be converted or that any or all of the
Warrant will be exercised.
(18)
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth historical consolidated financial data
of the Company for the nine-month periods ended September 28, 1996 and September
30, 1995 and for each of the years in the five-year period ended December 31,
1995. The selected historical consolidated financial data for each of the years
ended December 31, 1991 through 1995 presented below were derived from the
consolidated financial statements of the Company, which were audited by Arthur
Andersen LLP, independent public accountants. The financial data of the Company
for the nine-month periods ended September 28, 1996 and September 30, 1995 were
derived from the unaudited consolidated condensed financial statements of the
Company. The results for the nine-month periods ended September 28, 1996 and
September 30, 1995 are not necessarily indicative of results for the full year
or any future period. Historical information for the nine months ended September
28, 1996 and September 30, 1995 and at September 28, 1996 reflects, in the
opinion of management, all adjustments (consisting only of nominal recurring
adjustments) necessary to present fairly the results for the interim periods.
This data should be read in conjunction with the Company's financial statements
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations" incorporated by reference in the Company's Form 10-K filed for the
year ended December 31, 1995 and Forms 10-Q filed for each of the quarters ended
March 30, 1996, June 29, 1996 and September 28, 1996, respectively.
No adjustment to the financial data has been made to reflect any
adjustments that might result from a possible restructuring discussed in "Risk
Factors -- Working Capital Needs and Liquidity Problems."
(in thousands, except share data and certain other data)
Nine-Month Period Ended
September 28 September 30 Year Ended December 31,
-------------------------------------------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
- ------------------------------------------------------------------------------------------------------------------------------------
Unaudited Unaudited
(Note 1)
Operating Results:
Sales from Continuing
Operations $ 64,008 $56,128 $77,085 $30,539 $26,024 $22,248 $22,933
Purchased Research and
Development $ 959 19,546 19,546 -- -- -- --
Provision for
Restructuring -- -- -- 2,400 -- 285 --
Loss from Continuing
Operations Before Taxes $ (6,894) (25,395) (30,894) (4,784) (5,348) (3,524) (6,811)
Loss from Continuing
Operations $ (6,894) (25,395) (30,894) (4,784) (4,664) (3,189) (5,227)
Income from Discontinued
Operations $ -- -- -- -- 1,327 651 1,531
Net Income (Loss) $ (9,566) (26,871) (30,894) (4,784) (3,337) (2,538) (3,696)
Income (Loss) per
Common Share:
Continuing Operations $ (0.52) (2.35) (2.50) (.95) (1.76) (1.22) (2.02)
Discontinued Operations $ -- -- -- -- .50 .25 .59
Net Income (Loss) $ (0.52) (2.35) (2.50) (.95) (1.26) (.97) (1.43)
- ------------------------------------------------------------------------------------------------------------------------------------
Balance Sheet Data:
Current Assets $ 34,412 -- 44,514 16,969 7,355 14,547 12,267
Current Liabilities $ 27,806 -- 25,938 12,603 8,614 11,594 5,019
Working Capital $ 6,606 -- 18,576 4,366 (1,259) 2,953 7,248
Net Property and
Equipment $ 11,313 -- 8,071 2,719 3,603 4,344 2,351
Total Assets $ 64,091 -- 66,625 22,845 12,762 19,836 14,805
Long-Term portion of
capital lease obligations $ 3,381 -- 1,731 690 1,820 1,678 605
Shareholders' Equity
(Deficit) $ 16,012 -- 19,390 7,244 (546) 2,776 5,137
Common Shares
Outstanding 20,739 -- 15,827 8,108 2,661 2,646 2,588
Book Value per
Common Share $ 0.77 -- 1.21 .89 (.21) 1.05 1.99
- ------------------------------------------------------------------------------------------------------------------------------------
(19)
Other Data:
Number of Shareholders
of Record 4,314 -- 4,254 4,447 4,600 4,718 4,877
Number of Employees 515 -- 514 334 315 458 368
Orders Received $ 55,448 -- 105,150 30,326 18,805 31,592 20,064
Sales Backlog at End of
Period $ 38,745 -- 47,305 19,240 19,453 26,676 17,260
- ------------------------------------------------------------------------------------------------------------------------------------
Note (1): 1995 amounts include the results of Tanon Manufacturing, Inc. from the date of the Tanon Acquisition (January 4, 1995),
EAI's equity in the results of BarOn Technologies Ltd. from the date of the BarOn Investment (January 16, 1995), and
EAI's equity in the results of the Joint Venture with Israel Aircraft Industries, Ltd. from the date of formation
(August 8, 1995).
(20)
PLAN OF DISTRIBUTION AND
SELLING SECURITYHOLDERS
The Shares will be offered by the Selling Securityholders or their
donees, pledgees, transferees or other successors in interest for resale by this
Prospectus from time to time after the date hereof in one or more transactions
on the NYSE, in negotiated transactions, or private transactions, or otherwise,
or a combination of such methods of sale, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Selling Securityholders may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of underwriting discounts, concessions or
commissions (which compensation may be in excess of customary commissions). The
following table sets forth as of November 15, 1996 (a) the name of each Selling
Securityholder, (b) the nature of any position, office or other material
relationship which the Selling Securityholder has had within the past three
years with the Company, (c) the number of Shares owned prior to the offering,
(d) the number of Shares to be offered for the Selling Securityholder's account,
(e) the number of Shares to be owned by the Selling Securityholder after
completion of the offering, and (f) the percentage of Common Stock to be owned
by the Selling Securityholder after completion of the offering.
Percentage
of Common
Number of Stock
Relation- Number of Number of Shares Owned
Name of Selling ship to Shares Owned Shares Owned After After
Securityholder Company(1) Prior to Offering Offered Offering Offering(2)
- --------------- ---------- ----------------- ---------- ----------- -----------
Leonard Adams 12,500 12,500(3) -0- -0-
Laura Huberfeld &
Naomi Bodner
Partnership 1,700,527(7) 37,500(3) 1,305,884 6.9%
Broadway Partners 50,000 50,000(3) -0- -0-
Robert Cohen 37,500 37,500(3) -0- -0-
Lenore Katz 12,500 12,500(3)
Kids Associates 10,000 10,000(3) -0- -0-
Nicole and Michael
Kubin 12,500 12,500(3) -0- -0-
Chanie Lerner 51,000 50,000(3) 1,000 less than 1%
Millenco, LP 700,000 700,000(3)
Newark Sales Corp. 470,901 362,500(3) 108,401 less than 1%
Jules Nordlicht 322,500 312,500(3) 10,000 less than 1%
Mark Nordlicht 100,000 100,000(3) -0- -0-
Dennis Poster 50,000 50,000(3) -0- -0-
CMR Associates,
L.L.C. 62,500 62,500(3) -0- -0-
Stefanie Rubin 15,000 15,000(3) -0- -0-
Wayne Saker 25,000 25,000(3) -0- -0-
Saleslink, Ltd. 175,000 175,000(3) -0- -0-
(21)
Percentage
of Common
Number of Stock
Relation- Number of Number of Shares Owned
Name of Selling ship to Shares Owned Shares Owned After After
Securityholder Company(1) Prior to Offering Offered Offering Offering(2)
- --------------- ---------- ----------------- ---------- ----------- -----------
Elizabeth Gross
Trust A U/T/A of
Irwin Gross Trust
dated 3/20/90 477,959 467,959(4) 10,000 less than 1%
Gabrielle Gross
Trust B U/T/A of
Irwin Gross Trust
dated 3/20/90 477,959 467,959(4) 10,000 less than 1%
Irwin L. Gross Chairman 1,836,016(5) 84,681(4) 1,751,335 9.2%
Broad Capital
Associates, Inc. 1,700,527(7) 357,143(6) 1,305,884 6.9%
Aryeh Trading, Inc. 125,000(8) -0- -0- -0-
- -----------------------
(1) Except as expressly set forth in the table, none of the Selling
Securityholders has had any relation to the Company within the past three years.
(2) Assumes that all Shares which are registered are sold in the
Offering. Also, calculation is based on approximately 19,080,510 shares of EAI
Common Stock outstanding at June 29, 1996.
(3) Represents shares of the Company's Common Stock into which certain
9% Convertible Subordinated Debentures due May 3, 1998 in the aggregate
principal amount $8,100,000, issued by the Company in May and June 1996 to the
Selling Securityholders listed above, are convertible. For purposes of
determining the number of shares of the Company's Common Stock to include in
this registration statement, the Company assumed a conversion price of $4.00 per
share. The actual number of shares of Common Stock to be issued upon the
conversion of the Convertible Debentures will be equal to: the principal amount
of the Convertible Debentures converted divided by a conversion price per share
equal to the lesser of (i) eighty percent (80%) of the average of the closing
price of the Company's Common Stock as traded on the NYSE for the five days
immediately preceding the date of notice of conversion to the Company, or (ii)
$4.00; provided that no less than $100,000 of the principal amount of the
Convertible Debentures may be converted at any one time. In accordance with Rule
416 under the Securities Act, this registration statement also covers such
indeterminate number of additional shares of Common Stock as may become issuable
upon the conversion of the notes to prevent dilution resulting from stock
splits, stock dividends or similar transactions or by reason of changes in the
conversion price as aforesaid.
(4) Represents shares of the Company's Common Stock into which certain
7% Convertible Subordinated Notes due December 29, 1997 in the aggregate
principal amount of $2,070,000, reissued by the Company to the Selling
Securityholders listed above, are convertible. The Convertible Notes represent
the outstanding balance of the 7% convertible subordinated note issued by the
Company to GFL Advantage Fund in December 1995. The Selling Securityholders
listed above acquired such convertible subordinated note from GFL Advantage Fund
on August 19, 1996, and as a result, the Company reissued the Convertible Notes
to such Selling Securityholders upon cancellation of the note assigned by GFL
Advantage Fund. The Note Holders have agreed with the Company to convert the
Convertible Notes before December 31, 1996. In exchange therefor, the Company
has agreed to issue an aggregate of 245,318 additional Shares of Common Stock of
the Company to the Note Holders, which Shares are also included in the
registration statement of which the Prospectus is a part.
(5) In addition to the Shares referred to in footnote (4) above as
being offered hereby by Mr. Gross, the 1,836,016 shares of Common Stock includes
(i) 20,000 shares of Common Stock held by Mr. Gross; (ii) warrants to purchase
an aggregate of 262,000 shares of Common Stock issued by the Company to
Mr. Gross in connection with his retention as a consultant to the Company in
March 1994, (iii) options to purchase 1,000,000 shares of Common Stock granted
pursuant to the Company's Equity Incentive Plan, (iv) options to purchase
333,333 shares of Common Stock of a total of 1,000,000 shares granted by the
Company to Mr. Gross pursuant to the Company's Equity Incentive Plan, and (iv)
options to purchase 34,500 shares of Common Stock of a total 60,000 shares
granted pursuant to the 1994 Stock Option Plan for Non-Employee directors.
Mr. Gross disclaims any beneficial ownership of the shares referred to in Note 4
as being offered by the Elizabeth Gross Trust A and Gabrielle Gross Trust B.
(22)
(6) Represents shares of the Company's Common Stock which may be
acquired upon exercise of a Warrant granted by the Company to Broad Capital
Associates, Inc. ("Broad Capital") on September 3, 1996 as additional
consideration for Broad Capital's exercise of certain options to purchase
357,143 shares of Common Stock of the Company for proceeds to the Company of
approximately $1 million. The issuance of such shares currently remains subject
to official notice of listing on the NYSE. In accordance with Rule 416 under the
Securities Act, this registration statement also covers such indeterminate
number of additional shares of Common Stock as may become issuable upon exercise
of such warrant to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
(7) Includes (i) 357,143 shares of Common Stock held by Broad Capital,
and (ii) options to purchase 242,857 shares granted to Broad Capital by the
Company pursuant to the Company's Equity Incentive Plan. Also includes Class B
Warrants to purchase 352,942 shares of Common Stock held by the 1995 Huberfeld
Family Charitable Income Trust ("Huberfeld Trust"), in which Mr. Murray
Huberfeld is the sole voting trustee, and Class B Warrants to purchase 352,942
shares of Common Stock held by the 1995 Bodner Family Charitable Income Trust
("Bodner Trust"), in which Mr. David Bodner is the sole voting trustee. Also
includes the 37,500 shares referred to above offered by the Laura Huberfeld &
Naomi Bodner Partnership. Laura Huberfeld and Naomi Bodner are the respective
spouses of Messrs. Huberfeld and Bodner. Messrs. Huberfeld and Bodner are
principals of Broad Capital. Each of Broad Capital, the Huberfeld Trust and the
Bodner Trust, and the Laura Huberfeld & Naomi Bodner Partnership disclaim
beneficial ownership in the shares beneficially owned by each of the other
parties.
(8) Represents the shares of Common Stock issued by the Company to the
named Selling Securityholder in partial payment of the placement fee equal to 5%
of the proceeds raised in the sale of the Convertible Debentures in May and June
1996. The issuance of such shares currently remains subject to official notice
of listing on the NYSE.
(23)
LEGAL MATTERS
The validity of the shares being offered hereby will be passed upon for
the Company by Mesirov Gelman Jaffe Cramer & Jamieson, 1735 Market Street,
Philadelphia, Pennsylvania 19103-7598. Richard P. Jaffe, a partner of such law
firm, is the Secretary of the Company.
EXPERTS
The audited financial statements and schedules of EA Industries, Inc.,
incorporated by reference in this Prospectus and in the Registration Statement
of which the Prospectus is a part, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and have been included herein in reliance upon the authority of said
firm as experts in accounting and auditing in giving said reports.
The financial statements of BarOn as of December 31, 1995 and 1994, and
for the years ended December 31, 1995 and 1994 and the period from inception in
1992 through December 31, 1995, incorporated by reference in this Prospectus and
in the Registration Statement of which the Prospectus is a part, have been
audited by Luboshitz, Kasierer & Co. and Yosef Shimony, independent public
accountants, as indicated in their reports with respect thereto, and have been
included herein in reliance upon the authority of said firms as experts in
accounting and auditing.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized under New Jersey law, the Company's Certificate of
Incorporation eliminates the personal liability of directors and officers to the
Company and its shareholders for monetary damages for acts or omissions
(including negligent and grossly negligent acts or omissions) in violation of
directors' and officers fiduciary duties of care. The duty of care refers to the
fiduciary duty of directors and officers to manage the affairs of the
corporation with the same degree of care as would be applied by an "ordinarily
prudent person under similar circumstances." The Certificate of Incorporation
does not, however, in any way eliminate or limit the liability of a director or
officer for breaching his duty of loyalty (i.e., the duty to refrain from fraud,
self-dealing, and transactions involving improper conflicts of interest) to the
Company or its shareholders, failing to act in good faith, or knowingly
violating law or obtaining an improper personal benefit. These provisions do not
have any effect on the availability of equitable remedies (such as an injunction
or rescission) for breach of fiduciary duty. However, as a practical matter,
equitable remedies may not be available in particular circumstances.
Article 37 of the Company's By-laws ("Article 37") provides, among
other things, that the Company shall, to the fullest extent permitted by the
laws of the State of New Jersey as from time to time in effect, indemnify any
person who is or was made a party or is threatened to be made a party to any
proceeding by reason of the fact that he is or was a director or officer of the
Company or, while serving as a director or officer of the Company, is or was
serving at the request of the Company as a director, officer, trustee, employee
or agent of another corporation, partnership, trust, employee benefit plan or
other enterprise against all expenses and liabilities. Article 37 further
provides that the Company shall, from time to time, reimburse or advance to any
such director or officer the funds necessary for payment of expenses incurred in
connection with any proceeding, upon receipt of a written undertaking by or on
behalf of such director or officer to repay such amount unless it shall
ultimately be determined that he is entitled to indemnification. The rights and
authority conferred in Article 37 are not exclusive of any other right which an
indemnified party may have or acquire under any statute, provision of the
Company's By-laws, agreement, vote of the shareholders or directors or
otherwise. The Company's By-laws specify that the right to indemnification is a
contract right, enforceable against the Company
(24)
with respect to any act or omission which occurs while such By-law provision is
in effect, even if such By-law provision is not in effect when the claim for
indemnification is made.
The NJBCA generally provides that a corporation may, and in certain
circumstances, shall, indemnify its officers, directors, employees and agents
("Corporate Agents"), Corporate Agents of constituent corporations that it has
absorbed by merger or consolidation, and Corporate Agents of other corporations
if such Corporate Agents serve at the indemnifying corporation's request. A
corporation may indemnify such Corporate Agent in a civil proceeding if the
Corporate Agent acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and, in a criminal
proceeding, if he had no reasonable cause to believe his conduct was unlawful,
except that indemnification is not permitted in an action by or in the right of
the corporation if the Corporate Agent is adjudged to be liable to the
corporation, unless the court in which the proceeding was brought shall have
determined that indemnification is appropriate in light of the circumstances of
the case.
The Company has purchased and maintains insurance for its officers and
directors against certain liabilities, including liabilities under the
Securities Act. The effect of such insurance is to indemnify any officer or
director of the Company against expenses, judgements, fines, attorney's fees and
other amounts paid in settlements incurred by him, subject to certain
exclusions. Such insurance does not insure against any such amount incurred by
an officer or director as a result of his own dishonesty.
These provisions of the Company's Certificate of Incorporation and
By-laws apply only to claims against a director or officer arising out of his
service in such a capacity. Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended, may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and therefore is unenforceable.
(25)
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
SEC registration fee $ 3,728
Legal fees and expenses $15,000*
Accounting fees and expenses $15,000*
Blue sky fees and expenses $ 2,500*
Printing expenses $ 2,500*
Miscellaneous $ 1,000*
--------
TOTAL $39,728
========
- ----------
*Estimated.
Item 15. Indemnification of Directors and Officers
As authorized under New Jersey law, the Company's Certificate of
Incorporation eliminates the personal liability of directors and officers to the
Company and its shareholders for monetary damages for acts or omissions
(including negligent and grossly negligent acts or omissions) in violation of
directors' and officer's fiduciary duties of care. The duty of care refers to
the fiduciary duty of directors and officers to manage the affairs of the
corporation with the same degree of care as would be applied by an "ordinarily
prudent person under similar circumstances." The Certificate of Incorporation
does not, however, in any way eliminate or limit the liability of a director or
officer for breaching his duty of loyalty (i.e., the duty to refrain from fraud,
self-dealing, and transactions involving improper conflicts of interest) to the
Company or its shareholders, failing to act in good faith, knowingly violating
law or obtaining an improper personal benefit. These provisions do not have any
effect on the availability of equitable remedies (such as an injunction or
rescission) for breach of fiduciary duty. However, as a practical matter,
equitable remedies may not be available in particular circumstances.
Article 37 of the Company's by-laws ("Article 37") provides, among
other things, that the Company shall, to the fullest extent permitted by the
laws of the State of New Jersey as from time to time in effect, indemnify any
person who is or was made a party or is threatened to be made a party to any
proceeding by reason of the fact that he is or was a director or officer of the
Company or, while serving as a director or officer of the Company, is or was
serving at the request of the Company as a director, officer, trustee, employee
or agent of another corporation, partnership, trust, employee benefit plan or
other enterprise against all expenses and liabilities. Article 37 further
provides that the Company shall, from time to time, reimburse or advance to any
such director or officer the funds necessary for payment of expenses incurred in
connection with any proceeding, upon receipt of a written undertaking by or on
behalf of such director or officer to repay such amount unless it shall
ultimately be determined that he is entitled to indemnification. The rights and
authority conferred in Article 37 are not exclusive of any other right which an
indemnified party may have or acquire under any statute, provision of the
Company's by-laws, agreement, vote of the shareholders or directors or
otherwise. The Company's By-laws specify that the right to indemnification is a
contract right, enforceable against the Company with respect to any act or
omission which occurs while such By-law provision is in effect, even if such
By-law provision is not in effect when the claim for indemnification is made.
II-1
The NJBCA generally provides that a corporation may, and in certain
circumstances, shall, indemnify its officers, directors, employees and agents
("Corporate Agents"), Corporate Agents of constituent corporations that it has
absorbed by merger or consolidation, and Corporate Agents of other corporations
if such Corporate Agents serve at the indemnifying corporation's request. A
corporation may indemnify such Corporate Agent in a civil proceeding if the
Corporate Agent acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and, in a criminal
proceeding, if he had no reasonable cause to believe his conduct was unlawful,
except that indemnification is not permitted in an action by or in the right of
the corporation if the Corporate Agent is adjudged to be liable to the
corporation, unless the court in which the proceeding was brought shall have
determined that indemnification is appropriate in light of the circumstances of
the case.
The Company has purchased and maintains insurance for its officers and
directors against certain liabilities, including liabilities under the
Securities Act. The effect of such insurance is to indemnify any officer or
director of the Company against expenses, judgements, fines, attorney's fees and
other amounts paid in settlements incurred by him, subject to certain
exclusions. Such insurance does not insure against any such amount incurred by
an officer or director as a result of his own dishonesty.
II-2
Item 16. Exhibits
Exhibit No.
o2.1 Agreement and Plan of Reorganization by and among Electronic
Associates, Inc., Tanon Manufacturing, Inc., EA Acquisition Corp. and
Joseph R. Spalliero, dated December 12, 1994 was filed as Exhibit 2 to
the Company's Current Report on Form 8-K (Date of Report: January 4,
1995) and is hereby incorporated herein by reference.
o2.2 Form of Investment Agreement dated January 16, 1995 by and between
Electronic Associates, Inc. and BarOn Technologies Ltd., was filed as
Exhibit 10.1 to the Company's Current Report on Form 8-K (Date of
Report: January 16, 1995), as amended, and is hereby incorporated
herein by reference.
o2.3 Form of Stock Purchase Agreement, dated January 10, 1995, between the
Company and various shareholders of BarOn Technologies Ltd., was filed
as Exhibit 10.2 to the Company's Current Report on Form 8-K (date of
report: January 16, 1995), as amended, and is hereby incorporated
herein by reference.
o2.4 Form of Shareholders Agreement, dated January 16, 1995, among the
Company, BarOn Technologies Ltd. and the shareholders of BarOn
Technologies Ltd., was filed as Exhibit 10.3 to the Company's Current
Report on Form 8-K (Date of Report: January 16, 1995), as amended, and
is hereby incorporated herein by reference.
o2.5 Form of Pre-Incorporation Agreement in connection with the IAI Joint
Venture was filed as Exhibit 2.1 to the Company's Current Report on
Form 8-K (Date of Report: August 3, 1995) and is hereby incorporated
herein by reference.
o2.6 Form of Joint Venture Agreement in connection with IAI Joint Venture
was filed as Exhibit 2.2 to the Company's Current Report on Form 8-K
(Date of Report: August 3, 1995) and is hereby incorporated herein by
reference.
4.1 Specimen of Common Stock share Certificate was filed as Exhibit 4.1 to
the Company's Registration Statement on Form S-1, No. 33-81892 and is
hereby incorporated herein by reference.
4.2 Rights Agreement, dated as of February 10, 1988, between the Company
and Manufacturers Hanover Trust Company, as Rights Agent, was filed as
Exhibit 1 to the Company's Form 8-A, dated February 11, 1988, and is
hereby incorporated herein by reference. (File No. 1-4680)
4.3 Amendment, dated as of October 24, 1990, to the Rights Agreement, was
filed as Exhibit 2 to the Company's Form 8, dated October 24, 1990, and
is hereby incorporated herein by reference. (File No. 1-4680)
4.4 Form of Subscription Agreement and Form of 9% Convertible Subordinated
Debenture issued in connection with raising $8.1 million in May and
June of 1996 were filed as Exhibit 10.31 to the Company's Form 10-Q for
the quarterly period ended March 30, 1996 and are hereby incorporated
herein by reference.
II-3
+4.5 Warrant, dated September 3, 1996, to purchase 357,143 shares of Common
Stock issued by the Company to Broad Capital Associates, Inc.
+5 Opinion of Mesirov Gelman Jaffe Cramer & Jamieson.
+23.1 Consent of Mesirov Gelman Jaffe Cramer & Jamieson is included in their
opinion filed as Exhibit 5 hereto.
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants of EA
Industries, Inc.
23.3 Consent of Luboshitz, Kasierer & Co., and Yosef Shimony, Independent
Auditors of BarOn Technologies Ltd.
- -------
o The Company will furnish supplementally to the Commission, upon request,
copies of any Appendices, Schedules and Exhibits to the named Agreement which
are omitted from Exhibit Nos. 2.1 through 2.6.
+ Previously Filed.
II-4
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement:
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the undersigned Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions discussed in Item 14 of this registration statement,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of West Long Branch, New Jersey on the
25th day of November, 1996.
EA INDUSTRIES, INC.
By: /s/ Stanley O. Jester
----------------------------
Stanley O. Jester, Treasurer and
Vice President, Finance
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
/s/ Irwin L. Gross Chairman of the Board November 25, 1996
- ------------------------- and acting President
Irwin L. Gross (Principal Executive
Officer)
II-6
/s/ Stanley O. Jester Treasurer and Vice November 25, 1996
- ------------------------- President, Finance
Stanley O. Jester Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Stanley O. Jester Director November 25, 1996
- -------------------------
Stanley O. Jester,
as attorney-in-fact
for Bruce P. Murray
/s/ Stanley O. Jester Director November 25, 1996
- -------------------------
Stanley O. Jester,
as attorney-in-fact
for Jules M. Seshens
[Signatures continued on next page]
II-7
/s/ Stanley O. Jester Director November 25, 1996
- -------------------------
Stanley O. Jester,
as attorney-in-fact
for Seth Joseph Antine
/s/ Stanley O. Jester Director November 25, 1996
- -------------------------
Stanley O. Jester,
as attorney-in-fact
for David J. Reibstein
/s/ Stanley O. Jester Director November 25, 1996
- -------------------------
Stanley O. Jester,
as attorney-in-fact
for Mark S. Hauser
/s/ Stanley O. Jester Director November 25, 1996
- -------------------------
Stanley O. Jester,
as attorney-in-fact
for William Spier
II-8
EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
o2.1 Agreement and Plan of Reorganization by and Among
Electronic Associates, Inc., Tanon Manufacturing, Inc.,
EA Acquisition Corp. and Joseph R. Spalliero, dated
December 12, 1994 was filed as Exhibit 2 to the
Company's Current Report on Form 8-K (Date of Report:
January 4, 1995) and is hereby incorporated herein by
reference.
o2.2 Form of Investment Agreement dated January 16, 1995 by
and between Electronic Associates, Inc. and BarOn
Technologies Ltd., was filed as Exhibit 10.1 to the
Company's Current Report on Form 8-K (Date of Report:
January 16, 1995), as amended, and is hereby
incorporated herein by reference.
o2.3 Form of Stock Purchase Agreement, dated January 10,
1995, between the Company and various shareholders of
BarOn Technologies Ltd., was filed as Exhibit 10.2 to
the Company's Current Report on Form 8-K (date of
report: January 16, 1995), as amended, and is hereby
incorporated herein by reference.
o2.4 Form of Shareholders Agreement, dated January 16, 1995,
among the Company, BarOn Technologies Ltd. and the
shareholders of BarOn Technologies Ltd., was filed as
Exhibit 10.3 to the Company's Current Report on Form 8-K
(Date of Report: January 16, 1995), as amended, and is
hereby incorporated herein by reference.
o2.5 Form of Pre-Incorporation Agreement in connection with
the IAI Joint Venture was filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K (Date of Report:
August 3, 1995) and is hereby incorporated herein by
reference.
o2.6 Form of Joint Venture Agreement in connection with IAI
Joint Venture was filed as Exhibit 2.2 to the Company's
Current Report on Form 8-K (Date of Report: August 3,
1995) and is hereby incorporated herein by reference.
4.1 Specimen of Common Stock share Certificate was filed as
Exhibit 4.1 to the Company's Registration Statement on
Form S-1, No. 33-81892 and is hereby incorporated herein
by reference.
4.2 Rights Agreement, dated as of February 10, 1988, between
the Company and Manufacturers Hanover Trust Company, as
Rights Agent, was filed as Exhibit 1 to the Company's
Form 8-A, dated February 11, 1988, and is hereby
incorporated herein by reference. (File No. 1-4680).
4.3 Amendment, dated as of October 24, 1990, to the Rights
Agreement, was filed as Exhibit 2 to the Company's Form
8, dated October 24, 1990, and is hereby incorporated
herein by reference. (File No. 1-4680)
Exhibit No. Description Page No.
- ----------- ----------- --------
4.4 Form of Subscription Agreement and Form of 9%
Convertible Subordinated Debenture issued in connection
with raising $8.1 million in May and June of 1996 were
filed as Exhibit 10.31 to the Company's Form 10-Q for
the quarterly period ended March 30, 1996 and are hereby
incorporated herein by reference.
+4.5 Warrant, dated September 3, 1996, to purchase 357,143
shares of Common Stock issued by the Company to Broad
Capital Associates, Inc.
+5 Opinion of Mesirov Gelman Jaffe Cramer & Jamieson.
+23.1 Consent of Mesirov Gelman Jaffe Cramer & Jamieson is
included in their opinion filed as Exhibit 5 hereto.
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants of Electronic Associates, Inc.
23.3 Consent of Luboshitz, Kasierer & Co., and Yosef Shimony,
Independent Auditors of BarOn Technologies Ltd.
- -------
o The Company will furnish to the Commission, upon request, copies of any
Appendices, Schedules and Exhibits to the named Agreement which are omitted from
Exhibit Nos. 2.1 through 2.6.
+ Previously Filed.