UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): November 29, 2004
PERFECTDATA CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-12817 95-3087593
(Commission File Number) (I.R.S. Employer Identification No.)
1445 East Los Angeles Avenue, Simi Valley, CA 93065
(Address of Principal Executive Offices) (Zip Code)
(805) 581-4006
(Registrant's Telephone Number, Including Area Code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2 below):
Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-d(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Section 2 - Financial Information
Item 2.01. Completion of Acquisition or Disposition of Assets.
(a) On November 29, 2004, PerfectData Corporation (the "Company") received
consents from the holders of record of 3,440,725 shares of its Common Stock, no
par value (the "Company Common Stock"), representing 55.4% of the 6,209,530
shares of the Company Common Stock outstanding on October 21, 2004 (the "Record
Date"), which had been set as the record date pursuant to Section 701(b)(2) of
the California General Corporation Law (the "CGCL") for the solicitation of
consents, consenting to the sale of its business operations to Spray Products
Corporation ("Spray"). In addition, the Company received written consent forms
in which the holders of 29,555 shares voted against the proposal and holders of
865 shares abstained. The consents, as were those for the transaction described
in Item 3.03 to this Report, were solicited pursuant to the Company's Consent
Solicitation Statement dated October 26, 2004 (the "CSS"), which had been filed
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Regulation 14A promulgated thereunder and a definitive copy
of the CSS having been filed pursuant to Rule 14a-6(b) of Regulation 14A under
the Exchange Act on November 1, 2004. On November 30, 2004, the Company sold the
business operations to Spray pursuant to an Asset Purchase Agreement dated as of
October 3, 2003 (the "APA") as amended as of February 26, 2004 (the "First
Amendment") and as of August 12, 2004 (the "Second Amendment"). A copy of the
APA is filed (by incorporation by reference) as Exhibit 10.1 to this Report, a
copy of the First Amendment is filed (by incorporation by reference) as Exhibit
10.2 to this Report and a copy of the Second Amendment is filed (by
incorporation by reference) as Exhibit 10.3 to this Report and the APA as
amended by the First Amendment and the Second Amendment are incorporated herein
by this reference.
(b) The operating assets transferred to Spray were the Company's
inventories of finished goods, raw materials and work in progress; books and
records, including customer and supplier lists and other data relating to the
operating business; the trade name "PerfectData Corporation" and all other names
used in the business; the goodwill relating to the business; accounts receivable
as to which the parties agree; all of the Company's machinery and equipment,
office furniture, computer equipment and supplies (except what the Company is
using in its office); and all of the Company's intellectual property rights. The
Company did not transfer to Spray any of its cash or cash equivalents as part of
the transaction.
(c) There was no material relationships, other than in respect of the
transaction, between Spray and the Company or any of its affiliates, or any
director or officer of the Company, or any associate of any director or officer
of the Company.
(d) Pursuant to the APA as amended, the purchase price for the assets to be
sold to Spray was to be (1) the sum of (a) collectible accounts receivable
(which were $217,475), (b) inventory (which was $39,977) and (c) $80,000 less
(2) the trade payables to be assumed by Spray. As previously reported, pursuant
to the Second Amendment, Spray had assumed, effective June 1, 2004, full
responsibility for all of the customers of the Company. Because Spray had been
operating the business for a six-month period between June 1, 2004 and the
closing date of November 30, 2004, all of the trade payables to be assumed by
Spray had instead
become amounts which the Company owed to Spray. In addition, the Company had
withheld sums from payments otherwise due Spray and paid $1,493.54 in
commissions on behalf of Spray. The parties, accordingly, at the closing, agreed
that, because the amounts due Spray unrelated to the closing more than offset
the purchase price due the Company, no cash need be paid to the Company.
(e) Not applicable.
Section 3 - Securities and Trading Markets
Item 3.03. Material Modification to Rights of Security Holders.
(a) On November 29, 2004, the Company also received consents from the
holders of record of 3,438,445 shares of the Company Common Stock, representing
55.37% of the 6,209,530 shares of the Company Common Stock outstanding on the
Record Date, consenting to the reincorporation of the Company, which had been
incorporated under the laws of the State of California, as a Delaware
corporation. In addition, the Company received written consent forms in which
the holders of 21,835 shares voted against the proposal and holders of 10,865
shares abstained. As were the consents solicited with respect to the transaction
described in Item 2.01 to this Report, the consents were solicited pursuant to
the CSS. On November 29, 2004, the reincorporation was effected by the merger
(the "Merger") of the Company with and into its wholly-owned subsidiary,
PerfectData (Delaware) Inc. ("PerfectData Delaware"), which subsidiary had been
incorporated on November 5, 2004 under the laws of the State of Delaware, and
the name of PerfectData Delaware was, simultaneously with consummation of the
Merger, changed to PerfectData Corporation. A copy of the Agreement and Plan of
Merger dated as of November 29, 2004 relating to the Merger is filed as Exhibit
2.1 to this Report and is incorporated herein by this reference. As a result of
the Merger, each share of the Company Common Stock automatically was converted
into one share of the Common Stock, $.01 par value (the "Delaware Common
Stock"), of PerfectData Delaware. As indicated at page 19 of the CSS, a
shareholder of the Company does not have to exchange his, her or its
certificate(s) evidencing shares of the Company Common Stock for certificate(s)
evidencing shares of the Delaware Common Stock unless and until the shareholder
desires to sell or otherwise transfer the shareholder's shares. The CUSIP number
for the Delaware Common Stock is the same as the CUSIP number for the Company
Common Stock.
Copies of the Certificate of Incorporation and Bylaws of PerfectData
Delaware, which were Appendices H and I, respectively, to the CSS, are filed (by
incorporation by reference) as Exhibits 3(i)(2) and 3(ii)(2), respectively, to
this Report and are incorporated herein by this reference. Copies of the
Articles of Incorporation and Bylaws of the Company are filed (by incorporation
by reference) as Exhibits 3(i)(1) and 3(ii)(1) respectively, to this Report and
are incorporated herein by this reference. A comparison of the rights of a
shareholder of the Company Common Stock with those of a stockholder of the
Delaware Common Stock may be found in the section captioned "Comparison of
Rights of Holders of the Company's and PerfectData Delaware's Common Stock" on
pages 19 through 28 of the CSS, a copy of which section is filed (by
incorporation by reference) as Exhibit 99.1 to this Report and is incorporated
herein by this reference. A description of the Company's capital stock and
PerfectData Delaware's capital stock may be found in the section captioned
"Description of the Company's and
PerfectData Delaware's Capital Stock" on pages 29 and 30 of the CSS, a copy of
which section is filed (by incorporation by reference) as Exhibit 99.2 to this
Report and is incorporated herein by this reference. As previously reported on
page 17 of the CSS, the Board of Directors of the Company does not believe that
the change from no par value for the Company Common Stock to $.01 par value for
the Delaware Common Stock has any significant adverse effect on the rights of
the shareholders of the Company as a result of their becoming stockholders of
PerfectData Delaware upon consummation of the Merger.
(b) Not applicable.
Section 5 - Corporate Governance and Management
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
(a) See the Company's response to Item 3.03 to this Report.
(b) Not applicable.
Section 8 - Other Events
Item 8.01. Other Events.
As a results of the shareholders' consents given as reported in Items 2.01
and 3.03 to this Report, the Company will be required, pursuant to Sections 1300
through 1312 of the CGCL, to offer dissenters' rights to those shareholders of
record of the Company on the Record Date who voted against, or did not vote
upon, the proposals described in such Items. Such notice by the Company must be
given by the Company to such shareholders within ten days of November 29, 2004.
Section 9 - Financial Statements and Exhibits
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
None
(b) Pro Forma Financial Information.
None
(c) Exhibits.
Number Description of Exhibit
2.1 Agreement and Plan of Merger dated as of November 29, 2004 by and
between the Company and PerfectData Delaware.
3(i)(1) Articles of Incorporation of the Company.(1)
3(i)(2) Certificate of Incorporation of PerfectData Delaware.(2)
3(ii)(1) Bylaws of the Company.(3)
3(ii)(2) Bylaws of PerfectData Delaware.(2)
10.1 Asset Purchase Agreement entered into as of October 3, 2003 by and
between PerfectData Corporation and Spray Products Corporation.(4)
10.2 First Amendment, dated as of February 26, 2004, to the Asset Purchase
Agreement, dated as of October 3, 2003, filed as Exhibit 10.1.(5)
10.3 Second Amendment, dated as of August 12, 2004, to the Asset Purchase
Agreement, dated as of October 3, 2003.(6)
99.1 The section captioned "Comparison of Rights of Holders of the
Company's and PerfectData Delaware's Common Stock" on pages 19 through
28 of the Company's Consent Solicitation Statement dated October 26,
2004.(2)
99.2 The section captioned "Description of the Company's and PerfectData
Delaware's Capital Stock" on pages 29 and 30 of the Company's Consent
Solicitation Statement dated October 26, 2004.(2)
____________________________
(1) Incorporated by reference to the Company's Annual Report on Form 10-K
for its fiscal year ended March 31, 1990.
(2) Incorporated by reference to the Company's definitive Consent
Solicitation Statement dated October 26, 2004 as filed on November 1,
2004.
(3) Incorporated by reference to the Company's Annual Report on Form 10-K
for its fiscal year ended March 31, 2000.
(4) Incorporated by reference to the Company's Current Report on Form 8-K
filed on October 3, 2003.
(5) Incorporated by reference to the Company's Annual Report on Form
10-KSB for its fiscal year ended March 31, 2004.
(6) Incorporated by reference to the Company's Quarterly Report on Form
10-QSB for its quarter ended June 30, 2004.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this amendment to a Report to be signed on its behalf
by the undersigned hereunto duly authorized.
PERFECTDATA CORPORATION
(Registrant)
Date: December 2, 2004 By: /s/ Irene J. Marino
Irene J. Marino
Vice President, Finance
Number Exhibit Filed with Report Page
2.1 Agreement and Plan of Merger dated as of November 29, E-2
2004 by and between the Company and PerfectData Delaware.
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of November 29, 2004
(hereinafter referred to as this "Agreement') is made and entered into by and
between PerfectData Corporation, a California corporation (the 'Parent'), and
PerfectData (Delaware) Inc., a Delaware corporation (the "Subsidiary").
RECITALS:
A. The Parent is a corporation organized and existing under the laws of the
State of California.
B. The Subsidiary is a corporation organized and existing under the laws of
the State of Delaware and is a wholly-owned subsidiary of the Parent.
C. The Parent and the Subsidiary and their respective Boards of Directors
deem it advisable and to the advantage, welfare, and best interests of the
corporations and their respective shareholders to merge the Parent with and into
the Subsidiary pursuant to the provisions of California General Corporation Law
(the "CGCL') and the Delaware General Corporation Law (the "DGCL") upon the
terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Parent shall be merged into the Subsidiary (the 'Merger") upon the terms and
conditions hereinafter set forth.
ARTICLE I
PRINCIPAL TERMS OF THE MERGER
1.1. Merger. On the Effective Date (as defined in Section 4.1 hereof), the
Parent shall be merged into the Subsidiary, the separate existence of the Parent
shall cease and the Subsidiary (following the Merger referred to as the
"Surviving Corporation") shall operate under the name "PerfectData Corporation"
by virtue of, and shall be governed by, the laws of the State of Delaware. The
address of the registered office of the Surviving Corporation in the State of
Delaware will be 2711 Centerville Road, Suite 400, Wilmington, Delaware
19808-1297, County of New Castle. The name of its registered agent at such
address is the Corporation Service Company.
1.2. Certificate of Incorporation of the Surviving Corporation. The
Certificate of Incorporation of the Surviving Corporation shall be the
Certificate of Incorporation of the Subsidiary as in effect on the date hereof
without change unless and until amended in accordance with applicable law.
1.3. Bylaws of the Surviving Corporation. The Bylaws of the Surviving
Corporation shall be the Bylaws of the Subsidiary as in effect on the date
hereof without change unless and until amended or repealed in accordance with
applicable law.
1.4. Directors and Officers. At the Effective Date of the Merger, the
directors and officers set forth on Exhibit A attached hereto shall become the
directors and officers, respectively, of the Surviving Corporation, each of such
directors and officers to hold office, subject to the applicable provisions of
the Certificate of Incorporation and Bylaws of the Surviving Corporation and the
DGCL, until his or her successor is duly elected or appointed and qualified.
ARTICLE II
CONVERSION, CERTIFICATES AND PLANS
2.1. Conversion of Shares. At the Effective Date of the Merger, each of the
following transactions shall be deemed to occur simultaneously:
(a) Common Stock. Each share of the Parent's common stock, no par value
per share (the "Parent's Common Stock"), issued and outstanding
immediately prior to the Effective Date of the Merger shall, by virtue
of the Merger and without any action on the part of the holder
thereof, be converted into and become one validly issued, fully paid
and nonassessable share of the Surviving Corporation's common stock,
$0.01 par value per share (the "Surviving Corporation's Common
Stock"), except for those shares of the Parent's Common Stock with
respect to which the holders thereof duly exercise their dissenters'
rights under the CGCL.
(b) Options. Each option to acquire shares of the Parent's Common Stock
outstanding immediately prior to the Effective Date of the Merger
shall, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into and become an equivalent option
to acquire, upon the same terms and conditions, the number of shares
of the Surviving Corporatio's Common Stock, which is equal to the
number of shares of the Parent's Common Stock that the optionee would
have received had the optionee exercised such option in full
immediately prior to the Effective Date of the Merger (whether or not
such option was then exercisable) and the exercise price per share
under each of said options shall be equal to the exercise price per
share thereunder immediately prior to the Effective Date of the
Merger, unless otherwise provided in the instrument granting such
option.
(c) Warrants. Each warrant to acquire shares of the Parent's Common Stock
outstanding immediately prior to the Effective Date of the Merger
shall, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into and become a warrant to acquire,
upon the same terms and conditions, the number of shares of the
Surviving Corporation's Common Stock which is equal to the number of
shares of the Parent's Common Stock that the warrant holder would have
received had the warrant holder exercised such warrant in full
immediately prior to the Effective Date of the Merger (whether or not
such warrant was then exercisable) and the exercise price per share
under each of said warrants shall be equal to the exercise price per
share thereunder immediately prior to the Effective Date of the
Merger, unless otherwise provided in the instrument granting such
warrant.
(d) Other Rights. Any other right, by contract or otherwise, to acquire
shares of the Parent's Common Stock outstanding immediately prior to
the Effective Date of the Merger shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted
into and become a right to acquire, upon the same terms and
conditions, the number of shares of the Surviving Corporation's Common
Stock which is equal to the number of shares of the Parent's Common
Stock that the right holder would have received had the right holder
exercised such right in full immediately prior to the Effective Date
of the Merger (whether or not such right was then exercisable) and the
exercise price per share under each of said rights shall be equal to
the exercise price per share thereunder immediately prior to the
Effective Date of the Merger, unless otherwise provided in the
agreement granting such right.
(e) Each share of the Subsidiary's Common Stock issued and outstanding
immediately prior to the Effective Date of the Merger and held by the
Parent shall be canceled without any consideration being issued or
paid therefor.
2.2. Stock Certificates. After the Effective Date of the Merger, each
certificate theretofore representing issued and outstanding shares of the
Parent's Common Stock will thereafter be deemed to represent the same number of
shares of the Surviving Corporation Common Stock. The holders of outstanding
certificates theretofore representing the Parent's Common Stock will not be
required to surrender such certificates to the Parent.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS AND ASSUMPTION OF LIABILITIES
3.1. Effects of the Merger. At the Effective Date of the Merger, the Merger
shall have the effects specified in the CGCL, the DGCL and this Agreement.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Date of the Merger, the Surviving Corporation shall possess all the
rights, privileges, powers and franchises, of a public as well as a private
nature, and shall be subject to all the restrictions, disabilities and duties of
each of the parties to this Agreement; the rights, privileges, powers and
franchises of the Parent and the Subsidiary, and all property, real, personal
and mixed, and all debts due to each of them on whatever account, shall be
vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter the
property of the Surviving Corporation, as they were of the respective
constituent entities, and the title to any real estate whether by deed or
otherwise vested in the Parent and the Subsidiary or either of them, shall not
revert to be in any way impaired by reason of the Merger; but all rights of
creditors and all liens upon any property of the parties hereto, shall be
preserved unimpaired, and all debts, liabilities and duties of the respective
constituent entities shall thenceforth attach to the Surviving Corporation, and
may be enforced against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by it.
3.2. Additional Actions. If, at any time after the Effective Date of the
Merger, the Surviving Corporation shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or desirable
(a) to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to and possession of any property or right of the Parent
acquired or to be acquired by reason of, or as a result of, the Merger, or (b)
otherwise to
carry out the purposes of this Agreement, the Parent and its proper officers and
directors shall be deemed to have granted to the Surviving Corporation an
irrevocable power of attorney to execute and deliver all such proper deeds,
assignments and assurances in law and to do all acts necessary or proper to
vest, perfect or confirm title to and possession of such property or rights in
the Surviving Corporation and otherwise to carry out the purposes of this
Agreement. The proper officers and directors of the Surviving Corporation are
fully authorized in the name of the Parent or otherwise to take any and all such
action.
ARTICLE IV
APPROVAL BY SHAREHOLDERS; AMENDMENT; EFFECTIVE DATE
4.1. Approval. This Agreement and the Merger contemplated hereby are
subject to approval by the requisite vote of shareholders in accordance with the
CGCL and the DGCL. As promptly as practicable after approval of this Agreement
by shareholders in accordance with applicable law, duly authorized officers of
the respective parties shall make and execute Articles of Merger and a
Certificate of Merger and shall cause such documents to be filed with the
Secretary of State of California and the Secretary of State of Delaware,
respectively, in accordance with the laws of the States of California and
Delaware. The effective date (the "Effective Date") of the Merger shall be the
date on which the Merger becomes effective under the laws of California or the
date on which the Merger becomes effective under the laws of Delaware, whichever
occurs later.
4.2. Amendments. The Board of Directors of the Parent may amend this
Agreement at any time prior to the Effective Date, provided that an amendment
made subsequent to the approval of the Merger by the shareholders of the Parent
shall not (a) alter or change the amount or kind of shares to be received in
exchange for or on conversion of all or any of the shares of the Parent's Common
Stock, (b) alter or change any term of the Certificate of Incorporation of the
Subsidiary, or (c) alter or change any of the terms and conditions of this
Agreement if such alteration or change would adversely affect the holders of the
Parent's Common Stock.
ARTICLE V
MISCELLANEOUS
5.1. Termination. This Agreement may be terminated and the Merger abandoned
at any time prior to the filing of this Agreement with the Secretary of State of
California and the Secretary of State of Delaware, whether before or after
shareholder approval of this Agreement, by the consent of the Board of Directors
of the Parent and the Subsidiary.
5.2. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered to be an original instrument.
5.3. Descriptive Headings. The descriptive headings are for convenience of
reference only and shall not control or affect the meaning or construction of
any provision of this Agreement.
5.4. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware, except to the extent the laws of the State of
California shall apply to the Merger where mandated by the CGCL.
* * *
IN WITNESS WHEREOF, the undersigned officers of each of the parties to this
Agreement, pursuant to authority duly given by their respective boards of
directors, have caused this Agreement to be duly executed on the date set forth
above.
PERFECTDATA CORPORATION
By:_/s/ Harris A. Shapiro
Name: Harris A. Shapiro
Title: Chairman of the Board
PERFECTDATA (DELAWARE) INC.
By:_/s/ Irene J. Marino
Name: Irene J. Marino
Title: Vice President, Finance