-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JLQrc9kNsn336z5FArW4te5C2xuSoscYI+qudBn1ZGy6AB3E2PoAp4Av7VYbpGVJ 0V2twQZsEDGaC3QZ6bHgXg== /in/edgar/work/20000623/0000950124-00-003857/0000950124-00-003857.txt : 20000920 0000950124-00-003857.hdr.sgml : 20000920 ACCESSION NUMBER: 0000950124-00-003857 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20000623 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DURASWITCH INDUSTRIES INC CENTRAL INDEX KEY: 0001054070 STANDARD INDUSTRIAL CLASSIFICATION: [3679 ] IRS NUMBER: 880308867 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-57731 FILM NUMBER: 659718 BUSINESS ADDRESS: STREET 1: 234 S EXTENSION ROAD CITY: MESA STATE: AZ ZIP: 85210 BUSINESS PHONE: 4808333131 MAIL ADDRESS: STREET 1: 234 S EXTENSION ROAD CITY: MESA STATE: AZ ZIP: 85210 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DELPHI AUTOMOTIVE SYSTEMS CORP CENTRAL INDEX KEY: 0001072342 STANDARD INDUSTRIAL CLASSIFICATION: [3714 ] IRS NUMBER: 383430473 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 5725 DELPHI DRIVE CITY: TROY STATE: MI ZIP: 48098 BUSINESS PHONE: 2484471500 MAIL ADDRESS: STREET 1: 5725 DELPHI DRIVE CITY: TROY STATE: MI ZIP: 48098 SC 13D/A 1 0001.htm SHCEDULE 13D/A

SCHEDULE 13D

(RULE 13d-101)

Information to be Included in Statements Filed Pursuant to Rule 13d-1(a) and
Amendments Thereto Filed Pursuant to Rule 13d-2(a)

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 1)*

DuraSwitch Industries, Inc.
(Name of Issuer)

Common Stock
(Title of Class of Securities)

266905 20 7
(CUSIP Number)

Diane L. Kaye, Esq.
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
(248) 813-2000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

June 19, 2000
(Date of Event which Requires Filing of this Statement)

      If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box / /.

        Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

        *The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

      The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

                 
CUSIP NO 266905 20 7 13D PAGE 2      OF 6   PAGES

  1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

Delphi Automotive Systems Corporation 38-3430473

  2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a) [ ]

(b) [X]

 

  3 SEC USE ONLY

 

  4 SOURCE OF FUNDS (See Instructions)

WC,OO

  5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

[ ]

 

  6 CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

  7   SOLE VOTING POWER
NUMBER OF     1,876,846*
   
SHARES   8   SHARED VOTING POWER
    -0-
BENEFICIALLY        
   
OWNED BY EACH   9   SOLE DISPOSITIVE POWER
  1,876,846*
REPORTING      
   
PERSON   10   SHARED DISPOSITIVE POWER
  -0-
WITH      
  11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

1,876,846*

  12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)

[ ]

 

  13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

19.9%

  14 TYPE OF REPORTING PERSON (See Instructions)

CO

• Delphi Automotive Systems Corporation has the right to purchase up to 225,000 shares of DuraSwitch Common Stock (as defined herein) upon the exercise of a warrant issued to Delphi pursuant to a Warrant Purchase Agreement dated April 20, 2000, between Delphi Automotive Systems Corporation and DuraSwitch Industries, Inc. Until the warrant is exercised, Delphi Automotive Systems Corporation does not have any right to vote (or to direct the voting of) or dispose (or direct the disposition of) any of the 225,000 shares of DuraSwitch Common Stock that may be purchased upon exercise of the warrant.

(Page 3 of 6)

SCHEDULE 13D

      This Amendment No. 1 (“Amendment No. 1”) amends and supplements the statement on Schedule 13D (the “Schedule 13D”) filed on May 1, 2000, by Delphi Automotive Systems Corporation (“Delphi”), relating to the common stock, par value $.001 per share (the “DuraSwitch Common Stock”), of DuraSwitch Industries, Inc. (“DuraSwitch”). Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Schedule 13D.

Item 3. Source and Amount of Funds or Other Consideration.

      The information set forth in Item 3 of the Schedule 13D is hereby amended and supplemented by the following:

      On June 19, 2000, Delphi exercised its Option to purchase 1,651,846 shares of DuraSwitch Common Stock at a purchase price per share equal to $7.00. The aggregate purchase price for such shares of DuraSwitch Common Stock was $11,562,922. The funds paid by Delphi were provided from working capital and cash on hand.

Item 4. Purpose of Transaction.

      The information set forth in Item 4 of the Schedule 13D is hereby amended and supplemented by the following:

      Upon the exercise of the Option, Delphi, DuraSwitch and the Primary Shareholders entered into a Shareholders’ Agreement, dated as of June 19, 2000 (the “Shareholders’ Agreement”), that provides that all shares owned by Delphi and the Primary Shareholders will be voted in such manner, and Delphi, DuraSwitch and the Primary Shareholders will take such other action, as will be necessary to: (i) cause the bylaws of DuraSwitch to be amended to include the terms set forth in subparagraph (v) below (to the extent such bylaws are not already in effect); (ii) prevent, without the written consent of Delphi, any amendment to the articles of incorporation or bylaws of DuraSwitch, except the amendments referred to in clause (i) above or, upon Delphi’s acquisition of at least a 51% ownership interest in DuraSwitch, such amendments necessary to require a mere majority director vote for all matters and the resignation of an appropriate number of Primary Shareholder director designees and their replacement by Delphi designees; (iii) cause the board of directors of DuraSwitch to consist of six members and to cause one designee of Delphi (increased to two designees if Delphi’s ownership interest increases to 20% or greater and the board of directors increases to greater than six members) and three designees of the Primary Shareholders to be elected as directors of DuraSwitch; (iv) prevent DuraSwitch from taking any action inconsistent with the Shareholders’ Agreement or the articles of incorporation or bylaws described therein; and (v) prevent any subsidiary or affiliate of DuraSwitch from taking, without the consent of Delphi, any of the actions listed in the following sentence which, if taken by DuraSwitch, would require the prior unanimous consent of the directors of DuraSwitch. Approval of the following matters must include the unanimous affirmative vote of the directors of DuraSwitch: (i) changing the nature of DuraSwitch’s business or expanding or reducing the scope of DuraSwitch’s operations; (ii) amending the articles of incorporation or bylaws of

(Page 4 of 6)

DuraSwitch; (iii) creating debt or debt obligations exceeding a two to one ratio of debt to equity; and (iv) paying dividends or other distributions absent cumulative positive retained earnings. A copy of the Shareholders’ Agreement is included as Exhibit 1 to this Amendment No.1.

Item 5. Interest in Securities of the Issuer.

      The information set forth in Item 5 of the Schedule 13D is hereby amended and supplemented by the following:

      The total of 1,876,846 shares of DuraSwitch Common Stock beneficially owned by Delphi, consisting of 1,651,846 shares held by Delphi and 225,000 shares (subject to adjustment) subject to the Warrant, represents approximately 19.9% of the shares of DuraSwitch Common Stock issued and outstanding (including shares issuable pursuant to the Warrant).

      Delphi has sole power to vote (or to direct the voting of) or dispose (or direct the disposition of) 1,651,846 shares of DuraSwitch Common Stock. Until the Warrant is exercised, Delphi does not have any right to vote (or to direct the voting of) or dispose (or direct the disposition of) the 225,000 shares of DuraSwitch Common Stock (subject to adjustment) that may be purchased upon exercise of the Warrant.

      Delphi exercised its Option to purchase 1,651,846 shares of DuraSwitch Common Stock at a purchase price per share equal to $7.00 on June 19, 2000.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.

      The information set forth in Item 6 of the Schedule 13D is hereby amended and supplemented by the following:

      Pursuant to the terms of the Shareholders’ Agreement, the Primary Shareholders may not transfer, assign, pledge, hypothecate or in any way alienate (collectively, “Transfer”) any shares of capital stock of DuraSwitch representing 4% or more of Duraswitch’s outstanding securities (including as outstanding for purposes of calculating said 4%, all convertible securities, stock options and other securities that are exchangeable for shares of capital stock of DuraSwitch) in any transaction or series of related transactions to any person, without first obtaining from such person a written agreement to be bound by the obligations of the Shareholders’ Agreement (a “Transferee Agreement”). DuraSwitch may cause its transfer agent to issue a certificate to a permitted transferee representing the shares so Transferred only upon receipt of a signed original copy of a Transferee Agreement. Any purported Transfer in violation of the terms of the Shareholders’ Agreement is void and ineffectual. A copy of the Shareholders’ Agreement is included as Exhibit 1 to this Amendment No.1.

(Page 5 of 6)

Item 7. Material to Be Filed as Exhibits.

         
Exhibit Description
1 Shareholders' Agreement

SIGNATURE

      After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

     
DELPHI AUTOMOTIVE SYSTEMS
CORPORATION
 
/s/ Diane L. Kaye
Name: Diane L. Kaye
Title: Secretary

Date: June 22, 2000

(Page 6 of 6)

SCHEDULE I

      Directors and Executive Officers of Delphi Automotive Systems Corporation

      The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of Delphi. Except as indicated below, each person is a U. S. citizen, and the business address of each such person is 5725 Delphi Drive, Troy, Michigan 48098.

Board of Directors

         
Name and Title Present Principal Occupation
J.T. Battenberg III Chairman, Chief Executive Officer and President
Chairman of the Board Delphi Automotive Systems Corporation
Oscar de Paula Bernardes Neto* Chairman of the Board
Director Santista Alimentos S/A and Seara Alimentos S/A
Virgis W. Colbert Executive Vice President
Director Miller Brewing Company
Alan S. Dawes Executive Vice President and Chief Financial Officer
Director Delphi Automotive Systems Corporation
Dr. Bernd Gottschalk** President
Director Association of the German Automobile Industry
Shoichiro Irimajiri*** Vice Chairman and Representative Director
Director Sega Enterprises, Ltd.
Thomas G. Labrecque Retired Chairman
Director The Chase Manhattan Corporation
Susan A. McLaughlin President-Consumer Services
Director BellSouth Telecommunications, Inc.
John D. Opie Retired Vice Chairman of the Board and Executive Officer
Director General Electric Company
Roger S. Penske Founder and Chairman
Director Penske Corporation
Donald L. Runkle Executive Vice President and President, Dynamics and Propulsion Sector
Director Delphi Automotive Systems Corporation
Patricia C. Sueltz Senior Vice President
Director Sun Microsystems, Inc.
Thomas Wyman Former Chairman, Chief Executive Officer
Lead Director CBS, Inc.

Executive Officers Who Are Not Directors

         
Name Title and Present Principal Occupation
José Maria Alapont**** Vice President and President, Delphi Europe
John P. Arle Vice President, Mergers and Acquisitions
Volker J. Barth** Vice President and President Delphi South America
James A. Bertrand***** Vice President and President, Delphi Interior Systems
John G. Blahnik Vice President and Treasurer
Kevin M. Butler Vice President, Human Resources Management
Ray C. Campbell Vice President, Global Purchasing
Guy C. Hachey***** Vice President and President, Delphi Energy and Chassis Systems
Karen L. Healy Vice President, Corporate Affairs and Facilities
David R. Heilman Vice President and President, Delphi Packard Electric Systems
Peter H. Janak Vice President and Chief Information Officer
Mark C. Lorenz Vice President, Operations and Logistics
Rodney O’Neal Executive Vice President and President, Safety, Thermal, and Electrical Architecture Sector
Ronald M. Pirtle Vice President and President, Delphi Harrison Thermal Systems
Logan G. Robinson Vice President and General Counsel
James A. Spencer Vice President and President, Delphi Asia Pacific
Paul J. Tosch Vice President and President, Delphi Saginaw Steering Systems
Mark R. Weber Executive Vice President, Operations, Human Resources Management and Corporate Affairs
David B. Wohleen Executive Vice President, President, Electronics & Mobile Communication Sector and President, Delphi
Delco Electronic Systems

*Citizen of Brazil
**Citizen of Germany
***Citizen of Japan
****Citizen of Spain
*****Citizen of Canada

Exhibit Index

         
Exhibit Description
1 Shareholders' Agreement

EX-99.1 2 0002.htm SHAREHOLDER'S AGREEMENT

EXHIBIT 99.1

SHAREHOLDERS’ AGREEMENT

      SHAREHOLDERS’ AGREEMENT dated as of June 19, 2000, among DURASWITCH INDUSTRIES, INC., a Nevada corporation (“Company”), DELPHI AUTOMOTIVE SYSTEMS CORPORATION, a Delaware corporation (“Delphi”), and R. TERREN DUNLAP, ANTHONY J. VAN ZEELAND and ROBERT J. BRILON (collectively, the “Primary Shareholders”).

      WHEREAS, the Primary Shareholders are the record owners of over 37% of the outstanding shares of capital stock of Company (the shares of Company capital stock presently outstanding or issued from time to time pursuant to securities exchangeable for such capital stock are referred to as the “Shares”);

      WHEREAS, Company and Delphi have executed an Option Purchase Agreement dated April 20, 2000 (the “Option Agreement”) granting to Delphi an option to purchase 1,651,846 shares of capital stock of Company (“Option Shares”);

      WHEREAS, the Option Agreement requires that this Shareholders’ Agreement be executed if Delphi acquires the Option Shares; and

      WHEREAS, concurrently with the execution of this Shareholders’ Agreement, Delphi has purchased the Option Shares.

      NOW, THEREFORE, each of the Primary Shareholders and Company covenant and agree with Delphi as follows:

      1. Designees. The Board of Directors of Company shall, at all times during the term of this Shareholders’ Agreement, consist of six members. At the date of this Agreement, the Board consists of William E. Peelle, John W. Hail, Michael Van Zeeland, Anthony J. Van Zeeland, and R. Terren Dunlap. As soon as possible after Delphi designates in writing to the other parties one individual to be elected as director of Company, the other parties will use their best efforts to cause such individual to be elected to fill the sixth position. The Primary Shareholders will use their best efforts to cause all of the Directors to waive any Share ownership requirements as to any individual designated as the Delphi Designee. Thereafter, Delphi will designate in writing to the other parties one individual to be elected as director of Company, and the Primary Shareholders (by the majority vote of the Primary Shareholders) will similarly designate in writing to Delphi and Company three individuals to be elected as directors of Company. Each such individual is hereinafter referred to as a “Designee”.

      2. Voting of Shares. Delphi and each Primary Shareholder will vote all Shares owned by them in such manner, and Company, Delphi and the Primary Shareholders will take such other action as may be necessary:

        A. To cause the By-laws of Company to be amended to include the terms set forth in Schedule I hereto (to the extent such By-laws are not already in effect);

        B. To prevent, without the written consent of Delphi, any amendment to the Articles of Incorporation or By-laws of Company except as referred to in clause A above or in Section 8 of this Shareholders’ Agreement;

        C. Cause the Board of Directors of Company to consist of six members and to cause one Designee of Delphi (increased to two Designees if Delphi’s ownership interest increases to 20% or greater and Board of Directors increases to greater than six members) and the three Designees of the Primary Shareholders to be elected as directors of Company;

        D. To prevent Company from taking any action inconsistent with this Shareholders’ Agreement or the Articles of Incorporation or By-laws described herein;

        E. To prevent any subsidiary or affiliate of Company from taking, without the consent of Delphi, any action which, if taken by Company, would require the prior unanimous consent of the Directors of Company; and

        F. Company currently has comprehensive employee benefit plans. The parties will consider, in good faith, whether any voting provisions are appropriate relating to significant changes in employee compensation arrangements.

If, during the period of this Shareholders’ Agreement, any Designee ceases to act as a director for reasons of death, disability, resignation, failure or refusal to so act or for any other reason, or Delphi or the Primary Shareholders determine that another person should be named in substitution for one of their respective Designees theretofore selected, then a successor shall promptly be designated by the party or parties originally designating the director and the other parties shall take all available steps necessary to effect such Designee’s prompt election as a director of Company.

        3. Transfer of Shares. No Primary Shareholder shall transfer, assign, pledge, hypothecate, or in any way alienate any Shares (collectively, a “Transfer”), in any transaction or series of related transactions, representing 4% or more of Company’s securities (including as outstanding for purposes of calculating said 4% all convertible securities, stock options and other securities that are exchangeable for Shares of Company), whether voluntarily or by operation of law, or gift or otherwise, to any person or such person’s Associates (as defined in SEC regulations) without first obtaining from the transferee of such Shares a written agreement (“Transferee Agreement”) to be bound by the obligations of this Shareholders’ Agreement to the same extent as the Primary Shareholder from whom such transferee is acquiring Shares, except that thereafter this Shareholders’ Agreement will apply to any and all Transfers of such Shares. Company will cause its transfer agent to issue a certificate to a permitted transferee representing the Shares so Transferred only upon receipt of a signed original copy of the Transferee Agreement. Any purported Transfer in violation of this Agreement shall be void and ineffectual, and shall not operate to transfer any interest or title to the purported transferee.

      4. Remedies. The parties agree that damages at law would not be an adequate remedy for any violation or threatened violation of this Shareholders’ Agreement and that each party will accordingly be entitled to obtain and hereby consents to injunctive relief, in any court having jurisdiction, restraining the other party from any such violation or threatened violation and mandating any affirmative act necessary to permit the consummation of any transaction contemplated in this Shareholders’ Agreement; and each party waives the claim or defense therein that the other party has an adequate remedy at law, and shall not urge in any action or proceeding the claim or defense that a remedy at law exists. Injunctive relief shall not be exclusive of any other remedies, at law or equity, available to the party seeking such relief upon any violation or threatened violation of this Shareholders’ Agreement.

      5. Successors and Assigns. This Shareholders’ Agreement shall be binding upon and shall operate for the benefit of the Primary Shareholders, Company and Delphi and their respective heirs, executors, administrators, successors and assigns. Except as otherwise consented to in writing by Delphi, each transferee of any interest in the Shares owned by the Primary Shareholders (including securities exchangeable for such Shares) shall be bound by all of the terms of this Shareholders’ Agreement as though specifically named as a Primary Shareholder herein and as though such transferee were a signatory hereto.

      6. Severability. The invalidity or unenforceability of any particular provision of this Shareholders’ Agreement or with respect to any particular party shall not affect the other provisions hereof or the validity or enforceability with respect to the other parties, and this Shareholders’ Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted or such party was not a signatory.

2

      7. Counterparts. This Shareholders’ Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. A copy of this Shareholders’ Agreement shall at all times be kept at the principal office of Company.

      8. Termination. This Shareholders’ Agreement shall continue in full force and effect until the 15th anniversary of this Shareholders’ Agreement, unless earlier terminated pursuant to the next sentence of this Section 8, or hereafter extended by written agreement of the parties. This Shareholders’ Agreement shall automatically terminate upon the earliest of the following events: (i) the date on which Delphi ceases to hold any Shares or securities exchangeable for Shares; or (ii) the date on which Delphi acquires at least a 51% ownership interest in Company. If this Shareholders’ Agreement is terminated pursuant to clause (ii) above, the Primary Shareholders shall take such action as may be necessary to cause: (a) Company’s Articles and By-laws to be amended to require a mere majority director vote for all matters; and (b) the resignation of an appropriate number of Primary Shareholders Designees and their replacement by Delphi Designees.

      9. Governing Law. The interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Nevada without resort to that state’s conflict-of-laws principles.

      10. Notice. When any notice is required by this Shareholders’ Agreement to be given to a person, such notice shall be provided by first class mail, postage prepaid, or by facsimile transmission or any other means of physical delivery reasonably calculated to reach such person at least as quickly as first class mail, to the principal executive offices of such person, attention: Corporate Secretary; or, in the case of the Primary Shareholders, to their addresses set forth below.

      THIS AGREEMENT was executed of the date first set forth above.

     
DURASWITCH INDUSTRIES, INC DELPHI AUTOMOTIVE SYSTEMS CORPORATION
 
By:/s/ R. Terren Dunlap
 By: /s/ David R. Heilman

David R. Heilman
 
Its: CEO
 Its: Vice President
 
/s/ R. Terren Dunlap

R. TERREN DUNLAP
15617 N. Audubon Place, Fountain Hills,
Arizona 85268
 
/s/ Anthony J. Van Zeeland

ANTHONY J. VAN ZEELAND
2140 S. Rogers Circle, Mesa, Arizona 85202
 
/s/ Robert J. Brilon

ROBERT J. BRILON
3944 E. Juniper Circle, Mesa, Arizona 85205

3

Schedule I

AMENDED AND RESTATED BY-LAWS OF
DURASWITCH INDUSTRIES, INC.

In addition to other matters, in form and substance satisfactory to Delphi, the By-laws will require that the Board of Directors consist of 6 directors (who need not be residents of the State of Nevada or shareholders of Company) and will require the unanimous approval of the directors of Company for the following matters:

      (i) Changing the nature of Company’s business or expanding or reducing the scope of Company’s operations;

      (ii) Amending the Certificate of Incorporation or By-laws of Company;

      (iii) The creation of debt or debt obligations exceeding a two to one ratio of debt to equity;

      (iv) Dividends or other distributions absent cumulative, positive retained earnings.

4 -----END PRIVACY-ENHANCED MESSAGE-----